European Union (Withdrawal Agreement) Bill
Friday 20th December 2019
(5 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
14:14 - The House having divided: - Ayes: 358 / Noes: 234 - Question accordingly agreed to.
14:34 - The House divided: - Ayes: 353 / Noes: 243 - Question accordingly agreed to.
Mr Speaker
I inform the House that I have not selected any of the reasoned amendments.
Before I invite the Prime Minister to move the Second Reading, I must announce my decision on certification for the purposes of Standing Order No. 83J (Certification of bills etc. as relating exclusively to England or England and Wales and being within devolved legislative competence). On the basis of material put before me, I must inform the House that, in my opinion, the Bill does not meet the criteria required for certification under the Standing Order.
The Prime Minister (Boris Johnson)
I beg to move, That the Bill be now read a Second time.
I also beg that we come together, as a new Parliament, to break the deadlock and, finally, to get Brexit done. Now is the moment, as we leave the European Union, to reunite our country, and allow the warmth and natural affection we all share for our European neighbours to find renewed expression in one great new national project of building a deep, special and democratically accountable partnership with those nations we are proud to call our closest friends. Because this Bill, and this juncture in our national story, must not be seen as a victory for one party over another or one faction over another; this is the time when we move on and discard the old labels of “leave” and “remain”. In fact, the very words seem tired to me as I speak them—as defunct as “big-enders” and “little-enders” or as “Montagues” and “Capulets” at the end of the play. Now is the time to act together as one reinvigorated nation, one United Kingdom, filled with renewed confidence in our national destiny and determined, at last, to take advantage of the opportunities that now lie before us. The whole purpose of our withdrawal agreement is to set this in motion and avoid any further delay.
The Prime Minister
In the hope that the hon. Gentleman does not wish to have any further delay, I give way to him.
Jonathan Edwards
The Bill contains provisions not to extend the transition phase—phase 2 of Brexit. Is there not a danger of that strengthening the hand of the European Union in those negotiations? Why has the Prime Minister boxed himself into a corner?
The Prime Minister
On the contrary, I think that most people would agree that this strengthens our negotiating position; if we have learnt anything from the experience of the last three years, it is that drift and dither means more acrimony and anguish. There would be nothing more dangerous for the new future that we want to build than allowing the permanent possibility of extending—
Several hon. Members rose—
The Prime Minister
I think I am coming to the point that hon. Members wish to discuss. There would be nothing more dangerous than extending the implementation period, in a torture that, as we all remember, came to resemble Lucy snatching away Charlie Brown’s football or Prometheus chained to the Tartarian crag, his liver pecked out by an eagle and then growing back, as hon. Members on both sides of the House will recall, only to be pecked out again, with the cycle repeated forever. This Bill, unlike Opposition Members, learns the emphatic lesson of the last Parliament and rejects any further delay. It ensures that we depart from the EU on 31 January, and at that point Brexit will be done—it will be over. The sorry story of the last three and a half years will be at an end and we will be able to move forward together. The Bill ensures that the implementation period must end on 31 December next year, with no possibility of an extension, and it paves the way for a new agreement on our future relationship with our European neighbours, based on an ambitious free trade agreement—
Several hon. Members rose—
The Prime Minister
No, I will not give way. This will be with no alignment on EU rules, but instead with control of our own laws, and close and friendly relations. This vision of the United Kingdom’s independence, a vision that inspires so many, is now, if this new Parliament allows, only hours from our grasp. The oven is on. It is set at gas mark 4; we can have this done by lunchtime—or a late lunchtime. The new deal that I negotiated with our European friends will restore our great institutions to their rightful place as the supreme instruments of British self-governance. Once again, this House will be the only assembly able to legislate for this United Kingdom, and British courts will be the sole arbiters of those laws, and above them all will be the sovereign British people, masters of their own fate, controlling their own borders, laws, money and trade.
Throughout our new immigration system, we will not only welcome those with talent, but go out of our way to attract people of ability, regardless of nationality or background. We are able to do this only because the freedoms offered by leaving the EU allow us, once again, to control overall numbers and bear down on unskilled immigration with our new points-based system.
Joanna Cherry (Edinburgh South West) (SNP)
Will the Prime Minister give way?
The Prime Minister
If the hon. and learned Lady is against control of immigration, I would like to hear her explain why.
Joanna Cherry
The Prime Minister has spoken about welcoming people to these islands. Clause 37 of his Bill removes the Government’s existing obligations with regard to unaccompanied children seeking asylum in the European Union who want to join their family members in the United Kingdom. Lord Dubs has described this removal of a right as “mean-spirited and nasty”. Can the Prime Minister tell me why he is making this mean-spirited and nasty move?
The Prime Minister
I am afraid that the hon. and learned Lady has totally misunderstood, or possibly misrepresented, the purpose of what we are doing here. We remain proud of our work in receiving unaccompanied children. We will continue to support fully the purpose and spirit of the Dubs amendment, but this is not the place—in this Bill—to do so. The Government remain absolutely committed to doing so.
Among the many other advantages of this deal is, of course, the fact that we will be able to sign free trade deals with the booming markets of the world, a power that no British government have enjoyed for the past 46 years. We will cast off the common agricultural policy, which has too often frustrated and overburdened our farmers. We will release our fishermen from the tangled driftnets of arcane quota systems.
Mr Owen Paterson (North Shropshire) (Con)
I offer my heartiest congratulations to my right hon. Friend. No communities will be more keen to get control back than fishing communities. Will he guarantee that we will not make the mistake of the 1970s and allow the allocation of fishing resources to be a bargaining chip in the treaty negotiations? Will he guarantee that we will become a normal independent maritime nation and conduct negotiations on an annual basis for reciprocal deals to mutual advantage?
The Prime Minister
My right hon. Friend perfectly understands what we need to do to restore to this country the advantages of its spectacular marine wealth, and that is exactly what we will do, once we become an independent coastal state. I remind the House and Opposition Members that one party in this House of Commons is committed to not just reversing the will of the people, but handing back control of Scotland’s outstanding marine wealth to Brussels, and that is the Scottish National party—that is what they would do. I look forward to hearing them explain why they continue to support this abject policy and abject surrender.
Under this Bill, this House also regains the authority to set the highest possible standards, and we will take advantage of these new freedoms to legislate in parallel on the environment, and on workers’ and consumers’ rights. I reject the inexplicable fear—
The Prime Minister
I give way, with pleasure, as I think the hon. Lady may want to talk about this inexplicable fear.
Lisa Nandy
The Prime Minister is right to say that he has won a mandate to get Brexit done, but what he has not earned is the right to shoehorn into this legislation measures that are a direct attack on some of the most vulnerable children in the world. If he thinks that people in towns such as mine, who believe that we should deliver Brexit, want to see us turn our back on decency, tolerance, kindness, warmth and empathy, he is wrong. Will he take these measures about child refugees out of this Bill?
The Prime Minister
I understand where the hon. Lady is coming from but, like the hon. and learned Member for Edinburgh South West (Joanna Cherry), she is wrong on this point. We remain absolutely committed to ensuring that this country will continue to receive unaccompanied children. We have led Europe and received thousands already—this country has a proud record—and we will continue to do so.
I thought that the hon. Member for Wigan (Lisa Nandy) was going to say that this House would be unable to legislate or regulate on the environment in a way that is superior to the European Union, but that is what we will now be able to do. I reject the idea that our proceedings must somehow be overseen and invigilated by the EU and measured against its benchmarks. The very essence of the opportunity of Brexit is that we will no longer outsource these decisions; with renewed national self-confidence, we will take them ourselves and answer to those who sent us here. It was this Parliament, and this country, that led the whole of Europe and the world in passing the Factory Acts and the clean air Acts of the 19th century, which improved industrial working conditions by law.
This House should never doubt its ability to pioneer standards for the fourth industrial revolution, just as we did for the first.
That epoch-making transformation, as with all the pivotal achievements of British history, reflected the combined national genius of every corner of this United Kingdom. In this new era, our success will once again be achieved as one nation. This new deal in the Bill ensures that the United Kingdom will leave the EU whole and entire, with an unwavering dedication to Northern Ireland’s place in our Union.
The Prime Minister
On that point, I will happily give way to the hon. Gentleman.
Gavin Robinson
I am grateful to the Prime Minister for taking my intervention—I almost thought we had fallen out. He knows that he now has the strength from the election to deliver Brexit. He also knows that we want to deliver Brexit, but we want to do so as one nation, so I am glad that that phraseology is being re-injected into the debate. However, he needs to understand the concerns about the customs arrangements for Northern Ireland, the tariff differentials and the potential for checks, and he needs to understand the concerns we share because we want to ensure that we leave as one nation. We are not going to resolve those issues today, but will he commit to proper, thorough and detailed reconsideration, using the strength that he has to deliver for the entirety of this country?
The Prime Minister
Of course, I understand the point that the hon. Gentleman raises, but let me remind him that the deal commits to unfettered access, but in all parts of the UK. It respects the territorial integrity of the UK, and it ensures that Northern Ireland is part of the UK customs territory and would therefore benefit immediately from any of our new free trade deals as soon as they are in force.
Let me remind the House that the special provisions applying to Northern Ireland, which ensure a very important thing—that there is no hard border between Ireland and Northern Ireland—are subject to the consent of the Northern Ireland Assembly. Unless the Assembly specifically withholds its consent, and unless it insists on continuing with this approach, then those arrangements would automatically lapse into full alignment with the rest of the UK. I believe that these arrangements serve the interests of Northern Ireland and the UK as a whole. It is a great deal for our whole country.
Several hon. Members rose—
The Prime Minister
No, I will not give way.
We must now begin building our future relationship with the EU. Our aim is to provide a close friendship between sovereign equals, to promote our common interests, inspired by pride in our European heritage and civilisation. Clause 3 of the political declaration invokes that spirit, establishing
“the parameters of an ambitious, broad, deep and flexible partnership”
rooted in our shared “history and ideals” and
“standing together against threats to rights and values from without or within”.
I am absolutely determined that this great project will be the project not of one Government or one party, but of the British nation as a whole, so Parliament will be kept fully informed of the progress of these negotiations.
Caroline Lucas (Brighton, Pavilion) (Green)
Will the Prime Minister give way?
The Prime Minister
No. We should be fortified by a renewed sense of confidence. [Interruption.] In all fairness, I think that I have given way quite a few times.
The policy of the Liberal Democrats is now to have another referendum. They have abandoned revoke and now want another referendum. When they have worked out their policy, I will give way.
We should be fortified by a renewed sense of confidence that while our democratic institutions have been tested as never before, if this House comes together now to support the Bill, as I hope it will, history will record that the first act of this new Parliament, in its earliest days, was to break the ice floes and find a new passage through to unsuspected oceans of opportunity. So now is the moment to come together and write a new and exciting chapter in our national story, to forge a new partnership with our European friends, to stand tall in the world and to begin the healing for which the people of this country yearn. And it is in that spirit of unity that I commend this Bill to the House.
Jeremy Corbyn (Islington North) (Lab)
Over the past three and a half years, the Government’s mishandling of Brexit has delivered nothing but political gridlock, chaos and economic uncertainty. It has paralysed our political system, divided communities and nations, and become a national embarrassment on an unprecedented scale.
We recognise the clear message from the British public last week, however they voted in the referendum of 2016, and understand their determination to end the never-ending cycle of the Brexit debate, and get back to solving the day-to-day issues that challenge them in their daily lives. We must listen and understand that we cannot go on forever debating what happened in 2016. We have to respect that decision and move on.
However, understanding all that does not mean that we as a party and a movement should abandon our basic principles or ever give up the demand for a fairer and more just society. We warned before the general election that the Prime Minister’s Brexit deal was a terrible deal for our country, and we still believe that it is a terrible deal today.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
Will the right hon. Gentleman give way?
Jeremy Corbyn
I will give way later on.
This deal will not protect or strengthen our rights, or support our manufacturing industry and vital trading relationships, or protect our natural world in a time of unprecedented climate crisis. Neither will it address the deep inequality in our system, nor secure the interests of every nation and region in the United Kingdom.
Instead, under the Conservatives, this deal will be used as a battering ram to drive us down the path of yet more deregulation and towards a toxic deal with Donald Trump that will sell out our national health service and push up the price of medicines to benefit US drug corporations. It will take us away from the essential principles that we believe in: a country that looks after everybody and protects those communities left behind by the excesses of the free market.
This deal does not bring certainty for communities, for business or for the workforce. In fact, it does the opposite and hardwires the risk of a no-deal Brexit next year. I am sure that that will delight many Government Members, but it will not delight those who suffer the consequences in communities and workplaces all across the country.
That is why Labour will not support the Bill, as we remain certain that there is a better and fairer way for this country to leave the European Union—one that would not risk ripping our communities apart, selling out our public services or sacrificing hundreds of thousands of jobs in the process.
This deal is a roadmap for the reckless direction in which the Government and the Prime Minister are determined to take our country. They have done their utmost to hide its likely impact, and they continue to use gimmicks and slogans to turn attention away from their real intentions.
Sir David Evennett (Bexleyheath and Crayford) (Con)
But the people have voted in a general election and supported the Prime Minister’s deal. As a democrat, surely the right hon. Gentleman should pay heed to the people.
Jeremy Corbyn
I am disappointed in the right hon. Member, but in the spirit of Christmas I wish him well. He has not been listening to what I have said.
Nothing exposes the Government’s intentions more clearly than the steps that they have already taken on workers’ rights. For all the promises over the past few weeks that they are the party to protect rights at work, at the very first opportunity they have removed the basic provisions they said would be part of this Bill. That does not bode well for the separate Bill that the prime minister is now saying he will bring forward on workers’ rights. If he wants to assure people that their rights are safe in his hands, he should commit to legislate to ensure that workers’ rights in Britain will never fall behind European Union standards in future, and support amendments to enshrine that commitment within the Bill.
Mr Mark Francois (Rayleigh and Wickford) (Con)
All of us in the House are concerned with workers’ rights and, indeed, the rights of those who are approaching retirement. The Leader of the Opposition put his policy to the British people, inasmuch as anyone could discern it, in a general election. He was slaughtered. What bit of that message does he not understand?
Jeremy Corbyn
The Prime Minister, your leader—if I may say so, Mr Speaker—said that workers rights were going to protected. They are not, in this Bill.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
Is not the whole point that the withdrawal agreement seems to be diminishing all the time? This is worse than the agreement from the previous Prime Minister, the right hon. Member for Maidenhead (Mrs May). There are things that have vanished from the one that we had before the election. It is not only workers’ rights that have been downgraded. It is parliamentarians’ rights, because the legislature’s ability to scrutinise the Executive has been taken away. It is bad for democracy.
Jeremy Corbyn
No.
I move on to one of the most appalling parts of the Bill and what the Prime Minister has presented to us this morning. I want to make it clear that the Government’s removal of protections in the Bill for unaccompanied children seeking asylum is nothing short of an absolute disgrace and a piece of dishonesty towards those people who at the moment are very, very concerned. Throughout the previous Parliament and for his whole life—I was talking to him last night—my good friend Lord Dubs has worked tirelessly to ensure that children affected by the worst aspects of global injustice can be given sanctuary in this country. Now this Government, in their first week in office, have ripped up those hard-won commitments. That is a move that the director of the charity Safe Passage has described as “truly shocking”, saying that it could have “potentially tragic consequences”. I simply say this, coming up to Christmas: shame on this Government for abandoning children in this way.
On the environment and food safety standards, the deal points to a complete realignment towards the far weaker protections and standards that operate in the United States. If the Government are set on pursuing a trade deal with the United States—with President Trump—with precious few bargaining chips to hand, the brutal reality is that Britain will have to lower its standards. [Interruption.] That is the brutal reality. The European Union has made it clear that a future trade deal with the EU will depend on maintaining a level playing field on standards and protections. The choice we now face is between keeping the highest environmental and food standards in order to get a future deal with the European Union and slashing food standards to match those of the United States, where there are so-called “acceptable levels” of rat hairs in paprika and maggots in orange juice—[Interruption.] It is true. If Members think that this is a piece of imagination on my part, let me say that when I was first told about it I, too, thought that it could not be the case. I checked it out, and it absolutely is. We are about to strike a new race-to-the-bottom deal with the United States, and everyone should be aware of that, and warned about it.
Turning to the arrangements with Northern Ireland, the Prime Minister has emphatically claimed that “there will be no checks between Northern Ireland and GB”, and that “we have a deal that keeps the whole of the UK together as we come of the EU”. These claims are simply not true. We know from the analysis carried out by his own Treasury that under his deal there will be an abundance of checks and customs declarations in the Irish sea. Not only will that have a huge impact on Northern Irish businesses and society but it will have implications for the rest of Britain’s economy and manufacturing industry. The Treasury’s own analysis spells it out: the more the Government diverge from EU trading regulations in future, the more checks and disruptions will be put in place between Britain and our biggest trading partner. More checks and more disruption are deeply damaging for our trade and for our manufacturing sector, and they bring the threat of taking a wrecking ball to our vital supply chains and the hundreds of thousands of jobs that rely on them. Car manufacturers, the chemical industry and all those who rely on just-in-time supply chains will feel a devastating impact from all of this.
That makes it even more incredible that since agreeing their deal the Government have yet to produce a single bit of evidence or analysis to show that it will have a positive impact on the economy or our communities in any way. I say to all Members, new and old, that it is our job in Parliament to question, scrutinise and hold the Government to account, day to day. If we believe that the Government are taking the wrong approach, we should never be afraid to oppose. When it comes to our future relationship with the European Union and the rest of the world we cannot let the Government act in an undemocratic and secretive way. Trade deals with the EU and the US, or anybody else for that matter, must be done transparently.
This country is about to embark on a major change of direction as we leave a 40- year economic partnership for an unknown future under the terms of the withdrawal deal. We need an approach that puts jobs and living standards first, and builds the strongest co-operation with our European neighbours, based on openness, solidarity and internationalism. That is the approach that will bring an end to the Brexit crisis and bring our country together.
Dr Liam Fox (North Somerset) (Con)
This debate is the beginning of a promise fulfilled—not simply a promise fulfilled by my party, although it is certainly that, but a promise fulfilled by this Parliament to the people of this country. When we embarked on the Brexit process we—Parliament—offered a decision to the British people. We said that we could not or would not make a decision about our future relationship with the European Union, but that the people of this country would take that decision and Parliament would respect it.
We have had three years of betrayal of that pact with the British people in the previous Parliament, when Members simply would not honour the manifesto commitments on which 80% of them had been elected. Those who wilfully signed up to a manifesto saying that they would honour the referendum result, but then came to the House and betrayed that, did not enjoy their first democratic contact with voters. I am proud that many of my new hon. Friends are taking the place of those who did not honour that.
This is also an historic opportunity for you, Mr Speaker, to repair some of the damage done to the reputation of the Chair of this House by some of your predecessor’s decisions. We wish you well in that great task.
My right hon. Friend the Prime Minister is absolutely right not to enter into constant extensions to the implementation period with the European Union. Nothing would give the EU less incentive to come to a final agreement with the UK than embarking on such a process. We have had the torture of the last few years in which there were endless increases in the timeframe, and we need not go through that again.
Mr John Baron (Basildon and Billericay) (Con)
Given that Australia negotiated trade deals with Japan, South Korea and China, all within 18 months, and that we have had 47 years of integration, does my right hon. Friend agree that there is no reason why we cannot negotiate a good trade deal with the EU by the end of next year, as long as there is good will on its side?
Dr Fox
My hon. Friend puts his finger on the most important point. We will face not a technical issue, but a political issue. Indeed, the political declaration sets out that we will have no tariffs, no fees and no quotas in the economic relationship. That is what normally takes up the time in trading agreements, so it is entirely possible that this agreement can be done. The debate we will embark on is not about tariffs, fees and quotas, but regulatory alignment. That will be the central debate in our negotiations with the European Union.
We need to see the issue in a wider global context. At the World Trade Organisation meeting in Buenos Aires, it became clear that there are two ways forward in the global trading system. One is the concept of harmonisation —a highly legalistic regulatory means of doing business, which says, “This is the way we do it today, so this is the way we will always do it in the future.” Against that, there is the wider concept of outcome-based equivalence, which says, “Yes, we know what standards we need to meet, but we want to find our own ways, our own rules and our own efficiencies in achieving them.” The EU is now in a real minority, as it is virtually only the EU that takes the route of harmonisation.
There are those in the forthcoming negotiations who will say that, to have access to the single market, Britain must accept dynamic alignment—in other words, we must automatically change our rules in line with the EU. The Prime Minister will have 100% support from the Conservative party if he rules out any concept of dynamic alignment, which would leave Britain in a worse place in terms of taking back control than we are in as a member of the European Union.
The debate we are embarking on is about a clear choice. At no point in the European debate was there the option of maintaining the status quo: we either had to embark on our own course, controlling our own borders, our funds and our future; or we remained tied to an economic and political model of the European Union that is utterly dependent on ever-closer union. I have never believed that ever-closer union is in Britain’s national interests, and if the bus has the wrong destination on the front, the best thing to do is to get off, which was what the British people decided to do.
Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)
I agree with my right hon. Friend. Does he recall that the Leader of the Opposition spent his time sneering at the standards in the United States—a democratic and advanced economy? However, if we look at its standards on campylobacter infection and salmonella, it has fewer deaths per capita than the UK or the European Union. It gets there by different methods, and it gets there better than we do, so we should stop sneering.
Dr Fox
I hope that my right hon. Friend will forgive me if I do not take too much notice of the anti-wealth, anti-American, anti-trade, tired old leftie rhetoric we get from the soon-to-be-forgotten Leader of the Opposition.
The debate before us is clear. The Prime Minister is leading Britain in a direction that will produce a confident, outward-looking country. For many of us, we were leaving the European Union not because it was foreign, but because, in an era of globalisation, it was not foreign enough—it spent too much time gazing at its own navel and worrying about political integration. We are embarked on an historic and correct course for our nation.
I return to where I began: the question of trust. In the spirit of the season, let me say that I hope that even Hugh Grant will watch our seasonal offering this year—“Democracy Actually”.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
It is a pleasure to follow the right hon. Member for North Somerset (Dr Fox). As I was listening to him, I could already see coming back the red lines that caused the problem for the previous Prime Minister. We are to do a trade deal by the end of 2020 but, at the same time, we are not to have any degree of alignment with the European Union. When we hear talk of writing into the Bill that there will be no extension, that is a matter of politics. If the Government can legislate for that today, they can equally legislate to remove that burden before the end of 2020. I predict that that may indeed end up being the position, because the harsh reality is that that deadline means that the risk of a no-deal Brexit, which we all fear, is very much back on the table.
Scotland could not have been clearer last week. We did not vote for Brexit, and returning the SNP with a greater mandate shows that Scotland still totally and utterly rejects Brexit. Yet the Prime Minister is blindly hurtling towards the cliff edge with these deeply damaging Brexit plans, which will leave us poorer and worse off. This legislation will hit our economy, cost thousands of jobs in Scotland, sell out our food and drink sector and harm people’s livelihoods. The Scottish National party will not vote for this flawed and deeply damaging legislation.
We reject this toxic Brexit legislation and make it clear that this UK Government cannot drag Scotland out of the European Union before gaining the legislative consent of the Scottish Parliament. My question to the Prime Minister is this: will he accept that the devolved Administrations have the right to withhold their legislative consent? Will he now enter into constructive dialogue with those who seek to defend our rights—our Parliament in Edinburgh and our First Minister? We know the reality is that this Prime Minister will ignore Scotland; he will keep ploughing ahead despite the fact that Scotland voted to remain in the European Union. At last week’s general election, Scotland voted decisively to escape Brexit and to put Scotland’s future in Scotland’s hands. The Prime Minister has no mandate to drag Scotland out of the European Union. It is clearer than ever that the people of Scotland must have their say over their future, rather than the broken Brexit Britain that he wishes to impose on us.
Our economy will be smaller, weaker and poorer as a result of our leaving the European Union. Why? Because of the ideology of the Brexit fanboys—those in the Leave.EU campaign who now run this Government. Despite the Prime Minister’s assertions, Brexit is already having an impact on our economy. Analysis in the “State of the Economy” report by Scotland’s chief economist shows that continuing uncertainty is resulting in a half a billion pound shortfall in business investment in Scotland. That is the price of Brexit. It does not matter whether it is this Brexit or another Brexit—the analysis shows that all forms of Brexit will harm Scotland’s economy and result in lower household incomes.
Mr Shailesh Vara (North West Cambridgeshire) (Con)
The right hon Gentleman will be aware that we were told before the referendum that if the country voted to leave, there would be economic Armageddon—rising unemployment, rising interest rates and so on. None of that actually materialised. Why does he persist in scare- mongering when those things did not materialise? It is about time he had confidence in the United Kingdom and saw that the cup is half full, rather than half empty. Look at the evidence!
Ian Blackford
We have looked at the evidence, and I have just set out the fact that investment is lower in Scotland. When the Brexit vote happened, the pound fell but inflation rose.
Let me give the hon. Member two examples to illustrate the stupidity of those who want to push ahead with this project. We have recently lost 2,000 well-paid jobs from the European Banking Authority and the European Medicines Agency, which used to be centred here in London. The Prime Minister sits in his seat and laughs about the loss of those institutions, and about our loss of influence over new medicines coming to the United Kingdom. That is what Brexit is going to do.
“Scotland’s Place in Europe” provided detailed analysis of Brexit’s macroeconomic implications for the Scottish economy, outlining that membership of the European single market and customs union is the least-worst option for jobs and investment. We sought to compromise with the UK Government on that, but they are now ripping us out of these markets, and risking great instability and economic chaos. Conservative Members are quite prepared to reduce jobs and opportunities simply on the basis of ideology. Membership is vital for trade. In 2017, Scotland exported £14.9 billion of goods to the European Union. Closing down membership of the single market and customs union means closing down opportunities for Scottish businesses.
The Government are looking to lock down opportunities not just for goods, but for people. Approximately 209,000 EU citizens live in Scotland. They bring new skills and expertise, which are absolutely vital to our industries and the local economy. My hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) mentioned unaccompanied minors, but on the basis of the Prime Minister’s response, it is clear that he has not read his own Bill or the explanatory notes. Let me read what the explanatory notes say:
“Clause 37 amends subsection (1) of section 17 of the EU (Withdrawal) Act 2018 to remove the obligation to seek to negotiate such an agreement and replace it with a requirement to make a statement to Parliament.”
That is the harsh reality. I urge Conservative Members to think very carefully, because they are about to bring up the drawbridge and remove unaccompanied minors’ right to come to the United Kingdom. What a disgrace! That is an indication of who the real separatists and isolationists are, and we should be very afraid of what this Conservative Government seek to do.
The Prime Minister is simply not interested in Scotland’s economy. He has made it clear with his manifesto mantra that this is all about getting Brexit done. Getting the Prime Minister’s Brexit done will leave the United Kingdom £70 billion worse off than if it had remained in the European Union, according to a study by the National Institute of Economic and Social Research. We know that the Tories could not care less about Scotland, because Scotland is being singled out for unfair treatment. We are the only United Kingdom country to be taken out of the European Union against our will, with no say whatsoever over our future. England and Wales voted leave, and England and Wales will leave; Northern Ireland is getting a special deal and the right to decide its own future; but the Prime Minister offers Scotland nothing—hee-haw, diddly-squat. That is what we get from this Government in their so-called precious Union: nothing but disrespect for our Government and our rights.
Geraint Davies (Swansea West) (Lab/Co-op)
The right hon. Gentleman mentions England and Wales, but in the last election 16.5 million people voted for remain parties and 14.5 million for leave. The remain vote was divided. Does he not agree that the least this Government can do is to provide democratic scrutiny and a soft Brexit that allows alignment on workers’ rights and the environment and, importantly, scrutiny over trade deals with the United States and elsewhere?
Ian Blackford
Of course there must be effective scrutiny. The legislation offers no guarantees on workers’ rights and environmental standards, and no protection for the NHS from a future trade deal with the US. Brexit will hit jobs and living standards, and it may leave Scottish businesses facing a competitive disadvantage with businesses in Northern Ireland. The Prime Minister can talk about trade deals all he wants, but the harsh reality is that a basic trade agreement of the type he wants to negotiate will lead to GDP being lower by the equivalent of £1,600 per person compared with EU membership. People will be worse off, but if they watch or listen to this debate, they will hear Conservative Members laughing. That shows the seriousness with which those hon. and right hon. Members treat these crucial issues.
Is it any wonder that the people of Scotland, armed with the facts and aware of the deceit from the Vote Leave campaign and the Brexiteers in No. 10, came out in huge numbers last week and backed the Scottish National party to escape this Government’s disastrous Brexit? Escaping Brexit is now the only option to protect our economy. We have tried time and time again to compromise, but the Tories are simply not listening to Scotland.
That was why Scotland’s First Minister wrote to the Prime Minister yesterday asking for power to be transferred from the United Kingdom Government to the Scottish Parliament to hold a referendum on independence. The Scottish Government have a clear democratic mandate from the 2016 Holyrood election to offer the people of Scotland a choice over Scotland’s future within the term of this Parliament. There is a significant and material change in the circumstances that prevailed in 2014. Let me nail once and for all this issue about the referendum being “once in a generation”. The fact of the matter is that in the declaration that both Governments signed, it was made clear that it would not obstruct a future independence referendum.
Last week we won that mandate again. Scotland must consent to its own future. Westminster, in its arrogance and ignorance, has treated Scotland with contempt for too long. It would simply be undemocratic to ignore the will, the voice and the ask of the Scottish people. If the Tories think that Scotland does not want independence, let them give us our say. What is to be feared from more democracy? Everything has changed, and that is why the Scottish National party today demands that the Prime Minister, if he is not running scared, gives Scotland its choice—its right to choose its own future.
We have a way out of this Brexit mess, and I appeal to those in Scotland who have supported other parties to come with us and complete the powers of our Parliament. We can escape Brexit, and we can take on our own responsibilities. There is a better way, which will secure our economy, and allow us to tackle inequality and deal with the climate emergency. It is not this Tory Brexit; we can save ourselves from that. It is time for Scottish independence. [Applause.]
Mr Speaker
Order. Come on; let us start as we mean to go on. To help everybody, I am going to bring in an informal six-minute limit so that everybody has equal time to get through.
Mrs Maria Miller (Basingstoke) (Con)
Thank you, Mr Speaker. It is a great pleasure to rise to speak in this debate, and to welcome your approach to chairing debates in this Chamber. Thank you very much.
So much has been said on Brexit already that people who tune in to watch our debate on the Parliament channel could be forgiven for thinking that they are watching a rerun. I know that it is Christmas, but come on; we need to move this debate forward. It is not good enough to repeat the same arguments that have been made in this place for the last three years. People expect more from us than that.
Time away from this place can be a valuable thing. All returning Members of Parliament have had six weeks away—six weeks to listen to the people we represent, who we were talking to throughout the campaign. I know from speaking to colleagues, not just on the Government Benches but across the House, that we were all getting a similar message. People felt frustrated about the way Parliament was acting. Regardless of their political party, they felt we were locked in a stand-off on Brexit—that the country was trapped in a situation that we should not be in and that we should be allowed to move forward. This withdrawal agreement gives us the opportunity to move forward and get Brexit done, so that we can start to focus on the issues that we know our constituents feel are so important.
But today’s debate gives us another opportunity, which all of us, whether new or returning Members of Parliament, need to seize: the opportunity to start to rebuild trust in this democratic institution. If we do not, it does not just damage the Government or the Front Bench of our party. If people do not have trust in their representatives in Westminster, who are here to speak on their behalf, it damages all of us. We have to take that very seriously.
Mike Amesbury (Weaver Vale) (Lab)
Does the right hon. Member trust that we will get a good free trade deal within 11 months, rather than the average of five to seven years?
Mrs Miller
The hon. Gentleman needs to reflect on the Conservative party manifesto, which could not have been clearer and could not have been voted for by more people throughout the country. People want to see this issue resolved and they do not want deadlock, regardless of whether they voted to leave or remain in the first place.
We have an opportunity to rebuild trust. The Prime Minister made a compelling case in his opening remarks when he said that we have to bring the country together. That is our responsibility as Members of Parliament, and it is a shared endeavour. This angry politics, which I am afraid we heard from those on the Labour Front Bench, has to end. It is our responsibility to set the right tone for our political debate in this country. I am afraid that, so far in this debate, that tone has not been struck by all Members. We have an opportunity to introduce a kinder politics in our country, which will help to reduce the amount of abuse that I know so many Members have had to endure over recent years.
I voted to stay in the EU, but I am a democrat, and that is why I will support the Government’s withdrawal agreement today. I have supported every opportunity to take forward our departure from the EU since the referendum three years ago. Politics is not about constructing ivory towers. It is not about trying to put our ideology on the table at every opportunity. It is about finding solutions to very difficult problems. That is why we are sent here to Parliament. The withdrawal agreement is the start of the solution to one of the most difficult problems that our Parliament has faced in a generation. I urge Members from across the House to reflect deeply on that before they cast their vote today, regardless of what their party leaders are saying, because I think the voice of the nation spoke last Thursday, and we have to listen.
Hilary Benn (Leeds Central) (Lab)
It is a great pleasure to follow the right hon. Member for Basingstoke (Mrs Miller). I agree with her argument that we need to be able to disagree agreeably, as I think President Obama once put it.
If the Secretary of State is looking for some consolation for his Department being abolished at the very moment that we leave the European Union, let me tell him that it will also mean that he will no longer have the untrammelled joy of appearing before the Brexit Select Committee. I thank all Members who have served on the Committee and our wonderful team of Clerks and advisers, who have supported us with their expertise.
At the heart of this Bill is a gamble—a gamble with our nation’s economy. The Prime Minister has so much confidence in the Government’s ability to finalise a new relationship with the European Union by this time next year that this Bill will prevent, by law, any extension of the transition period beyond December 2020. If he succeeds, his gamble will have paid off—although I wonder how detailed an agreement he will manage to achieve in that time—but if he fails, the cliff edge of a no-deal Brexit beckons in just 12 months’ time.
The pillar on which that confidence is built is the argument that because we have been aligned with the European Union for the past 40 or so years, that deal should be easy to reach. That argument would have force only if the Government were planning to stay as closely aligned to the other 27 member states and their rules, but we know that that is not the case. The Government want to move away from European rules and regulations. Indeed, the Prime Minister said it today: no alignment with EU rules. As that intention becomes clear to our EU negotiating partners, it will make the negotiations not simple, but much more complicated.
No doubt the Bill will be passed today. The question that the House has to address is: can a deal be completed when, as we have just heard, it took Canada seven years to reach an agreement? Can it be completed in 12 months, when we know that we have to negotiate not just tariffs and quotas and rules of origin, but services—80% of the British economy is built on the service sector—data, aviation, medicine safety, co-operation on consumer rights, security, access to databases that have helped to keep us safe from terrorism, which we will lose if we do not get this right, foreign policy, co-operation on climate change, and a long list of other matters of huge importance for the British economy and British society?
Tim Loughton (East Worthing and Shoreham) (Con)
The right hon. Gentleman has spent the last 12 months claiming that the Prime Minister never wanted to get a deal, and then he got one, and that the Prime Minister was not serious, and therefore he had to produce a Bill to hamstring Parliament and stop it progressing. Can he admit, just for once, that we have a deal—a deal that is going to happen this year—and use all his expertise and good services to rally round this Parliament, this Government and this country to make sure that we agree it by the end of year, so that we can all move on at last?
Hilary Benn
The Bill that the last Parliament passed did not hamstring the Prime Minister, because he achieved a renegotiation. However, to be fair, all he did was accept 95% of his predecessor’s deal and replace the previous backstop with a backstop that had been offered the right hon. Member for Maidenhead (Mrs May), but rejected on grounds that were clearly set out by the current Prime Minister to the Democratic Unionist party conference in November 2018—namely, that he would never, ever accept a border in the Irish sea, which is what he has promptly now done, which reminds us that it is not always wise to take the Prime Minister at his word.
Stephen Timms (East Ham) (Lab)
I wonder whether my right hon. Friend has read the Government’s impact assessment for this Bill, which says at paragraph 241:
“Goods moving from Great Britain to Northern Ireland will be required to complete both import declarations and Entry Summary…Declarations,”
thereby flatly contradicting what the Prime Minister has been saying.
Hilary Benn
My right hon. Friend makes an extremely powerful point. We have been told repeatedly that there will be no border in the Irish sea; there is now going to be a border in the Irish sea. That will have consequences for the way in which trade is conducted.
This Bill is also a gamble because of the clause that says that no Minister is able to apply for an extension. Quite why the Government need to legislate to prevent something from happening that they have already made clear they have no intention of allowing to happen—an extension to the transition period—escapes me, but I gently point out to the House that the point of no return will be next June. Under the withdrawal agreement, if a further extension has not been agreed between the parties by then—and the Government are ruling it out—there will be no possibility of extending the period. I say to the Government that they will need to be really, really confident about how the negotiations are going by June next year—not very far away—if they are to be certain that they will not need that additional time to get what they want.
There is no doubt that the Prime Minister is looking for a hard Brexit, because a free trade agreement of the type he has put before the British people—and for which, I grant him, he has won a mandate—has already been assessed by the Government as the second worst outcome for the economy after a no-deal Brexit. It is extraordinary that the House has still not been presented with an economic assessment of the single most important decision that we are going to take and the nature of the future relationship—nothing; silence. History will record that that was an act of irresponsibility.
I say to the House—in particular to new Members on both sides, whom I congratulate on their election—that, as these negotiations unfold, businesses that we represent will be coming to us; they will want issues to be raised in the negotiations and will be concerned about the outcome of the negotiations. Some of the things they are looking for will not be consistent with the policy that the Government have set out. This should not be about ideology; it is about the practical implications of having thrown away—because that is what Brexit does—the best trading relationship we have with any countries in the world. It is about what kind of new long-term arrangements will be put in place, on which our jobs, our factories and our communities depend. If the Government get it wrong, it will be a question not of getting Brexit done but of some industries being done over by Brexit.
Matt Western
My right hon. Friend is making such a powerful speech. Does he not agree that the great concern for this place has to be that it was promised that we would take back control? The greatest deceit of all is the fact that there will be no scrutiny in this place of any element of the trade deals and the impact they will have on our economy.
Hilary Benn
I agree with my hon. Friend: that is a matter of great regret.
I come to my final point. Our leaving the European Union will create great cheer on the Government Benches, just as it will sadden many of us on the Labour side. The divisions it has created will not easily be healed: many people still think that this is a terrible mistake that will weaken our economy and our influence in the world.
In the modern age, it is how we use our sovereignty that will determine how well we can advance our interests and protect our citizens. If we have learned anything from the events of recent times, it is that if we are to deal with the great challenges we face as a world—climate change, the movement of people around the globe, threats to peace and security, making sure that the global economy works in the interests of all—we can do it only by working together. We are about to walk away from one of the most important relationships that enables us to do that. I say to the Government that we will hold them to account as the process develops and unfolds.
Mr Speaker
I make an appeal to Members: if we all take nine minutes, quite a few of you are not going to get in. Please—I have given an informal limit to give a bit of flexibility, but do not take advantage of Members who come later.
Damian Green (Ashford) (Con)
Thank you, Mr Speaker; I hope to give some time back to the House by being very brief. All I want to do is to try to put today’s debate and Bill in their wider context, because they are so hugely important to the future of this country.
I simply want to make two points. The first is that those of us who voted and campaigned for remain should respect the result of the referendum. Some of us tried to do that straight afterwards. We took the view that the British people had taken a decision and that those of us on the losing side of the argument should make the best of that—do what we regarded as the best for our country in the context of leaving. Sadly, many people on whose side I fought in that referendum campaign did not take that decision and have spent the past three and a half years trying to subvert it. I have thought throughout that, sadly, that was the wrong course for them to take.
A lot of the problems that we have faced in politics in this country for the past few years stem from that wrong decision and the desire to continue fighting the last war. To those of my friends on both sides of the House who until now have not accepted the 2016 decision, I make an appeal: now, after the general election result, please accept the decision, please let us move on and please accept that that game is over.
Damian Green
I will of course give way to one of my comrades in arms in that referendum.
Caroline Lucas
I think that the right hon. Member is in danger of rewriting history. Those of us who wanted to go back to the people were not undermining democracy —more democracy does not undermine democracy. What does undermine democracy is a Bill that is essentially an Executive power grab, completely deleting all the provisions that would have allowed for parliamentary scrutiny. If he is standing up for democracy, will he explain why is he happy about a Bill that is reducing democracy?
Damian Green
I do not agree with the hon. Lady’s analysis of the Bill. Furthermore, it is impossible to say that we need a new referendum when we have not implemented the results of the first one; that has been the central problem. I urge her and others to use all the energy and passion at their disposal to help us as a country to forge a new friendly relationship with our fellow democracies in the rest of Europe. They are neighbouring countries, they are friends and they are democracies: we should be able to establish a new and friendly relationship with them. That is my first point—an appeal to those who campaigned to remain.
My second point is an appeal to all those on both sides of the argument. We have to stop defining ourselves and each other simply as remainers or leavers. If we continue to define everyone purely by how they voted in 2016, we will never make progress as a Parliament or a country. The last few years have been miserable for democracy in this country.
Damian Green
My attempt to be brief is clearly being foiled, but of course I will give way.
Alison McGovern
Does the right hon. Gentleman think that his party’s conduct in the general election is consistent with the test that he just set?
Damian Green
Yes, I do. In a sense, it is less important that I think that than that, as is quite clear as I look at this House today, the British people think that. I do not think that that is a fruitful avenue for the hon. Lady to pursue.
As I was saying, the last few years have been miserable for democracy in this country. The more we hark back and fight the old battles, the longer that misery will persist. I hope that this Bill, this debate and the fact that we will have left by the end of next month mean that Members on both sides of the old European argument and both sides of the House take the chance to move on, so that we can begin the healing process that this country desperately needs.
Mr Speaker
Sir Jeffrey Donaldson will speak next, after which there will be a maiden speech with no interruptions.
Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)
We supported Brexit. We want Brexit to happen, and we acknowledge and recognise that the Government have won a mandate to take forward their withdrawal agreement. But there is a major contradiction at the heart of that agreement that causes us great concern.
At one level, the agreement does say that Northern Ireland should continue to have unfettered access to the rest of the UK for trade. But then there are customs arrangements that inhibit our ability to have that unfettered access. That is our major concern—one that we hope the Government can address.
The Prime Minister talks about taking back control, and that is what we want. Yet for Northern Ireland, there is to be a new joint committee between the European Union and the United Kingdom that will make major decisions about Northern Ireland. In a sense, there is to be shared control of Northern Ireland on key issues. It is also the case that that arrangement cannot change unless the EU consents to change it, so the EU has a veto over changing the arrangements under the control of that joint committee. Northern Ireland, therefore, will not quite be taking back control. The European Union will continue to have a significant say on key matters relating to Northern Ireland.
Jim Shannon (Strangford) (DUP)
It is clear that a number of issues will make Northern Ireland a less Unionist region of the United Kingdom. Fishermen who bring fish back to Portavogie will be subject to a tariff, and the meat sector will also face tariffs. Does my right hon. Friend agree that Northern Ireland will end up being less Unionist than Liverpool, Leicester, Manchester, Newcastle and London, and that we should be the same as, not different from, everywhere else in the United Kingdom?
Sir Jeffrey M. Donaldson
That brings me to my second point. The Prime Minister has been clear that he wants the United Kingdom to leave the European Union as one nation, and over the past few days he has spoken often of his one nation Conservatism. Northern Ireland is my part of the United Kingdom and, in leaving the European Union, I want the Prime Minister to treat it the same as the other parts. We want to hear how the Government are going to achieve that, given the withdrawal agreement’s special provisions for Northern Ireland and how they will impact on and change the relationship between Northern Ireland and the rest of the United Kingdom.
We welcome the withdrawal agreement’s provision for the Assembly to have a say, but I am not so sure that it will operate in the way described earlier by the Prime Minister. He said that the special arrangements would continue only if the Assembly supported them, but I think it is the other way around: they will continue unless the Assembly stops them. That would require a vote in the Assembly. The Government know that we have issues with how that vote would be exercised and what it would mean for the principle of consent at the heart of the Belfast agreement. We want to continue our discussion with the Government about how that will operate in practice. We want the Assembly to have a say, but we also want to ensure that that say can be exercised in a fair manner that respects the principle of consent, as set out in the Belfast agreement.
Of course, we hope that what is agreed in the future relationship will negate the need for many of the special arrangements for Northern Ireland. The joint committee will have a say on that, however, and it is not a given that all of the future relationship arrangements will apply to Northern Ireland. We want to continue that discussion with the Government, because we want Northern Ireland to benefit fully from the future relationship and any free trade agreement arranged with the European Union. We have a land border with the European Union and an agri-food sector that trades across it, and we recognise that arrangements have to be made to facilitate that ongoing trade, but we do not want barriers against trade with the rest of our own country. That is absolutely essential.
That brings me to my third point: the customs arrangements. The Prime Minister has said that there will be no checks on goods going from Great Britain to Northern Ireland, or from Northern Ireland to Great Britain. As the Leader of the Opposition reminded us, a Treasury report says clearly that there will be checks and customs controls on goods travelling between Northern Ireland and Great Britain, to ensure that the correct tariffs are applied and that goods meet EU standards. It is clear that those checks will take place. We want to work with the Government to mitigate the impact on Northern Ireland business of the requirement for those checks. We want to hear more on that from the Government. We will see what we can do in Committee with regard to the commitment in the agreement and that made by the Prime Minister that there will be unfettered access in relation to trade between Northern Ireland and Great Britain.
We would like to be able to support what is happening, but we have grave concerns about the potential impact on the Northern Ireland, where economic prosperity goes hand in hand with political stability. The peace process cannot just be about the politics of Northern Ireland; it has to be about prosperity for Northern Ireland as well. The Prime Minister has said that he wants all of the United Kingdom to prosper. That has to include Northern Ireland. We need to ensure that these arrangements work for Northern Ireland and do not become a barrier to trade between Northern Ireland and Great Britain.
Suella Braverman (Fareham) (Con)
I welcome you to your place, Mr Speaker; I am delighted to see you sitting there. Given that many of us are talking about manifestos, I wish you well in delivering your manifesto commitments to stand up for Back Benchers and to uphold democracy. I know that you will discharge your duties with aplomb.
This is my first contribution in the Chamber since my promotion to the position of mum. [Hon. Members: “Hear, hear.”] I thank my hon. Friend the Member for Wycombe (Mr Baker), who served as my proxy during my maternity leave, my wonderful staff, and the Conservative party for its support over the past six months. A general election was not necessarily part of the maternity leave plan, but baby Braverman threw himself into the campaign and, I am sure, was critical in winning over some of those undecided voters.
Can the people trust their politicians? That might seem like a trite question, but it is pertinent in the context of Brexit. As the Prime Minister has said, that precious contract of trust between citizen and state, between voter and politician, has been stretched to breaking point over the past year. Pledges, promises and manifesto commitments all evaporated in the face of an obstructionist Parliament, where the majority of politicians thought they knew better than the majority of the British people. That Parliament wanted to stop Brexit and succeeded in doing so. It let our country down and in doing so broke faith with the British people. Let us not diminish the severity of that breach of trust, for it is only thanks to the trust that people place in us that we have even the right to set foot in this Chamber. It is only at their behest that we serve. As the Prime Minister has said, we are the servants and they are our masters. I hope that we never, ever forget that again.
When I served as a Brexit Minister, I was responsible for drafting the original Bill. I am very glad to see that much of that work has survived and that this new version reflects the changes secured by the Prime Minister in his renegotiated and new deal. The Bill is critical. It provides all the legal protections for the 3 million EU citizens and the legal provisions for the implementation period, the financial settlement and the Northern Ireland protocol. Legally, formally and technically, it brings an end to our membership of the European Union.
I believe, however, that there is another reason why this is possibly the most fundamentally important Bill that this Parliament will consider—namely, trust. It is through the passage of this Bill that we will begin the process of rebuilding trust with the British people, honour our solemn vow to get Brexit done, and take the first step outwards. And when we take that first step, we will do so confidently. As the Prime Minister said during the campaign, the first step is often the hardest. The first step has been difficult for our nation. It has been fraught with argument, indecision and doubt, and will be taken later than anticipated. However, when we take that first step, through the enactment of this Bill, we will do so confidently and looking forward with optimism, in the knowledge that it is what millions of people around the country want us to do, that it is borne out of legitimacy and integrity, and that it derives from a noble aspiration for sovereignty and out of a heartfelt call for freedom—[Interruption.]—something that Opposition Members who still live in denial about the referendum seek to deny.
Historically and traditionally, the UK has been viewed around the world as a beacon of justice, a symbol of fair play and the home of democracy. That has been called into question over the last year. Through the enactment of this Bill, we will be able to reclaim our reputation as the home of democracy, to seize the opportunity to write our history, of which our successors can be proud, and to restore our credibility as a nation where people can trust their politicians and a nation that does not break its promises.
Several hon. Members rose—
Mr Speaker
We now come to a maiden speech. I remind Members that there should be no interruptions. I call Claire Hanna.
Claire Hanna (Belfast South) (SDLP)
I anticipated having a wee bit more time to craft my maiden speech and to reflect our outlook. But, put simply, Brexit is an emergency and I was elected to do all I can to mitigate the impact of Brexit for the people I represent. Also, as a Northern Irish politician and a mum of three, the opportunity to speak for five minutes uninterrupted was too exciting.
I am aided in making this speech by some of the convention around Members’ first opportunity to address the House. I send my very best wishes to my predecessor, Emma Little Pengelly. It is fair to say that we operate at opposite ends of the political spectrum, but I know that she operated with hard work and diligence during her time in this House.
It is my great pleasure to be able to speak about my home, South Belfast, which is in many respects an exemplar for what Northern Ireland—and, indeed, any community—can be. It is diverse, well integrated and forward looking, and is doing reasonably well economically. It is a place where difference is genuinely respected. We do not all have the same views or the same vision for the future in South Belfast, but we do work the common ground. I am deeply grateful to all those in South Belfast who in enormous numbers elected me to serve them last week. I will do my best to do that every day, as well as to encourage all that is good in our constituency and shine a light on all that needs to change.
South Belfast, like Northern Ireland as a whole, is a place that overwhelmingly voted against Brexit. The pro-European majority of Members in Northern Ireland, I must tell the House, is a more diverse and united political movement than I believe we have ever seen in our troubled history. For Northern Ireland in particular, Brexit has sharpened all the lines that the Good Friday agreement was designed to soften—around identity, borders and sovereignty. We should have been spending the last few years talking about reconciliation, regeneration, social justice and equality; that is what all political action should really be about. Instead, we have spent morning, noon and night talking about Brexit—a problem that did not need to exist and which, particularly in Northern Ireland, reopens old wounds and limits our horizons.
Brexit sundered the body politic and the social consensus across these islands in unimaginable ways. It fed off people who felt lost and disenfranchised in the political system, and I fear that it will leave them feeling much worse. It is one of the reasons that Northern Ireland has now been without a Government for over 1,000 days, leaving Members such as myself and my hon. Friend the Member for Foyle (Colum Eastwood) with no other forum through which to hold Government to account. The Government relied on the fatigue that people had about Brexit—weary to get Brexit done, without a meaningful debate about the decisions that are going to be required, or the impact on our two islands and their intertwined futures. I believe and fear that the political bluster of slogans is eventually going to have to meet reality.
I am glad that, due to the solidarity of the EU 27 —and, indeed, Members from across the House—this withdrawal agreement means that there will not be a border on the island of Ireland, but I deeply regret that it creates an economic border in the Irish sea.
From the day and hour that Brexit was conceived, it was very clear to many of us that, wherever it landed, Brexit would create the borders of the past. As those of us on the island of Ireland know, Brexit and borders have both a practical and symbolic significance. Make no mistake about it: there is no good way to do Brexit. But this version is markedly worse than its previous iterations. It creates barriers to trade and introduces new levels of bureaucratic complexity. It is silent on workers’ rights, and on social justice and the rebalancing of the global economy. It will damage Britain’s economy. It will cause significant collateral damage to Ireland—north and south. It will further erode the resources available to public services, which are already reeling from a decade of austerity that has—certainly where I live, and I suspect here too—decimated the health service, gripped working families and emboldened inequality.
Beyond the economy, Brexit up-ends the delicate balance that in Northern Ireland has allowed us to imagine our shared and equal future together. We in Northern Ireland know the value of the EU. As my political hero and predecessor in this House, John Hume, so often said, the EU is the greatest peacebuilding and conflict resolution project anywhere in the world, and those of us particularly affected by conflict have a duty to reflect its principles. I am afraid that our concerns have been dismissed by those of you who will never have to live with the consequences of these actions.
The cross-community and cross-party coalition of support in Northern Ireland that exists to maximise our access to the EU includes business, trade unions, agriculture, retail and most of civil society. In fact, in that way it mirrors the coalition of support for the Good Friday agreement, which was actually inspired by and modelled on the EU’s founding principles. It was about being able to compromise without losing your identity, without sacrificing your principles and without sacrificing your aspiration.
Neither the EU nor the Good Friday agreement is about nations, and neither is about territory. They are about relationships and working together for the common good. They are about seeing challenges and finding solutions. But we know that the challenges of the present and the challenges of the next century are global: the climate emergency, tax justice, war and humanitarian relief. Those challenges need international co-operation, solidarity and partnership, not isolation and retreat. The world is getting smaller and our responses need to get bigger. Brexit prevents young people from creating a world with a big horizon; that is a generational injustice that we are overseeing.
We will vote against the narrow and restrictive view of the future articulated in this Bill. We will work with fair-minded people of all parties to limit, by amendment, the damage as best we can. We will seek to minimise the damage to the Good Friday agreement, which, for those of us in Northern Ireland, is the only viable pathway to a better future, under whichever constitutional arrangement people desire that future. That agreement is at its core about relationships, in three strands: within Northern Ireland; between the north and south of Ireland; and between our Ireland and yours. I deeply regret that Brexit in any form will damage the relationships in each of those strands, and I implore Members of this House to work with us to limit that damage.
Mr Owen Paterson (North Shropshire) (Con)
I congratulate you, Mr Speaker, on resuming the Chair, and wish you the very best of luck in your office.
I heartily congratulate the new hon. Member for Belfast South (Claire Hanna) on a very fine and fluent maiden speech. It is never easy to make a maiden speech and it is certainly not easy to make it just one or two days after taking the Oath, especially in a high-profile debate such as this. She spoke clearly and put her point of view. I appreciate the manner in which she touched on her predecessor, Emma Little Pengelly, with whom I had a very good relationship and probably more in common politically. The hon. Lady could also have touched on her predecessor but one from her own party, Alasdair McDonnell, who I worked with closely for three years when I was the shadow Secretary of State for Northern Ireland and for two years when I was the real Secretary of State.
Above all, I heartily congratulate the hon. Lady on turning up. It is most important that her point of view for the future of Ireland is represented in this House. She quite rightly mentioned John Hume. Through the most terrible years, the Social Democratic and Labour party Members bravely made their case about where they would like Ireland to go. They were looking to a united Ireland down the road, but they always turned up here and participated in local, national and European elections; they always participated fully in the democratic process. I am therefore pleased to see the hon. Lady and the hon. Member for Foyle (Colum Eastwood) back here. They will not be at all surprised that I do not agree with them, but I hope that we will be working together. I congratulate her on her fine speech at a very key moment.
Let me pick up on some of the points the hon. Lady made, because I did not entirely agree with her. I see a great future for Northern Ireland post Brexit. She and I would entirely agree that there is never, ever going to be a hard border; that is never, ever going to happen, and there is no need for it to happen. I spent some time working on this issue last year. I would like the hon. Lady to look at the concept of mutual enforcement, whereby we would recognise the standards required by the market into which we were selling, and would make it a legal obligation to ensure that our suppliers matched those standards. In the same way, those selling into Northern Ireland would have to match our standards. That would not breach the point of sovereignty, which is key to this debate; it will be entirely in our national hands, but we would respect those standards. If she and the hon. Member for Foyle would like to look at that, we might find a mutually beneficial way forward, because like her, one of my main worries about the Bill is the concept of any sort of barrier down the Irish sea, which is a clear breach of the Acts of Union—to be exact, article VI of the Acts of Union 1800, which said that there would be no taxes, barriers or impediments to trade between what was then Ireland and Great Britain. I congratulate the hon. Lady and look forward to working with her.
I touched on the central issue of this debate, which is democracy. We went through this endlessly in the last Parliament. Every week I came down here and thought, “It can’t get worse,” and it did. It is very simple. In the 2015 election campaign, David Cameron promised that if there was a Conservative majority, he would deliver an in/out, decisive referendum. The people would be given the power; they would decide, and whatever they decided—remain or leave— Parliament would honour. That was then endorsed throughout the referendum debates. It was made very clear by the then Foreign Secretary, who has now left the House, that the referendum was decisive—we, the MPs, are currently sovereign, but we will give you, the people, the power to decide this issue. It was binary. There was no talk about trade deals or crashing out. It was remain or leave.
That was then endorsed in the general election in 2017, when the two main parties got over 80% of the vote. My right hon. Friend the Member for Maidenhead (Mrs May) is not here today, but the Conservative party got the second largest number of seats in British history until this recent election. There was a further endorsement. The people were given another bite to try to get the message across at the European elections this summer, in which, amazingly, the Conservative party managed to come fifth behind the Greens, because our then withdrawal agreement was so unpalatable. The people have now had a fourth bite, and I am very proud of those people.
I was proud to represent those people eight days ago, when the windscreen wipers were on double wipe, and there were queues in the rain in Oswestry and Market Drayton. All my small villages said that it was unprecedented. At about lunchtime—in fairness, my wife got there first—we twigged that it was a rerun of the referendum. Those people had been abused. They had been traduced. They had been bombarded with propaganda leading up to the referendum and after it. Since then, they have been told that they were thick. They were told that they were racist. We in the ERG were told that we were fascists, Nazis and extremists. All we wanted was to honour the referendum, the core of which is that laws and taxes imposed upon British citizens would be levied by democratically appointed politicians—elected politicians of this House. If they passed good laws, they would be re-elected. If they passed fair taxes and spent the money well, they would be re-elected. If they did not, they would be chucked out by the electors—a very simple principle, which we have taught the world about for centuries. That is what this is about. It is staggering to hear Members this morning still quibbling and cavilling about this. Four times the people have spoken. How many more times do they have to speak to get it? They voted to leave. This Bill means that they will leave, and I am delighted for it.
Mr Paterson
No; I am looking at the clock.
I touched on my fears in relation to Northern Ireland, and I want briefly to mention fishing, on which the Prime Minister gave me a splendid answer. In 2005, the Conservative party fought an election on my Green Paper, which established that the common fisheries policy is a biological, environmental, economic and social disaster. We need to replace it and take back complete control of the exclusive economic zone and all our resources, and then on an annual basis, in an amicable manner like other maritime nations, negotiate reciprocal deals on quota. That is the way ahead, but this is a day for democracy.
Mr Paterson
No; others want to speak. We are delivering what the people wanted four times, and I am delighted to support the Bill.
Matthew Pennycook (Greenwich and Woolwich) (Lab)
I intend to be as brief as I can, not least because the Bill before us is, in essence, the one that we debated in principle back in October. I also do not intend to delve into the various ways in which the Government have revised the legislation and abandoned their previous commitments on workers’ rights, parliamentary scrutiny and oversight, and child refugees. There will be time enough for those changes to be debated in Committee. I want to focus my brief remarks on the purpose and intent of the deal that this legislation will give effect to.
There is no question but that it did its job, but after 31 January, the slogan “Get Brexit done” will be exposed as the fiction that it is, because when this Bill becomes law, as it will, it will not mean that Brexit is done, and every single hon. and right hon. Member on the Conservative Benches who parroted that line during the recent election campaign knows full well that that is the case. Brexit is a process, not an act, and the passage of this legislation and the full implementation of the agreement by both parties is only the end of the beginning of that process and a prelude to a far more challenging phase of it.
In that next phase, the threat of a no-deal cliff edge will remain a distinct possibility, but it is not inevitable. There is, in my view, no chance that a comprehensive partnership will be concluded before the end of the transition period in December, but there is a chance that a free trade agreement can be concluded in that time. All it will require, of course, is a multitude of concessions from the Government—concessions that the Prime Minister will no doubt dress up as victories, just as he did with all those concessions he made to secure his deal in October. The reason why I do not rule out the possibility that a trade deal might be secured in less than 12 months exposes precisely the kind of agreement that the Government are aiming for.
If we set aside the very serious implications of this deal for Northern Ireland and the constitutional integrity of the United Kingdom, the deal struck in October was the product of a conscious political decision on the part of this Government to break with the approach of their predecessor and abandon the possibility—and it was only ever a possibility, not a guarantee—of a trading relationship premised on a close alignment with the EU, in favour of guaranteeing a more distant one. Ministers are apt to label their objective for the future economic relationship as a “best in class” free trade agreement. That phrase is entirely meaningless. The deal that the legislation before us seeks to give effect to will set us on a path toward, at best, I fear, the most basic form of free trade agreement possible—one likely to be focused only on tariffs and quotas in goods trade, and one that will therefore necessarily involve only minimal coverage of services and significant non-tariff barriers on trade.
As my right hon. Friend the Member for Leeds Central (Hilary Benn) alluded to, voting for this legislation today will leave the door open for the hardest form of Brexit possible, short of leaving the EU without an agreement at all—a Brexit that will entail a decisive break with the EU single market and its customs union, judicial framework and regulations. As the Government’s own economic analysis of previous deals makes clear, it will have a profoundly negative impact on our economy for years to come. We may not feel those economic consequences immediately. Indeed, there is every chance that we will see a surge in investment in the months ahead, but the harm—discernible or not to those it will impact on—will be felt and will take its toll in every constituency and every community across these isles over the coming decades.
I do not believe that a Brexit of the kind that this legislation will facilitate is the right way forward for our country or for those I represent. Indeed, I believe that it is a profound error. Each of those Members here today who share that view—indeed, each of us who served in the last Parliament—will no doubt continue to question whether we could have done more to avert this outcome, but those of us who were returned last week have a chance today to signal our clear opposition to it and to ensure that the deal before us and its consequences are wholly owned by the Conservative party.
The deal before us was a bad deal for our country in October when the Prime Minister agreed to it. It remains a bad deal today, and I am afraid that the scale of the Government’s victory last week has done nothing to alter that fact or my very firm conviction that the right thing to do today is to vote against it in principle.
Rachel Maclean (Redditch) (Con)
Thank you, Mr Speaker, for calling me so early in the debate.
Rachel Maclean
I was just congratulating myself on putting my tick in the right box to vote for you, Mr Speaker. It is indeed wonderful to see you in the Chair. Congratulations on your election, and I hope that it ushers in the start of a brave new Parliament, not just for me and my own speeches, but, of course, for all of us, and for the country.
In the general election that took place only just over a week ago—which seems incredible—I was returned to this place with more than 63% of the vote, the largest share ever received in the fantastic constituency of Redditch since its formation in 1997. It exceeded even the vote share of Jacqui Smith, the former Labour Home Secretary, when she represented the constituency so ably. That, I think, constitutes an overwhelming mandate for me to get Brexit done, and then move on to the priorities on which my constituents want me to focus on their behalf. One of those priorities is, of course, returning services to the Alex hospital. New Members, you will hear that again—hint, hint.
I think it fair to say, along with my colleagues who were also elected in 2017, that we have had a pretty miserable time of it. All of us entered the House full of the passion that my wonderful new colleagues sitting near me clearly feel. We were eager to do our best not just for our constituents but for the whole country, but we have not been able to fulfil what we were sent to Parliament to do. I believe that, as a Member with the privilege to sit on these Benches, I am a servant of my constituents. It is not my job to tell them that they were wrong, and that they did not know what they were voting for. I voted remain, but at the end of the day we have to respect democracy. People who are on the wrong side of arguments just need to move on, and, finally, we have a chance to do that.
I must admit that when the Prime Minister set out on his path of first trying to reopen the withdrawal agreement and get rid of the backstop and then going for a general election, I thought to myself, “He has an uphill struggle in front of him.” I really wondered whether he would be able to do it, given the state of the Parliament that we had at the time, but I think that what he has done is take a leaf out of the British Army engineers’ book. They have a saying when faced with a seemingly unsurmountable challenge: “We will get it done, whether it can be done or not.” I think that that is what the Prime Minister has done, and I want to thank him for returning all of us here, and for breaking the deadlock and allowing us to do our job of serving the people. We have a refreshed Parliament. We have a new intake who are full of passion and energy and ideas to transform our whole country, and we can finally do that.
I can think of no better way in which to finish this brief session of Parliament than to wish everyone a very, very merry Christmas, including you, Mr Speaker, the Clerks and all the Doorkeepers, and all the staff who have worked so hard to make us all feel welcome. It was only two years ago that I was here for the first time, and I remember how confusing it was, but the staff are so patient and so lovely.
Let me end by saying, in case anyone was in any doubt, that I will definitely be voting in the Aye Lobby to honour the democratic wishes of the lovely people of Redditch who have put me here—and by wishing everyone a very merry Brexmas.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
During the election period I spoke to many voters, and I fully appreciated the desire expressed by some—whether they had voted leave or remain—for closure on Brexit. It was very clever electioneering to convey the impression that this was simply a small foreign policy issue that could be wrapped up relatively quickly so that Ministers could get on with bread-and-butter domestic issues. However, we are no longer electioneering. It is time for reality to bite, and the reality is that this Bill is just the start of years of uncertainty about our future. Rather than getting Brexit done, it gets Brexit begun.
There are still so many issues to be resolved, and they are incredibly thorny ones. The most fundamental question is whether securing a United States or a European Union trade deal is more important to the Government. Both will require some sort of regulatory alignment, and the Prime Minister needs to decide what he is prepared to concede—on food, fisheries, labour and environmental provisions, just for starters.
The Government must also decide what kind of say, if any, devolved Governments will have in respect of trade agreements. If the Scottish Government are excluded from negotiations, what will that mean for our Union? We have already seen and heard about the challenges posed to Northern Ireland by the proposals to place a border in the Irish sea, which was something that the Prime Minister promised not to do. Some time ago, immediately after the 2016 referendum, I asked what the Government would do to ensure that regional voices and concerns were heard as part of the Brexit negotiations. The answer that I received from the Prime Minister was nothing, and I have little hope that it will be any more encouraging today.
Those are really big questions, and that is without even mentioning long-term tariffs, access to the labour market, the state aid regime, access to fishing waters, regulations—across the whole economy but particularly on food—the priority given to sectors such as farming, financial services, and automotive, environmental and labour policy, data flows and privacy issues, intellectual property, access to diverse EU regulatory programmes, and much, much more. The Prime Minister has committed himself to doing all that in just 12 months or risking another no-deal cliff edge.
Just as the election does not change the fact that Brexit will continue to dominate our politics for some time to come, it also does not change the economic reality of Brexit. The Chancellor flatly refused to publish any Treasury analysis of the Prime Minister’s deal when I wrote to him before the election in my then capacity as interim Chair of the Treasury Committee. He also refused to appear, or to send any Minister to appear, before the Committee. It is also difficult to see how the kind of Brexit that the Prime Minister wants to pursue is in any way compatible with the wider promises made by the Conservatives during the election campaign. The Government say that they are committed to increasing public spending—spending on the NHS, education and the police, at least—while also keeping tax, national insurance and VAT either flat or falling and reducing debt as a proportion of GDP over the course of this Parliament. What choices the Government make, and what promises they break, remain to be seen.
I am truly sorry that although parties offering a final say on any Brexit deal won 53% of the vote in the general election and although all the public polling indicated that the majority of the British public thought that it had been wrong to vote to leave the EU back in 2016, the voting public will not be able to have their say on the final Brexit deal. Indeed, that was precisely why the Prime Minister wanted a Brexit general election rather than a confirmatory referendum, despite having got a withdrawal Bill through Parliament at the last attempt before Parliament was dissolved.
We are where we are, as they say. The make-up of Parliament has changed dramatically, and we will now be leaving the EU at the end of January. However, the anxieties of the people whom we represent in the north-east about what Brexit means for their jobs and their livelihoods have not changed. The analysis showing that the north-east will be hit hardest of all has not changed, and nor has the threat that Brexit poses to the 63% of north-east exporters who rely on access to EU markets.
Brexit is not going to be done. The challenges of the next stage are infinitely more complex than those of the first. I will continue to represent the views, the anxieties and the interests of the people whom I represent here in Parliament, and to hold the Government to account on this monumental change for the country, which I fear that many will come to regret.
Several hon. Members rose—
Mr Deputy Speaker (Sir Roger Gale)
Order. Before we proceed, I remind the House that Mr Speaker has sought to impose a voluntary six-minute time limit.
Stephen Crabb (Preseli Pembrokeshire) (Con)
It is a pleasure to follow the hon. Member for Newcastle upon Tyne North (Catherine McKinnell), and it is also a pleasure to have heard some really excellent speeches already, most notably the maiden speech made by the hon. Member for Belfast South (Claire Hanna). It was a pleasure to hear the speech made by my hon. Friend the Member for Fareham (Suella Braverman), who spoke powerfully about trust.
In a sense, we are ending this year very much as we started it: with a debate and a vote on an EU withdrawal agreement. As I did in January, I will be voting in support of the withdrawal agreement, first and foremost because I am a democrat. I believe in honouring the outcome of the 2016 referendum and I will support measures to take the United Kingdom out of the EU. I also believe that how we leave the EU really matters. I believe in an orderly exit. I have been consistent in my support and preference for leaving with a deal. We have what I think is an eminently supportable deal in front of us.
We are also ending this year in a very different place from where we started. All week, there has been a sense of a fresh start around Westminster and of a page being turned. I appreciate that that might not be felt equally on both sides of the Chamber, but I hope that this will be a fresh start for the whole House of Commons, with a new sense of purpose and direction. I believe that voters last week put us here to bring a fresh sense of purpose and direction. Voting for the Bill today will send a very powerful signal back to the British public—back to our voters—that we have heard their message and that we are bringing that sense of direction and purpose.
Make no mistake about it: for those who were not in this House during the course of this year, 2019 has been a year of sclerosis. We took the British public on a tortuous journey of suffocating delays, endless and repetitious debates, and votes that took us nowhere. There was no substantial outcome from all the hours that we spent in the Chamber on this very subject. The British public turned out at polling stations a week ago to give us their verdict on that. Very quietly and very firmly they said, “Enough now.” It is time for action and decision.
We have a Government who have been put here to legislate to take us out of the EU in an orderly and responsible way. We have tested the patience of the British public quite enough. They send us here to do a job. Yes, they expect us to scrutinise. They expect us to ask difficult and challenging questions of the Government, even when their Ministers sit on our side of the House. They expect us to work hard at that, but they do not expect us to come here and wilfully block a democratic mandate such as the one they gave in the 2016 referendum.
Colum Eastwood
May I just point out—I know it was not said very often in the previous Parliament—that the people of Northern Ireland voted to remain? In every election since, they have reasserted their rejection of Brexit. Government Members talk about one nation and all that, but will they recognise that Northern Ireland and Scotland have once again, and very loudly, rejected this Brexit and every other kind of Brexit you could possibly come up with?
Stephen Crabb
I thank the hon. Gentleman for that intervention. In fact, I was going to come on to make precisely the point that as well as being a democrat, I am also a Unionist. The election results in Northern Ireland and Scotland, which reaffirmed the referendum votes there, present a challenge to those in government about how to take Brexit forward. I am satisfied that we are dealing with Northern Ireland very sensitively and I think we have work to do on how we address the issue for Scotland, but I come back to the point I was making: we have been sent here to do a job. Voters—members of the public—do not expect us to block democracy. They do not expect to see their Members of Parliament trying to use every trick in the book to block Brexit, but that was precisely what happened in 2019. Members of Parliament went to their constituencies to tell their leave voters on a Saturday that they really wanted to get on with Brexit. They then came back here on a Monday morning to find and use every trick in the book to block Brexit.
I am very clear that the constituents of Preseli Pembrokeshire have put me here to do a job. Passing the Bill today is a really significant, first positive step forward to implement the outcome of the 2016 referendum. I believe that to vote against it would be a vote for continuing all that we saw during 2019: a winter that never ends, and never reaches Christmas. My appeal to colleagues on both sides of the House is to get behind the Bill and show the country that this new House of Commons has a real sense of direction and purpose for the whole United Kingdom.
Wera Hobhouse (Bath) (LD)
I am a first-generation European migrant. When I came here in 1990, the passport I was holding was not an issue. I was welcomed and allowed to thrive. Our four children were born and brought up here. I worked as a teacher and paid my taxes. I was, like millions of EU citizens, a part of British society. I became a councillor. My residents first thought me a bit different, but they soon accepted that my background did not matter and that I represented them well. I became a British citizen and stood for Parliament. Then came Brexit. EU citizens became the centre of a cynical political ploy to divert attention from a failure to invest in public services through an attempt to pin blame on EU migration. Suddenly, I was wondering, “Am I not welcome here? Do they mean me? And if they do not mean me, who do they mean?” My wonderful electorate in Bath has always looked beyond my background and has just re-elected me with a huge majority. I feel truly humbled, but Bath is special.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
Will the hon. Lady give way?
Wera Hobhouse
The relentless rhetoric and the hostile environment created around EU free movement has wounded EU citizens to the core. The Government’s newly found but false words about our “European friends” are failing to repair the damage. EU citizens understand that this Tory Government do mean them, and they are leaving.
Wera Hobhouse
No smooth words can easily heal the deep wounds that have been created here and abroad. I feel differently about this country now than I did when I first arrived, and so do millions of true Brits who, like me, are grieving for Britain’s lost soul and its shift towards small-minded nationalism. They are embarrassed by a mean and self-centred political class and its timid retreat behind its own borders.
We have talked a lot about democracy, and not just here. The election produced a result: we will leave the EU at the end of January. My party and I fought hard and we fought well. All through the last Parliament, with only a handful of MPs, we stood up for those who did not want to leave—nearly half of all people in this country. We demanded a people’s vote, which the Tories obstinately denied us. We brought thousands upon thousands of like-minded citizens on to our streets. That, too, is democracy.
Wera Hobhouse
I have said no—[Interruption.] I have said no.
In a democracy, a ruling party needs a functioning Opposition. Indeed, without opposition, democracy is dead. My passionate belief that the UK is better off as a proud member inside the EU, rather than as an irrelevant outsider, has not melted away overnight. I will not cease to voice this opinion here and outside Parliament. That is my democratic right. Whoever is trying to deny me or anybody else that democratic right is the anti-democrat, not me.
I understand that now the battle to stop Brexit is over. For me, we do not only leave the EU; we leave an ideal that I had of this country. I was brought up in post-war Germany, a country that was recovering from the ravages of a brutal dictatorship. Britain was a beacon of democracy, liberal values and respect for every human life. British people then had the guts to fight inhumanity, brutality and illiberalism. The mission to bring functioning democracies, based on human rights, civil liberties and the rule of law, to the rest of the world has been a historic British mission. In its long history, Britain has always been global, internationalist, outward-looking and inclusive. Britain understood that its national interest was tightly woven into the interests of countries around them. By saying goodbye to the EU, we say goodbye to those uniquely British political instincts and values.
I and my Liberal Democrat colleagues will vote against the withdrawal agreement, because we believe that it is damaging to our economy, our security, our international reputation and our ability to tackle the global climate emergency, and that it will put a border in the Irish sea and threaten our family of nations. Most of all, we will lose something profoundly British: being international, and leading in the continuous fight for liberal values, human rights and a rules-based international order. We Liberal Democrats will always fight for that.
Sir William Cash (Stone) (Con)
Having listened to what has just been said, I am bound to say that it is a complete inversion of what leaving the European Union is all about. The European Union is utterly undemocratic. As someone who has been Chairman of the European Scrutiny Committee for 10 years, and a member of that Committee for 34 years, I can say that I do know a tiny bit about what has been going on. The reality is that legislation is made in the Council of Ministers behind closed doors by majority voting, in addition to that which is made by consensus and without even a transcript. Fortunately, the people of this country will be able to hear and see what is done in this Chamber today, which they certainly could not do in the Council of Ministers. It is a complete travesty to suggest that, in some shape or another, we are little Englanders or nationalistic; we are nothing of the kind.
This is a watershed moment in our history. This Bill, when it is enacted, will go down in history—in conjunction with the European Union (Withdrawal) Act 2018, which repeals the European Communities Act 1972—as it stops us being subjugated and shackled by Europe and having rules imposed on us by other member states, allowing us to govern ourselves. It is about law making. That is why, after a free choice by the people of this country, we have been returned to this House. I congratulate the people with every fibre of my being for making their decision so emphatically.
The reality is that this is a historic moment. It compares with the decision that was taken in 1660 when the Cromwellian period ended and we returned to parliamentary government. We re-established parliamentary government in 1688. Then there were the Corn Laws. The working man was given the right to vote in 1867. In May 1940, we decided that we would not be governed by any other country. We defeated Hitler and made it clear that we would be a self-governing nation.
Daniel Kawczynski
I am very grateful to my hon. Friend for giving way. Will he acknowledge that there are hundreds of thousands of EU citizens in this country—people like me who have come from Europe to settle here—who voted for Brexit and believe in Brexit? The hon. Member for Bath (Wera Hobhouse) seeks somehow to represent all of the EU citizens, but there are hundreds of thousands of us who stand by and are proud of the decision that this country has taken to regain her sovereignty.
Sir William Cash
I agree with every word that my hon. Friend has said. For me, this has been a long journey. My first amendment on the question of sovereignty was in June 1986 during the Single European Act. I was not even allowed to debate it. I was cut off at the knees by one of your predecessors, Mr Deputy Speaker, for daring to suggest that the matter should be debated. The fact is that we then moved on to the Maastricht treaty, and I had the honour and privilege to help run and then lead the rebellion that was needed to stop European government, which is what that treaty was all about. Then we moved on to Nice, Amsterdam and Lisbon.
As I survey the landscape of the enormous change that is taking place today, I see exhausted volcanos of former Prime Ministers who have been constantly in the media telling us that we got Brexit wrong. No, we did not. Furthermore, not only did we get it right, but the British people 100% know that this is one of the great moments in British history. We have been shackled by the European Union. Yes, we will continue to trade with it. Yes, we will have global trading. Yes, we will have our democracy and our sovereignty back. This is a great moment in our history. I can only say that, as far as I am concerned, the most important clauses in this Bill are 29 and 38. One gives the right to the European Scrutiny Committee to determine whether matters of national vital interest need to be protected from legislation, which may well be brought in against us by the European Union from behind closed doors during the transition period. For example, the ports regulation, which was imposed on us only a few years ago, was objected to and absolutely resisted not only by Members of the Committee but by all the trade unions and port employers.
Sir William Cash
And by the former Minister as well. We were overridden by Europe. This Parliament was treated with contempt. The regulation was imposed despite the fact that we were completely against it.
The other important clause relates to parliamentary sovereignty. I am glad to note that the wording in that clause is identical in certain respects to that which I put forward in June 1986. Perhaps this long journey has been proved to be worthwhile.
I congratulate the Prime Minister on what he has achieved, and, above all else, I congratulate the voters of this country, particularly those in former Labour seats, for their decision. I was brought up in Sheffield and saw the destruction of the steel industry and the destruction of the coal industry. [Interruption.] No, it was done—[Interruption.] Look, I will not take any lessons from the hon. Member for Sheffield Central (Paul Blomfield). I voted against the closure of the coal pits. I was one of the very few people—[Interruption.] I am just telling you that it was the European coal and steel community that was at the root of the problem. As vice-chair of the coal communities all-party group, I can tell you that I worked with Labour Members of Parliament on these issues.
Mr Deputy Speaker (Sir Roger Gale)
Order. The hon. Gentleman is a very experienced parliamentarian. He knows that he should address the Chair, and not individual Members and, while I am on my feet, I say to him that I am looking at the clock as well.
Sir William Cash
I am grateful for that comment, Mr Deputy Speaker, because I agree with it. I will only say, with every fibre of my being, that the European Union has done no good to this country. We run a massive deficit with it and a surplus with the rest of the world. By this Bill, when enacted, we will regain the right to govern ourselves. It is about democracy and trust, which is something so precious that people fought and died for it.
Mr Deputy Speaker
It is now a pleasure to invite the hon. Member for North Down (Stephen Farry) to make his maiden speech.
Stephen Farry (North Down) (Alliance)
Go raibh maith agat, a Leas-Cheann Comhairle. Thank you, Mr Deputy Speaker. I wanted my first formal comments in this Chamber to be in Irish to reflect the shared heritage of the language across all the traditions in Northern Ireland.
I am very pleased to be here as a representative of the Alliance party of Northern Ireland. I am the second member of my party to be elected, following in the footsteps of my party leader, Naomi Long, who was elected back in 2010, and of Stratton Mills, who sat here for about a year as an Alliance Member back in the early ’70s as the Member for Belfast North.
Before commenting on the Bill, I want to pay tribute to my predecessor, Lady Hermon, who was a diligent Member over 18 years and conducted herself with tremendous integrity. In recent years in particular, she was very dogged in standing up for Northern Ireland and particularly in protecting the Good Friday agreement in the context of Brexit.
I come to this House with a very strong mandate for remain—indeed, the remain vote in Northern Ireland grew in the election—and that strong remain vote continues to reflect the dominant majority of the people in that region. I will therefore be voting against Second Reading of the Bill in order to honour the wishes of the people who sent me here and the people of Northern Ireland.
There is no such thing as a good or sensible Brexit, whether we are talking about the UK or Northern Ireland in particular. Following on from previous comments, it is worth stressing that the House is potentially poised today to consciously vote to make the UK worse off economically. We are aware that that is what we are doing. It is an incredible situation the House finds itself in. The European Union represents perhaps the single greatest example of economic integration anywhere in the world, and we are walking away from that.
We are being presented with a false choice between working in the context of the European Union and pursuing a global Britain. We can best expand our trade and economy by working through the EU, where we have the strength in numbers to stand up and get better deals with the likes of the United States, Australia and China. That is in our self-interest. It is also important to bear in mind that the EU is more than an economic body. It is more than the sum of its parts and it allows effective and collective responses to global challenges, including migration, global poverty and, most critically in terms of the current agenda, tackling climate change.
Society in Northern Ireland only works when based on sharing and inter-dependence. Sadly, we remain a divided society. We are a complex society with lots of ambiguities. The Good Friday agreement balanced all those different challenges through a unique set of relationships. It is about the principle of consent, but it is more than that; it is about the internal dynamics, the north-south relationship and the east-west relationship. In terms of our economy, both supply chains and trade, we depend both on north-south and east-west linkages.
The challenge of Brexit is that if we do not go for a soft Brexit, as defined by the UK staying inside a customs union and the single market, Northern Ireland will be confronted with some form of border boundary interface and a degree of friction, which is very regrettable. Any perception of a border creates the feeling of winners and losers, and in the context of a place like Northern Ireland, where we are inching slowly towards a better and more reconciled and integrated society, that has the potential to be very damaging and destructive.
The deal negotiated by the right hon. Member for Maidenhead (Mrs May) was a better attempt at a soft landing than the deal negotiated by the current Prime Minister. Indeed, the previous deal had the pragmatic support of the Northern Ireland business community and an unprecedented level of commitment from them, given that this is a rather contentious political issue. They understood that it was a genuine attempt to address the issues. The current proposal from the Prime Minister presents Northern Ireland with a much more challenging situation. While it certainly maintains an open border on the island itself, it creates a much more problematic situation down the Irish sea than people had a right to expect and was originally anticipated.
To be clear, some degree of checks down the Irish sea can be managed—indeed, there are already precedents in that regard—and Northern Ireland has always done things differently since the early 1920s. Nor do I see the notion of any special deal for Northern Ireland or an interface as being a constitutional question, but what has been proposed so far will be very challenging for our economy, in terms of both the east-west interface and the west-east exchange. Some estimates put the compliance costs as high as £300 million per year for our businesses. That simply cannot be sustained. So rather than Northern Ireland having a foot in both camps, Northern Ireland risks becoming peripheral. The Prime Minister, throughout the election campaign, has been very clear that there will be no checks down the Irish sea, but that is clearly at odds with the view of most experts and most people who have analysed the deal so far.
There is some common ground across all the parties from Northern Ireland. Clearly, I am coming from a remain perspective, as are my colleagues from the Social Democratic and Labour party, whereas my counterparts from the Democratic Unionist party are coming from a leave perspective. But together we have a reasonable argument, and we speak with a moral authority, about trying to mitigate the impact of that boundary down the Irish sea. At the very least, we would ask that the Prime Minister and Government meet us halfway in that regard.
Much has been made of the Prime Minister’s comment about being a one nation Conservative. Unlike my counterparts in the DUP, I do not interpret that as meaning one nation of the UK; the UK is about four different nations. My appeal to the Prime Minister is: don’t be a one nation Prime Minister for England, but be a Prime Minister for all four nations of the UK, and, as we proceed to the more detailed scrutiny of this Bill, pay particular attention to the needs of Northern Ireland and the damaging implications of what is now set to emerge in terms of that interface down the Irish sea.
Mr Nigel Evans (Ribble Valley) (Con)
First, let me congratulate the hon. Member for North Down (Stephen Farry) on an excellent and accomplished maiden speech, and the hon. Member for Belfast South (Claire Hanna) on an excellent, distinctive maiden speech, given in her own style. Giving a maiden speech is incredibly stressful. I gave mine more than 27 years ago, and I am sure you remember it, Sir Roger. It took place at 1.10 am and it was on the subject of the Maastricht treaty. Tristan Garel-Jones was sitting where our wonderful Brexit Secretary is sitting now, and it was truly the most awful speech I have given in the Chamber to date. I recall reflecting back on it—I have looked at it—and realising that all it said was how wonderful the Maastricht treaty was because it did not contain X and did not contain Y. When I look back on 1975 and the referendum Harold Wilson set up to get himself out of a pickle, I feel that I probably would have voted to stay in the common market, because I thought that the common market was a good thing. But the first piece of legislation, the Maastricht treaty, was part of the salami-slicing of powers away from this wonderful institution, the mother of all Parliaments at Westminster, and giving them to Brussels.
I did not want that, so when David Cameron announced that we were going to have a referendum on staying in or leaving the EU, I sat down and thought, “Now, which side am I going to go on?” That internal mental debate lasted about a nanosecond, and I thought, “It’s time to leave.” I am grateful to Opposition Members for informing me since 2016 as to why I voted to leave—as did my constituents and the country—but I really do not need any help, because I know why I voted to leave. I did not do it to make my country poorer or to increase unemployment. Call me old-fashioned, but I did it in order to ensure that all the legislation that pertains to this country is actually made in this Parliament and that if the people of Great Britain do not like what the Government are doing, they can kick us out. That is democracy.
When I stood on the A59 on 23 June 2016 with some leave banners, inhaling all the lead from the passing lorries, whose drivers tooted madly when they saw the signs, I knew that we were making history on that day. Sadly, when we got back here, with all the excitement of “We’re leaving, we’re leaving”, we found that the sclerosis and paralysis set in. At one stage, I thought that the best we could hope for was Brexit in name only and that we would be in some form of customs union—that is not Brexit. I thought that we would be justiciable by the European courts—that is not Brexit. I thought that we would have to pay in money to access the EU’s single market—that is not Brexit. I know why people voted to leave the EU, and it was not to have Brexit in name only. They voted to ensure that when we leave on 31 January, we are then a third country, and that when we have left the implementation period, at the end of 2020, the United Kingdom of Great Britain and Northern Ireland will be an independent country again.
We can start to look forward to the future with such optimism, which is displayed by the Prime Minister every time he comes to the Dispatch Box. There is a positivity and energy about him and about our country, because, despite the referendum campaign, which told us that unemployment would go up, there would immediately be a recession and it would be a disaster for the United Kingdom if we voted to leave, the plucky British people decided not to listen to the gloom and doom; they decided that they knew better about their country.
I look forward to those trade deals with the European Union, the United States of America and the vast majority of countries that manage, somehow or other, to operate outside of the European Union. I think that our country has an incredibly great future.
On that note, I wish all Members on both sides of the House, because it has only been a week since we were re-elected and it was a gruelling campaign—I still have frostbite—and all the staff who look after us a very merry Christmas and a happy 2020 with an independent United Kingdom.
Stephen Timms (East Ham) (Lab)
I echo the final sentence of the hon. Member for Ribble Valley (Mr Evans) but not much else of what he said.
The Prime Minister was understandably very anxious to hold the general election before the Bill was scrutinised. As we go through the Bill in detail, the impact of his agreement on the UK will become apparent. The agreement will do a lot of damage to our constitution and to our economy, and Government Members will have a lot of explaining to do to their constituents as those impacts become apparent in the years ahead.
I want to raise two points. First, I want to deal briefly with an important subject that I raised with the Prime Minister in the House on 19 October. I asked him whether he understood the worries of manufacturing exporters, as set out by their organisation, Make UK, about new rules of origin checks and other red tape that his deal will impose on them. He answered:
“The reason I am not worried about that is that there are no new rules of origin checks.”—[Official Report, 19 October 2019; Vol. 666, c. 594.]
But that is not what his deal says. Paragraph 22 of the political declaration, which he negotiated, refers to
“appropriate and modern accompanying rules of origin”
for the proposed free trade agreement, in direct contradiction to what he said in the Chamber. Of course, the reality is that there will have to be rules of origin checks to stop products from countries outside Europe entering the European Union via a UK free trade agreement.
Secondly, I want to talk about a subject—it has been aired already in the debate—where again the Prime Minister’s statements contradict directly the agreement that he has negotiated. The withdrawal agreement’s protocol on Ireland and Northern Ireland—in paragraph 4 of article 5—states:
“The provisions of Union law listed in Annex 2 to this Protocol shall also apply…in respect of Northern Ireland.”
Annex 2 comprises 34 pages and lists what I count as 287 separate items of EU law that will continue to apply in Northern Ireland but not in the rest of the UK. The hon. Member for Ribble Valley was celebrating exiting the customs union, but of course Northern Ireland will not exit the customs union.
The first of those 287 items of EU law is the European Union customs code, which will continue to apply in Northern Ireland after the UK has left the EU, and that will have far-reaching consequences for Northern Ireland. I pay tribute to the hon. Members for North Down (Stephen Farry) and for Belfast South (Claire Hanna), who both made fine maiden speeches highlighting some of these issues. In an earlier intervention I quoted from the Government’s own impact assessment. Paragraph 241 states:
“Goods moving from Great Britain to Northern Ireland will be required to complete both import declarations and Entry Summary (ENS) Declarations because the UK will be applying the EU’s UCC—
the Union customs code—
in Northern Ireland.”
Ian Paisley (North Antrim) (DUP)
On the issues that the right hon. Gentleman has identified, does he agree that for any business in Northern Ireland—remember that 70% of our trade is with the rest of the United Kingdom—the codes that he has read out put a significant burden on doing business from Northern Ireland with the rest of our nation, and that should be changed if this goes ahead?
Stephen Timms
Undoubtedly the measure does that, but it is hardwired into the deal that the Prime Minister has done. What he means in claiming that there will be no checks across the Irish sea is anyone’s guess—just read the Government’s own documents. His statement is quite clearly untrue. The Treasury presentation on the Northern Ireland protocol that we have been reminded of makes the position clear:
“At minimum, this means that export summary declarations will be required when goods are exported from NI to GB, in order to meet the EU’s obligations under the SAFE framework.”
It continues, in a slide in the presentation headed “Economic Impact on NI”:
“Customs declaration and documentation and physical checks on W/E and E/W trade will be highly disruptive to the NI economy.”
That is the truth about where we are heading. There will be major damage to the Union between Northern Ireland and Great Britain. One of the ironies of this is that it has been directly facilitated by the party in this House whose raison d’être is to maintain the Union.
The agreement that is implemented in the Bill will damage the UK, it will put the continued existence of the UK in its current form at risk, and it will damage the UK economy. I shall oppose it, and those who support it today will have a lot of explaining to do to their constituents as the impacts unfold over the years ahead.
Simon Hoare (North Dorset) (Con)
May I first say that I am hugely grateful to the people of North Dorset for returning me to the House, to allow me to continue to speak and work on their behalf?
It is worth reminding ourselves that this was a national referendum. I hear what colleagues from Northern Ireland and Scotland say, but we did not say that all four constituent parts of the United Kingdom had to vote uniformly. It was a national referendum on a first-past-the-post basis. There is a thin veneer of defence for those seeking to hide behind the argument supporting separatism when those lines are trotted out. For those who question the Government’s commitment to protecting and enhancing workers’ rights, I hope that it will not embarrass or upset the Opposition too much when I point out that my party is now the party of the workers of this country, who voted for us in huge, huge number. [Interruption.] No, thank you. I ask what I hope is a rhetorical question—why would any party in government seek to undermine the rights of those people who have turned in such great number to support us, not least to get Brexit done?
This is, of course, a sad day. Colleagues have commented on the paralysis that we have endured for the past 18 months or so. Today’s debate should have taken place to allow exit from the European Union in March, so I hope that a spirit of broader pragmatism and co-operation can break out.
A number of Members have reflected on key messages of the electoral event last Thursday. My take is that it was a civil war, but without the blood. Voters in great number picked up a ballot paper and a stubby pencil, reasserted their rights, and reaffirmed their role as our masters and bosses. We cannot, as democrats, ask the people of this country to give us a decision, and then, when we find it either surprising or inconvenient, find every trick in the book to try to dodge it.
Until May this year, my postbag—I am sure other colleagues found this as well—was inundated with letters from constituents who had ideas about how to break the deadlock and move things forward. However, after May, and certainly after the elections to the European Parliament, people started to write saying that they were so fed up that they were minded to opt out of the democratic life of this country or, worse, were exploring avenues of civil disobedience to, in some way, ventilate their growing frustration at the arrogance of too many people in this place who thought they knew better than the people.
What greater exposition of that arrogance was there than the campaign from the Liberal Democrats? It was illiberal and undemocratic—worthy of neither part of their party’s title. The smug intellectual arrogance they deployed—[Hon. Members: “Where are they?”] My hon. Friend the Member for South Dorset (Richard Drax) and others ask where the Liberal Democrats are. Their terrible righteous smugness, which seems to be a unique part of liberal democracy’s DNA—the idea that they know more and better than everybody else—
Stewart Malcolm McDonald (Glasgow South) (SNP)
On the point about being smug, I invite the hon. Gentleman to reflect on the result in Scotland. How many colleagues of his were here from Scotland before the election, and how many were returned afterwards?
Simon Hoare
Let us be frank: the SNP had a very successful result, although it was not as good as the hon. Gentleman and I remember from 2015. As others have commented, it will present challenges for those of us who believe fundamentally in the preservation of the Union, who will now need to find arguments that are more compelling than merely the broad, abstract and romantic, and that focus not so much on the pounds, shillings and pence but on making the positive case for the Union. That is an important point.
Alan Brown (Kilmarnock and Loudoun) (SNP)
Will the hon. Gentleman give way?
Simon Hoare
No, thank you.
As we face the opportunities and the challenges of our country leaving the European Union, I am absolutely convinced that we stand the best and strongest chance of making a success of this new chapter of our national story if we stand shoulder to shoulder and do these things together.
May I just say a brief word in relation to Northern Ireland? It was clear that, because it is the only part of the kingdom with a land border with a country that will remain part of the European Union, we needed a border. The question was what and where. We tried the north-south proposal, and we found it to be impossible and not to be supported by many. The east-west proposal is clearly not perfect and, of itself, presents challenges. However, I do not believe that the people of this country define themselves by the narrow rules that govern their customs arrangements—it is far deeper and more spiritual than that. It is key that we maintain the unity of our United Kingdom. The challenge, which I am fully convinced that those on the Front Bench are seized of, is to ensure that, whatever the regime of customs arrangements, they are the lightest touch and are, in essence, cost-neutral. We can achieve that through all sorts of VAT reclaim and other mechanisms.
Let me conclude by saying that the people have spoken, and we on the Government side of the House are their champions. We listened to what they said in 2016, and we have heard it again. We on this side are fully armed to ensure that we restore the democratic legitimacy of this place and the national respect for it. The challenge now will be for Opposition parties to put aside the arguments that they deployed in full sincerity and in good heart but that, put simply, they have lost. It is time to move on. This Bill gives us the opportunity to do so. It has my full support.
Several hon. Members rose—
Mr Deputy Speaker (Sir Roger Gale)
Order. I remind the House that there are still some 20 Members waiting to be called, and we are trying to impose a self-denying ordinance of six minutes. I would be grateful if hon. Members stuck to that. That said, we do allow a degree of leeway for maiden speeches, and it is a pleasure to welcome the new Member for Stirling, Mr Alyn Smith.
Alyn Smith (Stirling) (SNP)
Thank you, Mr Deputy Speaker. I rise to make my first speech in this place with, I confess, a mix of emotions. Until Friday last, I was a member of the European Parliament, proudly representing Stirling, along with the rest of Scotland, in our European family of nations. I now find myself here contemplating our removal from it.
I am proud to represent Stirling, my new home, with 51% of the vote. The heart of Scotland voted SNP, along with much of the rest of our nation. Stirling is the ancient capital, a historic city and the scene of many old battles. It has a big heart and a great future. The seat, at 2,187 sq km—I hope Conservative Members will forgive me; I do not know what it is in miles—is comparable in size to Luxembourg, and it is every bit as diverse. We have many vibrant village communities: Drymen, Gargunnock and Strathblane in the west; Cowie, Fallin and Plean in the east; Killin, Crianlarich and Tyndrum in the north; St Ninians and the Whins of Milton in the south; and Callander, Bridge of Allan and Dunblane. We truly are Scotland in miniature. We have rich farmland, breathtaking scenery, and a world-class university and college. Stirling is held by the SNP at local government level and in the national Parliament of Scotland. The SNP won in Stirling handsomely in the European elections, and we now represent it in this place as well.
I am particularly privileged to represent a number of former mining communities—places where loyalty and community still matter. The Polmaise pit was the first out and the last back in the 1984 miners’ strike. I am deeply honoured to have the trust of such proud communities. They are people who believe in deeds, not words, and I ask only to be judged by mine.
It is customary in a first speech in this place to pay tribute to one’s predecessor, and I do so gladly. Stephen Kerr and I may not agree on everything, but we do agree on the importance of democracy and public service. I pay tribute to his service, and I wish him, his family and his team all the best for the future, whatever it brings.
Indeed, I wish the same for all of us, because although this is a momentous day for some in this House, it is a day of deep sadness for many of us. I assure you, Mr Deputy Speaker, that today’s vote will live in infamy. It is not the end of Brexit; it is the start of something far worse. It is an arithmetic fact, not a matter of opinion, that Scotland has not consented to this. We are not leaving the European Union; we are being dragged out against our will by a Government that we rejected, and hence my mixed emotions. I stood for this place to try to stop Brexit. I won Stirling with 51% of the vote, the SNP won 80% of the seats in Scotland and the pro-EU Lib Dems won four more, and yet despite that, Brexit is happening, as I now accept.
I counsel Government Members to beware of hubris, for in what they call their victory today lie the seeds of a far greater defeat. I understand from previous interventions that there are some scholars in the House. May I suggest some festive reading for them all: the history of Czechoslovakia? Start around January 1991 and see what happens. A Union—the United Kingdom is a Union of nations; do us the courtesy of using the right words—can only be maintained and endure if there is consent and respect. It is an arithmetic fact that in all our recent votes, Scotland has not consented to where we are now, and the actions of this House prove that there is a lack of respect for Scotland’s democracy. I have concluded in the years since, along with my party, that Scotland’s best future lies as an independent state in the European Union. Many people in Stirling agree with me. Many do not, and that is an ongoing, lively conversation, but there are many more than that who agree that it should be for Scotland to choose our future. What is being done to us today is a grave, deep injustice that will not stand and will have consequences.
We on the SNP Benches have long said that this place does not work for Scotland. In passing this grubby, shabby Bill today, this House will prove us right. Today will not be the end of the matter, however much wishful thinking may be employed by Government Members. Scotland is a European nation and Scotland will be heard.
Mr Mark Francois (Rayleigh and Wickford) (Con)
Thank you, Mr Deputy Speaker, for calling me to speak in this historic debate. I have the privilege to follow the new hon. Member for Stirling (Alyn Smith), who I must say spoke very well. I have to confess that I did not agree with every word he said, but he delivered his speech admirably, which augurs well for his future in this House.
In 1997, I fought Ken Livingstone in Brent East. Just enough extra votes—16,000 teensy-weensy, little votes—and I would have beaten him, but in a hustings in Willesden Green library, 22 years ago, he taught me a lesson that I have never forgotten. He said that, as a Member of Parliament—which he was and I was not—a general election is an opportunity to commune with one’s 68,000 employers. I have 79,000 employers in Rayleigh and Wickford, but the principle is exactly the same. I place on record my gratitude to them for re-employing me to represent them—for renewing my contract of employment to speak on their behalf. We got into a terrible mess in this House because too many people forgot that they worked for their employers and not the other way round.
Henry Smith (Crawley) (Con)
I, too, congratulate my right hon. Friend on his deserved re-election. He has been stalwart on behalf of his constituents and on the cause of British independence from the European Union for many long years in this House. Does he agree that the British people have given us a clear message that it is time to confirm their vote of three and a half years ago, and that it should not have taken that long?
Mr Francois
I have given way once.
We spent some 40 years in this House arguing over Europe. In the end, the only thing we could agree on was that we could not agree, so we voted overwhelmingly to give the decision to the people in a referendum, and then some in this House spent three years deliberately ignoring the result. They pulled every trick in the book—the Grieve amendment, the Letwin amendment—time after time, to try to overturn a result with which they and the British establishment patently did not agree. We played a ridiculous game whereby some on the Opposition Benches—and, indeed, some on our Benches—stuck to a mantra of: “I will never vote to allow us to crash out with no deal.” What they meant was: “I’ll never, ever vote for us to leave the EU under any circumstances, but because of the referendum, I can’t say so.”
Finally, we had to have this general election to break the logjam. I am afraid that those on our Benches who took that view, and who assured us time and again that they were doing what their constituents wanted, were proved incorrect. Their constituents had the opportunity to renew their contracts of employment and patently, in every single case, declined to do so. Also, Mr Steve Bray, the man in the hat, stood as a Liberal Democrat candidate in a Welsh constituency. He had the courage to put his name on the ballot paper, but he came sixth and lost his deposit. We wish him a happy—and silent—retirement.
The war in this place over Europe—and it has been a war—is finally coming to a close, not because there was a truce, but because the British people imposed their will on us and told us unequivocally in the general election that they wanted to leave. Many here had argued for two years for a people’s vote. We have just had one: it is called a general election, and the outcome was unmistakeably clear. The people of this country peacefully and democratically voted to get Brexit done.
We will leave the European Union at 11 pm GMT on 31 January. I hope that, in line with early-day motion 2, the House authorities will allow Big Ben to chime at that time to mark the historic occasion, because by God, after all this, we are not doing it again. When we vote on the Bill—when the bells ring this afternoon—we will be doing so to obey the instructions of the British people, who have given us an unmistakable order to leave the European Union. We will vote for the Bill to comply with what our employers have told us they want us to do. It could not be clearer. As my right hon. Friend the Member for North Shropshire (Mr Paterson), with whom I have fought this battle for many years, said so clearly, that is called democracy.
The people have spoken, and we will listen. We will do what they want. When the sun rises on 1 February, it will do so over a free country. All I want for Christmas is not EU.
Mrs Emma Lewell-Buck (South Shields) (Lab)
In the 2016 referendum, I promised my constituents that, whatever the result was—whatever mandate they gave—I would respect it. In 2017, I stood on a manifesto that said I would continue to respect that mandate, and work for a deal and to avoid no deal. That is exactly what I did. In this election, I was clear with my constituents that I still respected that mandate and that I would work for a deal to leave the EU.
People respond to clear and consistent messaging. My party’s catch-all Brexit policy failed. Today was, and still is, an opportunity to stop the procrastination and send a message to our lost voters—the voters that our party was created to give a voice to in Parliament—that we do hear them, value them and genuinely want to rebuild their trust.
I am fed up with hearing that we need to listen more to our working class communities—communities that some people here speak about as if they were some kind of homogenous block who all think and feel in exactly the same way. They certainly do not. Many of us here listen to our communities every single day. Some who did that are no longer in this place, because others refused to hear or act on the voices of their constituents, which they so passionately articulated. I am deeply saddened that my right honourable friend the former Member for Don Valley, who has been an utterly fierce champion for democracy, her constituents and those of us who wanted to honour the promises we made to our voters, is no longer on these Benches. She, along with my honourable friends the former Members for Great Grimsby, for Crewe and Nantwich, for Stoke-on-Trent North, for Stoke-on-Trent Central and for Leigh were—and I know that they take absolutely no pleasure in this at all—right on this issue every single step of the way. This debate and this place are poorer without them.
Just over eight weeks ago, those former Members and I voted for the Second Reading of this Bill, which has now changed. In my time in this House, we often voted for Second Readings. We sometimes have not liked the Bills, but Second Reading is not a blank cheque; it is an opportunity to move the debate forward, propose amendments and seek improvements. I will vote for Second Reading again today.
The programme motion is short. Last time, we tried to force the Government to offer more time and we ended up in the worst general election in my memory. Now, much as I am heartbroken by the fact, the Conservative party has an overwhelming mandate that it did not have last time we debated this Bill. I will vote for the programme motion as well and put my energy into making the case for changes in Committee. I do not want to oppose for opposition’s sake: we need to build consensus and stop the combative nature of this debate. That serves no one, and the past three years have proven that.
This has been an awful, toxic period in our politics. I have despaired at how this place has descended so many times into the most divisive, base, angry, gallery-pleasing politics. It might make for good headlines, but it does not make for a serious, functioning Parliament that people can have any respect for or any faith in. I will always deliver on the promises that I make to my constituents. Their faith in me always matters. My word to them matters. It is with the heaviest of hearts that I cannot vote with my party today, but I will always put my constituents before everything else, because the day I do not is the day I no longer deserve the honour of being their voice in this place.
Sir John Hayes (South Holland and The Deepings) (Con)
Welcome to the Chair, Mr Deputy Speaker. I have no doubt that it is going to be a delight to serve under your enlightened chairmanship for many years.
Listening to this debate, I drew a contrast between the contribution of my right hon. Friend the Member for Ashford (Damian Green) and that of the right hon. Member for Leeds Central (Hilary Benn), who both campaigned for remain in the 2016 referendum. One has accepted the result but the other remains in denial. The debate in this House before the election was characterised by that contrast between the acceptance of the democratic will of the people and the perpetual denial of those who campaigned for remain but who cannot come to terms with the result.
The election result finally settles the matter. The Prime Minister, at some risk to himself and, indeed, to many of us, put his reputation on the line by saying to the British people, “Do you or don’t you trust me to deliver this?” The British people have delivered their verdict. They want us to deliver Brexit, not necessarily because they wanted to leave in the first place, but simply because they want the matter settled. They want to deliver the certainty that is critical for British business and for the integrity of our democracy. To have continued to frustrate the will of the people would have done untold harm to the very spirit that should imbue this place and that gives life and health to democratic legitimacy. That is why, beyond all else, I will vote for the Bill today.
But that is not the only reason. I have opposed the European Union consistently throughout my political career—indeed, stretching back into my boyhood, which was something like 40 years ago. I know it seems surprising and unlikely, but it was 40 years ago that I was a boy. I first advocated withdrawal from the European Union when I was a student at Nottingham University back in the late 1970s.
I did so because the European Union is regulatory. I remember countless occasions when civil servants would come to me and say, “It’s bad news from Europe, Minister. We’re looking at ways we can get around it, dilute it, avoid it.” I would say, “Well, do all you can,” as I did in respect of the ports directive referred to by my hon. Friend the Member for Stone (Sir William Cash). Yet I can never remember them saying, “Great news from Europe, Minister. This is going to be really beneficial for the British people.” The regulatory burden that has emanated from the European Union has been immensely unhelpful to Britain and the British economy, time after time.
I also oppose the European Union because it is costly. The latest House of Commons Library figures suggest that the net cost of our membership of this very expensive club is £8.9 billion. Indeed, we have been net contributors in every year since we joined in 1973 except, interestingly enough, 1975.
Sir John Hayes
That was the year of the referendum. In that one single year, we were a net beneficiary to the tune of £395 million. In every other year, we have been paying dear to bear this regulatory burden.
In addition to those reasons for my opposition to the European Union and all its excesses, I have a more fundamental reason. It is this: when power is exercised detached from the people it affects, it first becomes careless and ultimately becomes capricious. When people lose the ability to hold to account those who make decisions for them, democracy is undermined. That, in the end, is the reason why I campaigned with such vigour to leave the European Union in the referendum and have consistently argued so from my boyhood into my middle age, which I am now about to enjoy.
The denial that I described earlier is a test of character for Opposition Members. The test of character in victory is humility and the test of character in defeat is wisdom. The test for those who have adopted the position to vote against the Bill today—many of whom I respect, by the way, as individual Members of this House—is whether they will exercise such wisdom, for to vote against this Bill is not merely implausible; it is fundamentally unwise.
You will be glad to know, Mr Deputy Speaker, that that brings me to my concluding remarks. [Hon. Members: “No!”] I know that that will disappoint more Members than it pleases. None the less, I must make room for others to contribute. G. K. Chesterton wrote:
“How you think when you lose determines how long it will be until you win.”
I simply say to Opposition Members that how they behave now will determine how they are thought of now and into the future.
Let me finish on this note. I have spoken about my consistent position. There are critics of me—here and more broadly. [Hon. Members: “No!”] Not many, I acknowledge, but there are critics. However, one thing I cannot be criticised for is inconsistency. C. S. Lewis said that consistency is the mark of greatness. I just hope that if I remain consistent, one day I might be great, too.
Several hon. Members rose—
Mr Deputy Speaker (Sir Gary Streeter)
Order. In order for us to get everyone in before the wind-ups at 2 o’clock, the informal time limit on speeches is now five minutes.
Alison McGovern (Wirral South) (Lab)
What a joy it is to follow the right hon. Member for South Holland and The Deepings (Sir John Hayes). My quotes are normally a bit more Jarvis Cocker and Bill Shankly than G. K. Chesterton and C. S. Lewis, but the right hon. Gentleman made a good contribution, and it is his point about undermining democracy that I really want to begin with. But first, I must thank my constituents in Wirral South because not only did they take the decision to re-elect me for the fourth time, but even those who I know for a fact were definitely not voting for me were incredibly kind. That is the quality of the people in the Wirral; I thank them all.
When it comes to undermining democracy, I think we need to step back from some of the language in this debate. It is perfectly legitimate to be triumphalist in victory. I take nothing for granted, but if my team wins the league this season, I will certainly be triumphalist. However, this is not football; this is incredibly important. Although the Prime Minister has a mandate for his manifesto, we are still a democracy, and in a democracy we take pride in listening to dissenting voices. It is that voice of dissent that we are at risk of crushing in this debate because this Bill has huge problems. Worse, many Members, including Labour colleagues who voted for the Bill, worked hard to place ameliorations against the worst aspects of Brexit in the Bill that we debated before the election, but some of those ameliorations have now been removed.
First, no deal is firmly back on the table. Clause 33 reintroduces the huge jeopardy that we might leave the European Union without a deal, and the consequences of doing so are grim. There is a risk to peace from our having no agreement with the European Union, given where that would leave the relationship for those on the island of Ireland. No deal could create significant problems for medical supplies on cross-channel routes, which would have an immediate impact on the health and lives of people in Britain, and we know what no deal would do to food supplies. Reintroducing that risk through the Bill is a massive mistake. I will not rehearse all the reasons why the idea that it is necessary for our negotiating position is wrong, because we know that it is wrong. The Prime Minister wants to do it, but I am afraid that if he thinks the days of hearing objections to that negotiating stance are over because we have a new Parliament, he is very much mistaken.
Secondly, from discussing a hard border on the island of Ireland, we will now be discussing a hard border for Merseyside. The impact of a border in the Irish sea is significant for my constituents in the Wirral and people who live in Sefton and Liverpool, where the port is, with ferries going between Birkenhead and Belfast. If people in this House think that because Merseyside votes somewhat counter to the national trend, it will be forgotten, I can tell them that they are wrong. The people of Merseyside want to know that Brexit will not do irreparable damage to our relationships—both commercial and of friendship —with people on the other side of the Irish sea, so we will be making our objections clear. I want to know what economic assessment has been carried out on the impact of this policy. The hon. Members for Belfast South (Claire Hanna) and for North Down (Stephen Farry) made these points clearly in their great maiden speeches. To us, Brexit is not just a risk to our economy, but a risk to our identity, and we will not allow that point to go unheard.
Finally, on parliamentary sovereignty, the efforts of the former Member for Stoke-on-Trent Central, Gareth Snell, to give us in this House a say and to get a parliamentary lock on the future relationship have unfortunately failed. The Prime Minister has ripped up commitments that he made to people who were prepared to vote for his deal. That is an unworthy thing to do; he should have kept those parliamentary locks in the Bill.
By any economic measure, the consequences of this Bill are grim, and the democratic consequences are worse. The Conservative party won the general election, but they won some crucial seats by a few hundred votes. They should not use those votes as a mandate to forget all the people who did not vote for them in those areas. The Prime Minister has control of the House now, so he can drum his Brexit through, but the question is how he can do that when there are nations in our Union and cities in our country that do not consent, and for which he has shown little care. If his future is one in which it is his way or nothing, my party will need to plan an alternative future, and that is the work that we will now get on with.
Richard Drax (South Dorset) (Con)
Before I start, may I thank the voters of South Dorset for returning me? I am humbled to be returned again and look forward to serving them to the best of my ability. The Prime Minister is not here, nor is the Speaker, but I welcome them both to their places. I have backed the Prime Minister and believe he is the man for the job, and I believe the Speaker will bring integrity back into this place, which sadly was beginning to be lost. I also want to welcome new Members. It is a pleasure to see them all here, particularly on our side of the House.
Years ago, before I was elected in 2010, I adopted a battle cry: “We want our country back.” In fact, it was so good that Nigel Farage nicked it, as he freely admits, when he was in charge of UKIP. That was not some sort of xenophobic, Union Jack-waving, isolationist standpoint. It was because, like many of my constituents who voted to leave, we wanted control of our country. We wanted our beloved country to have control of her destiny. It really is as simple as that.
In his speech, the Leader of the Opposition talked about ripping our communities apart and about job losses, and made a raft of other negative comments. A once-respected Labour party has sadly been hijacked by the far left. I have huge respect for many members of the party, but it has been hijacked. Had the Leader of the Opposition won, as he tried to do, this country of ours would have been torn apart; I have absolutely no doubt about that.
Trust the people, trust the people, trust the people. I failed once in the House. I voted for the deal on the third occasion, and I apologised two days later. Since then—just before the election last week—I began to wonder whether the people would return us, and allow us to do what they wanted us to do. They did. When the result of the exit poll was announced, I simply could not believe that we would have a majority of about 80 MPs, but we have, and here we are. Honour and democracy can now be returned to this place, and we can serve the people who send us here.
I accept that there are still many different views in all parts of the House, but, as my hon. Friend the Member for North Dorset (Simon Hoare) said in his excellent speech, it is time to move on. Just imagine what this country of ours could achieve if, together, all sides buried their differences, respected the people of this country—the United Kingdom—and stepped into this brave new world of opportunities. Those opportunities are there; I can see them. There have been a few naysayers today. I will ask them in five years’ time, “Were you wrong to say what you said that day in the House of Commons?”, and I am pretty certain that they will have to reply, “Richard, I was wrong”, because we have a great future.
Let me say this to Ministers. It is important to get this Brexit done, yes, but it is important then to return to a domestic agenda which has sadly been ignored, for all the reasons that we know, for more than three and a half years. Certainly in South Dorset we need better road and rail connectivity, and proper social affordable housing. This is the chance for our party, with all our new MPs from the north, to reach out, right across the country, and to deliver—and we must.
Let me also issue a warning to those in the other place who will deal with the Bill. Do not start playing games now. We have had enough, and the people of this country have had enough. The other place must pass this Bill, and allow us to get on with leaving the EU on 31 January.
On fishing and agriculture, I say this to Ministers: whatever you do, do not sell those parts of our economy short. Let us stick together. Let us do what we said we were going to do, and leave the EU. By December 2020, if indeed no free trade agreement has been made, we must go, but I am confident that that will be achieved by then.
Lastly, like other Members, I wish every Member of the House and the staff, particularly my own staff, a very happy Christmas.
Helen Hayes (Dulwich and West Norwood) (Lab)
I thank voters in my constituency for re-electing me to serve as their Member of Parliament. It is an honour to represent one of the most diverse constituencies in the country. In 2016 it voted overwhelmingly to remain in the European Union, and, in my experience, the strength of my constituents’ pro-EU views has only grown over the past three years.
The vast majority of my constituents did not vote to “get Brexit done”, and my mandate from them is to keep standing up for our values in Dulwich and West Norwood and to champion their interests. Our values are those of outward-facing internationalism, a celebration of diversity and community solidarity. These are the values that underpin our support for membership of the EU and these are the values that lead us to be deeply concerned about Brexit and this Government’s reckless approach to it.
Our values lead us to be concerned about the protections people are afforded in their workplace, the protection of our environment and our response to the climate emergency. They lead us to prioritise human rights and to be concerned about how Governments are held to account for human rights abuses which happen on their watch. And they lead us to be concerned about refugees and to want the UK to play a full role in responding to the global refugee crisis by welcoming people who have lost everything and helping them to rebuild their lives. Indeed, many of my constituents are already playing their part through community sponsorship groups and they want to see the Government doing the same.
We are dismayed to see in the Bill the Government jettison their previous commitment to the Dubs amendment on child refugees and the non-regression clauses, which were designed to ensure that the UK does not move backwards on workers’ rights relative to the EU—or at least that if the Government did so it would be completely transparent and they could be held to account. In relation to human rights, the previous Government removed the UK’s commitment to the charter of fundamental rights. The Bill further waters down the commitment to the European convention on human rights, and the political declaration makes no mention of rights previously protected by the EU charter of fundamental rights. There is a real risk that hard-won rights fought for over hundreds of years could be watered down by this or any other future Government.
The Prime Minister’s reckless approach to the implementation period is nothing short of a disgrace. There is not a shred of evidence that a trade deal with the EU can be secured within a year. The EU says it cannot. All trade deal precedents indicate that it cannot. Yet the Prime Minister seeks to enshrine in law the UK’s crashing out of the EU with no trade deal in just a year’s time. Brexit will not be done; it will be doing its worst to communities up and down the country. Jobs will be lost and lives left devastated if we crash out in a year’s time. I urge newly elected Government Members to reflect very carefully on what exactly this will mean for the communities they represent, and to heed the warnings of UK manufacturers about the dependence of supply chains on our membership of the single market and customs union.
None of this is hypothetical. It is about the ability of thousands of people to go to work in secure, well-paid jobs that keep a roof over their family’s head. It is about the rights of working people to holiday pay, maternity and parental leave, sick pay and protection from discrimination and unfair dismissal.
Mr Bob Seely (Isle of Wight) (Con)
Does the hon. Lady accept that, actually, in many cases UK standards are higher than those of the European Union? I am very confused as to why Opposition Members keep using the EU as a gold standard when actually it is the UK that is the gold standard.
Helen Hayes
I thank the hon. Member for his intervention, but I do not accept that that is the case. Nor do I accept that the Bill does anything other than leave those rights to the mercy of any future Government. I do not trust this Prime Minister to maintain the standards we have derived from the EU.
It is about the protection of our woodlands, rivers and coastal habitats at a time when the environment could not be more important. It is about the practical expression of our values in the way that we treat the world’s most vulnerable children.
I understand that the Prime Minister has a majority that means he will pass the Bill and we will leave the European Union, but my constituents will not be denied a voice in that debate. Make no mistake: the Bill will deliver nothing but damage to the UK on many fronts. I will oppose it, I will stand up for my constituents’ values and interests, and I will hold the Government to account for the consequences of their reckless actions.
Several hon. Members rose—
Mr Deputy Speaker (Sir Gary Streeter)
Colleagues, we are not doing terribly well on timing. We have 15 more colleagues to speak and 2 o’clock is when the wind-ups begin. My maths are poor, but I believe that that is four minutes each.
Vicky Ford (Chelmsford) (Con)
It is an honour to be back in this House almost two and a half years to the day I was first elected. I would like to thank the good people of Chelmsford for re-electing me to this place.
There have been two and a half years of endless squabbling and going round in circles. This afternoon, we will be able to put that squabbling to an end, get Brexit done and move on.
For some of us, this has been a very long journey. I first campaigned for a referendum more than a decade ago. Ten years ago, I stood for and was elected to the European Parliament on a platform calling for reform, as Europe needed to modernise. Five years ago, I stood with a gentleman who is now my hon. Friend the Member for Ipswich (Tom Hunt) on a platform for the European Parliament, saying that it needed to reform, that we needed to renegotiate and that we would have a referendum. We then had that referendum.
I must admit that, as a Brit in Brussels chairing a major committee in that Parliament after the referendum, it was not easy. I was a major target for anyone who wanted to throw political abuse at Britain. There were days when I literally felt that the arrows to my front had met the knives in my back, but I also felt that there were friends across Europe who wanted to help us to move on, to avoid an acrimonious divorce and to move on into a new, deep and special partnership. That partnership has been outlined by the Prime Minister again today and it is a partnership that also respects democracy.
It was democracy that came up again and again on the doorsteps in this general election. Our country has a proud reputation of standing up for democracy across the world. How do we stand firm with the people of Hong Kong, with Zimbabwe, with the Rohingya from Burma and with the people in Venezuela if we do not respect democracy in our own country?
In his first speech after the election, the Prime Minister called for healing. It is time to stop putting people into those pigeonholes of leave and remain. It is time to move on. Today, when I vote for the agreement, it will be the first step towards moving on. Yes, we need to get a trade deal. We need to get a trade deal with the EU and it needs to get one with us; the EU is our largest trading partner, and we are the EU’s largest trading partner. We can get a trade deal within the year, and we must get a trade deal within the year. It can be done, because so much of the detail has already been agreed not only by us, but by all 27 other countries as well. They have agreed tariff-free, quota-free trade. They have agreed a deal that works for our fishing and our farming and a deal that can work for our financial services. Members should remember that 10p in every pound that we spend as taxpayers comes from the financial services. We have agreed a deal that works for the environment and, crucially, as a supporter of a science, a deal that works for ongoing co-operation in science, security and student exchanges.
Much of this election was about one nation Conservativism—[Interruption.] I am winding up. One nation conservatism is not only about holding our United Kingdom together, which is crucial, but about working for all sectors of our economy. It is a conservatism that is committed to well-funded public services, funded by a strong economy; a conservatism that believes that we must protect our environment and put it in a better state for future generations; and a conservatism that is committed to our role in the world and believes that every single person in this country has an equal right to a fair chance in life. That is the conservatism that we will be supporting when we vote for this crucial step this afternoon.
Daniel Zeichner (Cambridge) (Lab)
Sadly, we live in a very divided country. I have listened in vain to those on the Government Benches to hear whether they have any understanding of the 16 million people who voted to remain in the European Union—in my city last week, people voted 44,000 to 9,000 to remain. I have no sense that the Government understand those people, and that is a very dangerous situation, because people are proud to be citizens of the European Union. We do not welcome the erosion of the rights that we currently enjoy, so when there is celebration in a few weeks’ time by some, there will be real grief and anger from others. They will have a good reason to be angry, because in the previous Parliament there was a real prospect of securing a confirmatory referendum. The Prime Minister knew that, which is why he was so desperate to get to his election. He was on the ropes, but to everyone’s astonishment the Liberal Democrats came to the rescue—of course, they are not here. They took a huge gamble with the future of this country, and of course it failed and they have paid a heavy price, but sadly, so, too, has the whole country. What I will say is that their role in this will not be forgotten. [Interruption.] No, I did not vote for the election; I voted against it, which actually got the biggest cheer in the hustings in Cambridge—no elections in December ever again, please.
I am an optimist and I say to remainers: there is hope. We have seen that the Prime Minister, despite the bluster, folds under pressure. He folded when the Irish issue looked to be derailing his progress and, as my right hon. Friend the Member for Leeds Central (Hilary Benn) explained so well, he buckled and did what he and the previous Prime Minister said they would never do: create a border down the Irish sea. Less commented on is how he buckled under pressure from Farage when he threatened to put up candidates in every seat. That was when no deal was brought back: by that promise to not allow an extra extension of the transition period. We know it is all a stunt and negotiating ploy, but it shows that pressure works, so I say: keep the pressure on the Prime Minister.
A so-called skinny trade deal might keep goods flowing, and that is important, but so are the flows of people and research collaboration, and however hard we try, we will no longer be a voice in the room in those important negotiations. Instead, we will have an army of people in Brussels trying to persuade others to make the argument on our behalf—a delicious irony that we will come to see. We will have to follow rules over which we have no influence in making. That is the future. People will come to say, “Wouldn’t it be better if had some influence and a say?” That debate will come, but in the meantime we will have to live with what is a Brexit fiction, because in reality there is no Brexit. We always have to have a relationship with our neighbours. The question is how we manage and negotiate that: do we have endless negotiations and arguments, or do we live within a civilised set of institutions and rules that make it so much better?
Mr Deputy Speaker (Sir Gary Streeter)
Thank you. You kept to time beautifully.
Robert Courts (Witney) (Con)
I, too, extend my congratulations to Mr Speaker, on this my first time speaking after the election, although of course he is not in the Chair at the moment. I also congratulate the hon. Member for Cambridge (Daniel Zeichner) on his speech. As always, I think he argued his case with eloquence and courtesy, even if I did not agree with quite everything he said.
This has been a challenging election for us all—the hon. Member referred to it being a December election—and I give my thanks above all to the people of West Oxfordshire for having returned me again. I am very humbled and grateful for the trust they have put in me. Not only did they have to endure a December election, but it was the third general election in three years for them and me. In every electoral contest since 2015, we have promised to do as we were instructed on the question of Britain’s place in the EU, and that is what we have a chance to do today: to show that we will do as were told and what we said we would do.
Now is also an important time for us to put to bed the question of this country’s place in Europe. That question has bedevilled and tormented this country for longer than I have been alive. I am clear, from speaking to people in my constituency and around the country, that while the people of this country warmly welcome a relationship of trade, co-operation and culture, they never wanted to be part of a political union, but inexorably that is the direction in which the EU has been heading for many years, certainly since the advent of the euro. We have a chance tonight to bring the country together by putting this question to bed.
The free trade agreement destination, which the Bill leads to, will unify the British people by giving them the chance to step outside ever closer political union while maintaining the strong links of culture, friendship, co-operation and trade that we all warmly welcome. The hon. Member for Cambridge asks how we represent and recognise the concerns of those who voted to remain. That is how I propose we do that—by ensuring close links of trade, friendship, culture and co-operation.
There is something else we can do to show that we are not just a talking shop in this House, arguing and bickering among ourselves and failing to make decisions, but that we can actually move the country forward. If there is one other thing I have heard that people desperately want, it is for us to move on and stop the endless bickering, arguing, changing our mind and failing to show leadership and decision. Ultimately, that leadership is what we are here for; we are sent here to take decisions. We have the chance to do that today.
When I listened to the Leader of the Opposition earlier, it was so dismaying to realise that there is a cold vacuum at the heart of Labour where there should be a policy. He seems to have learned nothing from the preceding six weeks; if you do not keep the promises you make to the electorate at an election, they punish you. He fell back on the same tired scapegoating about how we are going to sell the NHS to Donald Trump—we are not—and how we are going to lead a charge to the bottom on safety standards. We heard the scaremongering about maggot-infested orange juice that the Leader of the Opposition has been using for months and which has already been comprehensively debunked. Again, he fell back on tired old scaremongering, because the Opposition have nothing else to offer.
Instead, we have a return to full democratic self-government, which should be welcomed by everybody, no matter which side of the argument they hail from. That is something to welcome and cherish, no matter which side of this argument people come from. I urge everybody, when they go through the Lobby this afternoon, to welcome that and to look forward to the future with positivity and hope.
Anna McMorrin (Cardiff North) (Lab)
It is with deep sadness and loss that I stand here, knowing that we will now be leaving the EU. I regret that we will not be able to hear the voices of the many people who have changed their mind and would now vote to remain in any final-say referendum and of all those young people who would get a chance to have a real say on their future. For that, I am truly concerned. I am concerned for the country and for those people’s futures.
We are here, however, to scrutinise this legislation, which does not even begin to meet the challenges that Brexit poses and which has had taken out all the elements that matter. Importantly, this Prime Minister is stripping Parliament of its voice and therefore denying the people and the country a say on their future. By scrapping powers for MPs to scrutinise future trade deals, we risk being forced to accept lower standards as a price for future trade agreements. Those trade deals will now be conducted behind closed doors and without proper scrutiny. The deals will have an impact on our communities, our businesses and our people, risking workers’ rights, environmental regulation and food standards. Denying Parliament a voice means that we are being denied democracy and people are being denied a voice. They cannot call themselves a “people’s Government” if the first thing they do is ignore the people’s representatives. As MPs, we are here to ensure that our communities, people’s livelihoods, businesses, jobs and futures are looked after and safeguarded. This Government are taking away that opportunity. This deal fails to guarantee the future of our environmental standards. The binding part of the agreement contains nothing about environmental standards across the UK, and the non-binding political declaration just notes that the parties should maintain those important environmental standards. With only 11 months in which to negotiate a trade deal with the EU, the risk of no deal has significantly increased, and that is the worst of all scenarios.
What of our EU citizens? They should never become the victims of Brexit. I speak to many of them in Cardiff North, and they are living in fear and anxiety over their future. Some of them have lived here most of their lives, with children born here and lives rooted firmly here. EU citizens must be assured of their rights and they should be immediately granted the full rights that they enjoy today—the EU will reciprocate in respect of UK citizens living in the EU. By taking away Lord Dubs’s amendment to safeguard child refugees, the Prime Minister and his party, the one apparently founded to conserve, are eroding the rights and values we hold so dear, selling out the things that make this country great. This has become an exit not only from the EU, but from our responsibilities and from common decency, and I shall be voting against it today.
Finally, let me end by saying that the Bill will not strip me of my European identity. I will always be both European and Welsh in equal measure. My values and my identity have been formed from being part of the European Union—the values of openness, tolerance, inclusivity, equality and trust in the public good. Those values are now under threat, from this Trumpian, populist Government, from right-wing populism and from bigots everywhere. For me and many of my constituents, leaving the EU will be a profound and deep loss. There is a reason why many millions of us marched on the streets and have gone out of our way to fight for a future within the EU. Being European is an identity that we want to keep. Allow us to keep it.
Several hon. Members rose—
Mr Deputy Speaker (Sir Gary Streeter)
I am afraid that I must now impose a formal time limit of four minutes.
Mr Bob Seely (Isle of Wight) (Con)
Thank you, Mr Deputy Speaker. That means that if I take an intervention, I get an extra minute, does it not?
Steve Double (St Austell and Newquay) (Con)
You would lose lots of friends on the Government side.
Mr Seely
We cannot have that.
I would like to thank my constituents on the Isle of Wight for re-electing me. It remains a huge privilege to work on their behalf, and I look forward to continuing to do so. It is a privilege to follow the hon. Member for Cardiff North (Anna McMorrin), although I found her arguments about our democracy straight after a very clear general election result to be somewhat tortuous. As someone who is half English and half German, I love Europe, but I am not sure that I want to be part of the European Union—in fact, I know that I do not. They are different things.
Groundhog day is ending, thank God. Democracy has reasserted itself. To quote the guitar piece that I am trying to learn for Christmas—Jeff Buckley’s cover—“Hallelujah”. The delay has been a disgrace, frankly. MPs in a functioning democracy cannot choose which votes to respect, and they cannot call for new referendums because they did not like the previous results.
The Labour party has been defenestrated because it refused to honour the pledge it made in 2017. We hear two different versions of the future: the one from the hon. Member for Cardiff North, which is effectively denial; and the one from the hon. Member for South Shields (Mrs Lewell-Buck), which is to accept the result and try to rebuild. One offers a route out for the Labour party, and the other offers a route to an existential crisis and a chance never to hold power again. It is up to the Labour party which way it goes. Throughout the summer we saw the Labour leadership, led by several of the new leadership candidates, tying itself in tortuous knots, like some sort of incompetent Houdini, and then being forever unable to untie itself.
The hon. Member for Dulwich and West Norwood (Helen Hayes) was absolutely right to say that her folks did not vote for Brexit, and she is right to champion remain. However, of over 100 Labour seats in the previous Parliament, 52 had leave majorities of over 60%, and eight had leave majorities of more than 70%. Many of those former hon. Members are now looking for jobs because they did not listen to their people. There is a lesson there for all of us.
Seventeen million people voted to leave because they felt that the political system no longer represented them. The European Union was not always part of the problem but, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) said, it was not part of the solution either.
I am delighted that we are leaving the European Union, because there has always been a relentless federalising agenda with which Britons have felt uncomfortable. This is now our chance to chart a different course for a new great project. This great project is partly about leaving the European Union but, as the Prime Minister has said, it is also partly about restoring folks’ faith in democracy and trust.
I therefore look forward to voting for this great and important Bill—it is a good Christmas present for many of our constituents. We respect remainers who voted to stay, but we have a withdrawal deal and we can get it through, and we can respect both sides while recognising that we are a leave nation and we need to deliver for those people who voted in the 2016 referendum.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I would like to thank the voters of Brentford and Isleworth, including Chiswick, Osterley and Hounslow, for returning me to Parliament last Thursday. I commit to continue serving them to the best of my ability.
The Prime Minister may have a majority in the House, but he does not have a majority in the country. Every opinion poll bar one this year showed that a majority would vote to remain in a new referendum. In the general election, some 53% voted for parties promising to hold a new referendum. As my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) said, Brexit is a process, not an act that can be done quickly. Leaving a series of complex relationships built up over 40 years in just a year will be complex, so on behalf of voters who voted to remain, like the majority of my constituents, and those who voted to leave we have a duty to scrutinise this Bill, which will have far-reaching effects on our constituents, including those who did not have a vote last Thursday—the citizens of other EU countries living here in the UK.
Never has proper scrutiny of a Bill been more important, and never have we had a PM who spends so much effort avoiding scrutiny. We have noticed that when he cannot avoid the question he responds with a posh-bloke version of Vicky Pollard from “Little Britain”: “Nah but, yah but—”.
This is the most important legislation in the House for many years, redrawing our relationship with our allies and partners of 40 years, but we have just three days to debate it. Just a week after the election, it seems that promises on workers’ rights have been dropped. I heard Government Members suggest that that is okay, because we can have higher standards than EU members, but let me remind them that the EU sets minimum standards for workers’ rights. There is only one reason to remove minimum standards, and that is because you want to fall below them.
On child refugees, the Government are now threatening to scrap the right of refugee children to be reunited with their families in the UK—how cruel is that? The Government claim that removal of the clause on refugee children is just for the purpose of negotiation, but my friend Lord Dubs said today:
“Vulnerable children are not bargaining chips. We should not be exploiting their misery for political purposes, but defending them as our own.”
On trade, a special adviser to the previous Prime Minister, Raoul Ruparel, warned in a recent paper published by the Institute of Government that the UK is not match-fit for the next phase of negotiations. I hope that the Government address that point.
Finally, I want to address the issue raised in clause 26, which allows Ministers to give binding instructions by regulation to any court of the country and refers to how to interpret, and even to disapply, EU retained case law as well as domestic case law that relates to EU retained law. My constituent, Ricardo Salustio, a partner in an international law firm, contacted me last night with his concerns about clause 26. He said:
“Given the wide application of EU retained law, by allowing for EU retained case law and related domestic case law to be interpreted by the executive, Parliament would breach the fundamental principle that courts should be independent and that parties in civil and criminal matters need to have certainty of interpretation when involved in a dispute.”
For these and many other reasons outlined by my colleagues on this side of the House I will vote against this Bill.
Mike Wood (Dudley South) (Con)
I should like to begin by thanking the voters of Dudley South—not just the 68% who voted to return me to the House for the third time but the other 32% who took part in a well-spirited and fair campaign.
Throughout the six weeks of the general election campaign, knocking on doors not only around Dudley South but in Dudley North, West Bromwich East, West Bromwich West and seats around the Black Country, a response kept coming back, time and time again. It did not take slogans from political candidates or election broadcasts to raise the phrase, “Get Brexit done.” It was coming from people on the doorstep. There was a determination—an impatience—to get Brexit done. This Bill will take us one step closer to doing what we should have done a long time ago, and ensure that we get Brexit done and do as we were told—as we were instructed—in the 2016 referendum.
In all the seats I have campaigned in over the last two months, and particularly in areas with higher working-class populations—areas that, for many years have voted for Labour candidates and returned Labour Members of Parliament—the overwhelming sense was frustration. People were tired of being ignored by their representatives, and Brexit was an obvious example. More than anything else, on the European Union and European policy, they were tired of being patronised by so many people who would claim to represent them.
We have even heard some of those sentiments today from those on the Opposition Benches. We have heard suggestions that, somehow, whether in the general election or the referendum campaign, those who voted for Brexit and who have now voted overwhelmingly for a Conservative Government, ensuring a strong Conservative majority, either did not understand the question because they were misled by lies or clever slogans, or had prejudices that meant they could not take a fair decision.
Those sentiments, which have, unfortunately, been expressed by a few Opposition Members, and particularly by Labour Members, say rather more about those Members than about voters up and down our country who have voted three times now for Britain to leave the European Union. They voted in that referendum. They voted for two parties in 2017, both of which promised faithfully that they were committed to implementing the referendum result. And then, last week, when it turned out that the main Opposition party did not actually mean what it said about keeping that promise, they voted to return a Conservative Government who will, giving them a good majority.
The Leader of the Opposition has spent most of the last week trying to persuade anybody who will listen that the reason for his party’s worst election performance in over 80 years was Brexit, rather than his hopeless leadership. It is therefore extremely disappointing that he intends to march his Members of Parliament through the Division Lobby this afternoon to once again ignore voters, many of whom, until last week, had been lifelong Labour supporters and Labour voters. One person I spoke to had been a Labour supporter going back to when they voted for Clement Attlee in 1951, but they could no longer vote for this Labour party, because it does not speak for them or listen to them. I will therefore be supporting the Bill today.
Peter Grant (Glenrothes) (SNP)
I am pleased to be able to speak in the debate. I will be speaking and voting against the Bill, as I did two months ago. In the intervening period, I have had the endorsement of 51.5% of my electorate, for which I am enormously grateful. More importantly, my constituents voted by a majority of four to one for candidates who were opposed to the Bill. My nation—my one nation—voted by three to one for candidates and parties that are against it. Therefore, to everyone who has told the Scottish National party and Opposition parties of Scotland that there is now some kind of duty on us to tag along with the Prime Minister, I say there is not. The only duty that any MP from Scotland can possibly discharge is to vote against this Bill, vote against this Brexit, and vote against a Government who are determined to show their complete contempt for the sovereign status of the citizens of Scotland—sovereign status that this Parliament unanimously agreed less than two years ago.
I hear people saying that this is a great time and a great victory for the people. The Secretary of State wrote to us all yesterday to say what a great advance the Bill was for the rights of citizens. No, it is not. There is not a single citizen of these islands whose rights will be enhanced by the passage of the Bill. Tens of millions of citizens will see their rights diminished. Three million are now having to call into question yet again whether they will continue to have the right to live, work and love here, as they always have done.
The Prime Minister made promises before the referendum, on 1 June 2016, but he broke those promises. I challenged him about that on 25 July 2019—Members can check Hansard if they want—and he promised that EU citizens would continue to have exactly the same rights after Brexit as they have just now, but he then published this Bill, which tears up those promises.
When it comes to citizens’ rights, the rights of child refugees, environmental protection and food standards, the Government and Conservative Back Benchers say to us, “That is not in the Bill, but trust the Prime Minister.” Last week, Scotland gave the Prime Minister a very clear message: “We do not believe you, we do not trust you and we will not allow you to take our nation out of this union of nations against the expressed will of our people.” That will was expressed in 2016 and 2017, and twice in 2019. The Government are reaching out across the House, but when will they listen?
We heard a lot from earlier speakers about how important it is for a Government to abide by their manifesto, and what happens to parties when they do not. I suggest that as part of their Christmas reading, Conservative Members look at the manifesto on which the national Government of Scotland were elected in 2016. I suggest that they look, in particular, at the mandate that was sought, and given, as to what Scotland should do if and when we are taken out of the European Union against our will.
I ask reasonable Conservative Members—I know that there are quite a few—to please speak to their Prime Minister and warn him about what will happen if he attempts to stand in the way of a democratically elected national Government who are doing no more than delivering on the promises that they were trusted to deliver by the people of Scotland. Brexit is essentially about England’s inability to sort out its relationship with Europe. Scotland and Northern Ireland voted against Brexit, and Wales voted for it but without a great deal of enthusiasm. I say to Members who represent English constituencies that if they take this step and go past the point of no return in their relationship with their neighbours across the North sea, the channel and the Irish sea, they will also take England past the point of no return in its Union with its neighbour across the Solway firth.
Steve Double (St Austell and Newquay) (Con)
It is an absolute pleasure to deliver this speech with you in the Chair, Mr Deputy Speaker, albeit only briefly. It is a great honour to speak while you are in the Chair and to follow the hon. Member for Glenrothes (Peter Grant). I start by placing on record my great thanks to the people of St Austell and Newquay for returning me to this House for the third time. I do not take any of their votes for granted, and I will continue to serve my constituents to the best of my ability.
I will be supporting the Bill, and I want briefly to give three reasons why I believe that that is the right thing to do. The first and most important reason is that the Bill delivers on the referendum result. It gets Brexit done. Those of us who have been in this place for the last three and a half years have spent far too long going round and round in circles, frustrating the life out of the country while we make no progress at all. At last, after three and a half long years, we get to cross the line and pass this Bill so that we can all move on. We get to do what we told the people we would do in 2016: take back control of our laws, our borders and our money. This Bill paves the way for us to do just that. At last, we have a Parliament that is willing to make that decision, and that reflects what the people voted for in 2016.
The second reason why I believe it is right to support the Bill is that it ends all the uncertainty. When the general election result came through just last week, I heard loud and clear a huge sigh of relief from people right across my constituency and the country, because we can end the uncertainty at long last. We can end the debate about whether we will leave the EU, and we can get on and move forward. That is what business wants, and it is actually what the EU wants. It was quite clear that the EU welcomed the result of the general election, because it provided a clear pathway forward instead of our continuing to go round and round in circles.
Some Opposition Members have made points—I am sure that, in their view, those points were very valid—about things that are missing from this Bill but were in previous proposals. I say to those Members that they had their chance. They could have voted for the withdrawal agreement in the spring and had the things that they mourn the loss of today. They could have backed this withdrawal agreement just a few weeks ago. The things that they regret are now missing were in the previous Bill, but they decided to play party politics and take a huge gamble. Well, I am sorry, but that gamble was lost. The British people have spoken. We are going to end the uncertainty and we are going to deliver Brexit.
The third reason is that the Bill paves the way for our future outside the European Union and provides the path to secure free trade agreements. I believe that we can secure an agreement by this time next year, because we have seen that, when there is a hard deadline, the European Union can and will move quickly. I therefore welcome the inclusion of a hard deadline, which says that we will not extend or delay any further, but focus on ensuring that we get a trade agreement with the EU.
Also, the Bill opens us up as a country to the rest of the world. I believe that, far from diminishing our place in the world, passing the Bill and leaving the European Union under this withdrawal agreement paves the way for a truly global Britain to engage with the rest of the world. Some of the things said in this Chamber sometimes make it seem that the world is just the European Union—it is not. There is a great big world outside the European Union, and I look forward to our being able to engage with it as an independent nation once again.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
It is pleasure to see you in the Chair once again, Mr Deputy Speaker. I, too, thank my constituents who voted to return me for the fourth time last week and welcome all new Members to this place. I also extend my heartfelt commiserations to colleagues who have not been returned. They will be sorely missed.
There is so much wrong with this Bill—even more than in October. My real concerns are about its impact on the economy. Although we do not have an economic assessment—an issue in itself that the Government need to look at carefully—we have enough analysis from economists to show that such a free trade agreement will have a dramatic impact, with a 7% loss in growth over 15 years, as has been mentioned. We already know—I am sure that people are aware of this—about the growing impact on poverty from a faltering economy and the growing inequalities that we are experiencing in this country. The impact that this type of deal will have on that, as well as on public services, which are already emaciated, cannot be overestimated. Nor must we forget the regional disparities. There is no doubt that there will be an impact on constituencies such as mine.
As bad as this free trade agreement is, however, no deal would be even more dramatic, as all the evidence also shows—so catastrophic, indeed, that one does not like considering it—with not a 7% impact on economic growth, but a 9% impact over 15 years, affecting not just us but our children and grandchildren. We need to recognise that because, under clause 33, I fear that that is unfortunately a real danger. I beg the Government to do all they can in the forthcoming weeks and months to prevent that from happening.
A lot of us who fought the general election will have views on what it meant. I will hold off taking any firm views until the new year, when I see the survey by the British Election Study, which publishes the most reliable evidence that we can get on elections. However, I cannot ignore what constituents were saying to me. They ignored or did not believe the evidence—or, even worse, did not care. There is a lot that we—politics and politicians—need to take on board regarding what that means about how we conduct ourselves. The emotional response to Brexit—and that is what it has been—is a lesson for all of us.
I reiterate that I categorically reject the Bill, but I want to work with the Government to make sure that we ameliorate its worst effects so that it will not harm my constituents. I implore the Government to listen and to do all they can to build a consensus.
Lee Rowley (North East Derbyshire) (Con)
It is a privilege to be returned to this place to represent my home area of North East Derbyshire, and I am grateful for the opportunity to be here again. As my constituents would expect, I rise to support the Bill and will vote with the Government this afternoon.
It is just over a year since I stood among these Benches during the initial iteration of the Bill and, with great regret, had to say that I would not support my Government. All of us who served in the previous Parliament, particularly on these Benches, regret what happened in the last year or so: wherever we stood and whatever our views, a fog descended on this place, affecting people who were otherwise rational and willing and able to look at the wider picture. It paralysed our politics.
Today marks a really important stage for many of us: we can start to move on. When that fog descended, we became paralysed and the issue stopped being the European Union, what trade deals we might do in the future and what regulation we might adopt; it became a basic question of trust. I do not say that with any triumphalism to the hon. Member for Wirral South (Alison McGovern), who is no longer in her place but who made an excellent speech some minutes ago; I say it with relief that we are now able to deliver on the decision of the British people. However profoundly some people in this place disagree with that, it is a basic principle that we all need to remember. That is why I will be going through the Aye Lobby today.
I also want to address something raised by some who are no longer in their places, particularly the hon. Member for Bath (Wera Hobhouse). There is a weird conflation in this place, which I regret hugely, that liberal values, which I share, cannot be epitomised or espoused by those of us who also believe in leaving the European Union. The European Union is not the panacea for everything in this country, but I also say that it has done many good things. I am someone who believes in the values of openness, tolerance, inclusivity, being welcoming, wanting to be internationalist and wanting to work with countries all across the world and in Europe. I am also a Brexiteer. Even if people profoundly disagree with me, I think that an intellectual case can be made for being both. What those who advocate liberalism in this place must consider is that their conflation of those values with remaining will do their cause a great disservice over the long term.
Finally, I appeal, although as one who has been here only two years, to those who have served in the Chamber for a while. The debate today has been good in many senses, but some people have already started to retreat into their comfort zones. We have already started to hear the excuses—“I would support this in principle but am unable to do so”, for some confected or real reason. The greatest speech today came from the hon. Member for South Shields (Mrs Lewell-Buck), who is no longer in her place. She stood up and said, “I didn’t agree with this, but I am going to vote for it.” I happen to agree with it. In time, I may disagree with something else, but if the people say it I hope that I will be enough of a democrat to recognise that.
What I really regret is that if we had spent one iota of the time we spent talking about Brexit in the past two and a half years talking instead about the things that will challenge our areas in the next 20 years—automation, artificial intelligence, machine learning, big data—we would have been preparing our country for those coming challenges. Let us get this done, and let us talk about all the other important things that we need to do.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Mr Deputy Speaker. I thank the hon. Member for North East Derbyshire (Lee Rowley), who spoke characteristically thoughtfully and without triumphalism. He was absolutely right to do so—I speak as someone who represents a constituency that voted 78% for remain—and this debate must continue in that tone.
Let us be clear about why we are here. There has been a total failure of political craft. In 2015 even I voted for the referendum, because it is a convention of this House to support a majority Government in the early days of their administration. The Conservative party won the 2015 general election and I backed that referendum, against many of my instincts. From then on, there was failure: things were slow, cumbersome, secretive and there was a lot of dither. Then, very reluctantly and late in the day, I came to the idea of a second referendum as a way of breaking that impasse, but, even in my very remain constituency, that was not part of the major discourse in the 2017 general election. We have to remember that. The hon. Gentleman mentioned the entrenchment of positions when debating this issue, but I urge Government Members to remember that, too.
The Secretary of State and I—and, indeed, the hon. Member for North East Derbyshire—once served together on the Public Accounts Committee. Over the past two years, the Committee membership has represented every range of views on Brexit. It would not be possible to find a more diverse range of views, yet we were unanimous in our agreement on the more than 11 reports we produced. We were critical of the Government at times, and rightly so—I hope that the right hon. Gentleman would expect us to be critical of him when he gets things wrong—but we went at it constructively by looking at the facts and the data and by working hard to press the Government to do a better job.
I will list my reasons for not voting to give the Bill its Second Reading, and I hope the Government will listen. We will vote against it not because we are sore losers, but because there are valid reasons to believe that this rushed Bill and rushed debate could result in real problems for the future.
The Bill is weak on workers’ rights—that is categorically clear. It is a poor argument to assume that there will be a trickle down of benefits when businesses allegedly—or hopefully, as the Government would say—do well. Very many people in my constituency are working several low-paid jobs on irregular contracts. They are very insecure. I cannot see how they will experience the benefits. I want to see protection in law.
The provision to provide support for unaccompanied asylum seeker children has been removed. I have been dealing with this issue as an elected politician since 1994, when I was a councillor and we found children wandering alone on Holloway Road in Islington. It is important to work in partnership with the EU to deal with that. Let us not forget why they come—trafficking. Let us deal with the cause, not the symptom. It is mean spirited to take out that provision. There are also many issues relating to security, but we do not have time to go into them today. As a Home Office Minister, I negotiated many of these issues on behalf of the British Government when Labour was last in government, which was some time ago.
I say respectfully to the right hon. Gentleman that the decision to remove the possibility of extending the implementation period is a foolish step, because it allows no wiggle room. I know that the Government have a great belief that setting a deadline will give them greater ability to negotiate, but I think there is a real risk that they could end up throwing the baby out with the bath- water. That would not bring the country together.
We are also going to see quangos rising like the phoenix, as many European regulations will have to be replicated in British law. So much for the bonfire of red tape.
On immigration, I tremble. Between us, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) and I represent 40,000 EU citizens. It is foolhardy of the Government to believe that they can suddenly change the immigration system and achieve a great, simple new deal. I have been there. I have seen 10 years of it getting worse, and the Government need to heed that warning very carefully. I am also concerned about the time allocated for this debate. It has been too short and it is not democratic.
Ben Bradley (Mansfield) (Con)
I welcome you to your place, Mr Deputy Speaker. I hope you enjoy your time in the Chair.
It is a pleasure to be back in Parliament. Today feels a little like groundhog day again, but I hope this will be the final time and that we move on. All of us have given the same speech on Brexit over and over again for the past two and a half years. The cyclical and repetitive debate got us nowhere, but the election has provided a decisive breakthrough. We have made promises for so long, so it is fantastic to be able to deliver for the people of this country and to begin to legislate to get Brexit done.
This may be the perfect day in politics, because not only are we able to begin that process, but the Attorney General has gifted us his version of “The Night Before Christmas”, which will make for a very festive time and should meet with universal acclaim. This is a fantastic day for us all.
The people of Mansfield voted 71% to leave in the referendum and they have shared the frustration and anger felt by many in this place over the past two and a half years. They wanted us to be grown-ups and to sort this thing out. They were decisive in this election, too: they returned me to this place with an increased majority for our mandate. I thank them profusely. I intend to serve them with all sincerity and to the best of my ability in this Parliament, and that starts with beginning to deliver this Bill today. I tell them that there is now no reason or excuse why we cannot get this done by 31 January. We will get it delivered and we will do exactly as we have promised. I am sure that the majority of my constituents will celebrate that fact.
I welcome the new commitment in the Bill to the 2020 deadline for a trade deal. We saw the impact of a never-ending, constantly moving deadline in the previous Parliament. It simply did not work and it weakened our hand. Now we have the ability to show the strength and determination that the Prime Minister has shown throughout his time in office. Opposition Members have consistently raised the issues of workers’ rights and regulatory standards, but this is not a Bill about workers’ rights or regulatory standards. It is not true to say that there will be an inevitable decline in those things as a result of our leaving the European Union. The point of all this is that this House and this country will decide our own regulatory standards.
The Opposition continue to miss the point of what Brexit was about. There was a well-known slogan in the referendum about control; hon. Members may remember it. For many people, Brexit was largely about control and the sovereign powers of this Parliament. Aligning ourselves to EU directives would therefore defeat the entire purpose of Brexit. This UK Parliament can go further, faster and better than the European Union in areas such as the environment and workers’ rights, and it will be we in this place who will decide. That is exactly what all of us who have pushed to get this thing over the line over the past few years have been waiting for.
I will back the Bill today. I look forward to planning—with certainty this time—for a celebration in my constituency on 31 January. I have huge optimism for the future of this country under this fantastic, decisive and determined Conservative Government.
Geraint Davies (Swansea West) (Lab/Co-op)
It is clear that the Conservatives overwhelmingly won the election for a variety of reasons, but on the Brexit front it is also the case that 16.5 million people voted for remain parties, compared with 14.5 million people who voted for leave parties. In fact, including the parties that do not support a particular deal—namely, the Brexit party—there are 18.1 million people who do not support this oven-ready deal that we are being served up and asked to consume very quickly today. On that basis, there still should be a public vote on the deal, because this is about the long-term future of Britain. [Interruption.] I know that people do not agree with me, but my judgment is that we are going to be poorer, weaker, more divided and isolated.
People in my constituency who voted leave—many did, of course—voted for more money, more control and more jobs, and they will judge this deal on whether the Government deliver that. I say to Members who have taken Labour seats on the back of “Get Brexit done” that if we do not deliver those things that leave voters asked for, they will be very unhappy. In fact, they will not just be unhappy; they will have lost their jobs, and I assume that they will come back to the Labour party.
We are leaving the single market, one of the primary architects of which was, of course, Margaret Thatcher, who saw it as probably the most perfect free and fair trade market in the world. Today we are saying not just that we will have no alignment—or that we will not have dynamic alignment—but that we will have dynamic misalignment. In other words, as the European Union changes its rules, we will change our rules in a different way. That means the prospects of agreeing a deal within 12 months will become vanishingly small, and the prospects of knowing that we will agree a deal in six months—by June—are even smaller.
China, the United States and other countries will look at us and see that we are increasingly turning our back on our biggest markets, and that gives them more power in negotiations. We stand alone, turning our back on the EU, and when we talk to the United States they will say that they do not want any environmental or climate change considerations in the trade deals, as they already have. They do not really care that much about food standards; they want hormone-impregnated meat and chlorinated chicken. They want our NHS database and to enforce patents so that drugs will be more expensive. They also sell asbestos and all the rest of it. As we move away from the regulatory protection of the EU, we are in their hands.
When we have trade talks with China, we will obviously have to be on bended knee. They will say, “Don’t mention human rights, Hong Kong and all that sort of stuff. Just stick to the point and do what we say.” They are already building HS2 and a lot of other infrastructure here. If this is about democracy, it is important that Parliament has greater scrutiny of these trade deals and that we go into these things with our eyes open.
Finally, on human rights, I am very concerned about the issue of unaccompanied minors. Frankly, it has a strange echo of Donald Trump, who has separated children from their parents who are refugees and put them in detention camps—our great friend, Donald Trump. At the same time, we see in the Queen’s Speech the abolition of the BBC, and the civil service and the judiciary are also under threat. Our fundamental values shared across Europe of democracy, human rights and the rule of law are under threat. All new Members must think carefully about what is in the balance here. I know that they are driving through in great merriment on the back of “Get Brexit done”, in pre-Christmas pantomime mode, but we need to think about what is best for Britain and best for democracy, and that means proper scrutiny of this Bill.
Mr Deputy Speaker (Sir Gary Streeter)
Last but certainly not least, Mr Mark Pawsey.
Mark Pawsey (Rugby) (Con)
Thank you, Sir Gary. It is a great pleasure to be the tail-ender in a debate that has had a very welcome change in tone from that of previous debates on this topic. First, I thank the voters of Rugby and Bulkington for returning me for the fourth time with an increased majority, which I think is the case for almost all Conservative Members and is an endorsement of our party’s attitude. I will be supporting the Bill to leave the European Union this afternoon, as I have done on four previous occasions.
I want to reflect on the effect on business. On the Business, Energy and Industrial Strategy Committee, we looked at the impact of leaving the EU on the automotive, aerospace, food and drink and pharmaceutical sectors, and in each case, business leaders told us of few benefits of leaving the EU and their concerns that what benefits there were would be outweighed by the harm. Much of the harm has been the uncertainty that business has had to go through over the past two and a half years. Businesses want to see frictionless trade, to be able to continue with just-in-time supply chains and to retain access to a market of 500 million consumers on their doorstep. I know from my business career before arriving here that it is easiest to deal with our closest neighbours, and that will be very important in the comprehensive trade deal that we conduct with the EU once we have left. It will be important not to neglect what is on our doorstep.
The business view about the need to get Brexit done is just as strong as the one that all of us encountered on the doorsteps. As a west midlands MP, I am very concerned about the impact on the automotive sector. Many of my constituents work for Jaguar Land Rover, and many of the companies in my constituency are in the supply chain. It is of concern that the figures released today by the Society of Motor Manufacturers and Traders show UK output down year on year, partly because of shutdowns that were put in place to deal with concerns about the disruption caused by potentially leaving the EU without a deal on 31 October. It is important that we have now got that uncertainty out of the way, and businesses will be able to grow and develop.
We will start to see substantial investment. In fact, over the last couple of years, despite the uncertainty of Brexit, there has been substantial private sector investment in my constituency. Meggitt, which is involved in making components for the aerospace market, is currently building the biggest factory that has been built in the UK for 10 years. Moto is building a new motorway service area at junction 1 of the M6 in Rugby, and local builder and developer Stepnell has just delivered a whole range of medium-sized industrial units ready for existing businesses to expand into. Developments on that scale at a time of great uncertainty lead me to be extremely confident that there is a pipeline of new projects that can now get started, because we are on our way to leaving the European Union, and that will benefit communities and workers across the UK.
In my last minute, I want to refer to the effect on democracy. I noted the remarks of my right hon. Friend the Member for Ashford (Damian Green). I, too, talked to many constituents on the doorsteps during the campaign who said that they would not be voting; they wanted to opt out. That is not unusual, because many people have a low opinion of politicians, but I sensed that at this election, more people were intending not to vote or to waste their vote because they had voted in the referendum, and the politicians had not delivered on what they voted for. We in this place cannot choose which votes we wish to respect, and we are now able to deliver for all those who voted in the general election and the referendum.
Keir Starmer (Holborn and St Pancras) (Lab)
This has been a good debate on an extremely important Bill, but before I turn to the Bill, let me welcome the Secretary of State back to his place. Let me also welcome all new Members throughout the House to their places, and to the part that they will play in this Parliament. I hope they will be given the support and comfort that they need, wherever they sit.
I want to make special mention of those making maiden speeches. We have heard three today, and, in the best traditions across the House, they have been thoughtful and powerful. I always find maiden speeches a relief, because the House goes quiet and actually listens, just for five or 10 minutes, to what the Member is saying. That is quite refreshing, because we do not do it often enough. I think that both the speeches themselves and the way in which the House listened to them have provided a good example of a tradition that we need to continue.
We have heard other very good contributions from Members on both sides of the House. In the main, the tone has been markedly different from that of previous debates. Let us keep it that way. The hon. Member for Fareham (Suella Braverman), whom I used to face across the Dispatch Box, is no longer in the Chamber. I cannot pretend that I agree with very much of what she says, but on this occasion she said that this was her first speech since she had become a mum. I am sure that I speak for the whole House in congratulating her, and all those who have become new parents since Parliament was dissolved.
We have had a general election. There is a clear winner with a clear majority. I say this to Conservative Members: with that majority, be careful. Doing things because the Government have a majority does not mean that those things are right. Clause 37 of the Bill is an example. It concerns unaccompanied child refugees. Lord Dubs—Alf Dubs—launched an incredible campaign to protect child refugees post Brexit. It has been running for several years, and Members on both sides of the House have supported it and spoken powerfully about the issue of unaccompanied child refugees. The commitment that was in the previous Bill has been taken out, and that is a moral disgrace, majority or no majority. I know that Members will go into the Lobby to vote for this Bill, and I understand that, but many of them will feel strongly about unaccompanied child refugees, and I ask them just to reflect for a moment on that.
I turn to those on my own Benches. We may have lost the general election, but we have not lost our values and our beliefs. We must fight for them day in day out in this Parliament, and we will.
Let me address the central issue. As a result of the general election—as a result of the majority that the Government have, and the mandate that they have—we are leaving the EU. We will have left the EU within the next six months, and whatever side we were on, or even if we were on no side at all, the leave-remain argument will go with us. That does not mean that the deal negotiated by the Prime Minister is a good deal; it is not. It was a bad deal in October when it was signed, it was a bad deal when it was first debated in the House in October, it was a bad deal last Thursday, and it is a bad deal today. In fact, it is worse today.
Clause 30 in the previous Bill gave Parliament a role in what happens next. There is a crucial decision to be taken in six months’ time as to whether there should be an extension of any transition. Under the old Bill, that was a decision that we collectively in Parliament would take according to the evidence and circumstances as they are in six months; a chance for Parliament to assess where the negotiations had got to and come to a decision on whether a deal would be negotiated within the period and take whatever measures are necessary to prevent no deal. That has been swept away and taken out of the Bill; all the promises that were made from the Dispatch Box about a new approach and that Parliament would be involved. We were told only a few weeks’ ago that the Prime Minister had learned the lessons and that one of the lessons was that to plough on without taking Parliament with you was a mistake. There would be a new approach, because Parliament would be involved. At the first opportunity, that has been taken out.
The new clause 33 exacerbates that. It prevents the extension of any transition period. That is reckless and it is ridiculous. The Government have chosen to give themselves just 11 months to negotiate an entire trade deal and a security deal. That is an unbelievably short period. It can only lead to two outcomes: a bare bones trade deal or no deal. [Interruption.] I hear the chuntering. If in November the negotiations have been going well—let us hope they do—but they are not complete, they need more time and two or three months would be enough, clause 33 now says we leave without a deal. This does not just provide for the situation where the negotiations have broken down; it also demands no deal where they are continuing.
One of the other changes is clause 34 and schedule 4 on employment rights and protections. They are now gone. It is said, “Oh well, we’ll put that in an employment Bill.” Let us trace the history of that to test the proposition. There is a Bill coming. Workplace rights were originally in the internationally legally binding part of the deal agreed by the previous Prime Minister. They were stripped out by this Prime Minister. They were put into the first draft of the Bill before the general election, albeit in weak form. On 22 October, in response to a question from my hon. Friend the Member for Batley and Spen (Tracy Brabin), the Prime Minister said:
“People will need reassurance…There can be no regression.”—[Official Report, 22 October 2019; Vol. 666, c. 828.]
They have now been stripped out and the direction of travel is very clear. Nobody should be taken in by assurances about any forthcoming Bill. The Prime Minister this morning referenced the Factory Acts. It is worth dusting off the Factory Acts, if that is the level of ambition for future workplace rights and the shining example we are heading for.
The Bill started life as a bad Bill. It is now even worse. The changes the Government have made—weakened protections for workplace rights, a side-lined Parliament and weakened protections for child refugees—tell us everything we need to know about the Prime Minister and this Government, their priorities and their values. They are not Labour values. This is not a deal we can support. We will be voting against it tonight.
The Secretary of State for Exiting the European Union (Stephen Barclay)
I join the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) in welcoming new Members to the House, and in reflecting on the positive tone of the debate, which is in marked contrast with debates in the previous Parliament. I also join him in congratulating my hon. Friend the Member for Fareham (Suella Braverman), a new mum returning to make her valued contribution to this House.
The general election delivered a clear instruction to this House that we should leave the European Union. Parliament must now reflect the will of the country and make good on that democratic decision by backing this Bill. The Bill is not a victory for one side over another. The time has come to discard the old labels, to move from the past divisions and to come together as one United Kingdom.
Our country produced a mandate to leave the EU in 2016, but the previous Parliament rejected it time and again. It has taken a second vote to ensure that the mandate to leave is finally honoured. It is clear that the people did know in 2016 what they were voting for after all. Despite the efforts of those determined not to accept the referendum result, the House now has the opportunity to end the delay and to forge a new relationship, both with our neighbours in Europe and, indeed, within this House. In reflecting that spirit, I very much welcomed the speech of the hon. Member for South Shields (Mrs Lewell-Buck), who said that she would support the Bill in the Lobby today.
Before I turn to the substance of the Bill, may I congratulate the hon. Member for Belfast South (Claire Hanna) on her very impressive maiden speech? She showed that she will contribute greatly to the work of the House, and her point about reconciliation was timely. The hon. Member for North Down (Stephen Farry) also made an excellent maiden speech, as indeed did the hon. Member for Stirling (Alyn Smith), who spoke powerfully of his opposition to Brexit, albeit after leaving an EU institution to come here. He has started his own Brexit as we vote on the Bill.
The Bill delivers certainty for our citizens living in Europe, and EU citizens living here in the UK, by guaranteeing their rights as set out in part 3, including through an independent monitoring authority, which will rightly hold the Government to account. There will be a grace period to ensure that nobody is left behind in registering for the EU settlement scheme. The Bill also protects frontier workers. It recognises professional qualifications and, indeed, provides for fair rights of appeal. That is because we value the contribution of EU citizens who have built their lives in our country, and the Bill will guarantee their right to continue to do so.
Sir John Hayes
My right hon. Friend is right to draw attention to the value that has been given to this country by those who have travelled here, but the point about that, as he said when he spoke of accountability, is that such decisions should be made by this Parliament, which is accountable to the British people. That is why I anticipate our policies on migration, which we will now have a chance to effect as a result of the passage of this Bill.
Stephen Barclay
My right hon. Friend has always been a champion of the sovereignty of the House, and I will come on to how the Bill indeed champions the very sovereignty that I know he cares so passionately about.
The Bill also unlocks confidence for our businesses by ending dither and delay, which in turn will unlock huge new investment in our economy, ensuring more and better jobs. As my right hon. Friend has just reflected, the Bill provides control for our Parliament. Clause 1 reinforces the repeal of the Act, which brought European law into the UK. The Bill ensures parliamentary scrutiny through the European Scrutiny Committee in clause 29 and asserts parliamentary sovereignty through clause 38. The whole House will recognise the work of my hon. Friend the Member for Stone (Sir William Cash) on this and on so many other issues reflected in the Bill. The very essence of Brexit is that we will no longer outsource our decisions to others in Brussels.
Ben Bradley
We have heard much from the Opposition about their fear of bringing such decisions back to the United Kingdom, particularly those around workers’ rights. Will my right hon. Friend absolutely confirm that this Government have every intention of protecting and improving the rights of workers in this country, who overwhelmingly backed the Conservatives in this election?
Stephen Barclay
My hon. Friend is a champion for workers’ rights and his constituents, and he will know that not only did our manifesto make that clear commitment—on page 5—but did so in parallel with the Bill. The Bill is about implementing in domestic law the international agreement that my right hon. Friend the Prime Minister has reached with the EU. This House does not need other people to tell us how to protect the rights of workers and others. As my hon. Friend well knows, in many areas this Parliament goes further than the EU in safeguarding rights, not least in areas such as maternity and paternity rights. Following the manifesto commitment to high standards, I look forward to the House continuing that tradition and maintaining good standards.
Mr Seely
One thing that concerns folks on the Isle of Wight and the south coast is seeing super trawlers hoovering up 250 tonnes of fish a day off Shanklin and Eastbourne. Is not one of the great benefits of the Bill, our leaving the EU and our getting a new fisheries Bill that we will be able to stop super trawlers coming into our seas, which we are not allowed to do at the moment because of our membership of the EU?
Stephen Barclay
My hon. Friend is right. One of the key features of taking back control of our waters is this Parliament making those decisions for itself. One of the mysteries about Opposition Members is that those representing Scotland do not seem to have the self-confidence to take back those decision-making powers, but rather want to give them back to Europe.
Sir David Evennett
I am listening with great interest to my right hon. Friend. Can he also confirm that when we leave the EU we will have control over our taxes again and the ability to make decisions on them, including VAT?
Stephen Barclay
My right hon. Friend is right. One has only to look at what our manifesto commits us to do once we have control of our taxes and at what the Government have already done to raise the amount people can earn before they pay tax. We believe in backing those who wish to work and provide for their families, and our tax system will do exactly that.
Along with the terms of our withdrawal, the Bill reflects the political declaration, which sets out the framework for our future relationship. Now we need to get on with negotiating on this basis so we can agree our future relationship by the end of the implementation period on 31 December 2020. The shadow Brexit Secretary referenced clause 33. That clause reinforces the Government’s commitment in their manifesto not to extend this period. Part 5 of the political declaration is clear: we are committed to developing in good faith agreements that give effect to our future relationship, the cornerstone of which is a comprehensive free trade agreement by the end of 2020.
The shadow Brexit Secretary said that clause 33 was ridiculous. It is not ridiculous to act on manifesto commitments that we have given to the electorate. It is not ridiculous when the EU itself, in the political declaration, has agreed to the timetable of the end of December 2020. If that is the central concern of Opposition Members, it would have been better reflected in talks on previous deals, when the Labour party raised many other objections that underlined the fact that it simply did not want Brexit delivered at all.
We now have a deal that reflects both the referendum—the single largest democratic exercise in British history—and the defining issue of the general election. It is time to end the delay, to come together and heal our divisions and, above all, to listen to the people we serve. The British public have given their instruction. This Bill delivers Brexit. I commend it to the House.
Question put, That the Bill be now read a Second time.
The House proceeded to a Division.
Mr Deputy Speaker (Sir Roger Gale)
I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.
Proceedings | Time for conclusion of proceedings |
|---|---|
First day | |
Clauses 1 to 6; new Clauses relating to Part 1 or 2; new Schedules relating to Part 1 or 2 | Four hours after the commencement of proceedings on the Bill on the first day |
Clauses 7 to 14; Schedule 1; Clause 15; Schedule 2; Clauses 16 and 17; new Clauses relating to Part 3; new Schedules relating to Part 3 | Eight hours after the commencement of proceedings on the Bill on the first day |
Second day | |
Clauses 18 to 23; Schedule 3; Clauses 24 to 37; new Clauses relating to Part 4; new Schedules relating to Part 4 | Two hours after the commencement of proceedings on the Bill on the second day |
Clauses 38 to 40; Schedule 4; Clause 41; Schedule 5; Clause 42; new Clauses relating to Part 5; new Schedules relating to Part 5 | Five hours after the commencement of proceedings on the Bill on the second day |
Remaining new Clauses, remaining new Schedules, remaining proceedings in Committee on the Bill | Eight hours after the commencement of proceedings on the Bill on the second day |
Mr Deputy Speaker (Sir Roger Gale)
This is probably strictly out of order, but I suspect that hon. Members will be leaving in a few moments. May I, on behalf of Mr Speaker, wish all hon. Members, on both sides of the House, a happy Christmas and a very peaceful new year?
European Union (Withdrawal Agreement) Bill
Tuesday 7th January 2020
(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 7 January 2020 - (7 Jan 2020)
20:24 - The Committee divided: - Ayes: 252 / Noes: 342 - Question accordingly negatived.
20:42 - The Committee divided: - Ayes: 255 / Noes: 341 - Question accordingly negatived.
20:58 - The Committee divided: - Ayes: 251 / Noes: 343 - Question accordingly negatived.
The Chairman of Ways and Means (Sir Roger Gale)
Good afternoon, ladies and gentlemen. As this is the first Committee of the whole House of a new Parliament, it might be of benefit to those who are not entirely familiar with the arcane process, and indeed to those who thought they were but are not, if I seek to explain how this proceeds.
You will find on the Order Paper that the amendments are grouped and that helpfully they are grouped not in sequence but by subject. The Chair will try to confine the debate to the subject matter, without being too rigorous in exercising control. Ordinarily, the groups will form the basis of a debate, the first part of which I will introduce and to which the Secretary of State or Minister will then respond. Exceptionally, because this is the first day of a two-day debate to which a plethora of amendments has been tabled, I have deemed it helpful to invite the Secretary of State to open the debate to set out the stall, and on that basis, of course, if the Opposition Front-Bench spokesperson wishes to come in immediately following that, that would also be entirely acceptable.
I have one final point to make. Mr Speaker has decided that, although any Member has a right to speak in this House, it is not desirable for new Members to make maiden speeches during the Committee. He has decided this for two reasons: first, it will simply delay the process, and, secondly—and much more importantly, from the point of view of those new Members—inevitably their freedom of movement to describe their constituencies as the second garden of Eden will be limited. I am advised that there will be an opportunity to participate first on Third Reading on Thursday, when the Speaker will be in the Chair, and then subsequently during the remaining debate on the Queen’s Speech. I hope that is all clear and helpful. With that in mind, we will move to the first group of amendments.
Clause 1
Saving of ECA for implementation period
Question proposed, That the clause stand part of the Bill.
The Chairman
With this it will be convenient to discuss the following:
Clauses 2 to 6 stand part.
New clause 4—Extension of the implementation period—
“After section 15 of the European Union (Withdrawal) Act 2018 (publication of and rules of evidence) insert—
‘15A Extension of the implementation period
(1) A Minister of the Crown must seek to secure agreement in the Joint Committee to a single decision to extend the implementation period by two years, in accordance with Article 132 of the Withdrawal Agreement unless one or more condition in subsection (2) is met.
(2) Those conditions are—
(a) it is before 15 June 2020;
(b) an agreement on the future trade relationship has been concluded;
(c) the House of Commons has passed a motion in the form set out in subsection (3) and the House of Lords has considered a motion to take note of the Government’s intention not to request an extension.
(3) The form of the motion mentioned in subsection (2)(c) is “That this House approves of the Government’s decision not to apply for an extension to the period for implementing the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU”.
(4) If the Joint Committee does not agree the extension specified in subsection (1) but EU representatives on the Joint Committee indicate that they would agree an extension for a shorter period, a Minister of the Crown must move a motion in the House of Commons to agree the shorter period proposed, and if that motion is agreed, a Minister of the Crown must agree that shorter extension in the Joint Committee.
(5) Any Minister of the Crown who attends the Joint Committee may seek agreement to terminate the implementation period if a final agreement on the future trade relationship is ratified before the end of the implementation period.’”
This new clause would restore the role for Parliament in deciding whether to extend transition to avoid a WTO Brexit.
New clause 36—Extension of implementation period—
“After section 15 of the European Union (Withdrawal) Act 2018 (publication and rules of evidence) insert—
‘15A Extension of implementation period
(1) If by 1 June 2020, agreements on both of the matters specified in subsection (2) have not been concluded, any Minister of the Crown who attends the Joint Committee must seek to secure agreement in the Joint Committee to a single decision to extend the implementation period by two years, in accordance with Article 132 of the Withdrawal Agreement.
(2) The specified matters for the purposes of subsection (1) are—
(a) the future trade relationship between the United Kingdom and the EU.
(b) a security partnership including law enforcement and judicial cooperation in criminal matters.
(3) If the Joint Committee does not agree the extension specified in subsection (1) but EU representatives on the Joint Committee indicate that they would agree an extension for a shorter period, a Minister of the Crown must move a motion in the House of Commons to agree the shorter period proposed, and if that motion is agreed, a Minister of the Crown must agree that shorter extension in the Joint Committee.
(4) Any Minister of the Crown who attends the Joint Committee may seek agreement to terminate the implementation period if final agreements on both of the matters specified in subsection (2) are ratified before the end of the implementation period.’”
This new clause would require the UK Government to seek an extension to the implementation period if agreements on trade and security have not been completed by 1 June 2020.
Clause 33 stand part.
The Secretary of State for Exiting the European Union (Steve Barclay)
I begin by wishing you, Sir Roger, and all Members of the House a happy new year.
The Bill implements the withdrawal agreement negotiated by the Prime Minister. It fulfils the will of the British people and will set the stage for our bright future outside the European Union. It lets us take back control of our laws, our money, our borders and our trade policy, and it delivers on the overwhelming mandate given to us by the British people to get Brexit done by the end of January.
Sir Roger, as you have just informed the Committee, I am, under your guidance, speaking to this group. I will speak to clauses 1 to 6, clause 33 and new clauses 4 and 36, noting that new clause 19 and amendment 25 have not been selected.
Clause 1 gives legal effect to the implementation period in domestic law. The implementation period ensures that common rules will remain in place until the end of this year, meaning that businesses will be able to trade on the same terms as now until a future relationship has been agreed. This provides certainty and stability for the duration of this time. During the implementation period, the effect of the European Communities Act 1972 will be saved and modified on a temporary basis to provide the necessary continuity. It will have a new purpose: to give effect to EU law as set out in the withdrawal agreement, to provide for the implementation period. As a result, businesses and citizens need prepare for only one set of changes as we move into our future relationship with the EU.
John Redwood (Wokingham) (Con)
Can my right hon. Friend give us an estimate of how much the implementation period will cost us, and will he reassure us that once we are out properly at the end of this year, there will be no future payments thereafter?
Steve Barclay
This will secure our membership for the period. One of the costs for businesses—one of the greater costs—would result from two sets of changes, without the comfort of an implementation period. The business community itself—of which I know my right hon. Friend is a great champion—said that it wanted an implementation period while the negotiation on the trade deal was being conducted to avoid the higher cost of two sets of changes.
The saving of the ECA will be repealed at the end of the implementation period, at which point the repurposed ECA will cease to have effect. Clause 1 is essential to achieving the terms agreed in the withdrawal agreement and ensuring the proper functioning of European Union law during the implementation period, and for that reason it must stand part of the Bill.
Caroline Lucas (Brighton, Pavilion) (Green)
I still do not think that the Secretary of State has made a clear enough case for why he would wish to tie the Government’s hands in such an unnecessary way and risk the disaster of no deal. Also, there could be perfectly constructive negotiations going ahead, which he would be prepared to throw away if they could not fit into the arbitrarily short time of 11 months. Will he tell us why he thinks it is worth running that risk, which is such a big risk for our businesses and for our economy?
Steve Barclay
I know that we have two days for the Committee stage, but it is very odd for someone who wants us to remain a member of the European Union to complain about the fact that we have an implementation period so that the business community does not face two sets of changes and so that we give businesses confidence for the rest of the year.
Clause 2 saves EU-derived domestic legislation for the implementation period. The last one and a half decades have seen a substantial amount of EU legislation that has required domestic legislation, both primary and secondary. That domestic legislation constitutes a large body of law, and to ensure that the law continues to work properly during the implementation period, we need to take several important steps. First, we must preserve the legislation to avoid its being impliedly repealed following the repeal of the ECA. If we do not save it, there will be a risk that it will either fall away or be emptied of meaning, which could mean that citizens and businesses were no longer protected by, or indeed able to rely on, existing rules.
The second essential purpose of the clause is to maintain the proper functions of the statute book for the duration of the implementation period. During that period, we will continue to apply this law, but we will not be part of the European Union. To ensure that that is reflected in the statute book, the Bill provides for time-limited glosses, or modifications, to new and existing EU-derived legislation. Those glosses make clear the way in which EU law terms and UK legislation should be read so that our laws continue to work during the implementation period. Let me give one example. All references to European Union citizens in the UK statute book will, as a general rule, be read as including UK nationals during the implementation period. These provisions will automatically be repealed at the end of the year when they are no longer needed.
Chris Bryant (Rhondda) (Lab)
I hope that the Secretary of State will be able to clarify whether that also applies to the European arrest warrant. Obviously, we will remain subject to it and able to take advantage of it during the implementation period, but at the end of that period, as a third party, we will simply not be able to enter into it. During the implementation period, will British subjects still be subject to the arrest warrant overseas?
Steve Barclay
Under clause 1, the implementation period ensures the continuity of the law. That is why it is saved, but modified. Clause 2, and the others in the group, deal with the technical terminology. Where there is a change in meaning, it means continuity. I see that the hon. Gentleman is frowning. The substance of my reply is yes, in that the Bill ensures continuity. The purpose of terms such as “European Union citizen” will have ceased because we will have left, but, on the other hand, the implementation in EU law will continue, allowing those terms to continue to be applied and any tidying up—any technical changes—to be applied. So this is a technical glossing and that is its purpose.
Catherine West (Hornsey and Wood Green) (Lab)
While the Secretary of State is on his feet discussing this, could he set out the exact position for EU nationals, because those of us who have up to 42,000 living locally are extremely concerned? There have been lots of discussions and tweets about this, so could he please just lay out exactly what the position will be not only during the next 12 months of the implementation plan but going forward?
Steve Barclay
The hon. Lady raises an important point. I do not want to stray too far into the second grouping in Committee, which is indeed on citizens’ rights and which the Security Minister will address, but what this Bill is doing is securing the rights of EU citizens within the UK and indeed the rights of UK citizens in the European Union, because we value the contribution that those EU citizens make to the UK. They have chosen to make their homes here and to bring up their families here, and their rights are protected. That is one of the reasons that I urge Members on both sides of the House to support this Bill.
Sir William Cash (Stone) (Con)
During the transitional period, laws will be made in the European Union that we will be expected to obey. Does my right hon. Friend agree, however, that clauses 29 and 38—one of which deals with the review of legislation through the auspices of the European Scrutiny Committee, where we will be affected by our vital national interests being undermined—provide good protection for the United Kingdom’s national interests? Secondly, does he agree that the question of parliamentary sovereignty in clause 38 will complement that by ensuring that the whole process of legislation under the withdrawal agreement will not affect the continuing sovereignty of the United Kingdom Parliament, and that this therefore effectively provides a double lock on the rights of this House as we leave the European Union?
Steve Barclay
My hon. Friend is absolutely right to signpost those two safeguards being put in place, in which he played a significant part, but I would say that there are three. I will come on to the third, if I may slightly push him by making that correction. He is right to say that the European Scrutiny Committee, under his chairmanship, will have the right to trigger debates and scrutiny. Secondly, he has championed the clause dealing with the sovereignty of Parliament, which is set out clearly in the Bill. The third element that I would draw to his attention, which is within this grouping, is our legislating for the Government’s manifesto commitment not to extend the implementation period. That will ensure that there is no extension of the implementation period and will therefore ensure that there is no risk of a further one-year or two-year period during which the issue about which he was concerned in relation to those two other clauses could arise. So there are three protections, and not just the two that he mentioned.
Steve Barclay
I am pleased that my hon. Friend signals from a sedentary position that he is content with that.
Ultimately, clause 1 will ensure that there is continuity in our laws during the implementation period and that our law continues to operate properly. It is therefore essential and must stand part of the Bill.
Karin Smyth (Bristol South) (Lab)
The Secretary of State has commented about the sovereignty of this United Kingdom Parliament across the whole United Kingdom. At all stages in the future, as marked out by the Northern Ireland protocol and the exceptions to this Bill, the people of Northern Ireland will be subject to European Union law for a long time into the future, as far as we can see, so it is not correct, is it, to say that the sovereignty of the entire United Kingdom will be placed in this place?
Steve Barclay
We will debate at length tomorrow the provisions relating specifically to Northern Ireland, but there is a further sovereignty within the Bill in respect of Northern Ireland. I do not want to stray too far into that debate now, but there is a consent mechanism that pertains specifically to the Northern Ireland protocol, so there is a further sovereignty lock in that regard. However, that is a matter for the groupings that we will address tomorrow.
Turning to clause 3, we are confident that the list of so-called glosses set out in clause 2 works in all the cases that we have examined, and I pay tribute to the officials who have trawled the statute book in that regard. However, it is right that we, as a responsible Government, reserve the ability to nuance the impact of those technical changes should unforeseen issues arise during the implementation period. The power set out in clause 3 provides for that. The Bill gives five different applications for that power. Three relate to the glosses. The power can add to the glosses; it can make exceptions; and it can be used to make different provisions from the list, if for any reason we need to change a gloss in a specific case or set of cases. The power has two further applications: it can be used to tidy up the European Union (Withdrawal) Act 2018 and to cover any specific technical inoperabilities that may occur that have not been foreseen. It is appropriate, prudent and sensible that the Government are prepared in this regard, which is why those five elements are in the Bill.
Joanna Cherry (Edinburgh South West) (SNP)
Analysis by the Scottish Parliament Information Centre, which is the equivalent of the House of Commons Library and is therefore independent, notes that clause 3 empowers UK Ministers acting alone to make provision in devolved policy areas. The Government’s delegated powers memorandum states that they will not normally do so without the agreement of the relevant devolved Administration, but as the Secretary of State will be aware, the Sewel convention does not apply to delegated legislation. Does he therefore agree that this power shows that the Bill is indeed the power grab that the Scottish National party has always said it is? If it is not, why is it there at all?
Steve Barclay
The hon. and learned Lady is incorrect in saying that. First, this is an international agreement, which is a reserved matter—a matter for the United Kingdom. Secondly, these are glosses—technical issues—in terms of the tidying up that I set out, and they are tightly defined. Thirdly, the devolved elements are addressed by giving the devolved Assemblies the power, through clause 4, to do further glosses themselves.
Joanna Cherry
I am sorry, but the Secretary of State is simply wrong about that. On any legal analysis, it is quite clear that clause 3 gives UK Ministers acting alone the power to make regulations in relation to areas of devolved competence. I reiterate my question: why is that power there at all if the Government are not intending to use it to take powers away from the Scottish Parliament and other devolved Administrations?
Steve Barclay
Again, with great respect to the hon. and learned Lady, she is over-reaching in the interpretation that she is applying to clause 3. It is a technical provision that allows for technical changes—glosses to terminology —such as the example that I gave the Committee a moment ago of how EU citizens may be defined. The clause is for technical changes in unforeseen areas, rather than fundamental changes of powers. Indeed, we have given an equivalent power through clause 4, in respect of the ability of the devolved authorities to do exactly the same thing or very similar.
Clause 3 must stand part of the Bill to ensure that the statute book is maintained and that any unforeseen technical issues that arise in future are addressed. That is why clause 3 is required. It is not as the hon. and learned Lady characterises it; it is a technical provision for glosses for any issues that were unforeseen at the time of the Bill’s passage.
Joanna Cherry
Could I probe that a bit further? In clause 4, proposed new paragraph 11B specifically provides that Scottish Government—and indeed Welsh Government —Ministers cannot make any provision outwith devolved competence. However, there is no equivalent provision in clause 3 saying that the British Government cannot not use the powers to make regulations about devolved matters. If this is just technical, as the Secretary of State says, why will he not agree to include a similar qualification in relation to the British Government’s powers? If he will do so, could that perhaps be addressed in the House of Lords?
Steve Barclay
That is not something that I would urge the other place to address, because this is a provision to address unforeseen areas in which technical changes may be required in the tightly constrained areas set out in clause 3. The hon. and learned Lady turns to clause 4, which confers on the devolved authorities a broadly equivalent power to that set out in clause 3. Where legislating for the implementation period falls within devolved competences, it is right that legislative changes can be made by the devolved authorities, with which I am sure she would agree. Therefore, the change in clause 4 provides the devolved authorities with corresponding powers to those set out under proposed new section 8A(1) of the European Union (Withdrawal) Act 2018, as outlined in clause 3, so far as they are exercised within the devolved authorities’ competences.
Catherine West
Will the Secretary of State explain in clear language how he believes that will be played out at airports? Will there be several queues? Will there be one queue for everybody from European countries? I ask because many people ask me these questions in my surgery.
Steve Barclay
We will go into more detail on citizens’ rights when we discuss the second group of amendments, but clause 5 secures the legal effect to the protections that apply to citizens within the EEA EFTA states. One of the big questions on the Brexit discussions that we have heard repeatedly in this place has been, “To what extent will people’s rights be protected?” This Bill is doing that for EU nationals through clause 5, and clause 6 mirrors those protections in law for citizens of the EEA EFTA states. The hon. Lady touches on the arrangements for citizens’ rights, which are a separate issue, but this is about how legal protection will apply to those nationals.
Clause 6 gives effect in domestic law to the EEA EFTA and Swiss separation agreements in a similar way to the withdrawal agreement. This ensures that a Norwegian citizen living in the UK can rely on their rights in a UK court in broadly the same way as a Swedish citizen. It does so in the same way as clause 5.
We do not want a Norwegian, Liechtenstein, Icelandic or Swiss national to have any less certainty on their rights than an EU national here or, indeed, a UK citizen in Europe. Clause 6 also enshrines the legal certainty for businesses and individuals covered by the EEA EFTA agreement that article 4 of the withdrawal agreement provides. This clause, as presented, is vital to the UK’s implementation of the EEA EFTA and Swiss agreements, and it must stand part of the Bill.
Clause 33 prohibits the UK from agreeing to an extension of the implementation period. Page 5 of the Conservative manifesto says:
“we will not extend the implementation period beyond December 2020”,
and clause 33 says:
“A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.”
It could not be clearer. This Government are determined to honour our promise to the British people and to get Brexit done.
Both the EU and the UK committed to a deal by the end of 2020 in the political declaration. Now, with absolute clarity on the timetable to which we are working, the UK and the EU will be able to get on with it. In sum, clause 33 will ensure that we meet the timetable set out in the political declaration and deliver on our manifesto promise. For that reason, the clause must stand part of the Bill.
Chris Bryant
I understand why clause 33 is in the Bill. As much as I am a remainer—I remain a remainer, and I will remain a remainer until my dying day—I none the less accept that the second referendum has now happened. That is the end of it.
My anxiety, however, was first expressed, in a sense, by the previous Prime Minister when she wrote the first letter of intent with regard to article 50, which stated that we would have trouble on security issues if we did not have a full deal by the end of the implementation period. I ask the Government to think very carefully about how we ensure that, by the end of this year, we have a security deal covering the whole range of security issues that face this country. I would argue that that is as important as the trade-related issues.
Steve Barclay
I welcome the constructive way in which the hon. Gentleman raises his concerns about security while recognising the general election mandate and how it plays into this clause and its reflection of the manifesto.
I draw the hon. Gentleman’s attention to two things. First, the withdrawal agreement commits both sides, including the European Union, to using their best endeavours to reach agreement. Secondly, the political declaration commits to a timescale of the end of 2020. That is why we are confident that this can be done to the timescale, and it is a reflection of the commitments given by both the UK and the EU in the withdrawal agreement and the political declaration.
Kevin Hollinrake (Thirsk and Malton) (Con)
Does the Secretary of State agree that all things are possible when both parties to a negotiation are willing to proceed in good spirit? Indeed, in a briefing to EU politicians in November 2019, Michel Barnier said the timescale would normally be far too short but that Brussels would strive to have a deal in place by the end of 2020. It is clearly possible to do this deal for the end of 2020. Does my right hon. Friend agree that is the right approach to take?
Steve Barclay
I very much agree with my hon. Friend. Indeed, the Commission President will be meeting the Prime Minister tomorrow, and I will be meeting Michel Barnier, to act on that constructive spirit. Both sides have committed to the timescale.
I am conscious that the House is now in a different place, but many Members will recall that it was often said it was impossible to reach an agreement before, indeed, the agreement was reached.
Sammy Wilson (East Antrim) (DUP)
I welcome the fact that the Government are determined to bring this process to an end by December 2020, and I hope that that does concentrate minds in the EU. If the EU and the Government cannot come to an agreement by then, what are the implications for, first, the future arrangements and, secondly, the current withdrawal agreement, especially the provisions in Northern Ireland?
Steve Barclay
First, I believe we can and will do this, and, as I have indicated to the House, so does the EU, because it has committed, in the political declaration, to doing it. Secondly, a number of issues are addressed through this Bill: citizens’ rights, which the hon. Member for Brighton, Pavilion (Caroline Lucas) asked about in relation to her constituents, are protected through this Bill. People used to talk about a no-deal outcome, and one thing this Bill does is secure the protection of the 3 million EU citizens within our country, who are valued, and of the more than 1 million UK citizens there. The right hon. Gentleman has concerns about the Northern Ireland protocol, and I stand ready, as do my ministerial colleagues, to continue to discuss issues with him. We will debate that in more detail in Committee tomorrow, but, again, the Northern Ireland protocol is secured through the passage of this Bill. That puts us in a very different place from where many of the debates were in the previous Parliament in respect of concerns about no deal.
Caroline Lucas
I remind the Secretary of State that just last month the Commission President said that she has serious concerns about this timetable. All experts in trade are concerned that an 11-month period simply does not necessarily give the time to get a good deal done, so why is he signing up now to something he could postpone until at least June, when he will have a better sense of how negotiations are going? Why is he cutting off his nose to spite his face by saying now that he will not extend the implementation period?
Steve Barclay
I will move on, because new clauses 4 and 36 speak to the same point, but, in short, this is being done partly for the reasons I have already given the House in respect of what is set out in the political declaration, where there is a shared commitment, and partly because Members on my side of the House gave a manifesto commitment to stick to this timetable. I am sure the hon. Lady would be the first to criticise the Government if they made a manifesto commitment and then decided not to stand by it. So we are committed to the commitment we gave on the timescale, which is why we want to move forward with clause 33.
Steve Barclay
I will make a little progress and then, of course, I will come back to the hon. Gentleman.
New clauses 4 and 36 stand in the names of the Leader of the Opposition and the acting leader of the Liberal Democrats respectively. New clause 4 has been tabled by the Leader of the Opposition in an attempt to force the Government to extend the implementation period if a deal has not been agreed with the EU by 15 June. The new clause would also give Parliament a vote on any such extension. New clause 36 is similar in effect to new clause 4, but it would do this without having any parliamentary vote. It states that a deal is required on both economic and security matters by 1 June or an extension is mandated as a consequence of this legislation. The Opposition parties therefore want to amend the Bill to force further delay.
Gary Sambrook (Birmingham, Northfield) (Con)
Does my right hon. Friend agree that it is astounding that so many Opposition Members did not listen to the call in the recent general election from the people, who are fed up with continuous delays and extensions? The message they gave us on the doorstep was to get Brexit done so that we can all move on and start talking about other things, such as our NHS, schools and policing.
Steve Barclay
My hon. Friend is right to say that a very clear message was reflected in our mandate. To be fair to Opposition Members, I should say that I watched the shadow Brexit Secretary on “The Andrew Marr Show” and he did accept the need to move on. [Interruption.] I am giving credit to him, although I appreciate that he is engaged on other matters in his own party at the moment. My hon. Friend is absolutely right that there was a clear desire from the British public to get on to the other priorities to which he refers.
Jonathan Edwards
Is not the danger in setting this fixed date that the British Government will quickly have to make a decision about what they want to achieve in the second phase of Brexit? Are they going to go for close alignment? If so, they could possibly get the deal done in the year. But if they decide they are going to disalign, that will create difficulties, and the best we can hope for will be, if not a no-deal cliff edge, a bare-bones free trade agreement. That could be very bad news for the economy.
Steve Barclay
With respect to the hon. Gentleman, we see it as a win-win. The EU wishes to trade with the UK; we wish to trade with the EU. They are our neighbours and we want to have a constructive relationship, but at the same time people voted for change and they want to see change. The Government are committed to delivering, through the Bill, the change that the British public voted for.
Vicky Ford (Chelmsford) (Con)
Does my right hon. Friend agree that it is not only the British people who are fed up with seeing Parliament going round and round in circles on Brexit, which is why they voted for the Conservative party in the general election? People in many European countries just want to get on and get past Brexit. They want a trade deal with us; we should agree one quickly and move on.
Steve Barclay
My hon. Friend, who always speaks with authority as a former Member of the European Parliament, is absolutely right to understand that this is a desire not just of the British public but of many of our friends and neighbours in Europe, who want to see the debate move forward and therefore want to see this legislation delivered. That is why it is right that we have clause 1 and why the new clauses are inappropriate.
Bob Blackman (Harrow East) (Con)
Does my right hon. Friend agree that the negotiations with the European Union on the free trade agreement will be relatively easy on goods, but the negotiations on services will be much more complicated? That is mainly because on goods we have a balance of trade deficit with the European Union, but on services we have a balance of trade improvement.
Steve Barclay
I refer back to the remarks I made a moment ago about this being a win-win for both sides. Let me take a portfolio that I used to deal with as a Minister: financial services. It is in the interests of EU businesses to be able to access capital at the cheapest possible price. I see in his place my hon. Friend the Member for Wimbledon (Stephen Hammond), who has expertise in this regard; he knows that the expertise in respect of the global markets and the liquidity that London offers is of benefit not just to the rest of the world but to colleagues in European businesses. They want access to the talent of the constituents of my hon. Friend the Member for Harrow East (Bob Blackman) and many others, which is why it is in both sides’ interests to reach agreement. That is the discussion that the Prime Minister will have with the President of the Commission tomorrow.
Stephen Hammond (Wimbledon) (Con)
For those of us who have been clear about our opposition to no deal, the problem with new clause 4 is that in effect it takes away some of the certainty and benefits to business, because it opens up the possibility of an unended extension, and the problem with new clause 36 is that it is anti-democratic. Any colleagues who think that such provisions may need to be in place should recognise that they would undermine the whole purpose of the withdrawal agreement. The best way to stop no deal is to secure a deal.
Steve Barclay
My hon. Friend is absolutely right. I know that he engages extensively with the business community, and what the business community wants is the clarity and certainty that the Bill delivers, and it also wants an implementation period that has a clear demarcation in terms of time. That is what the Bill will deliver.
Several hon. Members rose—
Steve Barclay
I shall give way one further time to the right hon. Member for Leeds Central (Hilary Benn), who was the Chair of the Exiting the European Union Committee.
Hilary Benn (Leeds Central) (Lab)
The Secretary of State has expressed enormous confidence that a deal will be done by December; may I test that confidence a little further? Will he give the House an assurance today that there is no prospect whatsoever of the UK leaving without an agreement in December this year?
Steve Barclay
I have set this out very clearly. The right hon. Gentleman will have studied the Bill—he always does—and will know exactly what is in clause 33, which is a commitment to stick to the timetable set out for the implementation period, which we committed to in our manifesto. I would hope that he, as a democrat, would want a Government to adhere to their manifesto.
The reality is that, on 12 December, the British public voted in overwhelming numbers to get Brexit done by 31 January and to conclude the implementation period by December 2020, so that we can look forward to a bright future as an independent nation. Page 5 of our manifesto explicitly states that we will negotiate a trade agreement by next year—one that will strengthen our union—and that we will not extend the implementation period beyond December 2020. We are delivering on these promises that the British people have entrusted us to deliver, and the Opposition are interested only in further delay and disruption. I urge Labour and the Liberal Democrats not to press new clauses 4 and 36.
I look forward to hearing from Members across the House as we take the Bill through Committee. This Government are committed to delivering Brexit, and this Bill will enable us to do so.
The Chairman of Ways and Means (Sir Roger Gale)
Order. I should probably have indicated for the benefit of new Members, and will indicate now, that clause 33 will not be decided today. Although it is grouped with these amendments, it will be taken as a Committee of the Whole House decision tomorrow and may or may not be divided on. To make that clear, it will not be that we have forgotten it.
Paul Blomfield (Sheffield Central) (Lab)
Thank you very much, Sir Roger. It is a pleasure to rise to speak to new clause 4 primarily and to have the opportunity to correct the misrepresentation by the Secretary of State of our objectives in tabling it. It is also a pleasure to do so with you in the Chair, Sir Roger. I want to take this opportunity to thank you and indeed all the Clerks for the work that has been done to ensure that we are able to debate the issues in the Bill today. Much of that work was done over the recess when other people were enjoying the break.
I have to say how much we regret that the Government have provided so little time to debate a considerable number of amendments, all tabled because they will have profound consequences for our country for generations to come. Our proposals over the next two days echo the concerns expressed in the previous Parliament and reflect the approach that has guided us as an Opposition over the past four difficult and divisive years.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I am grateful to the hon. Gentleman for giving way. He talks about the principles that have guided him. Surely they are the principles that have misguided him and his party. Does he not understand that the political landscape has changed as a result of the general election? As the Secretary of State said, people want to get Brexit done. They do not want further delay, which is all that his new clause and new clause 36 would bring.
Paul Blomfield
I had hoped for a better initial intervention. We are very clear that we accept that the general election has changed the landscape. The shadow Secretary of State for Exiting the European Union has made that position clear, other colleagues have made that position clear, and I will do so in my remarks. Government Members should recognise that, although under our electoral system the arithmetic in this place is very clear, the majority of the British people voted for parties that were not of the mind of the Conservative manifesto and wanted to give the British public a further say. I say that not to deny the reality of the voting in this place, but to urge Government Members to have some caution about the way that they approach this issue and claim authority from the British people.
Sir William Cash
I am most grateful to the hon. Gentleman. I just wanted to clarify one thing. Labour Front Benchers and the whole Labour party—with few exceptions, if any—voted against the repeal of the European Communities Act 1972. First, does he confirm that that was the case—I do not think that he can deny it? Secondly, does that not make it clear that, back in 2018 when that Act received Royal Assent, they were refusing to accept the will of the British people and were against repealing the 1972 Act?
Paul Blomfield
I am always happy to confirm what is on the public record, but I would say that the Opposition were clear; we campaigned to remain in the European Union because we believed that it was the right thing for our country and for the continent that we share with the other members of the EU, but we accepted the outcome of the referendum and voted to trigger article 50. We believe that there would have been the possibility both of winning an overwhelming majority in this House and of uniting the British people around a departure from the European Union that reflected the 52:48 vote of a divided country in 2016—a decision that would have taken us out of the European Union while remaining close to it, aligned with the single market, in a customs union, and continuing to be part of the agencies and partnerships that we have built together over 46 years. That sort of deal was available and it was Government Members who denied it.
We voted against the Bill on Second Reading because we believe that the withdrawal agreement is a bad deal for the UK, just as we voted against previous withdrawal agreements. When Government Members point fingers, it is worth remembering that we were not alone in that. Albeit for very different reasons, many Government Members, including the Prime Minister, voted more than once against getting Brexit done—on the terms of the previous Prime Minister’s deal and for his own reasons.
Matt Rodda (Reading East) (Lab)
I appreciate the sentiment in my hon. Friend’s speech and the way in which he describes the events of the past few years. Does he agree that our duty now, as a responsible Opposition, is to make these very points and to point out to the Government—however large their majority—issues of substance on which we disagree and where the interests of the United Kingdom are not being pursued effectively by the Government?
Paul Blomfield
I very much agree. There needs to be a voice for the approaching 55% of people in this country who were uncomfortable with the direction offered by the Conservative party manifesto. Although the result of the general election was clear, it does not mean that the Government can proceed without question, challenge or scrutiny. That is the point of many of our amendments.
Catherine West
My hon. Friend is making an excellent speech, the tone of which is just right. May I press the wider question around scrutiny? We will shortly have no Exiting the European Union Committee and I am not sure when the Select Committees will return. There is a lot of detail and, having sat on the International Trade Committee, I know that a lot of mistakes can be made at the beginning of the process when it comes to having a forward-looking trade deal. I fear that rushing into it like this—not allowing Parliament much time to debate the principles at the beginning and giving the Government a tiny implementation period—could lead to a much worse outcome than if we were to take a little time to be more thoughtful and give Parliament a genuine role in the new arrangements.
Paul Blomfield
My hon. Friend is right to focus on the issue. The Government have seemed reluctant to embrace the idea of scrutiny and accountability since October in so very many ways. I hope they will think seriously and quite genuinely over the period ahead to ensure that there is a proper opportunity for this House to question and debate the direction of travel.
John Redwood
I am glad that we have this opportunity for the Opposition to make their points, but can they not see that trying to take away the proposition that we leave at the end of the year, come what may, completely undermines the British negotiating position? Every time they have tabled an amendment over the past three and a half years, it has always been to do Britain down and leave us in a weak position.
Paul Blomfield
The right hon. Gentleman and I have had previous exchanges about comments that he might have made about doing Britain down. The position we have taken is that possibly it is not always the best idea to jump off a cliff—that if we find ourselves in a position where we are, for the sake of weeks or months, unable to secure a deal that is in the interests of the British economy, the sensible thing to do is to give ourselves a little bit of flexibility. He may think otherwise, but that is not our view.
Sammy Wilson
Does the hon. Gentleman accept that for many people listening to the argument he is making, this is not a case of a fear of jumping over the cliff but more a fear that those opposed to leaving the EU want us to have our feet firmly stuck in the mud of the EU for ever, and that is the reason he wants a further extension?
Paul Blomfield
I thank the right hon. Gentleman for that intervention, because it gives me the opportunity to say that that is absolutely not the case. We accept that we are leaving the European Union in three weeks’ time—end of—but that is not the end of Brexit because we will have considerable discussion in this place, and the Government will be involved in negotiations for some time to come, on the future relationship.
The future relationship is the concern behind new clause 4, because we have consistently sought to oppose any proposals that risk damaging people’s jobs and livelihoods. That is why we voted against the deal proposed by the previous Prime Minister, the right hon. Member for Maidenhead (Mrs May): the current Prime Minister may have voted against her for different reasons. It is why we also voted against the deal proposed by the current Prime Minister in the last Parliament.
Since its introduction in October, this Bill has only got worse—in our view, much worse. It grants expansive powers to Ministers and severely diminishes any role for Parliament in the crucial period ahead. It removes our role in approving the Government’s negotiating mandate and voting on the final treaty. Protections for workers’ rights have been ditched, confirming that the TUC was right to dismiss previous Government promises as “meaningless procedural tricks”. The new Northern Ireland protocol undermines the UK’s internal market—something that the Prime Minister had promised his former allies faithfully that he was committed to protecting. Shamefully, the Government have removed the requirement to negotiate an agreement with the EU on unaccompanied children seeking asylum.
The Government have not only removed any role for Parliament in deciding whether to extend the implementation period but are now specifically prohibiting Ministers from agreeing an extension through clause 33, as the Secretary of State pointed out. So no deal is back on the table, as I think he confirmed in his response to my right hon. Friend the Member for Leeds Central (Hilary Benn). It is that risk that new clause 4 attempts to address. We do not plan to press it to a vote this evening, but it is intended to provide an opportunity for the Government to come back to this House with their proposals, perhaps on Report, on how we avoid the catastrophe of no deal at the end of this year.
It is a reflection of the unfortunately polarised discourse on Brexit, reflected in some of the comments earlier, that new clause 4 was described in some sections of the media at the end of last week as an
“attempt to delay leaving the EU by two years”.
It is no such thing. We recognise, as I said, that the general election result means that we are leaving the European Union on 31 January, but what happens thereafter is crucial to our economy, to jobs and to people’s livelihoods, whether they voted leave or voted remain.
Mike Wood (Dudley South) (Con)
The hon. Gentleman says that he recognises the decision that the electorate took last month, but does he not accept that there was a very clear mandate to conclude the implementation period by the end of this year, which was clearly in the Conservative manifesto—the manifesto of the party that has clearly been elected with a significant majority in this House?
Paul Blomfield
I am not sure whether the hon. Gentleman was listening to the point that I made earlier. I am very clear on the electoral arithmetic, but he should also be clear that there is significant concern among the British people—represented by almost 55% of those who cast their vote in the general election—about the future direction, and there is no mandate for leaving the European Union without a deal.
Stephen Hammond
I do not think that anyone can doubt my credentials as someone who is concerned about and opposed to no deal, but the hon. Member’s remarks would have greater validity if new clause 4 allowed for the potential of a very short extension necessary for the conclusion of a future relationship, as I think he was beginning to say, rather than a completely open-ended extension, which is unsurprisingly being described as an extension to Brexit. If he had wanted to stop no deal, he should have voted for a deal, and he should do that now.
Paul Blomfield
I do not question the hon. Member’s credentials in terms of his concern about our leaving without a deal, but I ask him to look carefully at new clause 4. The framing of the new clause in relation to two years builds on the provisions of the withdrawal agreement to which the Government have signed up but includes the capacity for a much shorter transitional period if the Government are successful in concluding a deal or if this House agrees. Our proposal very much addresses the point that he makes. I will come to that in more detail, and he might want to intervene again.
It was because of the risks of a disorderly departure that we were first to argue—it seems like a very long time ago now—for a transition period, which at that stage the Government opposed. We were raising the voice of business and of the trade unions, and we were pleased when the Government accepted that principle, although they saved face by renaming it an implementation period. When the end of the transition was originally set for December 2020, it was on the assumption that we would have left the EU on 29 March last year, leaving 21 months—[Interruption.] The Under-Secretary of State for Exiting the European Union asks, “Why didn’t we?” He could ask that of a number of his colleagues, including the Prime Minister. That would have left 21 months to negotiate our new relationships on trade and, as my hon. Friend the Member for Rhondda (Chris Bryant) pointed out, on security in particular. Twenty-one months was seen as ambitious. Many in the Government sitting around the Cabinet table doubted its deliverability. That is why there was a provision to extend it. But now there is only 11 months, and in trade negotiation terms 11 months is unbelievably short.
The Government say that they want an ambitious, best-in-class free trade agreement. They talk about CETA as a model, but not about the time taken to negotiate CETA, of which they are well aware. They say that it will be easy to negotiate, because we start from the unique position in trade talks of existing alignment; the right hon. Member for Wokingham (John Redwood) is nodding. But it is the Government’s objective to diverge from that alignment, to seek a deal that allows the UK to race to the bottom, undercutting the EU on obligations and regulations and stepping off the level playing field. That will be uniquely difficult to negotiate, and any deal secured in 11 months is highly likely not to be a good deal for the UK.
Jonathan Edwards
The hon. Member is making an important point. Essentially, this will be the first trade deal in history where the aim is to put up barriers rather than remove them. Rather than this being an easy process, is it not likely to be convoluted and difficult?
Paul Blomfield
I thank the hon. Member for that intervention, and I agree with him.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Does my hon. Friend agree that we only need to look at the North American Free Trade Agreement renegotiation —a negotiation on the basis of a trade deal that has taken almost two years and still is not fully completed—to get an answer about how long it takes to negotiate a trade deal when one already exists and economies are already partly aligned?
Paul Blomfield
I thank my hon. Friend for his intervention; he is right. I fear that the Government platitudes about the ease of negotiating this deal skirt over the real challenges that will be faced and the need for some flexibility and provision to avoid the cliff edge.
Daniel Kawczynski (Shrewsbury and Atcham) (Con)
Will the hon. Gentleman give way?
Paul Blomfield
I have been fairly generous in giving away. I will make some progress and then take further interventions.
Under the provisions of the withdrawal agreement, as the Secretary of State pointed out, any extension to the transition period must be agreed by 1 July 2020, only five months after negotiations have begun. I fully accept that we might be completely wrong in our concerns. The Government might be able to negotiate a best-in-class free trade agreement within 11 months. If that is the case and they are able to secure a deal, there will be no extension under the provisions of our new clause, so what are they worried about? If the Government are confident—[Interruption.] The Secretary of State is finding this funny, but if the Government are confident in their ability to agree a comprehensive future relationship with the European Union, I hope that they will have no problem in returning to the House with proposals along the lines of those outlined in new clause 4.
Daniel Kawczynski
I am grateful to the hon. Gentleman for giving way. When he says that it is a race to the bottom, surely he is showing his own prejudice, in the sense that he does not want the United Kingdom to devolve itself of any unnecessary regulations that have been imposed on this country over the last 47 years.
Paul Blomfield
I was quite involved in the debate during the referendum, and I listened carefully to what many of the Government Members who were advocating our departure were saying. They talked about a bonfire of regulations. The direction of travel for leaving the European Union was fairly clear: it is to free ourselves of those rights and protections that defend working people, protect the environment and protect consumers and to create a different sort of economic model. The hon. Member may not agree with my description, but I think that a “race to the bottom” summarises that pretty well.
Kevin Hollinrake
The hon. Member asks what the problem is with new clause 4, because if we have done a deal by the end of 2020, we will leave anyway. The point is that if we are not allowed to delay, the imperative on both sides of the negotiating table is to get this done by the end of 2020. If we allow it to be extended for another two years, the negotiations are bound to take longer. Why can he not approach these negotiations with confidence? The Government are confident that they can do it within the period. Michel Barnier, whom I quoted earlier, seems confident that it can be done. Why can his party not approach the negotiations in that spirit?
Paul Blomfield
If the Government were so confident, why did they build into the withdrawal agreement the provision to be able to extend? It was a cautious insurance policy. They were right to do so. We are trying to help them with the problems that they are creating for themselves now.
Many Government Members know that there is a potential for us not to have secured the sort of deal that this country needs by the end of December. If, unamended, this Bill forces the country into a no-deal crash-out—which was described, for example, by Make UK, the voice of the manufacturing sector, as “the height of economic lunacy”—the Government will regret not having taken the opportunity to make some provisions along the lines of new clause 4, which protects the UK from the entirely unnecessary threat of no deal. It simply builds on the mechanism for extending the transition period that is already baked into the Government’s own withdrawal agreement; it is oven ready, as the Prime Minister would like to say. For the same reasons, we do not accept the insertion of clause 33, which is grandstanding nonsense that prohibits Ministers from agreeing to an extension to the transition period.
Let me be absolutely clear again: we are not seeking to delay Brexit—the UK will have left the EU in three weeks’ time—nor do we want to stay in the transition period any longer than is necessary, but the flexibility that we are proposing provides the certainty that business needs. There is no point in replacing the previous cliff edge, about which the hon. Member for Wimbledon (Stephen Hammond) expressed real concern, with the new cliff edge if the flexibility that we are suggesting is not there.
Bob Blackman
The hon. Gentleman is making a very good case about why the Opposition are putting this forward, but will he explain why the date of 15 June 2020 is included? Why is it not 15 September or 15 October, or later in 2020, as one of the conditions that would force a vote in this House on applying for an extension? If he is serious about this, that date should be put back much nearer the end of the negotiations, when we will be more certain about how the Government are proceeding.
Paul Blomfield
I would not actually disagree with the point the hon. Gentleman makes. The date that we have included in new clause 4 is determined by the Government. The position of requiring some flexibility, let us remember, reflects the Government’s previous view. In the last version of this Bill, published in October, the Government accepted the principle that the transition period could be extended. That was the Government’s view—this Government. It was also the Government’s view that Parliament should have a role in that process—the current Prime Minister. It was right then; it is right now; and I look forward to proposals from the Government on Report to address these concerns.
John Redwood
I rise particularly to support clause 33. I think it is essential that we are finally out of the EU in every proper way by the end of this year. Some three and a half years have passed since the British people made their decision that they wished to leave. Many of us voted to leave because we think the world is going to be better once we have left. We do not regard it as some kind of disease or problem that has to be managed; we see it as full of opportunities. We want to rebuild our fishing industry under British regulations and British control. We wish to get all our money back and to spend it on our priorities in health and education. We wish to make sure that we can make the laws we wish, and which the people recommend to us in elections and in the normal dialogue between constituents and Members of Parliament. We are extremely optimistic about our opportunities as a leader of free trade worldwide once we have regained our full vote and voice in the World Trade Organisation and are able to do our own deals with all those parts of the world that the EU has not got round to doing deals with all the time we have been a member.
We are very optimistic. We think we are going to be better off economically. I have always said that, and anyone who suggests otherwise is deliberately misrepresenting my position. I share the frustration of many leave voters that three and a half years on and with a new Parliament with a very clear mandate we are still facing demands that we are going too quickly and that three and a half years plus another year—four and a half years—is still not long enough, and why not six and a half years?
Daniel Kawczynski
Does my right hon. Friend agree that, unlike the Opposition spokesman, who seems to paint a very gloomy picture about our moving away from European regulations, this Parliament and this country are perfectly capable of regulating our own domestic affairs, and protecting the environment and workers’ rights in the British way, without always acquiescing to EU laws?
John Redwood
I, in particular, think we can do a lot better on taxation. I do not want tax on all these green products that the EU makes us tax. I would not have thought that the Green party really wanted those. However, I suspect that if I or others moved amendments to the forthcoming Budget this March to take out those unnecessary taxes, we would be told we are still not allowed to because we are in the implementation period and have to accept European law. It has also interfered in our corporate taxes in a way that actually reduces the revenues we gain from big business. I would have thought Labour and the Liberal Democrats rather oppose that, but because it comes from the EU, they are completely quiet on the subject. They do not seem to mind that the EU interferes with our revenue raising.
Michael Tomlinson
Is my right hon. Friend surprised, as I am, that the official Opposition and the Liberal Democrats, with their new clauses, are seeking yet further delays? Despite what the hon. Member for Sheffield Central (Paul Blomfield) says, that is the effect of new clause 4. It would mean a lack of the certainty that the British people voted for at the recent general election.
John Redwood
I do think it is almost unbelievable that the Opposition are talking about adding to four and a half years of delay, under the Government model now, another two years—six and a half years. Six and a half years at £12 billion a year is a huge sum, and I would like to tease this out a bit more with those on our Front Bench because I think my right hon. Friend the Secretary of State misunderstood me. He thought I was talking about the cost to business, but I am talking about the cost to British taxpayers. This extra implementation period in itself—I really rather regret it, but I see it is a necessity from where we currently are, given the forces in this House—must be costing £11 billion or £12 billion, in tax revenue forgone, that we have to pay.
I would like some reassurance from Front Benchers that once we are properly out at the end of December, under clause 33, there will not be further bills. I want us to be able to say to the British people, “We now do control our own money. We are not going to carry on paying for this show.” I think it might be quite a good negotiating tactic to suggest to the EU that perhaps there is not a strong legal basis for some of the claims it wishes to make, because we need to put some countervailing pressure on the EU during this remaining negotiation period on the free trade agreement. I do not think we have to pay for a free trade agreement. I think it is massively in the interests of the rest of the European Union, because it sells us more than we sell it, but we have to be firm, otherwise it will walk all over us again and demand more concessions.
Sir Desmond Swayne (New Forest West) (Con)
Is not the lesson of the prolonged, tortuous seven years of negotiation on the Canadian deal the very fact that it was an open-ended process that did not come to an end? The effect of new clause 4 is basically to ensure, in providing for an extension, that it makes that extension certain, because the knowledge that the extension can take place will take away the very pressure to make an agreement within the time that is available.
John Redwood
Those of us who have had to study European Union affairs for all too long, because they affect our own country so much, have learned from bitter experience that deals nearly always happen at the last minute under artificial or genuine deadlines that the EU has often imposed on itself. All we are trying to do, in supporting a Government in doing this, is to say to the EU that there is a deadline on this negotiation: “If you, O EU, really want a free trade deal with us, as you have said you do in the partnership agreement, hurry now while stocks last.” It is not all about us; it is about the EU as well. It needs this free trade agreement, and we need to keep the pressure up. Let us tell it that there needs to be significant progress by the middle of this year so that it is realistic to finalise the text.
I do think it should be relatively straightforward, if there is good will on the EU side as well as on our own side, because we have been party to its international negotiations. If we take the best of the Japanese deal and the best of the Canadian deal—it is already there in text—it should be relatively easy to say that we can at least have that. The EU has already offered that to non-members of the European Union, and we should be able to add a bit more because by being a member we already have agreements to things that are in our mutual interest to continue.
I would be very optimistic about the negotiations, but I am quite conscious that if we negotiate as, unfortunately, the previous Government did before the change of leadership and the general election, we will end up making more concessions to get something that the EU has already promised in the political declaration. I do not want the fish at risk, and I do not want the money at risk. I do want to take full control of the money, the fish, the law making and the taxes from the beginning of next year, as we are promised by this Bill, and clause 33 is a very important part of trying to deliver that.
I wish the Government every success. I am optimistic on their behalf because of the promises the EU has made. My message to the EU is: “Do not underestimate the British people. You may have been right to believe that many of their political representatives in the last Parliament were on the EU’s side, not on the UK’s side, but the British people are altogether a more serious proposition, and the British people have spoken loud and clear.” The British people have had enough of the delay, enough of the dither, enough of the concessions and enough of the idea that Brexit is a problem. We believe in Brexit; we want the freedoms; and we want to choose our own taxes, our own laws and to spend our own money. Bring it on—the sooner, the better.
Dr Philippa Whitford (Central Ayrshire) (SNP)
The Prime Minister and some members of the Conservative party call on everyone to “move on” from Brexit. It is as if he expects those of us who see the disadvantages of leaving the EU simply to put our brain in a box and forget about the impacts on our constituents and communities. He expects us not to speak up for the colleagues, friends and, in my case, loved ones who have come here from the EU, made their home here and improved our society. He expects us not to mourn our loss of EU citizenship and to be silent about the damage to healthcare, manufacturing, the food and drink industry, farming, and even fishing—yes, fishing, that oft-quoted supposed beneficiary of Brexit.
The trouble is that the Prime Minister thinks there is only one fishing industry, and one Scottish fishing industry, and he completely ignores inshore fishing, such as that in my constituency on the west coast of Scotland. Eighty-five per cent. of that catch goes to the EU, but with extra bureaucracy, delays and the threat of tariffs, the industry will struggle to compete with Northern Irish fishermen, who share the same waters but will land their catch directly into the single market. To save their boats, some fishermen have even mooted registering them in Northern Ireland, but that would destroy the viability of our fishing harbours, fish markets and onshore processing. It is certainly not a “sea of opportunity” for coastal communities.
Despite his hollow demand to “let the healing begin”, the Prime Minister has produced a worse deal than his predecessor. Like her, he made no attempt to seek common ground across the Chamber, or across the nations of the UK, and he ignored the Scottish Government’s compromise of enabling both Northern Ireland and Scotland to stay inside the single market and customs union, which would have respected the fact that both nations voted to remain in the EU. Even the supposed triumph of the Northern Ireland protocol is sketched on the back of a fag packet, with almost everything left for the Joint Committee to work out and enact through sweeping and unlimited delegated powers.
The changes made to the October version of the European Union (Withdrawal Agreement) Bill set the tone for what we can expect from this Government in future. The deletion of clause 34 and schedule 4 removes the protection of workers’ rights from this legally binding treaty, while clause 37 abandons the commitment to family reunification for unaccompanied child refugees. Particularly concerning are the Government’s plans for a ridiculously short transition period of only 11 months—despite the former Prime Minister taking two and a half years just to get the withdrawal agreement. The Tory manifesto revealed the Government’s aim of changing the balance between Government, Parliament and the courts, and in this Bill we see that begin. There is little input for the devolved Governments, despite the impact that Brexit will have on their devolved policies. This debate has been limited to just three days in the House of Commons, as opposed to 30 days to debate the treaties of Rome or Maastricht.
We hear much about sovereignty as an argument for Brexit. The rather pointless clause 36 simply restates parliamentary sovereignty, yet clauses 5 and 6 give the withdrawal agreement supremacy over all domestic UK law. This Bill is not “getting Brexit done”; it is the beginning of the beginning. The former Prime Minister tried to have her cake and eat it, while painting herself into a corner with her own red lines. This Prime Minister clearly does not care if he only manages a few crumbs of a basic, bare-bones trade deal, and the loss of 50-plus EU free trade deals with other countries in the world. Such is the obsession with a short transition—there is certainly no more talk of frictionless trade!
The long wish list of aspirations in the political declaration is way beyond a trade deal; it is the future relationship with the EU. The political declaration makes it clear that the more the UK diverges, the less there will be on the table, and the outcome of that will affect the wellbeing of people in all our constituencies. By deleting clause 31, and by removing parliamentary oversight of negotiations on the future relationship, MPs are losing the ability to influence the terms of that relationship on behalf of our constituents and local industries. We are also losing the possibility of scrutinising the Government’s proposals and holding them to account on their progress. This is a blind Brexit. As others have said, we are expected to jump off a cliff at the end of this month, and we are meant just to trust that somehow the Government will knit a parachute on the way down.
Rachel Maclean (Redditch) (Con)
Thank you, Sir Roger, for allowing me to speak in this important debate. It is a pleasure to be back in Parliament with a new mandate, following the general election. I spoke about the withdrawal agreement in the previous Session, and I am happy to add my voice again to this debate. I will keep my comments brief, but I wish to add my support for the Government’s approach.
As the Secretary of State set out, it is important to have an implementation period. Redditch is a centre of business and has many small and medium-sized enterprises. Although they had mixed views on the referendum, most businesses, citizens and voters now conclude that it is more damaging to be constantly in a cycle of extension and delay to Brexit than to do what the Government are now doing by setting out a clear timeline to follow. Once this Bill has passed, we will have that certainty, and from my experience before I came to Parliament of running a small business for nearly 30 years —yes, I do look that old—[Hon. Members: “No! No!] Thank you, thank you. I will pay you all later. What people need to run their business is certainty, which is what the Bill will provide. It means that we know where we are going, and when businesses know that, they can do what they do best and prepare for the situation in which they find themselves. This is definitely the right way forward.
Let me address the comments made by Opposition Members about new clause 4, which seeks to introduce an extension to the implementation period. I do not support that approach as I think it is a rerun of the previous Parliament, and we all saw how damaging that was, not only for this Parliament but for our reputation in the country. Voters were looking at us and wondering what we were doing and why we were not implementing the clear instructions that they gave us in the historic referendum of 2016. Again, no matter how they voted—whether they voted to leave or remain—there was a simple principle of democracy at stake. Voters said to us, “We have given you those instructions.” It may not have been what I, as an individual, wanted to happen, but that was the overwhelming democratic result of the country. They said, “We expect you, as politicians and parliamentarians, to implement it.” We did not do that and it was a very damaging situation that eroded trust in us as politicians. Anyone who has been out on the doorstep, not only in their own constituency but in others, knows that that is what the public are saying to us.
Daniel Kawczynski
The Labour party has made a great deal of wanting to hold us to account over the transition period and any possible extensions, so is my hon. Friend surprised that there is only one Labour Back Bencher in this debate, bearing in mind the importance Labour Members attach to this issue?
Rachel Maclean
My hon. Friend makes a very good point. We see this time and again from the Opposition. They are constantly crying out that they need more time for scrutiny, yet when we have the time there is a sea of empty Benches. We have seen that so many times. This is not the first time. We do not even have the shadow Brexit Secretary here. There is a lack of interest. I honestly think that it would not matter how much time we gave them; they still would not want us to actually honour the will of the British people. I am afraid it is a fig leaf.
Jeremy Wright (Kenilworth and Southam) (Con)
Does my hon. Friend agree that part of the problem with what the Opposition propose is not just their lack of attention in coming to the Chamber, but their lack of attention to detail in what they propose? On new clause 4, they talk about the need to bring authority back to Parliament, but does she agree that what it actually says is that only a two-year extension could be proposed by the Government in this country—[Interruption.] That is exactly what it says. And that only the European Union could put a shorter extension on the table. It does not give Parliament the authority to suggest a shorter extension at all.
Rachel Maclean
I thank my right hon. and learned Friend for that point. I expect nothing less from his forensic attention to detail. He highlights the inconsistency at the heart of the Opposition’s arguments. It reminds me of some of the amendments we had in the previous Parliament, when the Opposition wanted to us to give away our control about the process of leaving the European Union. That was constantly the approach they forced on the Government. That has actually ended up very well for us, because we now have a strong governing majority.
The response I have had from my constituents in Redditch since I have been fortunate enough to be returned to this place, and since I have been out and about on my travels speaking to them, is that people are just so happy that we can finally get this process concluded. I agree with the Opposition that we all need to now reach out across the House. We need to put the divisions behind us. I do not want to stand in this place and come across in a way that is taken to be—I am struggling to find the right word. What I want to say is that I want to find common ground. I think there is now common ground between the Government and the Opposition. We want to come together. There is a recognition that different positions were taken by voters, but we need to come together in the interests not only of Parliament, but the country and all our constituents.
Jim Shannon (Strangford) (DUP)
I am very respectful of the hon. Lady’s position and the position of others in this House. However, when she refers to coming together, does she understand that we on the Unionist side of the House feel greatly threatened and disadvantaged by the agreement? What is being done to alleviate the concern of Unionists in this House about an agreement that basically puts us outside of the rest of the United Kingdom and under the control of the EU? How can that be right? Does the hon. Lady respect and understand—
The Chairman of Ways and Means (Sir Roger Gale)
Order. I think this is the moment when the Chair has to intervene just a little. I have given a lot of slack during the course of the afternoon. The hon. Gentleman is fully aware that a greater part of tomorrow will be devoted to matters relating to Northern Ireland and I do not wish to stray too far into matters that will be debated tomorrow. We have a minimum of four hours to debate a lot of clauses later this evening. If the hon. Lady is able to win some time for the House, and if other hon. Members are able to do so, we might manage to spend more time debating issues that I suspect a lot of people wish to discuss.
Rachel Maclean
Thank you for guidance, Sir Roger. I will adhere to it and conclude my remarks by saying that I thoroughly support the Government. I support clause 33, which has to be in the Bill. It is an excellent Bill and I look forward to it passing tonight.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am mindful of your strictures with regard to time, Sir Roger. The hon. Member for Sheffield Central (Paul Blomfield) said during his opening remarks that he did not intend to press new clause 4 to a Division. If it assists the Committee, I can indicate that it is not my intention to press new clause 36, which stands in my name and in the name of my right hon. and hon. Friends. I do, however, wish to speak to those. Before I do so, I would like to pick up on the points made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) to the Secretary of State with regard to the powers given to the United Kingdom Government and to the Scottish Government and other devolved Administrations.
I found the Secretary of State’s explanation to be a little less than clear and somewhat less than convincing. In proposed new paragraph 11B in clause 4, relating to the powers of the Scottish Parliament, he will see that the devolved Administrations have no power to legislate outside their devolved competences. It is of course in the nature of devolution that the Administrations have no power, so I suggest to the Secretary of State that the inclusion of that provision is at the very least somewhat otiose. He would have to come up with a better explanation than he did to the hon. and learned Lady as to why it is necessary to have, or not to have, a similar provision with regard to the powers of this House.
The Secretary of State talked in his opening remarks about the commitment in the Conservative party manifesto, in respect of which it now has a handsome majority in this House. He was quite right to put that before the Committee, and it is perfectly legitimate that the Government should do so. However, I would suggest that he took it one step further than was sensible when he suggested that clause 33 was necessary for the Government to meet their manifesto obligations. Whether or not a Government meet their manifesto obligations is essentially a matter of politics, not law, and for the Secretary of State to suggest it is necessary to have a clause of this sort to meet their manifesto obligations is something of an overstatement. It would be possible for them to meet their manifesto obligations without recourse to clause 33.
As other Members have pointed out, it is perfectly legitimate—we are entitled to do so—for those of us on the Opposition Benches, and I suspect a number of the better-informed Government Members, to point out that the previous implementation agreement reached by the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), was for 21 months. At that point, we thought that was exceptionally ambitious, but now we find that it can all be done in 11 months. I have been a Member of this House for over 18 and a half years. You learn a thing or two in that time, Sir Roger. You know that, because you have been here even longer than me. One of the things we learn is to take assurances of that sort with a measure of some scepticism when we hear them from those on the Treasury Bench, whichever party is in government. That is why I think this is perfectly legitimate.
We have heard the assurances given by those on the Treasury Bench tonight. They may be right, in which case we will have an agreement concluded by the end of this year, but if they are not, those assurances will stand on the record, and the Minister and his colleagues will have to be accountable for them. I suspect that we now have a choice between close alignment, because that will be all that is possible in the 11-month negotiation period, and no deal. It will be interesting to see whether the unity that has been present behind the Secretary of State on the Government Benches today is maintained after that point.
Kevin Hollinrake (Thirsk and Malton) (Con)
I will keep my remarks mercifully brief, restricting them to new clause 4. This would be a detrimental amendment to the Bill, because it would completely undermine the negotiations that the Government have to undertake. I understand the concerns about a no-deal situation at the end of 2020—I am very concerned about that, too—but we must follow the golden rules in a negotiation. I have negotiated many things in my life, although clearly not something as large as leaving the European Union—but who has? However, there have been some things that would have had a much bigger direct impact on my life, certainly in terms of business negotiations. Some of those have been life-changing and, particularly in negotiations with our banks, pretty much life-threatening. The golden rule in any negotiation is that a person has to walk into them with confidence. That is absolutely how we have to undertake the negotiations. Of course, as the right hon. Member for Orkney and Shetland (Mr Carmichael) said, there are some downsides to these negotiations. It is therefore even more important to walk into them with confidence. We must believe that we can do this deal.
Mr Carmichael
The provision for an extension to be concluded by 1 July was in the withdrawal agreement that the Prime Minister negotiated. Did he do that because he lacked confidence?
Kevin Hollinrake
We are in a different situation. I am still involved in my business; it has grown a lot over the last 26 or 27 years, and I have concerns about the impact on it of the wrong kind of exit from the European Union. However, I still think it is absolutely right to set the deadline of the end of 2020 to do this deal. In our manifesto and all the statements in the general election, it is true that we said that we would do this deal by the end of 2020 and that we would be out completely by then. It would be wrong and a breach of the trust that the people had in us in the general election for us now to say that there could be a further extension.
Michael Tomlinson
My hon. Friend is absolutely right about confidence, but does he agree—he has alluded to this—that it is not just confidence, but a firm deadline that is required, rather than a flextension or the risk of a further extension or postponement? We saw that in the last two Parliaments. That fundamental error, which was made by previous Administrations, will not be made by this one.
Kevin Hollinrake
My hon. Friend is absolutely right. The date is the imperative that makes sure that both sides will be looking towards that date to finalise negotiations. There are incentives and imperatives on both sides of the negotiating table. If there is the right spirit of negotiation between the two parties, and we undertake the negotiations in that frame of mind, we will absolutely be able to do this deal. However, if we provide the opportunity for an extension, we hand over the advantage in the negotiation to the other side. That is the absolute reality. We cannot do that, nor do we need to.
There are a number of reasons to think that we can do the deal within the timescale. We start from a position of total alignment, which is bound to help. This is different from a normal free trade agreement, in terms of the negotiations. Clearly, there have to be negotiations on what happens about divergence, but we start from a position of absolute alignment, which, to my mind, makes these negotiations totally possible in the next 12 months.
Dr Whitford
No one has ever negotiated a trade deal in just 11 months, so is it not likely that we will end up with something incredibly primitive? As for casting up that people voted for this in the election, what they voted for was the Government party saying, “We will achieve that by the end of the year.” They did not vote for it saying, “Well, never mind—we will crash out with no deal if we fail.”
Kevin Hollinrake
The hon. Lady makes a very good point, and I do not want to do that either. However, if she reads the comments from Michel Barnier that I quoted earlier, from the Financial Times of 26 November 2019, she will see that he said that normally such a period would be far too short, but that Brussels would strive to have a deal in place. Clearly, he thinks that he is capable of doing that. He talks about how he would sequence negotiations. For some things, we would have to kick the can down the road a bit and put some contingencies in place to deal with those. Clearly, he thinks that it is possible that we can do that deal.
Dr Whitford
The political declaration has a huge wish list of aspirations. Are they going to be negotiated later, or does the hon. Gentleman really think that including the European Medicines Agency, the European Chemicals Agency and all the various things that are in the wish list will be achieved by the end of the year?
Kevin Hollinrake
There may be a staging process; we do not know how the negotiations are going to roll out yet. Michel Barnier said that Brussels could take contingency measures to deal with those kinds of issue, because he does not want economic disruption. There is an appetite on both sides. What the European Union has done far better than the UK Parliament is negotiate as a bloc, together. There has not ever been any difficulty from its side in terms of people wanting different things, whereas clearly the UK Parliament has not behaved like that. As a result, the biggest vulnerability within the European Union from a poor trade deal or no trade deal is with regard to the Republic of Ireland.
The Republic of Ireland’s GDP growth rate is around 5%. Most financial commentators say that if there was a no-deal Brexit, the Republic of Ireland would go into recession. The EU would not want that. It would not leave the Republic of Ireland behind. The UK has imperatives in striking a deal and so has the EU. To my mind, that means we can do a deal in the next 12 months. I urge the Opposition to have more confidence in their position. The remarks from the hon. Member for Sheffield Central (Paul Blomfield), the Opposition Front-Bench spokesman, betrayed a lack of confidence, appetite and enthusiasm for this whole thing.
We cannot deal with Brexit like this—and I voted to remain. We must walk forward with confidence not only about our new relationship with the European Union, but, crucially at this time, about our negotiations on the trade deal.
Graham Stringer (Blackley and Broughton) (Lab)
It is a pleasure to see you in the Chair, Sir George.
It has been mentioned that I am the only Labour Back Bencher in the Chamber, which is a double privilege. First, I think I am the only Labour leaver from the last Parliament left in the House. Secondly, the hustings for the start of the Labour leadership election are going on upstairs, which is important. One of my party’s problems is that although many of our supporters voted to leave the EU—and are enthusiastic about leaving—they are very poorly represented in the Labour party itself.
There is an element of tilting at windmills in this debate. I do not believe the catastrophe theories about the next 11 months or so. The public want us to get out, and it is in the mutual interest of the EU and its member states and the UK to get as good a deal as possible, so I do not believe the catastrophic predictions. I voted against the previous Prime Minister’s deal three times, and against the current Prime Minister’s deal—in November, I think—but I did so because there were not simple majorities and I believed there was a better deal out there. Going through the Lobby, I was aware that some were voting against because they wanted a better deal—one we believed would better represent the decision in the 2016 referendum—but that others were voting to delay the process because they wanted, either by measures in this Chamber or by a second referendum, to overturn the 2016 decision itself.
I am pleased we are now to leave the EU on 31 January, but I am less pleased that, because of tactical mistakes made by my colleagues, we are in a minority against the Conservative Government and look like being so for some time. I take issue with both the philosophy and the detail of the remarks of my hon. Friend the Member for Sheffield Central (Paul Blomfield) from the Front Bench. The debate about whether we should remain in or leave the EU was never simply about the economy. Much of the debate—certainly this is one of the things that has motivated me since the 1975 referendum, when I voted to leave—is about the democratic argument. I believe it is better for both the economy and our society if people in this country elect the people who make our laws rather than letting unelected and appointed people in other countries make them. That is a fundamental principle of democracy. Without it, we simply do not have a democracy. I also think that making our own regulations and laws for our own industries is likely to make us economically more efficient and proficient.
The other side of my hon. Friend’s argument is that the Conservatives want a race to the bottom. They might or might not. I am in the Labour party, not the Conservative party, because my philosophy differs from theirs on many issues, but it is better in a democracy if we argue those issues out in general elections such as the one we have just had. If the Conservatives, as they tend to, want a more free-market approach, they should argue for that, and if we want a more interventionist approach, we should argue for that, and whether we win or lose the argument is up to the electorate. At present, however, our ability to support our own industries depends not on whether we or the Conservatives win an election, but on rules for state intervention and support set down by the EU.
Sir John Hayes (South Holland and The Deepings) (Con)
As always, the hon. Gentleman is making a compelling argument. I congratulate him not only on his insight but on his consistency. In the end, this is a question of who exercises power and from where, in exactly the way he describes. For too long, too many people on both sides of the House have seen this argument through an economic prism, but it is actually about who decides our destiny, and it should be the British people through those they choose to speak for them here.
Graham Stringer
I thank the right hon. Gentleman for his intervention. He will not necessarily take this as a compliment, but Tony Benn could have made those points, because they have run through the arguments of both Conservative and Labour Members who support leaving the EU ever since we joined in 1972.
Not only is it better that those decisions be taken here, but it is often assumed that the EU is good for the economy and the protection of trade union and environmental rights, yet quite a lot of evidence runs counter to that. I am not an expert on fishing, but the discard rule has been an environmental disaster in the North sea. I understand quite a bit about trade union protections and legislation and I never get a satisfactory answer from my side about the Laval and Viking decisions of the European Court of Justice. Not only do they undermine the minimum wage and the nature and definition of a trade dispute; they are effectively unchangeable, as we in this country cannot change laws made by the ECJ. That is what is fundamentally wrong with being a member of the EU.
I have no doubt that there will be changes when we leave the EU—people will be able to claim there has been a negative economic change there or a positive one here—but that happens all the time. Where has our paper industry gone? Has it been helped by the EU and its regulations? What about our agrochemical industry? It was essentially destroyed by European legislation, but I do not hear people in this Chamber arguing against the EU in that regard. It is accepted—I do not know why—that the EU will always be good for these things.
If new clause 4 were to be put to the vote, I would not join my colleagues in support of it. I agree with what Labour Front Benchers have said—that we should use the debate on the Bill to improve things—but going over the debate we have been having in this Chamber since 2016 will not do that. I have no idea—I have not counted up the time—but my guess is that we have spent as much time in this Chamber discussing the 2016 referendum, at which we committed to giving the people the choice, as we did debating both the Lisbon and Maastricht treaties put together. I understand, however, that Front Benchers do not intend to put the new clause to a vote. I hope they can be more constructive as we continue this debate.
Sammy Wilson
The Democratic Unionist party will be supporting clause 33, though tomorrow we will be tabling amendments to the Bill, because, although we accept that it is essential to get out of the EU as quickly as possible, we believe that the terms of the withdrawal agreement are detrimental to Northern Ireland. The purpose, however, of any amendments my party puts forward will be to assist the process of leaving the EU and to ensure that the whole UK leaves. That is not the case with new clauses 4 and 36, which are designed to extend the period for which we stay in the EU and would make it much more difficult to have a clean break.
Have we learned nothing from the tactics the EU has used over the last few years? The longer the period, the more it can hold back, and the more demands it can make. We have seen that time and again.
The last Parliament made it clear that it would not give the Government the support that they needed to move forward with a deal. The EU dug its heels in deeper, and did not try to be accommodating. What is important about clause 33 is that it draws a line, sends a signal and makes the position very clear. It says, “Here is the deadline: now get on with the negotiations.” No clearer message could be sent to those who are negotiating on the EU’s behalf.
Indeed it is significant that, although we were formerly told that a trade deal could take years to negotiate, the language is suddenly changing because the arithmetic in the House has changed and the Government’s will is different. We are now being told, “Well, it might not be as difficult as it was for Canada and Japan. After all, we are starting from the same place, and we have a lot of the same regulations”—and there are a number of other reasons why the negotiation might be easier than we were previously told that it would be.
Jonathan Edwards
I suspect that the right hon. Gentleman is referring to the comments of the EU Trade Commissioner. He made those comments in the context of a decision by the British Government to retain close alignment. The difficulties occur when we disalign.
Sammy Wilson
Of course that will be the opening negotiating position. He is not going to say, “Yes, and by the way, we do not have to have close alignment.” There will still be a desire on the part of the EU to keep us as close as possible. However, one way of ensuring that we get a deal, and get the kind of deal that we want, is to make it clear that we will not engage in protracted negotiations. We must say, “We will not allow you to use all the tactics that you have used before. You must come to a conclusion. If you want access to our UK market—and you need access to it because you sell more to us than we sell to you—and if you want the future trading relationship and the co-operation that the Government have offered time and again, you must reach a deal quickly.”
John Redwood
Has the right hon. Gentleman noticed, in the three and a half years of these endless debates, that the Labour and Liberal Opposition have always tabled proposals that strengthen the EU and undermine the UK? Has he noticed that they only ever put the EU case, and never put the UK case?
Sammy Wilson
That was the whole point of extending the implementation period, to allow that tactic to be used, even in this Parliament, with different arithmetic. It is one of the reasons why I think the Government are right to draw a line and say, “We have a year in which to do this. Now let us get on with it, and let us get the deal.” I just hope that during that period, the Government will also be cognisant of the fact that the protocol on Northern Ireland is damaging to the Union, and will seek to ensure in the negotiations that that protocol is weakened and the differences between Northern Ireland and the rest of the UK are changed, so that we leave the EU along with the rest of the United Kingdom and on the same terms.
Daniel Kawczynski
The right hon. Gentleman has talked about our huge trade deficit with the European Union and how vital a free trade agreement is to the EU—how much more in its interests such an agreement is. I understand that our current trade deficit is more than £92 billion a year. Is the right hon. Gentleman cognisant of that figure?
Sammy Wilson
That is one of the reasons why it should not be too difficult to secure a trade deal. After all, in whose interests is that? It is in the interests of workers in Germany, France, Italy, Spain and other countries all over Europe to have access to the UK market. Our market is lucrative for them. We hear all this talk about why it will be difficult to do a deal, but why would EU negotiators, now that they know there is a different will in the House, want to turn their backs on the UK market? Why would they not want to have the ability to sell goods to us, and to sell them on good terms? They will not want to erect the barriers that people said they were likely to erect.
This is the right thing to do, tactically and politically. The Minister has said that it is necessary to deliver on the commitment that his party made to the electorate during the general election, but let us go back further than that: it is necessary to deliver on the referendum result of 2016, when we promised people that we would leave. I think that the delay has been long enough, and people are frustrated enough, so this is the right thing to do politically, but I also think that it is the right thing to do from the point of view of industry, and economically. We have heard time and again that investment decisions are being delayed because of uncertainty—that people need to know what the future is likely to be, so that we can then see a bounce in the economy. Let us not push this further down the road. Let us make sure that people have certainty as quickly as possible.
Gareth Johnson (Dartford) (Con)
Does the right hon. Gentleman agree that, throughout the general election, the mantra of the British people was “Just get on with it.”? Indeed, the outcome of the election was a mandate to the House to get on with the exiting of the European Union, and the new clause flies in the face of the outcome of the general election that we have just had.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
Order. I was hesitating to interrupt the right hon. Gentleman, because I thought that he was reaching his peroration, but may I just remind him that he should keep his remarks as close as possible to the clauses and new clauses that we are debating?
Sammy Wilson
Let me conclude my speech, Sir George, by issuing a word of caution about clause 33. While a deadline of December this year can put pressure on the EU, it can also put pressure on the Government. As we in Northern Ireland have learned, the pressure on the Government from the 31 October deadline led to concessions that were not good for, at least, our part of the United Kingdom. This is where Government will and determination are important.
Equally, the deadline that the Government have imposed on themselves could be used by EU negotiators to make demands. Those negotiators could say, “If you want a deal by that stage, here are the things that we want from you: we want you to make concessions on fishing, on level playing fields, on payments and on a whole range of other things.” That is the only word of caution that I will issue. Deadlines put pressure on both sides, and come December this year, whether the Government are prepared to stand firm in the face of their own deadline and not be pushed around will be a test of their will.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clauses 2 to 6 ordered to stand part of the Bill.
Clause 7
Rights related to residence: application deadline and temporary protection
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 5, page 9, line 36, leave out from “Crown” to end of clause and insert
“must by regulations make provision—
‘(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to residence documents proving legal status), including making provision for a physical document;
(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to residence documents proving legal status) including making provision for a physical document; and
(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to residence documents proving legal status).’”
This amendment would mean that EEA and Swiss citizens residing in the UK would automatically have rights under article 18(4) of the withdrawal agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements) rather than having to apply for them, and would have the right to a physical document proving their status.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
With this it will be convenient to discuss the following:
Amendment 6, page 10, line 41, at end insert—
‘(3A) Regulations made under this section shall apply to—
(a) the rights of all persons eligible for leave to enter or remain in the United Kingdom by virtue of—
(i) the withdrawal agreement, or
(ii) residence scheme immigration rules (see section 17) as in force on 21 December 2019, and
(b) such other persons as Ministers consider appropriate.
(3B) The residence scheme immigration rules (see section 17) may not be amended so as to reduce the range of persons eligible for leave to enter or remain in the United Kingdom by virtue of those rules (other than by primary legislation), but other persons may be added as Ministers consider appropriate.”
This amendment would ensure that the range of persons entitled under UK law to benefit from the rights set out in the Withdrawal Agreement cannot be reduced except by primary legislation.
Amendment 27, page 10, line 41, at end insert—
‘(3A) Regulations made under this section may not prevent EEA and Swiss nationals, or their family members, who are resident in the United Kingdom on or prior to 31 December 2020 applying for settled status at any time.”
This amendment would ensure that people eligible for settled status would not be prevented from obtaining it by an application deadline.
Clause stand part.
Clauses 8 to 10 stand part.
Amendment 2, in clause 11, page 14, line 2, leave out subsection (1) and insert—
‘(1) A person may appeal against a citizens’ rights immigration decision to the First-tier Tribunal.”
This amendment would give a right of appeal against a citizens’ rights immigration decision.
Amendment 3, page 14, line 24, leave out subsections (3) and (4) and insert—
‘(3) Subject to subsection (4), while an appeal is pending, the person concerned shall be deemed to have all the rights associated with indefinite leave to remain under the residence scheme immigration rules, in particular as concerns residence, employment, access to social security benefits and other services.
(4) Subsection (3) does not apply to an appeal against a decision falling within subsection (2)(a) or (c).
(4A) “Pending” shall have the same meaning for the purposes of subsections (3) and (4) as in section 104 of the Nationality, Immigration and Asylum Act 2002.”
This amendment would protect the rights of EU citizens while their appeals are pending.
Amendment 20, page 14, line 24, leave out “also”
This amendment is consequential on Amendment 2.
Amendment 7, page 14, line 25, leave out “(including judicial reviews)”
This amendment would remove the power being provided to ministers to make regulations about judicial review of certain immigration decisions.
Amendment 21, page 14, line 27, leave out “(1) or”
This amendment is consequential on Amendment 2.
Clauses 11 to 14 stand part.
That schedule 1 be the First schedule to the Bill.
Clause 15 stand part.
Amendment 22, in schedule 2, page 46, line 12, leave out “Secretary of State” and insert
“Independent Chief Inspector of Borders and Immigration”.
This amendment would make the Independent Chief Inspector of Borders and Immigration responsible for appointing non-executive members to the independent monitoring authority, rather than the Secretary of State.
Amendment 23, page 46, line 20, leave out “Secretary of State” and insert
“Independent Chief Inspector of Borders and Immigration”.
This amendment would make the Independent Chief Inspector of Borders and Immigration, rather than the Secretary of State, jointly responsible with non-executive members of the Independent Monitoring Authority for ensuring that, as far as possible, numbers of non-executive members exceed the number of executive members on the IMA.
Amendment 37, page 59, line 15, leave out paragraphs 39 and 40
This amendment would require any transfer or abolition of the functions of Independent Monitoring Authority for the Citizens’ Rights Agreements to be by way of primary legislation.
That schedule 2 be the Second schedule to the Bill.
Clauses 16 and 17 stand part.
New clause 5—Protecting EU Citizens’ Rights—
‘(1) This section applies to—
(a) European Union citizens having the right to reside permanently in the UK according to Article 15 (“Rights of permanent residence”) of the Withdrawal Agreement;
(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain, or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).
(2) A person to which this section applies has the rights and obligations provided in Article 12 and Title II Part II ‘Citizens’ Rights’ of the Withdrawal Agreement.
(3) The Secretary of State must by regulations make provision—
(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;
(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;
(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence.
(4) No provision of this or any other enactment, or adopted under this or any other enactment, may be used to require European Union nationals and their family members, or nationals of Iceland, Norway, Liechtenstein and Switzerland and their family members, who reside in the United Kingdom immediately prior to the end of the implementation period, to apply for a new residence status under Article 18(1) of the Withdrawal Agreement, or to introduce a deadline for applications under residence scheme immigration rules or relevant entry clearance rules.
(5) Residence scheme immigration rules and relevant entry clearance immigration rules may not be amended to provide that any person who benefited or is eligible to benefit under those rules on the day on which this Act is passed benefits any less than he benefited or was eligible to benefit on the day on which this Act is passed.”
This new clause provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.
New clause 18—Fee levels and exemptions—
‘(1) No person to whom regulations under section 7(1) (as qualified by section 7(2) and 7(3)) apply may be charged a fee to register as a British citizen that is higher than the cost to the Secretary of State of exercising the function of registration.
(2) No child of a person to whom subsection (1) applies may be charged a fee to register as a British citizen if that child is receiving the assistance of a local authority.
(3) No child of a person to whom subsection (1) applies may be charged a fee to register as a British citizen that the child or the child’s parent, guardian or carer is unable to afford.
(4) The Secretary of State must take steps to raise awareness of people to whom this section applies of their rights under the British Nationality Act 1981 to register as British citizens.
(5) A Minister of the Crown may amend, waive or restrict any requirement of any other person to pay a fee to register as a British citizen where the Secretary of State considers it appropriate or necessary to do so in consequence of any discrimination between people of, or children of people of, differing nationality or other status.”
This new clause would ensure that persons entitled to benefit from the citizens’ rights protections in the Bill did not miss out on registering as a citizen of the UK because of the level of fee currently charged.
New clause 33—EU Settlement Scheme: physical documented proof—
‘The Secretary of State must make provision to ensure that EEA and Swiss nationals and their family members who are granted settled or pre-settled status are provided with physical documented proof of that status.”
This new clause would require the Government to provide physical documents to enable people to prove their settled status.
New clause 34—Settled status: right to appeal—
‘(1) A person may appeal against a settled status decision to the First-tier Tribunal.
(2) A settled status decision includes a decision—
(a) to refuse to grant leave to remain under Appendix EU of the Immigration Rules made under section 3(2) of the Immigration Act 1971, or
(b) to grant limited leave to remain under Appendix EU of the Immigration Rules made under section 3(2) of the Immigration Act 1971 to a person who has applied for indefinite leave to remain under that Appendix.
(3) An appeal against a decision under subsection 2(b) may be brought only on the grounds that the person is entitled to indefinite leave to remain under Appendix EU of the Immigration Rules.
(4) While an appeal under subsection 2(a) is pending, the person concerned shall be deemed to have all the rights associated with indefinite leave to remain under Appendix EU of the Immigration Rules in particular as concerns residence, employment, access to social security benefits and other services.
(5) While an appeal under subsection 2(b) is pending, the limited leave to remain granted under Appendix EU to the Immigration Rules shall continue in force.
(6) “Pending” shall have the same meaning for the purposes of subsections (4) and (5) above as in section 104 of the Nationality, Immigration and Asylum Act 2002.”
This new clause would establish a right to appeal settled status decisions.
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Sir George.
For us, this part of the Bill is relentlessly dire. For decades, British citizens and citizens across Europe have enjoyed the extraordinary benefits of free movement—to live, work and study across a continent. This part of the Bill implements part 2 of the withdrawal agreement, the part that brings all those benefits of free movement to a crashing halt. Future generations throughout Europe will miss out, but none more than UK citizens.
The First Deputy Chairman
Order. I hope that those who are standing at the back of the Chamber will take the advice that it is discourteous to chunter while the hon. Gentleman is speaking.
Stuart C. McDonald
If those colleagues are waiting for a vote on the previous group, it may be useful to tell them that that vote is not happening, but if they are interested in free movement rights, they are welcome to stay.
As I was saying, free movement rights have been brought to a crashing halt by part 2 of the withdrawal agreement, and that is what this part of the Bill seeks to implement. It is not just UK citizens who will no longer be able to benefit from free movement, but those here at home who will have less opportunity to meet, work alongside or form families with European colleagues or to benefit from the skills and expertise they bring as workers in our public services or the wider economy.
In Scotland, we face the very real prospect of a stagnating or declining population, so any legislation implementing that agreement would be horrible, but this legislation is even worse than it needs to be because where the withdrawal agreement gives the Government a choice, they have made the wrong choice. Instead of making life just a little bit easier for EU nationals going through a torrid time, the Government are making it more miserable. In doing so, they have broken explicit promises made by the Prime Minister, the Home Secretary and the Chancellor of the Duchy of Lancaster during the Brexit referendum.
Our amendments seek to remedy the awful choices that the Government have made—namely, the choice to demand that citizens apply to stay; the choice that they have made to fail to provide a physical document as proof of status; and the choice that the Government have made about how the new Independent Monitoring Authority should be constituted. Our new clause 18 seeks to make life a little better for EU nationals by ensuring that those who are entitled to British citizenship can access that entitlement, regardless of their ability to pay exorbitant Home Office fees.
I turn first to amendments 5 and 6. Article 18 of the withdrawal agreement gave the Government a choice. They could either do what the Prime Minister and the Home Secretary promised and declare in law the rights of EU citizens automatically—a so-called declaratory system or registration system. Alternatively, they could make EU citizens apply to stay in their own UK homes, changing the rules after those citizens had put down roots here and pulling the rug from under their feet. There is no reasonable explanation why the Government chose the latter. The difference between a declaratory or registration system and an apply-to-stay scheme might not sound like much to those who are new to the issue, but the implications are absolutely momentous in terms of the potential disaster that individuals will face and of the number of people who face such a disaster.
By way of a hypothetical example, let us imagine a retired French lady and a young Polish guy. The French lady has been here since the 1970s and had a permanent residence document under the old EU rules. Understandably, she thought she did not need to apply to stay, but it turns out that, of course, she did. The Polish guy was born here and because of that he believed that he was British, so he did not apply. However, it turns out that because his Polish mum and his UK father were not married at the time of his birth, he was not British after all, and he should have applied as well. Under the Government’s proposals, that French lady and the young Polish lad will be subject to the full force of the hostile environment. At some point, out of the blue, they will lose their jobs, their access to the NHS or the tenancy of their homes. It will be just like the Windrush fiasco, but for them it will be even worse because they will have no way to rectify their terrible situation and will be subject to removal. Imagine what that will mean for those individuals.
In terms of scale, we need to recall that few schemes such as the one that the Home Office is attempting ever get close to a 90% reach, never mind a 100% reach, and that even if the Home Office does amazingly well and achieves a 90% reach of EU nationals, that will still mean that hundreds of thousands of people will be in situations like that. There are a million reasons why we will not get close to a 90% reach.
Dr Whitford
Is it not concerning that, when we look at the monthly figures, we see that more than 40% of EU nationals are only being given settled status? I am sure MPs right across the House will have had examples of people, particularly women with caring responsibilities who have been here for decades, who are not being given it. My concern is for those very elderly people who are not even considering that this might apply to them.
Stuart C. McDonald
My hon. Friend is absolutely right. I was just about to give an example of the sort of person who will be caught out by this, and there are many more. It is not just those who did not think they needed to apply because of the complex stays, or their immigration and nationality situation, but also those with, for example, low digital literacy or poor language skills. There are also those who accepted pre-settled status and overlooked the subsequent deadline for applying for settled status, as well as children and vulnerable adults. The list goes on.
This is absolutely not the way, as the Government have said previously, to avoid a new Windrush disaster. This is the way to create a disaster on an even greater scale. It is not just me saying this; it is the3million campaign group, legal experts and think tanks, and it is the cross-party conclusion of the Home Affairs Committee, so we call on the Government to think again and to provide the status automatically and keep the settlement scheme open so that people can access the physical document that they need, as and when they realise they need it. That is what amendments 5 and 6 seek to do, as does the official Opposition’s new clause 5, which, because it would do everything in one go, is the one that we will support in a vote.
The second bad choice the Government made was in relation to documentation. The withdrawal agreement allows for the provision of a physical document as evidence of status. Alternatively, that proof could be in digital form. The Government have gone for a purely digital form of proof, which is completely contrary to what the overwhelming majority of EU nationals would prefer. How many Members would be happy to rely exclusively on a piece of Government digital code in an online system as the sole means of evidencing their right to live, work or study here or anywhere else? If the digital form were available alongside the opportunity to request a document, that would be fine, but it is completely unacceptable for it to be in digital form only. What if our retired French lady is digitally challenged, as the expression goes? How difficult will it be for her to prove her rights? And what will happen when the young Polish guy seeks to persuade a landlord that he is eligible to rent a flat in England? We know how great the chance is that the landlord will rent that flat to a person with a passport, way before they will go through the process of checking the Polish lad’s immigration status. The right-to-rent scheme is already in limbo because judges have found such episodes occurring with other less complicated forms of proof. What if the digital system crashes altogether at a crucial moment, as has happened already? Again, the Home Office is making decisions against the interests of EU citizens. That is why amendment 5 calls for a physical document to be provided.
I like to be fair, so let me acknowledge one good decision that the Government have made. That was the decision to open the settled status scheme to a broader category of citizen than was strictly required by the withdrawal agreement. Amendment 6 seeks to cement that into primary legislation, rather than leaving it to the whim of an immigration Minister to do away with at the drop of a hat by changing the immigration rules. The official Opposition’s new clause 5 would do the same thing.
A third disappointing choice that the Government have made relates to the make-up of the Independent Monitoring Authority—that is, the body tasked with ensuring that citizens’ rights under the agreement are properly protected. The withdrawal agreement gives broad discretion as to how the board should be made up. Given the torrid time that EU citizens are enduring, the last thing they want to see are provisions that mean that the person appointing the members of the IMA is a person who has ignored all the other concerns and broken the key commitment that she made to them during the referendum. That is of course the Home Secretary.
Yes, there are other provisions that are designed to create a degree of independence for the IMA, but in advance of the creation of the authority, it is the chief inspector of borders and immigration who has been monitoring the settled status scheme and who has prepared reports and recommendations about it. That makes him a strong candidate for knowing what skills are required for the Independent Monitoring Authority, but there are other independent people who could do the task and give EU citizens much more faith in the process. Additionally, in amendment 52, we seek to strengthen the role of the devolved Administrations in the process of appointing those IMA members being selected because of their knowledge of conditions in the devolved areas.
Turning to appeals, it is positive that the Bill makes provision for a right of appeal against settled status decisions, but not that it does so only by way of regulations or immigration rules. There should be a statutory right of appeal in the primary legislation. These significant rights are not to be toyed with on the whim of a Minister. So again, we support parties who have tabled amendments to put the right of appeal in the Bill directly.
In amendment 7, we challenge the Government’s giving Ministers the right to make provisions about judicial reviews of certain citizens’ rights immigration decisions. This seems unprecedented, and if the Minister can provide another example of such a power being granted, I would be grateful to hear about it. There is huge concern about what the Government want to do with judicial oversight of the decisions that they make, and I hope that this is not an early example of Government attempts to curtail judicial oversight of significant and sensitive immigration powers.
I turn now to the registration of British citizenship. This is another scandal that has developed on the watch of successive Conservative Home Secretaries negligently conflating naturalisation with registration. After the British Nationality Act 1981 came into force, many children and young people who would automatically have been British through birth here were instead given a statutory right to register as British if they met certain criteria such as living in the country for a certain period or their parents becoming settled or British. These criteria reflect the fact that for those children and young people, the UK is their true home. De facto, they are British and should therefore be legally entitled to British citizenship. A Conservative Minister of State said, when introducing the relevant provisions in 1981, that it is extremely important that those who grow up in this country should have as strong a sense of security as possible. That is not the same as naturalisation, where the law gives the Secretary of State discretion in relation to people who have chosen to make the UK their home. But the Home Secretary charges for children to register, as if the two things were equivalent. Even though the administrative cost to the Home Office of registration is around £370, the Home Office has been charging over £1,000 for several years—something the now Chancellor acknowledged was a huge sum when he was asked about it at the Home Affairs Committee. Imagine anyone in this Chamber being asked by an official for £1,000 before their child could be confirmed as British and could exercise their rights as a British citizen. It would be deemed outrageous and totally unacceptable to every single person in this Chamber. It is similarly outrageous that the Home Office is inflicting that fate on other children who are just as entitled to their British citizenship.
Alison Thewliss (Glasgow Central) (SNP)
My hon. Friend is making an excellent point, and I am glad he is raising the issue. I often get families at my surgeries who cannot afford to have their children registered; they might register themselves because they need to work or travel, but they cannot afford to pay for their children. With the decision of the courts on this issue, does my hon. Friend have any view on whether people should be issued with refunds for the children they have already paid for, as the courts have ruled the charges unlawful?
Stuart C. McDonald
I fully support that decision, and I will come to the court case in a moment. Another example I found when searching for cases is that parents have to choose which child will become a British citizen. They cannot afford to pay for two or three, so they have to pick which child will benefit from citizenship. It is a really appalling and cruel game.
It is therefore welcome, as my hon. Friend pointed out, that the fees have been found unlawful in the High Court because they do not properly take into account the best interests of children. I pay tribute to the Project for the Registration of Children as British Citizens, Amnesty International and others for their work on that case. Instead of appealing against that decision, the Home Office should listen to the reasoned arguments and stop this absolute scandal. Among the victims of this scandal are many EU and European Economic Area nationals—for example, a young Belgian girl born in the UK to Belgian parents just after they moved here and before they were settled. She becomes entitled to British citizenship automatically after 10 years, or if the parents become UK citizens or settled themselves, but she or her family quite simply may not be able to afford the £1,000 fee. She, along with many others, will be forced to register under the settlement scheme, when they have a far stronger right to citizenship. As the Project for the Registration of Children as British Citizens and Amnesty pointed out in a letter to the Minister’s predecessor, children and young people in the care system are especially at risk.
There are many things that need to be done to allow children and young people to access their right to British citizenship, but one key aspect is ensuring that all who have that right through registration can afford it. That is why new clause 18 sets out to limit the fee that can be charged for the administrative cost and to provide for free exemptions and waivers in appropriate circumstances. I do not want this to be limited to EU citizens, but it has to be because of the scope of the Bill. However, there is a far bigger job of work to be done in ensuring that these things are done right across the board. As my hon. Friend the Member for Glasgow Central (Alison Thewliss) pointed out, we should look to reimburse those who have had to break the bank, take loans or do whatever else simply so that their children can become British citizens or register the right to British citizenship that they are entitled to under statutes passed in this place. It seems a simple matter of justice to me. I cannot understand how any Government or MP would want to continue to deprive de facto British citizens of the legal British citizenship they are entitled to, and that is why new clause 18 should be put to a vote this evening.
In conclusion, many EU citizens are having an incredibly difficult time, to put it mildly. They were hurt again by the lazy rhetoric coming from the Conservative party during the election about the cost of benefit payments to EU migrants, and by the Prime Minister’s remarks about EU citizens daring to treat the UK like their own country. Instead of occasional platitudes in this Chamber, we need consistent and vocal support for EU nationals. More than that, we need action, not words, and these amendments and new clauses are exactly the action that is needed to improve the lives of those people.
The Minister for Security (Brandon Lewis)
It has now been over three years since the referendum, and we are here today because the Conservative party can finally break the deadlock and ensure that there is no more delay. This Bill means that the UK will leave the EU on 31 January, delivering on our pledge to get Brexit done. Our Prime Minister, standing right here at the Dispatch Box, laid out a powerful vision for a rejuvenated, forward-looking, optimistic United Kingdom. This Bill will allow us to unite the whole country and take advantage of the opportunities that lie ahead for us.
Throughout the negotiations, our first priority has been to safeguard the rights of EU citizens, those who have built their lives here and contributed to the UK. The clauses laid out in the citizens’ rights part of the Bill are essential to implementing the withdrawal agreement so that EU citizens’ rights to live, work, study and access benefits in the UK are protected. We have delivered on that commitment, and this Bill provides certainty to EU citizens and their family members who are covered by our implementation of the withdrawal agreement.
Peter Grant (Glenrothes) (SNP)
As the Minister will know, I questioned the Prime Minister on this issue on 25 July. I reminded him that during the referendum he personally promised that no EU citizen living in the UK would be treated any less favourably as a result of our leaving the European Union. I asked the Prime Minister whether he would
“now guarantee the right to healthcare, pension rights, the right to leave and return, the right to bring over family, the right to vote and all the other rights currently enjoyed by EU citizens”.—[Official Report, 25 July 2019; Vol. 663, c. 1498.]
The Prime Minister, at the Dispatch Box, told me and this House that the Government were giving those guarantees “unilaterally”. Which clauses make good on those promises from the Prime Minister about the right to pensions, the right to healthcare and the right to bring family members over at some time in the future? If they are not in the Bill, the Prime Minister has made promises from the Dispatch Box that the Government have no intention of keeping.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
Order. I draw Members’ attention to the fact that interventions should be brief and to the point. I am not necessarily saying the hon. Gentleman’s was not, but for further reference I think that advice should be taken.
Brandon Lewis
Thank you, Sir George. As my right hon. and hon. Friends will outline, we are working with our colleagues and friends around Europe, and they are all very happy with the scheme. In fact, as I will come to in a few moments, our scheme is far more generous than what many countries around Europe offer to UK citizens. I hope that will change, but this programme does deliver—I will come to some specifics in further clauses, but I am sticking to the clauses that are before us today. It is delivering a scheme that, as I say, has had over 2.8 million applications already, and nearly 2.5 million people have already been granted status. That is a success. EU citizens in the UK also have until the end of June 2021 to apply.
Stuart C. McDonald
I have two quick questions for the Minister. First, how many individuals have applied? I note that some may have made several applications. Secondly, and more importantly, does he dispute my estimate that hundreds of thousands of EU citizens will fail to apply in time? Has the Home Office made such an assessment?
Brandon Lewis
I disagree with the hon. Gentleman. In fact, I disagreed with quite a lot of what he said when he was on his feet a few moments ago, when he gave some clear misrepresentations of what is happening with this system. Over 2.8 million people have already applied, with nearly 2.5 million applications being granted, so that shows that the scheme, which has not been running for a year and still has at least a year and a half to run, is working.
On the second part of the hon. Gentleman’s question, I remind him and other colleagues who are unaware that not only have we said that if somebody has a good, reasonable reason for not applying earlier, we will still process their EU settled status application—even after June 2021—but we are doing specific work with groups around the country to reach the most vulnerable people. We have the road shows and our online work, and the phone centre is working around the clock, seven days a week, to deal with people’s queries. We have put in some £9 million to work with voluntary groups around the country to reach everyone, so, yes, I disagree with him in the sense that I think that we will get to these people.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
Will the Minister give way?
Brandon Lewis
I will in a moment.
If EU citizens do not apply through the EU settlement scheme, it may prove difficult to distinguish them from those who arrived after the end of the implementation period. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) ignored that fact completely earlier. It is essential that EU citizens have the evidence that they need to demonstrate their rights here in the UK.
Brandon Lewis
Not at the moment. Such an approach could also lead to EU citizens who have not applied for documentation suffering inadvertent discrimination compared with those who have. That is exactly what happened to the Windrush generation, and the Government are adamant that we must avoid a repeat of that dreadful situation.
Stephen Doughty
Given that the Minister mentions the Windrush generation, he will surely recognise that many of the amendments relate to concerns that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), others and I raised during Select Committee on Home Affairs sessions that examined the EU settlement scheme and, of course, the Windrush scandal. There is no malign intent behind the amendments. They are about ensuring that people have their rights and are able to exercise them. What lessons has the Minister learned from the Windrush scandal and, indeed, the evidence taken by that Committee?
Brandon Lewis
The hon. Gentleman makes a good point. It is clear, as I have just said, that we all want to ensure that we avoid the problems that we had with the Windrush generation. One of the key issues—
Brandon Lewis
I will finish answering the first intervention before I consider taking any others. Part of the problem with a declaratory scheme is that it leads to the problems of Windrush. This scheme means that people have evidence of their rights, which means that they cannot be contestable in future, avoiding that problem in the first place. Moreover, this scheme is already more generous in its scope than the agreements themselves require, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East did outline earlier. For example, some people do not meet all the current requirements of free movement law and therefore are outside the scope of the agreement. As a matter of domestic policy, we have decided, nevertheless, that such people should be in scope of the EU settlement scheme, so we have granted them residence rights.
I will go a bit further on physical documentation. We are developing a new border and immigration system that is digital by default for all migrants, not just EU citizens. It is being rolled out incrementally and, over time, we intend to replace all physical and paper-based documents, which can be lost or stolen. Eventually, all migrants, not just those from the EU, will have digital status only, so amendment 5 would impede our ability to deliver an improved, equal and fair digital status.
Dr Whitford
Does the Minister not understand that someone getting to the end of the settled status process may be told that an email is meaningless and they will not have a document, which will not be reassuring? Part of the Windrush issue was that the Home Office destroyed records, so people who are depending on the Home Office to keep digital records are naturally pretty nervous. They would keep their records quite safe at home.
A declaratory system does not prevent registration. We can register people, but we can automatically say that they have a right. This is an application system, and people are being turned down or given pre-settled status—it is not the same.
Brandon Lewis
It is important that I clarify some of the hon. Lady’s misrepresentations. Her point argues for and against her colleague’s earlier comments. We want to ensure that people have a status, and a digital status means that it is there for ever. It means that employers, landlords or anybody can access it in future. It is not reliant on somebody keeping any documentation or ensuring that it is not stolen. As for her comments about the process, it is fast and easy—
Brandon Lewis
Let me finish the point. It takes five to 10 minutes online—the same as renewing a driving licence or passport.
The hon. Lady should be aware that, as of the last set of official figures, only two[Official Report, 13 January 2020, Vol. 669, c. 1MC.] people have been actively refused settled status, and both refusals were on serious criminality grounds. I stand by this country’s right to protect the security and safety of people in this country by refusing settled status to people with a serious criminal record.
Pre-settled status is granted only to people who have not been living in the country for five years. I will come back to the process around that in a moment, but anyone who has lived in the country for five years or more—we are helping them with ways of evidencing that—is entitled to full settled status.
Brandon Lewis
I will just finish my point. Protections for those who do not apply by the June 2021 deadline are already built into the agreements. There will be no cliff edge for vulnerable people who are unable to make an application due to circumstances beyond their control. As with all aspects of the EU settlement scheme, we will adopt a flexible and pragmatic approach and exercise discretion in applicants’ favour. I urge hon. Members to withdraw their amendments, but I will take the hon. Lady’s intervention.
Alison Thewliss
What the Minister is saying is not accurate. I have a constituent who has a national insurance number card, which are not even issued anymore, who was only given pre-settled status. That constituent was able to prove that they had been here, and everything they submitted was correct, yet they have pre-settled status. How many more people have been given that?
Brandon Lewis
As I said, anybody who has lived in the country for five years or more is entitled to settled status. I am very happy—[Interruption.] Will the hon. Lady listen to the answer? If hon. Members have individual cases in which somebody has been granted pre-settled status when they feel that they should have received full settled status, I will personally look at those cases. Every such case that has come forward so far has turned out to involve an issue. In one case, the person had not actually even applied for settled status and had gone through an entirely different system. In other cases, applicants had not been able to provide evidence. However, our teams are working with people—that is why we are doing the road shows—to ensure that anything that people can provide as evidence of their being in this country for more than five years will allow them to be granted settled status. With nearly 2.5 million settled statuses already granted out of 2.8 million applications, I think that highlights the success.
Brandon Lewis
No, I will not give way on that point any further.
Clause 8 enables the Government to protect frontier workers and means that we can establish a registration scheme providing certainty to such workers about their rights going forward. Clauses 9 and 10 go hand in hand, enabling us to continue to apply EU deportation thresholds when assessing conduct committed before the end of the implementation period for the purposes of restricting a person’s right to enter or reside here in the UK. Conduct committed after the end of the implementation period will be assessed according to UK rules on criminality and behaviour non-conducive to the public good. That creates a fair and even system for all that does not benefit any foreign nationals over others.
Clause 11 provides a power to put in place various rights of appeal in connection with citizens’ rights and immigration decisions, including refusals under the EU settlement scheme, which are an essential and important part of our commitments.
I ask hon. Members to not to press amendments 3, 2, 20, 21, 7 and new clause 34 because they are unnecessary. Thanks to the power contained in clause 11, EU citizens who are appealing a decision on residence will be able to do so under the EU settlement scheme. Individuals who have been granted pre-settled status who believe they should have been granted settled status can also appeal.
The amendments would also potentially do damage. The situations requiring the right of appeal under the agreements are numerous, and the applications of existing rules relating to appeal rights are complex. Putting a right of appeal into the Bill would mean that none of that detail could be properly reflected.
The amendments would make it harder for EU citizens to appeal against an exclusion decision. They would actually remove our ability to provide EU citizens with access to the special appeals immigration commission when challenging an exclusion decision through judicial review. They would also prevent the Government from treating EU citizens in the same way as third country nationals when it comes to removals during an appeal process. Furthermore, the amendments create a perverse incentive for individuals to launch appeals and would mean that people who have applications that have absolutely no chance of succeeding could access social security benefits. I am concerned that this would open our immigration system to potential benefits abuse, which is something we should not allow. I hope what I have said assures hon. Members that these amendments are not only undesirable but unnecessary, so I urge them not to press them.
Stuart C. McDonald
That is exactly why new clause 18(5) would allow Ministers to extend the reduced fees and the waiver scheme to everybody else. It would be entirely within the Minister’s gift to make sure such discrimination does not arise. What is discriminatory is the horrendous fee, which prohibits some kids from getting the British nationality to which they are just as entitled as the children of everybody in this place.
Brandon Lewis
New clause 18, as drafted, would discriminate by nationality because, as I said, it would give EU citizens preferential fees for citizenship.
My next sentence would have negated the need for the hon. Gentleman’s intervention, because I was about to say that new clause 18 would also undermine the legislative structure that is already in place. This Bill is not the place to set fees, including specific fee exceptions, as that is done in different legislation.
Part 2 of the Bill honours our obligation to EU citizens who are living in the UK by ensuring they have the certainty they need as our country moves forward. Frankly, it is disappointing that not all European countries have provided the same assurances to British nationals living in the EU, which is something we hope will change. We will continue to work towards that for our citizens.
This Government have always put citizens’ rights first and foremost, and we will continue to do so. EU citizens are our friends, our family members and our colleagues. They have made and continue to make a hugely important contribution to our country, our economy, our communities and our society, and we want them to stay. This Bill will ensure we can deliver that unequivocal guarantee, both now and in the future.
Paul Blomfield
I rise to speak to new clause 5 on the system for providing settled status, on which we will be seeking a vote, and to amendments 2, 3, 20 and 21 on the right of appeal, as well as amendment 37 on the Independent Monitoring Authority.
I regret the Minister’s combative response to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who made a typically thoughtful and considered contribution that did not reflect division across the Committee because, when these issues have previously been debated in Parliament, considerable concern has been expressed on both sides about the consequences of getting this wrong. If we do get it wrong, it will have a significant impact not only on EU citizens in the UK and on Brits in Europe but, frankly, on our caseload as Members of Parliament.
I believe it is possible to reach agreement on some of these issues, and it is in that spirit that I address our amendments. On new clause 5, the Minister said that providing certainty for EU citizens is central to the Government’s agenda. The Prime Minister said:
“under this Government they”—
EU citizens—
“will have the absolute certainty of the right to live and remain.”—[Official Report, 25 July 2019; Vol. 663, c. 1459.]
That seems clear, but the reality of applying for settled status is different. It is a constitutive system in which EU citizens acquire settled status or pre-settled status only by successfully applying for their right to live and work in the UK post Brexit. New clause 5 seeks to avoid that by making the scheme declaratory, meaning that EU citizens and family members who meet the eligibility criteria would automatically have the right to continue to live and work in the UK and would simply need to register for the purpose of proving their status.
We believe our approach would avoid a repeat of Windrush. The Minister suggested that the Government’s objective is to avoid such a Windrush situation and that a declaratory system could encourage a repeat. The Windrush scandal was caused by a number of factors: the changing legal environment for people who had lived here for decades; the 2012 introduction of the hostile environment; the lack of record keeping by the Home Office both under this Government and when we were in power—I am not trying to score party points; and by Home Office staff being incentivised by targets and bonuses to reach deportation targets. But for the Windrush victims, crucially, there was at least the legal safety net of the Immigration Act 1971, so they could seek recourse against their treatment.
What the Government are saying is that making the EU settlement scheme declaratory would create a second Windrush. They are perversely blaming the scandal—it was a scandal, as the Minister recognises—on that safety net, which is a fundamental misunderstanding. They are saying that the way to avoid another Windrush is to remove the safety net that the Windrush victims faced.
No system will get 100% of those eligible to apply, and I recognise the Minister’s point about the Government’s efforts to ensure that as many apply as possible. I take his point that 2.8 million have already done so, and I am sure many more will apply by the deadline of June 2021, but not everybody will. The Government do not even have a target for how many people they think should be eligible to apply. If only 3% of the estimated 3.5 million EU nationals living in Britain fail to apply, which is not beyond the bounds of possibility, it will leave 100,000 people facing a hostile environment and facing possible deportation. I have talked to many EU citizens who, despite all the Government’s publicity efforts, are unaware that the rights they have enjoyed for 30 years need to be applied for, and I have had to explain to them about how to apply for settled status. The Government have recognised that, as has the Minister. In an interview with the German newspaper Die Welt, he said:
“If EU citizens have not registered”
by the deadline for settled status
“without an adequate justification, the immigration rules will apply,”
When pressed on whether that would mean deportation, he said:
“Theoretically, yes, we will apply the…rules.”
The possibility of people whom we describe as our neighbours, friends, taxpayers and colleagues being deported exists while we pursue the same approach to settled status as the Government are now.
It is not too late to correct course. In our view, and that of others proposing similar amendments, a declaratory system is the only way to prevent hundreds of thousands of people from potentially being criminalised and deported. Under a declaratory scheme, if somebody does not register for settled status before June 2021, they will not lose rights; they will simply need to register for the Government to provide them with the proof of their status.
Stuart C. McDonald
I am grateful to the hon. Gentleman for the speech he is making. Does he agree that the Minister is completely wrong to think that a declaratory system means that fewer people will apply after June next year? People will still have every incentive to apply for the settlement scheme, because they will need that proof to avoid the hostile environment and to access the NHS, employment and all their other entitlements in this country.
Paul Blomfield
The hon. Gentleman is absolutely right to say that there would be every incentive to apply, because without the proof these people will not be able to exercise their rights. We are simply seeking to ensure, through our new clause, that they do not lose their rights. The approach we are suggesting is explicitly allowed under the withdrawal agreement. The Government had a choice about what kind of system they would implement and, in our view, they chose wrong. We need to remember that this is not just about EU citizens in the UK; the largest national group affected by Brexit are the 1.2 million British citizens in Europe. The EU and the individual member states, not all of which have met our expectations, have been clear that rights granted to UK citizens will be based on reciprocity. The Minister is right to want to see other countries stepping up to the mark, but that will not be assisted if we reduce rights of citizens within the UK, because that will risk a reduction of rights of citizens across the EU27. So a declaratory scheme for EU citizens will be good not only for those here, but for UK citizens living in Europe.
I wish to move on to another aspect of the problems with the settlement scheme. The Minister said that 2.8 million have applied and he went on, unintentionally, I am sure, to give the wrong impression about the granting of status, because he said that 2.5 million had been granted status—that is correct, but it is not the status they had applied for. The most recent statistics show that almost half of the applicants for settled status are being granted pre-settled status, which comes with substantially fewer rights; it is a temporary form of leave lasting up to five years—[Interruption.] It is not indefinite leave to remain.
Paul Blomfield
In a moment, I will ask the Minister to come back on me on some of these points and he might want to respond on that. In addition to the cliff edge at the end of 2021, when anyone who has not applied to the settlement scheme will face possible deportation, pre-settled status creates hundreds of thousands of individual cliff edges when people come to the point of confirming their individual position, because it does not provide—[Interruption.] I see my friend and former Committee colleague the hon. Member for Worcester (Mr Walker) looking puzzled about that, but if pre-settled status does not provide a permanent right to remain, that is granted only at the point at which settled status is gained. We are creating hundreds of thousands of individual cliff edges.
The campaign group the3million has shared one case with me that illustrates many of the problems with settled status. It involves an older Dutch woman who has been living in the UK for decades. Despite her living at the same address for more than 30 years, and paying council tax, income tax and NI, the online system could not find a trace of her, so she was forced to trawl through paperwork to provide evidence of seven years of residency. For some of those years she had saved council tax bills, but she had to find at least six bank statements for each of the other years. She then faced huge difficulties scanning and uploading the documents. After she had eventually sent them off, she waited several weeks for a response, only to be told that the Home Office required more evidence. After another difficult process of finding and submitting documents, she was finally granted settled status, but this woman has said that she could not have done it without help, and her journey shows that although the app may be simple for the most straightforward of cases, as soon as somebody faces difficulties, it can be immensely difficult to resolve them and secure the right status.
Suella Braverman (Fareham) (Con)
I am pleased to speak in support of clause 7 and part 3, and I support all the comments made by the Minister. When I served as a Minister in the Department for Exiting the European Union, I was responsible for drafting much of the Bill, and I am glad that a lot of it has survived my absence from the Government. I pay tribute to the Front-Bench team, to parliamentary counsel and to the officials for the drafting of a complex and critical piece of legislation. In preparing the Bill, we conducted considerable engagement with the charitable sector, representatives of EU citizens and the legal sector to identify their concerns so that we could design a new framework that would not only command their confidence but, above all, work.
I should say at the outset that with Brexit, free movement will obviously come to an end. That is one reason many people voted to leave the European Union, myself included. I am the child of immigrants, yet I do not have a problem with saying that it is right that our democratic institutions, our UK Government and the British people have control over migration, not Brussels, the EU Commission or the EU Parliament. Everyone in the House should welcome that fundamental aspect of the EU Brexit project if we are truly to reflect the desires and needs of those who send us here.
With the ending of the free movement of people, I do not think we can be in any doubt about the Government’s commitment to safeguarding the position and rights of the 3 million or so EU citizens who are already living and working here. We want them to stay, as has been said so many times; we value their immense contribution; and we want to make Brexit as easy as possible for them.
I am glad about the proposals that provide for the legal rights of EU citizens, their access to healthcare and social security, recognition of their professional qualifications, and their employment and equalities rights. The Bill will enable them to continue to live their lives as they do now. It is this Bill that provides for the groundbreaking Independent Monitoring Authority, which is a hugely important proposal that will reflect our watertight commitment to EU citizens.
First, the scheme is working. The Minister himself has overseen the roll-out of the settled status scheme for years now. As of October 2019, more than 1 million people had been granted settled or pre-settled status under the EU settlement scheme. That milestone came four months after the scheme fully launched in March last year. That is an excellent start, and I pay tribute to the Home Office and all those involved in such an immense administrative task.
Secondly, the scheme is working because it is practical and user friendly. The EU settlement scheme is designed to make it straightforward for EU citizens and their families to stay in the UK after Brexit. They need only to complete three key steps: prove their identity, show that they live in the UK and declare any criminal convictions. A wide range of support is available for EU citizens and their families, including a dedicated settlement resolution centre and 300 assisted digital locations to support those who have limited access to IT, and the Home Office funds a plethora of organisations to help those citizens who are more vulnerable—the homeless, the disabled and the elderly—to navigate the system.
Stuart C. McDonald
I wonder whether the hon. Lady can do something that the Minister could not. During her time in government, did she see an estimate of the number of EU citizens who, perhaps accidentally or because they did not fully understand their own immigration situation, will have failed to apply for the scheme by the deadline? Was I right to suggest that it will be hundreds of thousands? What should happen to them?
Suella Braverman
I will come back to that point, but of course any system will have the challenge of reaching everybody affected by it. That is why the Government have not held back at all in coming forward with outreach, engagement and the publicity and advertising campaign, and with the resources made available to the millions of EU citizens who are affected. We need only look at the numbers to see that the uptake rate is so far very encouraging. We should judge it on the evidence, not fear speculative future possibilities.
Stuart C. McDonald
I accept all that, just as the Opposition spokesperson accepted all that—in general, all is going well—but the difference between us is on the consequences of not applying. Under our system, people could still apply for years to come; under the Government’s proposed system they will not be able to. Overnight, there will be tens—probably hundreds—of thousands of people without status. How many people do the Government expect to be in that situation, and what should happen to them?
Suella Braverman
It is important for any system to have robust deadlines and to have consequences if deadlines are not met. Importantly, though, there is a grace period in the legislation that allows considerably for people being late or delayed in making their application. That strikes the right balance by ensuring robustness but making allowances for those who might not get there in time.
Thirdly, we know that the system is working because EU citizens and those who work for them have told us so. Charities such as the East European Resource Centre and the Refugee and Migrant Centre, which receives Home Office funding and has helped thousands of EU citizens and their families, have welcomed the operation of the scheme so far.
Lastly, the significance of the Independent Monitoring Authority cannot be diminished. It represents not just the legal protections that are offered and provided for in the Bill, but a cultural change at the Home Office and in Government towards migrants. It represents a culture of protection and safeguarding and of enabling people to know their rights and exercise them.
Much has been said about avoiding the mistakes of Windrush, and I can see exactly why people fear history repeating itself. My parents emigrated to this country from Commonwealth countries at the same time as the Windrush generation and could have easily been caught up in the mistakes and consequent problems. When I was a barrister, I did a lot of work in immigration law, representing the Government in the High Court and in immigration tribunals. Of course, any large administrative exercise of this scale can be vulnerable to mistakes. This policy area is heavily legislated for and therefore very complex. Mistakes are made, but there is also abuse of the rules.
Any system must be light-touch and pragmatic enough to minimise the burdens on those who are directly affected and those who have to go through the system, but at the same time robust enough and sound enough to prevent such abuse. It is okay to live in an ideal world and assume that there is no abuse of immigration rules, but, unfortunately, the reality—the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) will know this from his experience in the sector—is that there is abuse. In recent times, we have faced unsubstantiated claims and unjustified appeals, and thousands of pounds of taxpayers’ money has been used to perpetuate pointless and vexatious claims through the immigration system and the High Court.
The Government are highly cognisant of their obligations to EU citizens. It has to be said that even without the IMA there would be many avenues of legal redress for EU citizens—appeal rights and judicial review are enshrined not only in the Bill, but in common law—but the Government have gone further. They are committing to setting up an independent watchdog specifically—exclusively—for EU citizens to monitor the application of the rules, carry out inquiries, take up judicial review and represent EU citizens, be their collective voice and ensure that mistakes are remedied swiftly. It will be thanks to the IMA that a Windrush-type scandal will be avoided, EU citizens will have a voice and the system will improve and serve people. That is a step change—a sign of the political will to get it right and drive forward change.
Leaving the European Union presents us with myriad opportunities to take back democratic control of our migration policy—something that we should welcome and see as an opportunity for our country. I commend the Bill and the measures on EU citizens to the Committee.
Christine Jardine (Edinburgh West) (LD)
I rise to support Labour’s new clause 5 and to press to a vote my own party’s new clause 34, which would create a right of appeal when settled status was refused.
Shortly before the general election, I visited a school in my constituency. During the usual chat with students about what they would do after their exams, what careers they would pursue and whether they would go to university, one girl told me that she was worried about her future. She wanted to go to university, but she was afraid that she would not be able to. She had lived in Edinburgh most of her life, but she and her parents were from a different part of the European Union and they did not feel secure about what would happen to them if Brexit went ahead. This is the only country that she really knows, and her parents did not know where they stood because of the uncertainty and the difficulties that they saw with the settled status proposals. She is not the only one.
Like so many in this place, I have colleagues, friends and many, many constituents who have made their lives here. These are not the people who, as this Government shamelessly claimed during the election campaign, cost us billions, put pressure on public services and strain on school places, and led to more crime. These claims were made despite the evidence from migration advisory services, which showed the opposite to be the case.
These are people who came to this country to work and pay taxes. Many were part of the hugely valuable workforce in our NHS, our university sector and major private companies. They deserve to have this country recognise that and respect their rights. This Government should do that by standing by the promise that was made to those people by the Prime Minister when he entered Downing Street. That is why I and the Liberal Democrats will be supporting the Labour party’s new clause 5 to give automatic rights to EU citizens, rather than them having to apply for settled status with the potential of facing deportation if they do not. That is no way for this or any other Government or any other country to treat people.
Alex Chalk (Cheltenham) (Con)
It is incredibly important that we take every opportunity to reassure EU nationals who, as the hon. Member rightly says, are so valued in our country. In those circumstances, did she take the opportunity to give that reassurance to her constituents and say that if they simply applied for settled status, it would be vanishingly unlikely for them to have any difficulty staying in the UK?
Christine Jardine
I thank the hon. Member for his point, but what I did was promise them that I would fight for their rights in this country. I would fight for them to have the automatic—[Interruption.] No, I was not scaremongering. I promised them that I would do what I am doing tonight. I said that I would stand in this House and call for them to have the automatic right to stay in this country—this country, where they have lived, where their parents have contributed and paid taxes—without having to apply and face the fear of deportation if they failed. That is what I promised.
Our economy—our demographic—demands that we encourage people to come here and contribute, bolster our workforce and fill the skills gap that we see in the NHS. That is why, as I promised that teenager and the many constituents who have come to me, I will fight to safeguard the rights of all EU citizens in the United Kingdom, and of those UK citizens who have made their lives across the EU, by asking for reciprocity. That is why we have tabled new clause 34 to create a right of appeal if an application for settled status is refused. These people deserve so much better than what is being offered by this Government.
On 13 December, following the general election, I thought about how that teenager and so many other people who have come to this country must have felt. What does the future now hold for her and her siblings and for so many others in my constituency and across the country? I am talking about people who, through no fault of their own, have had the security, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) mentioned, ripped from them.
Many of those people will vote with their feet. We will lose people in an exodus that shames us. We will lose people who make a valuable contribution to our education system and our health service—something that shames this country. People will leave their lives and their livelihoods because they do not feel welcome. The hon. Member for Cheltenham (Alex Chalk) accused me of scaremongering. The rhetoric of his party during the election, demonising people and driving us towards a scandal that will dwarf Windrush, was far from acceptable. It is not good enough. The Minister talked tonight about safeguarding rights, but if he really wants to do that and if he really wants to respect the people who have come here and contributed to our being the fifth largest economy in the world, make their right to stay here automatic—and do it now.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I thank you, Sir George, and the many Members who have made contributions today. Some really important points have been made on all the amendments on this crucial subject, which many of us who served on the Home Affairs Committee in the previous Parliament examined in great detail. The Minister gave a rosy depiction of how the scheme is working and how everything will function. Of course, we would all like to see people register for the scheme and get the right information, and we would all like to see more digital systems that work for everybody. The reality, though, is somewhat different, as those of us who have regular daily experiences with the immigration system on behalf of our constituents, and who have seen the many pieces of evidence that we took on the Home Affairs Committee, recognise.
The amendments that have been tabled, including by my party’s Front-Bench team, which I support, are there to improve the system and ensure that it actually delivers the rights that were promised to EU citizens and EEA citizens who have been resident in this country for many years and who have, as many have said in this debate, made huge contributions to our communities and to our country as a whole. Certainly in my own constituency, the contribution of EU citizens over many decades has been immense. Over the past few years, many constituents have come to me with concerns about the scheme, including those that are reflected in the amendments that many of us are supporting this evening.
We are not scaremongering if we look at the record of the Home Office and its continued failures on a series of issues. We have only to look back to 2017, when the Home Office sent letters to 100 EU citizens telling them that they had to leave the UK immediately—an episode for which the then Prime Minister, the right hon. Member for Maidenhead (Mrs May), had to apologise in 2018. Members of Parliament were sent letters about the importance of applying for the EU settlement scheme, even though they were not EU nationals. It was an extraordinary situation, which the then Home Secretary had to explain.
One has only to look at the regular monthly statistics from the Home Office to see the number of cases of wrongful deportations and wrongful detentions as a result of the hostile environment policy and as a result of mistakes and problems. That is why appeal rights are so crucial. If we look at the compensation pay-outs that are being made when the Home Office makes mistakes, we can see how much this is costing the Government. We have all those examples and, of course, the example of the Windrush scandal, which was so shocking and so shaming to our country. People who had contributed to our country over so many years were treated in such an incredible way. With all those examples ringing in our ears, we should be taking these issues incredibly seriously. I urge the Minister and the Government, and those in the other place when they are examining these parts of the Bill, to look seriously at ways in which this legislation can be improved, so that we can deliver on the commitments that have been made. I do not doubt the Minister’s intent. I am sure that he is sincere in wanting to provide EU citizens with the rights that they deserve, but the reality is often different.
I want to raise with the Minister the specific point about physical documentation. Of course we all want to see digitalisation; we all want to see more efficient systems. We all want to see a system where we can quickly get information—whether that is employers, housing providers or other providers of services—to ensure that people receive the things that they are entitled to under the law. But the reality is, as we all know, that these systems break down. There are mistakes in them and names are often rendered incorrectly. What is the back-up? What will happen when somebody is trying to apply for a house, access medical services, apply for a job or apply for an education that they are entitled to in this country and the system breaks down? The computer may say no, or the blue screen of death may come up on the computer. Whatever the problem, we all know that these things fail.
When we are talking about such a fundamental thing as the right to live, work and exercise rights in this country, which many EU citizens should have under this legislation and deserve, we have to ensure that there is back-up. We have our birth certificates and passports—physical documents for the most crucial aspects of our rights and citizenship rights in this country. I caution the Minister: when the mistakes happen—the inevitable breakdown, a cyber-attack on the system or the system becoming unavailable—what will happen to the people who get caught up in them? All those mistakes will generate not only a huge cost for the Government in rectifying them in due course, but great harm and concern to the individuals involved. Anyone who deals with the immigration system on a weekly basis, as many of us do, can point to myriad examples.
There is also the crucial issue of numbers, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who served with me on the Home Affairs Committee, mentioned. No exercise on this scale has been attempted before the registration of millions of individuals under this system. Problems are inevitably going to occur, not least when the Government themselves cannot tell us exactly how many EU and EEA citizens are lawfully resident in the UK. They also cannot tell us—this has been asked on a number of occasions—how many people they estimate will not have applied by the deadline that is now being put in place. I find it deeply worrying that the Government propose to implement a policy without even knowing the number of people that it is going to affect. We do not want to see the unlawful detentions and deportations of individuals that we have sadly seen in the past, nor the harm they cause to the individuals whose rights are affected.
This issue goes back to some fundamental promises that were made—not only by the current Prime Minister, but by the previous Prime Minister and by those who advocated leaving in the first place. The3million campaign, which has done so much good to highlight the concerns of those affected by these changes, rightly points out that it was made clear during the 2016 referendum that there should be
“no change for EU citizens already lawfully resident in the UK…EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”
That was a clear promise and a solemn undertaking, and it is one that has been repeated by the Prime Minister and Ministers since. I have no doubt that the Minister intends these measures in good faith, but the reality of accessing the scheme, demonstrating those rights and being able to prove that they are being lawfully exercised will be very different. I think we will be picking up the pieces of this in years to come, so I urge the Minister to look carefully at these amendments.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
I call Sir Desmond Swayne, who is known for many things in the House, not least his brevity.
Sir Desmond Swayne
Thank you, Sir George.
I am persuaded that the amendments are unnecessary, and I support the provisions of the Bill. But just one word of caution: I have received a number of inquiries from constituents—European citizens—who clearly have not been reached at all by any of the outreach, such are the basic questions that they ask. Indeed, I received one such inquiry today. On that score, when I think about it, I do not know whether I have been living in a bubble, but I have not seen any of that outreach at all myself. Admittedly, I have not been looking for it. Nevertheless, I just ask Ministers to re-examine the outreach that there has been and to reassure their level of confidence that it is adequate.
Bambos Charalambous (Enfield, Southgate) (Lab)
I speak in support of new clauses 5 and 18. Constituents have contacted me to raise serious concerns about the rights of their family and friends who are EU citizens and who are eligible for settled status, but who may not be able to complete their application on time or may be unaware of the deadline. This is a particular issue among elderly EU citizens, some of whom may have serious medical conditions that impair their ability to complete forms. One constituent told me about her mother, who is in her 90s and came to the UK as a refugee from Poland just after the second world war, but who has never needed to apply for citizenship. She now has Alzheimer’s and, had it not been for the help of her daughter, would be at risk of losing her rights through not being able to apply for settled status. No doubt there are others like her.
As the Minister stated, we want to avoid another Windrush situation. The IMA is no substitute for a safety net to protect the rights that people are at risk of losing. It has been suggested that legal redress can be achieved outside a tribunal system, but what would be the cost? Huge fees are incurred by people trying to get redress for their legal rights; such fees can be astronomical. One of my constituents, Martin Janu, has a wife who is Spanish. She is fearful of the potential erosion of her rights under settled status, so she has applied for citizenship, but that is at the cost of £1,400. Having such high fees for applications for citizenship and visitor visas is nothing more than a racket by the Government, who are ripping off applicants.
Yasmin Qureshi (Bolton South East) (Lab)
I thank my hon. Friend for making this case. I had a call three days ago from a constituent who told me that his wife, who he has been married to for well over 40 years, is a French national. She has worked as a teacher in a school here and is now on a pension, but she is worried about what is going to happen to them. I actually went on to the Home Office website and tried to guide them through what they need to do, but they are worried about what is happening to them and about the costs of all these processes. It is very important that we have safeguards in place.
Bambos Charalambous
My hon. Friend makes an excellent point. We need to have safety nets in place, and these new clauses would provide the safety nets needed to ensure that people’s rights are protected, no matter how few people might be affected.
In short, EU citizens who have been here lawfully and qualify for settled status should not have their rights limited by any barriers, such as time limitation or fees. If the Government do not to listen to these warnings, there is a very real risk of another Windrush. The Government will then be found to have been asleep at the wheel, because another scandal is avoidable. This situation is unacceptable, totally avoidable and easily remedied. I therefore invite the Minister to accept new clauses 5, 18 and 34.
Brandon Lewis
I will be brief; I just want to respond to a couple of points that have been raised during the debate. The hon. Member for Sheffield Central (Paul Blomfield) quoted me during an interview some time ago—with a German journalist, if I recall correctly. Sadly, he did not give the whole quote, so colleagues are probably not quite aware of the point I was making, which was that the whole point of the settled status scheme is to ensure that nobody is left behind and all rights are properly protected. That is why not only are we running the scheme until the end of July[Official Report, 13 January 2020, Vol. 669, c. 2MC.] 2021, but we have also said—as I said at the Dispatch Box again today—that we will be looking to grant settled status to anybody who comes forward after that stage who has not acquired settled status because they have not applied for it for a good, reasonable reason. This scheme is based on a very different principle.
Brandon Lewis
No, I will not be giving way at the moment.
The hon. Member for Cardiff South and Penarth (Stephen Doughty) said that the whole process is different from previous systems. We are looking to grant status. I give great credit to the superb team of Home Office civil servants, particularly in Liverpool, who have delivered this scheme—a scheme that, as the hon. Gentleman said, is unprecedented in now having taken more than 2.8 million applications and processed some 2.5 million of them. To be clear with colleagues, of the almost 2.5 million applications that have been processed, I can confirm that only five have been refused—all on grounds of serious criminality. It is right that we do those checks and ensure that there is proper evidence.
Let me go a bit further in response to the comments of the hon. Member for Sheffield Central regarding the difference between pre-settled status and settled status. What he said at the Dispatch Box risks creating a scaremongering regime that has been portrayed in a couple of other speeches this evening. Pre-settled status is a pathway to settled status, ensuring that people who have lived in this country for five years or more have their rights fully secured. There is no cliff edge. When somebody has lived in this country for five years or more, having got pre-settled status, they can move straight to full settled status; their rights will be the same. They will be protected from the moment they have pre-settled status, and the evidence is an important part of that.
The hon. Gentleman asked a very specific question about appeal rights. Yes, appeal rights apply to all cases under the new settlement scheme. That also goes to the point raised by the hon. Member for Edinburgh West (Christine Jardine). My hon. Friend the Member for Fareham (Suella Braverman) is absolutely right: we are determined to make sure that we are delivering on the rights of EU citizens and that we in this country play our part in delivering on the promises we made.
Paul Blomfield
When the Minister says that this will apply to all citizens, does he include those who came under the Zambrano and Surinder Singh routes?
Brandon Lewis
Yes, absolutely.
I say to my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) that we are always reviewing the outreach work. The Home Secretary and I are particularly focused on this work to make sure that it is not just giving good value for money for the taxpayer but is also reaching the hardest-to-reach places and communities in the country. We are working with some 57 voluntary organisations around the country and with commercial and public sector organisations that employ large numbers of EU citizens, and we will be looking to continue that work and drive it further and further.
It is important that we encourage people to apply for this settled status. It is simple, quick and easy; it delivers on people’s rights; and it delivers on our promises. That is why we will not accept any amendments or new clauses this evening.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
Order. I say for the benefit of new Members in particular that although the Minister has responded to the debate, I am now going to call the mover of the lead amendment to conclude and respond to the debate.
Stuart C. McDonald
Thank you, Sir George. I thank all hon. Members for their contributions to this robust and very helpful debate in which I think every single speaker spoke of the contribution that EU nationals make to this country and the importance of protecting their rights.
So far so good, but beyond that, there are fundamental differences about how best we do it. Opposition Members say that we must automatically protect EU nationals’ rights in law, so that nobody will lose their rights overnight, while Government Members say that they must apply to stay. The Government have not challenged at all our assertion that that almost certainly means that tens, probably hundreds, of thousands will potentially lose their rights overnight. The Minister said that there will be a period in which anyone with a good, reasonable reason for missing a deadline will be able to get that all fixed. We are possibly talking about a six-figure number—and what is a good, reasonable reason? I gave two hypothetical examples in my speech, one being a French lady who has been here since 1970, has retired, had permanent residence under the old EU scheme, and does not think she needs to apply. There are lots of folk in that boat. Is that a good, reasonable reason—that she did not think she had to apply? What about the Polish guy that I cited? He was born in the United Kingdom. He therefore thought that he was British because his father was British, but actually, because of his parents’ marital status at the time of his birth, he is not British. He fails to apply. Is that a good, reasonable reason—that he thought he was British but was wrong about nationality law?
There will be tens of thousands of cases just like that, and the Government have done absolutely nothing to reassure us about the cliff edge that awaits us. Amendment 5 would go some way towards solving that by putting in place a declaratory system. The Opposition’s new clause 5 is more comprehensive. I therefore beg to ask leave to withdraw the amendment so that we can support the new clause instead.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Clauses 8 to 14 ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 15 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clauses 16 and 17 ordered to stand part of the Bill.
The First Deputy Chairman
Before I put the Question on the first new clause to be voted on, I should inform Members that the split of letters at the desks in the Division Lobbies has changed slightly—there’s a treat! Members whose surname begins with G will now need to go to the middle desk instead of the left-hand desk. There have been no other changes. The distribution of names is different in the new Parliament and the revised lettering should mean that the queues at the desks are more even.
New Clause 5
Protecting EU Citizens’ Rights
“(1) This section applies to—
(a) European Union citizens having the right to reside permanently in the UK according to Article 15 (“Rights of permanent residence”) of the Withdrawal Agreement;
(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain, or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).
(2) A person to which this section applies has the rights and obligations provided in Article 12 and Title II Part II ‘Citizens’ Rights’ of the Withdrawal Agreement.
(3) The Secretary of State must by regulations make provision—
(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;
(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;
(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence.
(4) No provision of this or any other enactment, or adopted under this or any other enactment, may be used to require European Union nationals and their family members, or nationals of Iceland, Norway, Liechtenstein and Switzerland and their family members, who reside in the United Kingdom immediately prior to the end of the implementation period, to apply for a new residence status under Article 18(1) of the Withdrawal Agreement, or to introduce a deadline for applications under residence scheme immigration rules or relevant entry clearance rules.
(5) Residence scheme immigration rules and relevant entry clearance immigration rules may not be amended to provide that any person who benefited or is eligible to benefit under those rules on the day on which this Act is passed benefits any less than he benefited or was eligible to benefit on the day on which this Act is passed.”—(Paul Blomfield.)
This new clause provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
European Union (Withdrawal Agreement) Bill
Wednesday 8th January 2020
(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 8 January 2020 - (8 Jan 2020)
14:38 - The Committee divided: - Ayes: 262 / Noes: 340 - Question accordingly negatived.
14:56 - The Committee divided: - Ayes: 252 / Noes: 348 - Question accordingly negatived.
15:12 - divided: - Ayes: 251 / Noes: 347 - Question accordingly negatived.
15:27 - divided: - Ayes: 262 / Noes: 337 - Question accordingly negatived.
19:05 - divided: - Ayes: 255 / Noes: 344 - Question accordingly negatived.
19:20 - The Committee divided: - Ayes: 254 / Noes: 344 - Question accordingly negatived.
19:34 - The Committee divided: - Ayes: 250 / Noes: 345 - Question accordingly negatived.
The Chairman of Ways and Means (Sir Roger Gale)
Good afternoon, ladies and gentlemen. We now embark on the second day of scrutiny of the withdrawal agreement Bill by a Committee of the whole House. I again gently remind hon. Members that Mr Speaker has determined that this is not a suitable vehicle for maiden speeches. Any colleagues wishing to make a maiden speech should consult the Table Office, which they will find most helpful.
Clause 18
Main power in connection with other separation issues
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 38, page 20, line 10, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
The Chairman
With this it will be convenient to discuss the following:
Amendment 39, page 20, line 18, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 47, page 20, leave out lines 25 and 26.
Removing this subsection prevents Ministers from using secondary legislation to amend primary legislation in order to implement the withdrawal agreement.
Clause 18 stand part.
Amendment 40, in clause 19, page 21, line 15, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 41, page 21, line 25, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 42, page 21, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 43, page 21, line 44, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Clause 19 stand part.
Amendment 24, in clause 20, page 24, line 2, at end insert—
“(1A) The payment from the Consolidated Fund or the National Loans Fund to the EU or an EU entity of each sum under section (1) which results from the imposition of any penalty shall be subject to approval by resolution of the House of Commons.”
This amendment is intended to require parliamentary approval for the payment of any fines or penalty under the withdrawal agreement.
Clause 20 stand part.
Amendment 44, in clause 21, page 24, line 37, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 1, page 25, leave out lines 1 and 2 and insert—
“(2) A Minister of the Crown must, on or before 30 June 2020, publish a comprehensive economic impact assessment of the effect of the Ireland/Northern Ireland Protocol and regulations made under subsection (1) on—
(a) the UK’s Internal Market and the access of Northern Ireland goods to Great Britain and Great British goods to Northern Ireland;
(b) the Northern Ireland economy, including levels of imports and exports;
(c) fiscal and regulatory compliance of goods travelling from NI to GB and from GB to NI; and
(d) barriers to entry for third-country goods entering NI and GB from Ireland, the rest of the EU and third countries.
(2A) The Secretary of State must make arrangements for—
(a) a copy of each report published under subsection (2) to be laid before each House of Parliament, and conveyed to the Presiding Officer of each devolved legislature, by the end of the day on which it is published;
(b) a motion in neutral terms, to the effect that the House of Commons has considered the report, to be moved in the House of Commons by a Minister of the Crown; and
(c) a motion for the House of Lords to take note of the report to be tabled in the House of Lords and moved by a Minister of the Crown.
(2B) The motions required under subsections (2A)(b) and (c) must be moved in the relevant House by a Minister of the Crown within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament.
(2C) The Secretary of State shall make a further report under subsection (2) on or before 31 October 2020 and at least every 12 months thereafter.”
This amendment would require the Government to deliver full transparency on the implications of the Ireland/Northern Ireland Protocol including barriers to trade between Great Britain and Northern Ireland.
Amendment 48, page 25, line 2, leave out “(including modifying this Act).”
This amendment would prevent Ministers making regulations under this section to modify the European Union (Withdrawal) Act 2018.
Amendment 33, page 25, line 2, at end insert “except repealing section 7A.”
This amendment would remove the uncertainty as to whether Ministers could amend or repeal the proposed new section 7A of the European Union (Withdrawal) Act 2018.
Amendment 50, page 25, line 3, leave out “may” and insert “must”.
In conjunction with Amendment 12, this would require the Government to ensure unfettered access for Northern Ireland goods to the GB market when it makes regulations implementing the Protocol.
Amendment 12, page 25, line 4, after first “the” insert “unfettered”.
This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.
Amendment 13, page 25, line 16, at end insert—
“(6A) Regulations under subsection (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”
This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.
Amendment 14, page 25, line 16, at end insert—
“(6B) Regulations under subsection (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”
This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.
Amendment 15, page 25, line 16, at end insert—
“(6C) Regulations under subsection (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”
This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.
Amendment 10, page 25, line 27, at end insert—
“(8) But regulations under this section may not—
(a) impose or increase taxation or fees,
(b) make retrospective provision,
(c) create a relevant criminal offence,
(d) establish a public authority,
(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or
(f) amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”
This amendment would apply the usual restrictions on Ministers’ delegated power to make regulations under the Government’s proposed new section 8C of the European Union (Withdrawal) Act 2018.
Clause 21 stand part.
Amendment 45, in clause 22, page 25, line 37, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 46, page 26, line 3, leave out “appropriate” and insert “necessary”.
This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.
Amendment 51, page 26, line 13, leave out “may” and insert “must”.
In conjunction with Amendment 16, this would require devolved authorities to ensure unfettered access for Northern Ireland goods to the GB market when making regulations implementing the Protocol.
Amendment 16, page 26, line 14, after first “the” insert “unfettered”.
This amendment would require regulations to facilitate unfettered access of qualifying Northern Ireland goods to the market within Great Britain.
Amendment 17, page 26, line 25, at end insert—
“(6A) Regulations under sub-paragraph (1) must include provision to prevent any direct or indirect commercial discrimination that may arise to the detriment of businesses (including farms) in Northern Ireland as a result of the Ireland/Northern Ireland Protocol.”
This amendment is intended to prevent direct or indirect commercial discrimination against Northern Ireland products.
Amendment 18, page 26, line 25, at end insert—
“(6B) Regulations under sub-paragraph (1) must include provision to prevent non-tariff barriers being imposed in Great Britain to exclude Northern Ireland products except to the extent strictly required by the Ireland/Northern Ireland Protocol as long as it remains in force.”
This amendment is intended to prevent a ‘not available in / do not ship to NI’ approach where no sound competitive reasoning is supplied, in order to protect Northern Ireland consumers and businesses.
Amendment 19, page 26, line 25, at end insert—
“(6C) Regulations under sub-paragraph (1) must include provision to prevent the exclusion of Northern Ireland produce or products from British marketing campaigns or assurance, trade and labelling schemes.”
This amendment is intended to prevent Northern Ireland products being excluded from ‘Red Tractor’ or ‘Buy British’ marketing schemes.
Clause 22 stand part.
Amendment 34, in clause 23, page 28, line 3, at end insert—
“(2) For the avoidance of doubt and without prejudice to the generality of Schedule 3, the reference in Section 7A of the European Union (Withdrawal) Act 2018 (other directly applicable or directly effective aspects of the withdrawal agreement) to rights, powers, liabilities, obligations, restrictions that as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom, includes Article 2(1) of the Protocol on Ireland/Northern Ireland of the withdrawal agreement.”
This amendment would ensure that any person may rely directly on Article 2(1) of the Protocol on Ireland/Northern Ireland before any courts in the United Kingdom against all public bodies, including UK Ministers, and private bodies, such as employers.
Clause 23 stand part.
Amendment 32, in schedule 3, page 61, line 17, at end insert—
“4A After section 69D insert—
‘69E Notice to be given to Commission
(1) A court or tribunal shall order notice of any issue which affects law or practice relating to the protection of human rights in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).
(2) Where notice is given to the Commission under subsection (1), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(3) For the purposes of this section, “decision” shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.’”
This amendment would ensure the Northern Ireland Human Rights Commission is notified of cases relevant to the exercise of its functions under section 69 of the Northern Ireland Act 1998, similar to devolution notices provided to the Attorney General; and to ensure coherence with exercise of functions under the new dedicated mechanism provisions.
Amendment 30, page 63, line 39, at end insert—
“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Northern Ireland Human Rights Commission (unless the Commission is a party to the proceedings).
(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”
This amendment would create a requirement for a court or tribunal to notify the Northern Ireland Human Rights Commission of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Norther Ireland Act 1998.
Amendment 31, page 63, line 39, at end insert—
“(3) A court or tribunal shall order notice of any issue which arises under Article 2(1) of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement in any proceedings before it to be given to the Equality Commission of Northern Ireland (unless the Commission is a party to the proceedings).
(4) Where notice is given to the Commission under subsection (3), the court or tribunal shall—
(a) annex a copy of the writ, originating summons or other process by which the proceedings were begun; and
(b) on request from the Commission, provide it with a copy of the pleadings and any decision of the court.
(5) For the purposes of this section, ‘decision’ shall include reasons for a decision; an award of compensation or a determination that one party is required to pay a sum to another; the amount of any relevant compensation or payment; or any order for costs, allowances, preparation time or wasted costs.”
This amendment would create a requirement for a court or tribunal to notify the Equality Commission of Northern Ireland of cases relevant to the dedicated mechanism, similar to devolution issue notification already provided to the Attorney General. The proposal would result in an amendment to new section 78C of the Northern Ireland Act 1998.
That schedule 3 be the Third schedule to the Bill.
Amendment 36, in clause 24, page 28, leave out line 15.
This amendment removes the bar on the Joint Committee recommending an alteration in the functions of an existing implementation body under the Belfast (Good Friday) Agreement.
Clauses 24 and 25 stand part.
Amendment 49, in clause 26, page 30, leave out lines 9 to 49 on page 30 and lines 1 to 15 on page 31.
This amendment would remove the power of Ministers to specify the circumstances in which lower courts within the domestic legal systems of the UK could depart from the rulings of the Court of Justice of the European Union after the transition or implementation period.
Clauses 26 to 36 stand part.
Amendment 29, in clause 37, page 37, line 2, leave out from “Europe),” to the end of line 19 and insert
“after subsection (1) insert—
‘(1A) In seeking to negotiate an agreement under subsection (1), it shall be an over-riding objective of the Minister of the Crown to secure outcomes which match as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) in so far as they relate to an application for the UK to take charge of or take back an applicant who is an unaccompanied.’”
This amendment seeks to maintain the status quo for applications for international protection lodged by unaccompanied children who are third-country nationals or stateless persons.
Amendment 26, page 37, line 3, leave out from “Europe)” to the end of line 19 and insert
“the following amendments are made—
‘(a) After subsection (1) insert—
(1A) The Secretary of State must, before IP completion day, make provision to ensure that, after the United Kingdom’s withdrawal from the EU, an unaccompanied child who has made an application for international protection to a member State may, if it is in the child’s best interests, come to the United Kingdom to join a relative who—
(a) is a lawful resident of the United Kingdom, or
(b) has made a protection claim which has not been decided.”
(b) In subsection (2) after “(1)(a)(i)” insert “and (1A)(a)”.
(c) In subsection (3) after “(1)(a)(ii)” insert “and (1A)(b)”.’”
This amendment would require the UK Government to guarantee continued family reunion rights for unaccompanied child refugees, while retaining the requirement on the Government to negotiate an agreement with the EU that protects those rights.
Amendment 4, page 37, line 3, leave out from “Europe)” to the end of the Clause and insert
“after subsection (3) insert—
‘(3A) If, three months after this Act comes into force, no agreement achieving the objective contained in subsection (1) has been concluded with the European Union, a Minister of the Crown must make a statement to the House of Commons setting out—
(a) the steps taken by Her Majesty’s government, and the progress made in negotiations with the European Union, for the purpose of achieving the objective in subsection (1); and
(b) whether in the Minister’s opinion an agreement with the European Union achieving the objective of subsection (1) is likely to be achieved by IP completion day and, if not, setting out the reasons for this.
(3B) Following the making of the first Statement referred to in subsection (2), and until such time as an agreement satisfying the objective contained in subsection (1) is reached with the European Union, the Minister shall, at least as frequently as every 28 days thereafter, make further statements in accordance with sections (3A)(a) and (b).’”
This amendment would protect the right for unaccompanied child refugees to be reunited with their family after Brexit.
Amendment 28, page 37, leave out lines 5 to 19 and insert—
“(1) A Minister of the Crown must, within 3 months of this Act coming into force, make provision for take charge requests from unaccompanied minors.
(1A) Regulations made under subsection (1) must operate in such a way that the provisions of Regulation (EU) No 604/2013 as they relate to unaccompanied minors are effective in UK domestic law.
(1B) The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 are amended by omitting subparagraph 3(h) in Part 2 of Schedule 1 to those Regulations.
(1C) In this section, “take charge requests” and “unaccompanied minor” have the same meaning as under Regulation (EU) No 604/2013.”
This amendment will ensure that the UK continues to accept take charge requests from unaccompanied minors.
Clause 37 stand part.
New clause 1—Parliamentary sovereignty over negotiations for the future relationship—
‘After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—
“13C Negotiations for future relationship
(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.
(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.
(3) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—
(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown that can be amended by the House of Commons so as to change the objectives for the future relationship, and
(b) a motion for the House of Lords to take note of that statement has been moved in that House.
(4) Prior to the House of Commons’s consideration of a motion under subsection (3)(a), a Minister of the Crown must have consulted with each devolved administration on the negotiating mandate.
(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—
(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) the subject of a motion of the kind mentioned in subsection (3)(b).
(6) The Secretary of State must publish the negotiating text of a proposed future relationship agreement on the same day that they are shared with EU negotiators.
(7) After the end of each reporting period, a Minister of the Crown must—
(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—
(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (3), and
(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and
(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—
(i) the Scottish Ministers,
(ii) the Welsh Ministers, and
(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.
(8) Subsections (9) and (10) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.
(9) A Minister of the Crown must, within one week of an agreement outlined in subsection (8), lay before each House of Parliament—
(a) a statement that political agreement has been reached, and
(b) a copy of the negotiated future relationship treaty.
(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.
(11) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—
(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or
(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.
(12) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.
(13) In this section—
“devolved legislature” means—
(a) the Scottish Parliament,
(b) the National Assembly for Wales, or
(c) the Northern Ireland Assembly;
“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;
“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;
“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;
“reporting period” means—
(a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and
(b) each subsequent period of one month;
“statement on objectives for the future relationship with the EU” means a statement—
(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and
(b) published in such manner as the Minister making it considers appropriate;
“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—
(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and
(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;
“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).”’
This new clause restores the role for Parliament in providing scrutiny and oversight in the negotiations over the UK’s future relationship with the EU.
New clause 6—Parliamentary approval of the future relationship—
“(1) The Secretary of State may not engage in negotiations on the future relationship between the UK and the EU until a Minister of the Crown has laid a draft negotiating mandate before each House of Parliament and—
(a) moved an amendable motion in the House of Commons containing the text of the draft negotiating mandate;
(b) the draft negotiating mandate (as amended) has been approved by a resolution of the House of Commons, and
(c) a motion for the House of Lords to take note of the draft negotiating mandate has been moved in that House by a Minister of the Crown.
(2) The draft negotiating mandate must set out in detail—
(a) the UK’s negotiation objectives,
(b) all fields and sectors to be included in the proposed negotiations,
(c) the principles to underpin the proposed negotiation,
(d) any limits on the proposed negotiations, and
(e) the desired outcomes from the proposed negotiations.
(3) Prior to laying the draft negotiating mandate, a Minister of the Crown must have consulted each devolved administration on the negotiating mandate.
(4) Prior to the House’s consideration of a motion under subsection (1)(b), a Minister of the Crown must lay before both Houses of Parliament a sustainability impact assessment conducted by a credible body independent of government following consultation with—
(a) each devolved administration,
(b) public bodies, businesses, trade unions and non-governmental organisations which, in the opinion of the independent body, have a relevant interest, and
(c) the public.
(5) The assessment shall include both qualitative and quantitative assessments of the potential impacts of the proposed trade agreement, including—
(a) social,
(b) economic,
(c) environmental,
(d) gender,
(e) equalities,
(f) climate change,
(g) human rights,
(h) labour,
(i) development, and
(j) regional
impacts.
(6) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the negotiating mandate approved under subsection (1)(b).
(7) After the end of each reporting period, a Minister of the Crown must—
(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—
(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the negotiating mandate approved under subsection (1)(b), and
(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that mandate, an explanation of why that is so, and
(b) lay before each House of Parliament the latest rounds of negotiating texts, by the end of each reporting period, and
(c) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—
(i) the Scottish Ministers,
(ii) the Welsh Ministers, and
(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.
(8) Subsections (9) to (13) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.
(9) A Minister of the Crown must lay before each House of Parliament—
(a) a statement that political agreement has been reached, and
(b) a copy of the negotiated future relationship treaty.
(10) Prior to the laying of the text of the proposed treaty, the Secretary of State must have consulted with each devolved administration on the text of the proposed agreement and taken their views into account, with special consideration given to matters relating to devolved competences.
(11) Prior to considering a motion approving the text of the negotiated future relationship treaty, the Government must lay before each House of Parliament a response to any report by a relevant Parliamentary committee (such as the Exiting the EU select committee) containing a recommendation in relation to the ratification of the agreement.
(12) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on an amendable motion moved by a Minister of the Crown and—
(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or
(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.
(13) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (11) applies in relation to the ratification of that treaty.”
This new clause ensures that MPs get a guaranteed vote with an amendable motion on the EU-UK Future Relationship and negotiating objectives, and sets out scrutiny of the negotiating mandate. It requires a sustainability impact assessment of the future relationship; the regular release of negotiation texts; and engagement with devolved administrations.
Amendment (a) to new clause 6, in line 39, after “(j) regional” insert “(k) health”
New clause 11—Consent and the Ireland/Northern Ireland Protocol—
“(1) Nothing in this Act affects section 4(5) and 42 of the Northern Ireland Act 1998.
(2) Accordingly, if 30 of its members petition the Northern Ireland Assembly expressing their concern about a matter which is to be voted on by the Assembly, the vote on that matter shall require cross-community support.
(3) ‘Cross-community support’ in relation to a vote in the Northern Ireland Assembly on any matter, means—
(a) the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or
(b) the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting.
(4) “Designated Nationalist” means a member designated as a Nationalist in accordance with standing orders of the Northern Ireland Assembly and ‘designated Unionist’ is construed accordingly.”
This new Clause re-states the existing law on the operation of cross-community support in votes of the Northern Ireland Assembly.
New clause 12—Consent and the Ireland/Northern Ireland Protocol (No. 2)—
“(1) Notifying the European Union of the outcome of the democratic consent processes under Article 18 of the Ireland/Northern Ireland Protocol is a matter for the Government of the United Kingdom under paragraph 3 of Schedule 2 to the Northern Ireland Act 1998.
(2) The Government of the United Kingdom must seek to apply any democratic consent process under or in connection with the Withdrawal Agreement in conformity with existing practice on votes requiring cross-community support in the Northern Ireland Assembly.
(3) The Government of the United Kingdom must accordingly seek to withdraw and replace any parts of the Declaration of 17 October 2019 by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the Democratic consent in Northern Ireland provision of the Protocol on Ireland/Northern Ireland which conflict with the existing practice on votes of the Northern Ireland Assembly requiring cross-community support.”
Paragraph 3(a) of the Declaration of 17 October 2019 by Her Majesty’s Government concerning the operation of the Democratic consent in Northern Ireland provision of the Ireland/Northern Ireland Protocol requires a threshold of a majority of members of the Northern Ireland Assembly present and voting. This new Clause seeks to replace that threshold with the normal cross-community support process.
New clause 13—UK internal market—
“(1) The Government of the United Kingdom must maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.
(2) Accordingly it is a priority for the Government of the United Kingdom in negotiations on the future relationship with the EU to reach agreement to supersede any provisions of the Ireland/Northern Ireland Protocol which impede or conflict with the duty in subsection (1).”
This new Clause seeks to replace any provisions of the Ireland/Northern Ireland Protocol which fail to maintain and strengthen the integrity and smooth operation of the internal market of the United Kingdom of Great Britain and Northern Ireland.
New clause 14—Sovereignty and Northern Ireland—
“(1) Nothing in this Act contradicts Article 6 of the Union with Ireland Act 1800.
(2) Accordingly, Her Majesty’s subjects of Great Britain and Northern Ireland are entitled to the same privileges, and to be on the same footing as to encouragements and bounties on the like articles, being the growth, produce, or manufacture of either country respectively, and generally in respect of trade and navigation in all ports and places in the United Kingdom and its dependencies; and that in all treaties made by Her Majesty, her heirs, and successors, with any foreign power, Her Majesty’s subjects of Northern Ireland shall have same the privileges, and be on the same footing as Her Majesty’s subjects of Great Britain.”
This new Clause re-states the fundamental constitutional principle of unfettered trade between Northern Ireland and Great Britain.
New clause 15—Sovereignty and Northern Ireland (No.2)—
“(1) Nothing in this Act affects the status of Northern Ireland set out in section 1 of the Northern Ireland Act 1998.
(2) Accordingly, Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to the Northern Ireland Act 1998.”
This new Clause re-states the fundamental constitutional principle of Northern Ireland remaining part of the United Kingdom, unless a majority of the people of Northern Ireland vote to decide otherwise.
New clause 17—Objectives during negotiations—
“(1) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—
(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown,
(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown,
(c) a motion relating to that statement has been approved by a resolution of the National Assembly for Wales,
(d) a motion relating to that statement has been approved by a resolution of the Scottish Parliament,
(e) a motion relating to that statement has been approved by a resolution of the Northern Ireland Assembly.
(2) Notwithstanding subsection 1(e), a Minister of the Crown may engage in negotiations on the future relationship with the EU if the Northern Ireland Assembly has not approved the appointment of a First Minister and deputy First Minister within six weeks of the day on which this Act is passed.”
This new clause would require the Government to seek the consent of all the parliaments of the UK for its objectives during negotiations on the future relationship with the EU.
New clause 21—International trade—
“(1) The Government shall, during the implementation period, use its flexibilities under Article 129(4) of the Withdrawal Agreement to negotiate trade agreements with other parties.
(2) The Government shall, from 1 February 2020, and subject to the procedures for participation in the World Trade Organisation (WTO), exercise full rights as an individual member of the WTO and shall seek to—
(a) join any relevant committees and sub-committees that serve the UK‘s national interest, and
(b) speak in the WTO on all matters that serve the UK‘s national interest, notwithstanding the Duty of Sincere Co-operation under Article 4(3) of the Treaty on European Union and the Common Commercial Policy which are applicable during the implementation period.”
This new clause would mandate the Government to participate actively in the World Trade Organisation to serve the UK’s national interest.
New clause 22—Joint Committee representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BA Joint Committee representation from Northern Ireland
The United Kingdom delegation to the Joint Committee must always include representation from Northern Ireland, namely either—
(a) a representative agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Ireland Executive, a representative nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Joint Committee.
New clause 23—Joint Committee and the Belfast Agreement—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BB Joint Committee and the Belfast Agreement
The United Kingdom representatives on the Joint Committee must have due regard for all aspects of the Belfast Agreement within their work.’”
This new clause would require UK representatives on the Joint Committee to have due regard for all aspects of the 1998 Belfast (Good Friday) Agreement within their work.
New clause 24—Joint Committee and Article 50 phase 1 report—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BC Joint Committee and Article 50 phase 1 report
The United Kingdom representatives on the Joint Committee must have due regard within their work to the UK government commitments in the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.’”
This new clause would require UK representatives on the Joint Committee to have due regard within their work to the UK government commitments in the joint report of 8 December 2017 from the negotiators of the EU and the UK on phase 1 of the Article 50 negotiations, including its references to unfettered access for Northern Ireland businesses to the whole of the United Kingdom internal market.
New clause 25—Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BD Specialised Committee on the Ireland/Northern Ireland Protocol Group representation from Northern Ireland
The United Kingdom delegation on the Specialised Committee on the Ireland/Northern Ireland Protocol Group must always include representation from Northern Ireland, either—
(a) agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Specialised Committee on the Ireland/Northern Ireland Protocol Group established under Article 14 of the Ireland/Northern Ireland Protocol.
New clause 26—Joint Consultative Working Group representation from Northern Ireland—
“After section 15B of the European Union (Withdrawal) Act 2018 (Ministerial co-chairs of the Joint Committee) (for which see section 34 above) insert—
‘15BE Joint Consultative Working Group representation from Northern Ireland
The United Kingdom representatives on the Joint Consultative Working Group must always include representation from Northern Ireland, either—
(a) agreed jointly by the First Minister and deputy First Minister, or
(b) in period when there is no Northern Executive, nominated by the Head of the Northern Ireland Civil Service.’”
This new clause would require Northern Ireland to be represented on the Joint Consultative Working Group established under Article 15 of the Ireland/Northern Ireland Protocol.
New clause 39—Fisheries—
“(1) Ministers of the Crown have as an objective in negotiations with the EU on the future relationship preserving, protecting and promoting the future of the fisheries industry based in Northern Ireland.
(2) In order to promote unfettered access of Northern Ireland fishermen to the UK internal market, Ministers must seek an agreement with the EU that fish caught in compliance with UK fisheries policy by trawlers based in Northern Ireland and landed in UK harbours for the UK internal market will not require after the end of the implementation period any more documentation than was required before exit day.”
This new clause aims to address a specific example of unfettered access in order to avoid an increase in paperwork being required for the Northern Ireland fishing industry after the UK leaves the EU.
New clause 40—State aid—
“(1) The UK Government must exercise its responsibilities for implementing and applying the provisions of Union law under Article 12 of the Protocol on Ireland/Northern Ireland in accordance with this section.
(2) The UK Government must, when exercising its responsibilities with respect to Article 10 of the Protocol (State aid) in relation to a Northern Ireland product, take no account of whether any products originating from Great Britain that are contained in that Northern Ireland product may have received state aid.”
This new clause would provide that any state aid provided to GB products that are included in Northern Ireland products cannot be taken into account when the UK Government assesses the state aid status of those NI products.
New clause 41—Regulatory divergence—
“(1) The Competition and Markets Authority must at intervals of not more than 12 months publish an assessment as to whether the effect of any regulatory divergence between the UK and the EU has been to place Northern Ireland businesses at a competitive disadvantage within the UK internal market that would constitute grounds for the UK to take safeguard measures under paragraph 1 of Article 16 of the Protocol on Ireland/Northern Ireland.
(2) The first assessment under subsection (1) shall be published no later than 12 months after the last day of the implementation period.
(3) If the Competition and Markets Authority makes an assessment under subsection (1) that the effect of any regulatory divergence is that there are grounds for the UK to take safeguard measures, the UK Government must within three months of receiving that assessment take safeguard measures under Article 16 of the Protocol that are in its opinion sufficient to remedy the competitive disadvantage.
(4) The Competition and Markets Authority shall report its opinion as to the adequacy and effectiveness of any safeguard measures under subsection (3) when making its next assessment under subsection (1).”
This new clause would require regular assessments by the CMA as to whether regulatory divergence between the UK and the EH has put Northern Ireland businesses at a serious competitive disadvantage, and in the event of such a finding would require the Government to remedy that disadvantage.
New clause 42—Specialised Committees—
“(1) Representatives of the United Kingdom attending specialised committees convened under Article 165 of the Withdrawal Agreement have a duty to represent the interests of Northern Ireland as an integral part of the United Kingdom.
(2) The United Kingdom Government must make arrangements for the Northern Ireland Executive to nominate at least one representative to the specialised committee on issues related to the implementation of the Ireland/Northern Ireland Protocol (see Article 165 (v) of the withdrawal agreement and Article 14 of the Protocol) and to each of the other specialised committees.
(3) In the absence of a Northern Executive, the Secretary of State must nominate representatives under subsection (2) after consulting the political parties comprising Members elected to the Northern Ireland Assembly.”
This new clause would ensure Northern Ireland representation on the specialised committees established under the Withdrawal Agreement.
New clause 43—Asylum claims after exit day—
“A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU which, after the United Kingdom‘s withdrawal from the EU, secures outcomes matching as closely as possible those which applied before exit day under Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third- country national or a stateless person (recast).”
This new clause seeks to maintain the status quo for applications for international protection lodged by a third-country national or a stateless person under the Dublin III process.
New clause 44—Preventing discrimination—
“(1) A power of a Minister of the Crown under the law of England and Wales or of Scotland to make, confirm or approve subordinate legislation may not be exercised, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB good, unless the difference in treatment is justified as mentioned in subsection (2).
(2) A difference in treatment is justified only if it is shown to be necessary and can deliver material benefits for the purposes of—
(a) protecting health of life of humans, animals or plants, or the environment,
(b) protecting national security, or
(c) ensuring that those involved in the production, supply or use of qualifying NI goods are put in a position that is no less favourable overall than those involved in the production, supply or use of GB goods.
(3) Subsection (1) applies to a power whether conferred before, on or after IP completion date.
(4) A Minister of the Crown must by regulations define ‘GB goods’ for the purposes of this section.”
This new clause would prevent a Minister of the Crown under the law of England and Wales or of Scotland using the power to make, confirm or approve subordinate legislation, on or after IP completion day, in a way that would result in law that treats qualifying NI goods differently from GB goods, unless the difference in treatment is justified as mentioned in subsection (2).
New clause 47—Accountability of the Joint Committee—
“After section 18 of the European Union (Withdrawal) Act 2018 insert—
‘18A Accountability of the Joint Committee
(1) A motion appointing the United Kingdom’s co-chair of the Joint Committee shall be laid before and approved by both Houses of Parliament.
(2) The United Kingdom’s co-chair of the Joint Committee shall always request that, unless for reasons of national security, all meetings of the Joint Committee are conducted in public.
(3) As far as is permitted by Rule 10 of Annex VIII to the withdrawal agreement, a Minister of the Crown must publish all decisions and recommendations adopted by the Joint Committee.
(4) Before attending each session of the Joint Committee a Minister of the Crown shall make an oral statement to the House of Commons setting out—
(a) the purpose and agenda of that Joint Committee meeting;
(b) the intended policy to be pursued by the Minister attending that Joint Committee meeting; and
(c) as far as possible the economic, social and environmental impact of any proposition to be determined at the Joint Committee.’”
This new clause requires the UK’s co-chair of the Joint Committee to be approved by Parliament, to ask the EU for Joint Committee meetings to be held in public where possible, for decisions of the Joint Committee to be published, and for a Minister to make a statement to the House of Commons ahead of each Joint Committee meeting.
New clause 52—Meaning of ‘unfettered access’—
“(1) In sections 21 and 22, ‘unfettered access’ for qualifying Northern Ireland goods means that businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market.
(2) Northern Ireland businesses shall enjoy the rights under subsection (1) regardless of whether they trade directly with Great Britain or trade via Dublin port.”
This new clause defines what ‘unfettered access’ means for the purposes of Amendments 12 and 16.
New clause 53—Duty of consultation when making regulations in connection with the Ireland/Northern Ireland Protocol—
“Before making regulations under sections 21 and 22, the Government and the devolved authorities must consult, and take account of the views of, the Northern Ireland Executive.”
This new clause would require the UK Government and the devolved authorities to consult and take account of the views of the Northern Ireland Executive before making regulations which could affect Northern Ireland’s place within the UK internal market.
New clause 54—Consent for any new trade frictions—
“(1) Regulations that would introduce new requirements on goods traded from Northern Ireland to Great Britain (including, but not restricted to, import customs declarations or origin checks) may not come into force without the consent of the Northern Ireland Assembly.
(2) No additional official or administrative costs consequent on any such regulations may be recouped from the private sector.”
This new clause would require the consent of the Northern Ireland Assembly before further trade frictions are imposed from Northern Ireland to Great Britain and would protect Northern Ireland businesses from paying for the administrative costs.
New clause 55—Northern Ireland’s place in the UK internal market—
“(1) As part of its obligation under Article 6.2 of the Protocol on Ireland/Northern Ireland to use its best endeavours to facilitate trade between Northern Ireland and other parts of the UK, the UK Government must—
(a) publish an assessment at least every 12 months of any negative impacts on businesses and consumers arising from the Protocol on trade between Great Britain and Northern Ireland and vice versa; and
(b) develop mitigations to safeguard the place of Northern Ireland businesses and consumers in the UK internal market.
(2) The assessment published under paragraph (1)(a) must include assessment of the impact of any actual or proposed regulatory or trade policy divergence on Northern Ireland’s place in the UK Internal Market.
(3) Any official or administrative costs arising from the duties under subsections (1) and (2) may not be recouped from the private sector.”
New clause 57—Consultation with the British Irish Council—
“The British Irish Council must be consulted prior to any proposed changes in standards relating to food, the environment or employment in the process of negotiations for new trading relations between the United Kingdom and the European Union.”
New clause 58—Consultation with the British Irish Council (No. 2)—
“The British Irish Council must be consulted prior to any proposed changes in the United Kingdom’s devolution settlement as a direct result of the United Kingdom leaving the European Union, or any changes to the devolution settlement resulting from future trade agreements.”
New clause 60—Establishment of a mitigation package—
“(1) The United Kingdom Government must guarantee and fund the establishment of a mitigation package for businesses and communities in Northern Ireland.
(2) The impact and success of this fund shall be reviewed by an independent economic body every six months.
(3) The fund must be established in consultation with the devolved administration in Northern Ireland.”
New clause 61—Provision for EU Referendum in Northern Ireland—
“(1) Provision must be made to allow for Northern Ireland with the consent of a majority of people in Northern Ireland voting in a poll held for the purpose, to remain or (as the case may be) to join the European Union.
(2) If the expressed wish by a majority in such a poll is for Northern Ireland to remain or join the European Union, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as are agreed between Her Majesty‘s Government in the United Kingdom and the Government of Ireland.
(3) This section comes into effect only after a Legislative Consent Motion has been approved by the Northern Ireland Assembly.”
New clause 63—Border Impact Assessment—
“(1) The United Kingdom Government must work jointly with and commission, alongside the Government of Ireland and the Northern Ireland administration, an economic impact assessment on the border regions between the Republic of Ireland and Northern Ireland.
(2) This impact assessment must include recommendations on economic support and investment required to aid these regions after the United Kingdom leaves the European Union.”
New clause 64—Role of Devolved Administrations in trade negotiations—
“The Northern Ireland administration, alongside other devolved governments and administrations, must have a formal role in all new trade negotiations conducted by the United Kingdom Government.”
New clause 65—Trade Agreement—
“The Northern Ireland Assembly must give legislative consent for any new trade agreement reached by the United Kingdom Government before new trading rules and standards are enacted.”
New clause 66—Maintaining EU Alignment—
“The United Kingdom Government must provide an annual analysis to the devolved administrations and governments as to what measures they can enact to ensure maximum regulatory alignment with the European Union standards as the EU’s laws are updated and enhanced.”
Joanna Cherry
It is a pleasure to serve under your chairmanship, Sir Roger.
I rise to speak to amendments 38 to 49, which stand in my name and those of some of my colleagues; to amendment 10, which stands in the name of my hon. Friend the Member for Central Ayrshire (Dr Whitford) and some of my other colleagues; and to amendments 28 and 29 and new clause 43, which stand in the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald).
We heard a lot yesterday from those on the Government Benches about the desire of the British people to get on with Brexit, so I would like to begin today by reminding them that the UK at present consists of four constituent parts, and that two out of four of them—Scotland and Northern Ireland—have voted to remain in the EU on every occasion they have been given, including the EU referendum in 2016 and thereafter.
I acknowledge and respect the fact that the Prime Minister and his party won a majority of the seats in England, but I ask those on the Government Benches to pause and consider that the Prime Minister did not win a majority of the seats in Wales, did not win any seats in Northern Ireland—indeed, remain parties won the majority of seats there—and that in Scotland, standing on a manifesto commitment to deliver Brexit and prevent a second independence referendum, the Conservative and Unionist party was reduced to a rump of six MPs, with the Scottish National party winning the election emphatically.
I ask then that this afternoon not be another session of “Scotland get back in your box” but that there is some respectful recognition of the democratic desire of my constituents and the majority of constituents in Scotland to remain in the EU. Rather than lectures about delivering the will of the British people, let us seriously consider that it is the role of the Opposition to scrutinise Bills. I realise that, inevitably, Brexit will now happen—I hope and believe that Scotland will find a way around that for Scotland—but that does not mean there are not legitimate concerns about the way in which the Government are seeking to deliver Brexit.
Geraint Davies (Swansea West) (Lab/Co-op)
Does the hon. and learned Lady further accept that 16.5 million people voted for parties either supporting remain or a public vote on the deal versus 14.5 million who voted for the oven-ready Brexit? There is still a democratic mandate, therefore, for putting the deal to the people?
Joanna Cherry
I have to say that I think the ship has sailed on that, because of the outcome of the election in England, but the ship has not sailed on Scotland’s constitutional future, because, like it or not, the Conservative party was reduced to a rump of representation in Scotland at the general election and my party won 47 of the 59 seats. It is surely a matter of concern in a democracy that is not a unitary state but consists of several nations that no matter how many amendments I and my colleagues table to the Bill, and probably every other Bill in this Session, we are unlikely to achieve a single amendment.
Rather than the braying and jeering that occurred when the leader of my group, my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), got up to ask his questions this afternoon, I suggest to those on the Government Benches that if they really believe in preserving the Union of the United Kingdom they might want to show a little more respect, not necessarily to me or my right hon. Friend, but to those who sent us here to advocate what the majority of people in Scotland want—and, whether those on the Government Benches like it or not, the majority of people in Scotland do not want to leave the European Union but want a second opportunity to look at Scotland’s constitutional future in the light of England’s decision to leave the European Union. I defy any democrat to say that that is not a reasonable position. I gently suggest to those on the Government Benches that jeering at the representatives of voters in Scotland, shouting us down and rubbishing our legitimate concerns is not a sustainable position for the next five years.
Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)
I am a Unionist, but I share the hon. and learned Lady’s view that the voices from the various and diverse parts of the United Kingdom need to be heard. She is right to say that the Government are unlikely to accept any of the amendments that represent legitimate concerns, not least among those of us who represent Northern Ireland. Indeed, all the main parties have come together in an unprecedented way to back many of these amendments. I hope that, post the withdrawal agreement, there will be more consultation and discussion that will include the representatives of the various parts of the United Kingdom.
Joanna Cherry
There is not much on which the right hon. Gentleman and I will agree, but we can agree on this point. There needs to be a recognition, along with the triumphalism of members of the Conservative and Unionist party about their win in England—which I understand, because we feel pretty triumphal about our win in Scotland—that, if theirs really is a Unionist party, they must engage properly with the representatives of the other parts of the United Kingdom.
Before I deal with the amendments in this group, let me raise again with Ministers the points that I made yesterday about the sweeping powers that the Government are taking to themselves in clauses 3, 12, 13, 14, 18, 21 and 27 to table delegated legislation making provision for areas of devolved policy. The Secretary of State tried to rubbish my interventions yesterday, but if he had time to read the independent report of the Scottish Parliament Information Centre overnight he will know that this is not some SNP party political diatribe, and that careful analysis of the Bill makes clear that it is a matter of fact that the Government are taking to themselves the right of British Ministers, acting alone, to produce delegated legislation in relation to devolved areas. That shows that the paragraph about which the SNP has complained on a number of occasions will actually be included.
The Secretary of State tried to deflect me yesterday, first by saying that the power related to reserved matters. That was simply not correct, as it clearly relates to devolved matters. He then suggested that the power that the Government were taking was merely technical. He will, of course, know that the Sewel convention does not apply to delegated legislation, although it probably would not matter if it did, because the Government are now prepared to drive a coach and horses through it. Interestingly, the Government’s delegated powers memorandum to the Bill states that UK Ministers “will not normally” make regulations in relation to devolved areas
“without the agreement of the relevant devolved administration.”
That is what the Sewel convention says, but we know that it has lately been more honoured in the breach than the observance.
Let me ask the Secretary of State again to revisit the remarks that he made yesterday. Will he acknowledge, for the record—and these are matters on which there may be litigation in the future, so the record might be quite important—that the clauses to which I have referred give UK Ministers the power to make delegated legislation in relation to devolved matters? Will he acknowledge, for the record, that that constitutes an incursion into devolved policy that rightly causes concern not just to the Scottish National party but to all who believe in the devolved settlement?
I know that it is history, but 22 years ago 75% of the people of Scotland voted for that devolved settlement. It is worth remembering that the background against which they did so was years and years of Scotland voting Labour but getting a Conservative Government. Now they are seeing years and years of Scotland voting SNP but getting a Conservative Government. I think it reasonable to draw a lesson from that history: there probably will be another constitutional referendum in Scotland soon, because the tension that now exists is similar to the tension that existed in the 1990s. I look forward to hearing from the Secretary of State later today an acknowledgement of the power that is being taken by the British Government.
Overall, I would say that this Bill is about the Executive taking as much power to themselves as possible, not just from the Scottish Parliament and the Welsh Assembly but from this Parliament, with their swingeing use of delegated legislation and, in relation to clause 26, which I will come to in a moment, from the judiciary.
The Conservative and Unionist party’s manifesto revealed that the Government’s aim was to change the balance between Government, Parliament and the courts and, as my hon. Friend the Member for Central Ayrshire (Dr Whitford) said yesterday, we see in this Bill the beginning of the changing of that balance. We also see a continued attack on rights, not just the undermining of EU citizens’ rights, as we heard yesterday, and not just the undermining of workers’ rights, which we will come to later today, but the rights of child refugees.
It is fair to say that it is the proposal in the part of the Bill that we are discussing that has excited the most public comment. I have certainly received many communications from constituents who are worried about this, and in that connection I wish to speak to the amendments tabled in the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East—new clause 43, amendment 28 and amendment 29—and at least to address them at this stage, whether or not they are made, which is perhaps a matter for later.
Across Europe, thousands of unaccompanied children are living in the most desperate circumstances, many of whom are separated from their families. Legal family reunion is a lifeline to those children, who would otherwise risk their lives in dinghies or in the back of lorries to reach a place of safety with their families. We have seen some pretty awful evidence recently of what can happen when refugees resort to dinghies or the backs of lorries.
In 2018, in recognition of that fact, a cross-party coalition in this House, including prominent Members of all parties, including the Conservative and Unionist party, recognised the humanitarian need for family reunion to continue and secured a legal commitment from the then Government to negotiate a replacement for the current rules when we leave the European Union. For the Government now to seek to remove those protections risks causing panic among refugee families currently separated in Europe, with potentially tragic consequences. It is also deeply unacceptable to the constituents of many MPs in this House.
The Government say that they are going to continue with refugee family reunion, so it is not clear to me why they are going to the trouble of taking that commitment out of this Bill, unless they want to hedge their bets a bit. Based on experience, that is what I suspect they are up to. Without this obligation in the Bill, there will be no obligation on the Government to ensure that family reunion continues beyond the very restrictive rules in United Kingdom law.
Tim Loughton (East Worthing and Shoreham) (Con)
I was one of the supporters of the original family reunification amendments. I trust the Government and that this commitment will be stuck to in the appropriate place—an immigration Bill. Does the hon. and learned Lady acknowledge, however, that post-Dublin III there is a potential problem with the full extent of those family members who qualify for family reunification, and that that needs to be sorted out? There is also a problem with the rate at which potential applicants are processed in places such as Greece and Italy, which is not working well, and with the cost of applications. The whole scheme needs to be properly overhauled, and just bunging it into this Bill is not necessarily the best way of getting the best result that we all want.
Joanna Cherry
The answer to that is that the whole scheme is not being bunged into this Bill. The obligation to maintain certain minimum-level requirements is being taken out by the Bill, although it was agreed by cross-party Members, including the hon. Member for East Worthing and Shoreham (Tim Loughton), in the last Parliament.
The UK’s immigration rules as they stand—apart from some very limited circumstances—allow children to reunite only with parents, not with other relatives, in the UK. Under the EU Dublin III regulation, children have a legal route to reunite with other family members such as siblings, grandparents, aunts and uncles, and 95% of children that the charity Safe Passage supports to reunite with family safely and legally would be ineligible under the current UK rules. The consequence of this is that they would be forced to remain alone, separated from their families. There is a legitimate concern that taking out this previous commitment, through the Bill, is the beginning of a move towards an absolutely minimalist approach by the Government to their rights and duties.
Jim Shannon (Strangford) (DUP)
I want to put on record in Hansard that lots of people have contacted me by email about the issue that the hon. and learned Lady is referring to. There are many churches and many individuals in my constituency that want to see what she has asked for enshrined in legislation. I had thought that the Government were committed to doing that, and it is disappointing if they are not. If the Government want to reflect public opinion out in the street and mostly reflect public opinion in the constituency of Strangford and elsewhere, they should listen to the voices of the churches, the community groups and the individuals who want to see this happening. With that in mind, I will support the hon. and learned Lady.
Joanna Cherry
I am grateful to the hon. Gentleman for his comments, with which I entirely agree.
Among the amendments that have been crafted by the SNP, new clause 43 is designed to oblige the Government to negotiate an agreement so that Dublin III as a whole continues as closely as possible to the current arrangements. So far as we can make out, it is different from other Opposition amendments, which focus only on children with family here. Our purpose is to challenge the Government to explain why the broader Dublin III system is not worth saving.
Amendment 28 relates specifically to children. Again, so far as we can see, it is the only Opposition amendment that goes beyond seeking an agreement and requires Ministers to put in place a scheme so that we keep accepting take-charge requests from unaccompanied minors. We in the SNP ask why that should be negotiated away. If we believe that children seeking international protection are best placed with their families, let us allow that to happen in the United Kingdom. If we get an agreement that the arrangement is mutual with the EU, that would be great, but why wait? Are we seriously saying that, in the unlikely event that the European Union decides to play bad cop, global Britain will not take these children?
Kate Green (Stretford and Urmston) (Lab)
I am following carefully the argument that the hon. and learned Lady is making. Does she not agree that the obligation the Government already have, under the Borders, Citizenship and Immigration Act 2009, to protect the best interests of children would be an essential factor in considering exactly the amendments that she is discussing, and that if they are refusing to accept those amendments, they are undermining that legislation and the intention behind it?
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
Does the hon. and learned Lady also find it troubling that the Government have chosen to remove the obligations in the European Union (Withdrawal) Act 2018 that everyone had accepted? They had been supported by Government Ministers and by this House as a sensible objective to negotiate an agreement to ensure that some of those vulnerable children could be reunited with their families. It was the most innocuous element of that Act, and it is therefore inexplicable that Government Ministers should suddenly decide that they want to take it away.
Joanna Cherry
I agree. It is inexplicable, unless Government Ministers want to take the advantage of the majority they have secured from the English electorate to renege on an important humanitarian commitment, which, as the hon. Member for Strangford (Jim Shannon) has said, represents the best about what people across these islands hold dear in their Christian faith, their other faiths or their humanitarianism. It is incumbent on the Government to tell us what they are really up to.
Joanna Cherry
I want to make a bit of progress now.
I want to deal briefly with amendment 29, which is similar to ones advanced by other Opposition parties. It simply puts back in the Bill the obligation to negotiate an agreement for unaccompanied children. We see that very much as a fall-back, and we would like the House to go further than that.
I want to move quickly on to deal with my amendment 38 and those that follow it, which relate to the extent to which the Bill resorts to delegated powers in order for the Government to change the law in ways they feel are appropriate—not necessary, but appropriate—in relation to our withdrawal from the European Union. The Bill enables the Government to make potentially huge changes to the law through secondary legislation that cannot possibly enjoy the same level of scrutiny by this Parliament that one might expect in a properly functioning constitutional democracy that is contemplating such significant change as this Parliament seems determined to embark upon.
Alison Thewliss (Glasgow Central) (SNP)
My hon. and learned Friend is making an important point. I sat on many Delegated Legislation Committees in the previous Parliament, and their ability to amend anything is nil. Does she agree that that is a woefully inadequate process, because while there is some degree of scrutiny, there is certainly no ability to change anything?
Joanna Cherry
My hon. Friend is absolutely right. The reality is that if this discretion will be scrutinised only in the courts after individuals have raised concerns about the impact of delegated legislation on their rights, then the breadth of discretion that the judiciary has to determine whether something is appropriate rather than necessary could be quite problematic. Indeed, that was reflected in the previous Parliament by judicial concerns about the breadth of discretion afforded by the word “appropriate.” I tried on numerous occasions in the previous Parliament to get Ministers to explain why they must have “appropriate” rather than “necessary,” but I am not a quitter, so I will try again today, and I will be interested to hear what the Minister has to say.
Moving on to amendment 10, in the name of my hon. Friend the Member for Central Ayrshire, I believe that she will speak about it later or may wish to intervene on me, but I will just deal with it fairly briefly, because it is important. Others will obviously speak about Northern Ireland at length this afternoon, but amendment 10 deals with powers in relation to implementing the Northern Ireland protocol. As my hon. Friend said yesterday, the arrangements in relation to the protocol are pretty sketchy, with almost everything left to the Joint Committee to work out and then to be enacted, again, through delegated powers.
However, a significant difference exists between the restrictions on the powers afforded under proposed new section 8C and those under previous similar sections, such as section 8B(5) of the European Union (Withdrawal) Act 2018, because there is no restriction on the powers, for example, in relation to their ability to impinge on the devolved settlements of Scotland and Wales. Of course, concerns exist about the extent to which business organisations, the food and drink industry and, particularly, inshore fishing, as we heard yesterday, could be impacted upon in Scotland by the Northern Ireland protocol.
Dr Philippa Whitford (Central Ayrshire) (SNP)
This obviously also relates to the Northern Ireland Act 1998 and is of concern, perhaps in this Chamber, in relation to the Human Rights Act 1998. Looking at what proposed new section 8C would replace, the 2018 Act contains limitations that had become relatively standard, so I find it suspicious that they are missing. There is no sunset clause, no restriction on taxes or new offences and, in particular, no protection for the devolved Administrations or the Human Rights Act. That is really worrying, because we are being asked to sign up to something when we have no idea of the long-term ramifications.
Joanna Cherry
As, I think, a Committee of the House of Lords pointed out, it is unusual for restrictions in relation to the Human Rights Act, the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 not to appear in relation to delegated powers, so I am interested in hearing why those restrictions do not appear and in learning how the Government think the implementation of the Northern Irish protocol will impact upon the Scotland Act. Indeed, I am in interested in the impact on the Government of Wales Act and the Human Rights Act, and why the Government want to take delegated powers to interfere with the Human Rights Act and the devolved settlement in Scotland.
Turning quickly to clause 26 and my amendment 49, they relate to the concern expressed by many that the Government are amending section 6 of the European Union (Withdrawal) Act 2018—the original provision being that the Supreme Court for the whole of the UK or, in relation to criminal matters, the High Court of Justiciary were not bound by retained EU case law and could depart from that case law in the same way that those Supreme Courts would depart from their own case law. However, in an almost—I think I am correct in saying—unprecedented use of delegated legislation, in clause 26 the Government intend to take the power to pass regulations specifying additional courts or tribunals that could depart from EU law. That is a most unusual approach, and I am wondering what has prompted it.
I am interested in the justification for clause 26. Is it an act of revenge on the Supreme Court of the United Kingdom and the Supreme Court of Scotland for daring to defy the previous Conservative Government by ruling their unlawful Prorogation out of order, or is there some other rationale? I would be interested to hear what it is, because their lordships were taking a close interest in this clause. Even if I am not able to move the SNP amendment to the clause today, which would revert to the status quo in the previous Act, I am sure it will be moved in the House of Lords, because there is a real concern that the aim here is to impact upon the independence of the judiciary, and that different regulations applying to different courts about the extent to which EU law was overruled or could be applied will interfere with the important principle of legal certainty. In some ways, this is a probing amendment, but it is an amendment which, if not moved in this House, will be moved elsewhere, so it would be interesting to hear from the Government exactly why they consider it necessary to diverge so radically from the previous a course of action upon which they were determined.
Before I conclude, I want to say a few brief things about a number of important amendments tabled by the other parties. The SNP would be inclined to support the official Opposition’s amendment 4 on child refugees if they move it, although we would like to go a bit further than that, as I indicated earlier. We are also keen to support amendments from the official Opposition relating to transparency on the arrangements for Northern Ireland and on general scrutiny and oversight. We also give our wholehearted support to the amendment tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas) and to new clause 17 from our friends in Plaid Cymru.
It is, of course, a great pleasure, particularly for myself and my colleagues in the SNP, to have the company of Irish nationalists once more in this Chamber. While I totally respect and understand Sinn Féin’s historical reasons for abstentionism, it is good that we will again hear the voice of Irish nationalism on the Floor of this House and the voice of a significant part of the community in Northern Ireland. It is good to be reminded that Northern Ireland, like Scotland, voted to remain in the European Union. We will be keen to lend our support to the amendments tabled by the Social Democratic and Labour party.
In conclusion, I am certain that not one single amendment sponsored by the Scottish National party will pass in relation to this Bill, just as not a single amendment sponsored by the Scottish National party passed in relation to the Scotland Bill back in 2015, despite the fact that we had 56 out of the 59 MPs in Scotland and now have 48 out of 59.
It is worth remembering that the devolution settlement, which this Bill will undermine, was predicated on the idea expressed in the claim of right for Scotland, which asserts that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. Of course, on 4 July 2018 the previous Parliament unanimously endorsed that principle in the claim of right. The previous British Parliament accepted that it is the sovereign right of the Scottish people to determine the form of government best suited to their needs. That means that this House has itself recognised, explicitly and unanimously, the principle of self-determination for Scotland. I look forward to seeing whether the Government have any proposals to reverse that in this Parliament.
To return to what I said at the opening of my remarks, I say to the Government that the day is coming when the people of Scotland will once again vote on whether Scotland should regain its former status as an independent nation state. The hubris, insouciance and lack of respect for democracy embodied in this Bill will hasten that date and ensure victory for the independence movement.
Several hon. Members rose—
The Chairman of Ways and Means (Sir Roger Gale)
Order. For clarification, and as the hon. and learned Lady indicated, although a considerable number of amendments and new clauses have been grouped for debate under this group, only the lead amendment at this stage is moved, so the Question is that amendment 38 be made. It gives me pleasure to call, for what will be his maiden speech in his capacity as a knight of the realm, Sir Robert Neill.
Sir Robert Neill (Bromley and Chislehurst) (Con)
Thank you very much indeed, Sir Roger. It is a pleasure to see you in the Chair and to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). I do not share her political analysis, but I do have sympathy with some of the legal points she raises, which I will address.
I will start with the interpretation of retained EU law, which raises an important issue. As the hon. and learned Lady has said, concerns have been raised by many lawyers, regardless of their political views. I speak as someone who supported the Bill’s Second Reading, who will support it on Report and on Third Reading, and who stood on a manifesto commitment to implement the Bill. The lawyer in me, however, says that it is particularly important that we get this detail right. That is why I hope I can press Ministers for a little more detail and explanation as to why they have chosen a particular course to achieve their objectives.
I accept that there will be circumstances in which it will be necessary for courts to depart from EU law once we have left the European Union. I have no problem at all with that. I am concerned, however, that the Government’s chosen formulation for clause 26 has the potential to upset the well-established hierarchy and system of binding precedent that has characterised English common law and, to a greater or lesser degree, that of the other jurisdictions of the United Kingdom. The system of binding precedent is important because we have always regarded it as a benchmark of English law that gives certainty, in that lower courts cannot depart from the decisions of higher courts. That has served us well for centuries and is not something from which we should lightly depart.
It is going to be important for the future, too. If we are to advance Britain’s position as an international legal centre and an international financial and business centre—as I hope and am confident we will—certainty of law is important. I am a little concerned, however, that, without more explanation, the Government might risk getting to a stage where—inadvertently, I have no doubt, and perhaps for the sake of speed—they may undermine that valuable asset. That would have perhaps two consequences, which I will touch on.
Judgments made over the years by the European Court of Justice have been embedded in domestic judgments of our courts, including those of the Supreme Court. It seems odd that power should be given to a lower court to, on the face of it, depart from a Supreme Court judgment interpreting the European law as it then was. On the face of it, and without more explanation, that seems to me to upset the doctrine of binding precedent and risks driving a coach and horses through a fundamental part of our system. That is not something we should undertake lightly. Will the Minister explain the rationale behind it and precisely how the Government will go about it? Why is it necessary?
Sir Desmond Swayne (New Forest West) (Con)
I am alive to my hon. Friend’s concerns—indeed, I share them—but does not clause 26 provide protection by giving the Minister the power to make regulations that will have to go through this House? That is a statutory intervention, albeit not an Act of Parliament. It is by the will of this House that those intrusions would be made.
Sir Robert Neill
I say to my right hon. Friend: yes, up to a point, Lord Copper. Although it may be by the will of the House, I urge the Committee to be cautious in going down such a route, which profoundly changes the centuries-old approach to English common law. Secondly —this is a point that I will make in a moment—there is an issue with the way in which we scrutinise regulations that the Committee may be asked to make. That relates to clause 18, to which I will return briefly. It is about getting those two bits right.
I am conscious that elsewhere in the legislation, there is an obligation upon Ministers to consult the senior judiciary when making some of those regulations. I welcome that important safeguard—it must be a very full consideration. With every respect to my right hon. Friend the Member for New Forest West (Sir Desmond Swayne), I do not think that we have a complete answer as yet. In particular, we need an explanation about the departure from the position as it was in the European Union (Withdrawal) Bill. As the hon. and learned Member for Edinburgh South West alluded to, there is a concern that we run the risk of an increase in judicial review were there a deficiency or uncertainty in the way in which we deal with those matters.
I hope the Minister will confirm that, as well as the commitment to consult the judiciary, there will be very wide and early consultation under the provisions of clause 26. That should obviously include the senior judiciary throughout the UK, but I hope it will also take on board the broader concerns of legal practitioners to find the right formula. For example, it could include experts like those who serve on the Law Society’s Brexit law committee—that is fundamental to the workings of our financial services—and who work for other such organisations. By pressing the Minister in this way, I seek to make sure that we get that right.
That brings me to my second and final point, which relates to clause 18 and the way in which we consider delegated legislation. I note that the hon. and learned Member for Edinburgh South West hinted that amendment 39 is a probing amendment, and I am glad of that. I have some sympathy with it, but I accept that the Minister might want to reconsider, between now and the passage of the Bill through the other place, how best to deal with the issue. On the face of it, it is surprising to substitute an objective test with a subjective one when dealing with matters of such importance.
Sir William Cash (Stone) (Con)
When dealing with issues of interpretation of European law in the context of our own previous methods of judicial interpretation, those of us who are familiar with Maxwell as compared to Craies know what the differences are. Does my hon. Friend believe that we should be moving towards the stare decisis system—in other words, a system based on precedent—rather than to purposive interpretation, which is the basis on which European law currently operates? Professor Richard Ekins of Oxford University and others are very conscious of that. He has written a very interesting paper.
Sir Robert Neill
It is indeed a very interesting paper. Having been brought up as a common lawyer myself, my preference is inevitably to move towards a stare decisis approach. I think that that is something that we all wish to move back to as we reconstruct our statute book and legal texts thereafter. My hon. Friend and I will be entirely in accord on that.
The question is really about the route that we choose to get there and ensuring that we have proper scrutiny of that route, because any deficiencies in regulations would likely result in a judicial review. That is another irony: I am sure that the Government would not want greater risk of judicial review of their actions than is absolutely necessary. It would be a funny Government who made work for lawyers in relation to judicial review. That might be interesting for some of us, but I am sure that it is not something that the Government wish to do. However, without more explanation as to why we are going down that route, that is the risk.
First, I suggest to the Minister that he should seriously consider whether we move to a “necessary” as opposed to “appropriate” test—an objective test—which is much more likely to withstand challenge in the courts, because it is more likely to be readily evidenced and, I would have thought therefore, to the Government’s advantage. If the Government get their ducks in a row early when making regulations and have evidence to back the objective test, they are much more likely to withstand legal challenge.
Secondly, the Government would be much less likely to face challenges and we would get better scrutiny if we moved—certainly for the majority of policy considerations —to using the affirmative rather than the negative procedure. That would perhaps be a fair balance in the House. We will not necessarily be able to do primary legislation for all of our withdrawal, because there is too much of it. Sensible use of secondary legislation, to remove references to the European Union or something of that kind, can of course be done by the negative procedure. When policy considerations are involved, however, the use of the affirmative procedure would be consistent with the Government’s objective of bringing back control to the House, and with the movement towards our traditional UK approach to legal matters. I hope that the Minister will say something about that when he responds.
Thangam Debbonaire (Bristol West) (Lab)
It is a pleasure to see you in the Chair, Sir Roger, and I look forward to serving under your guidance. It is also a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who has given the Treasury Bench much to think about on the difference between subjective and objective tests, which I will bear in mind in my remarks.
I rise to speak to the official Oppositions’s amendments in this group. Amendment 1 relates to full transparency on the implications of the Northern Ireland-Ireland protocol. Amendment 4 would restore the clauses from the previous version of the Bill that related to negotiating arrangements for the protection of unaccompanied child refugees. New clause 1 would restore to the Bill the process of parliamentary scrutiny—it has been removed since the previous version of the Bill—over the process and outcome of negotiating the future relationship with the EU after we leave. I am sure that you will tell me if I stray from the topic of debate, Sir Roger.
The Opposition have tabled amendment 1 because the Government appear to be incapable of clarity about the implications of the Ireland-Northern Ireland protocol on the people of Northern Ireland and Great Britain, their jobs, their businesses and their way of life. That is too important to leave to chance. The people of Northern Ireland, and the people of the whole United Kingdom, need and deserve the transparency and accountability that the amendment proposes.
This part of the withdrawal agreement and the Bill have to be considered in the light of the historical context. The Good Friday/Belfast agreement was an extraordinary moment in the history of these islands and an awe-inspiring achievement of the incoming Labour Government of 1997 and of the latter period of the Major Government. Nobody my age could have thought that we would see peace in Northern Ireland in our lifetimes. The change to our way of life and the benefits to the people of Northern Ireland were unimaginable before the agreement. The Good Friday/Belfast agreement brought in a new era of peace and reconciliation.
The people of Northern Ireland, as well as its politicians across political and other divides, deserve our respect and admiration for how they have built the peace, worked to build united communities and created a way of life that seemed impossible a quarter of a century ago. Surely, no politician of any affiliation would want to destabilise that achievement—I am sure that that includes the Minister, the hon. Member for Worcester (Mr Walker), who is nodding. I am sure he needs no reminding—I will remind him anyway—that the Government have a legal obligation to adhere to the terms of the Good Friday/Belfast agreement. That means no opt-outs, no wiggling and nothing other than solid, uncompromising adherence to and support for the spirit and the letter of the agreement, no matter how hard that may be. Too many people have sacrificed too much for peace for the Government to do otherwise.
These are no small matters, so it is troubling in the extreme that the Government do not seem to know their own mind or the implications of their own protocol. The consequences of a return to a hard border or divisions between Great Britain and Northern Ireland, the fears emerging for people in Northern Ireland and the problems for businesses across the UK are all serious matters—hence our amendment. Businesses in Northern Ireland have spoken with one voice and are rightly concerned about the potential impact of border checks on goods between Northern Ireland and Great Britain. So, too, are businesses across other parts of Great Britain. Any business that currently sends goods to Northern Ireland should not have to expect border checks within the UK.
James Brokenshire (Old Bexley and Sidcup) (Con)
I do not think any Conservative Member would, in any way, demur from the need to uphold the Belfast/Good Friday agreement, which has provided the bedrock of political stability, but does the hon. Lady acknowledge that the withdrawal agreement itself specifically underlines the point about unfettered access and, equally, that the protocol is intended to be replaced by the enduring agreement that we wish to strike with the European Union?
Thangam Debbonaire
I thank the right hon. Gentleman for his intervention but, of course, it is far from clear that that will be the case. What we are actually seeing, even from the Secretary of State, is that there will be customs checks. There will have to be border checks because of the nature of the protocol.
I ask the Minister to provide clarity. If the right hon. Member for Old Bexley and Sidcup (James Brokenshire) is correct, all well and good, but that is not the impression we have been given.
Gavin Robinson (Belfast East) (DUP)
The hon. Lady’s points are appropriate and balanced. The right hon. Member for Old Bexley and Sidcup (James Brokenshire), a former Secretary of State for Northern Ireland, suggests, as has been suggested throughout this debate, that there is automatic secession from the Northern Ireland protocol—there is not. Article 13(8) is very clear that the only way we secede from the Northern Ireland protocol is, first, if the European Union agrees and, secondly, if the confines of the protocol are no longer required. Those two things are not in our gift, so there is no certainty of our automatic secession, as the hon. Member for Bristol West (Thangam Debbonaire) was invited to believe.
Thangam Debbonaire
The hon. Gentleman is quite right. It is because of that uncertainty that many people in Northern Ireland have understandable fears about the future.
Karin Smyth (Bristol South) (Lab)
My hon. Friend is making an excellent point. We heard it again yesterday that the Government’s intention is for Britain to diverge from the European Union. If that is the case, as we are being led to believe, it is inevitable that there will be border checks somewhere. With respect to the right hon. Member for Old Bexley and Sidcup (James Brokenshire), there is absolutely no guarantee and no certainty. It is the Government’s wish to diverge that is causing this problem.
Thangam Debbonaire
My hon. Friend is absolutely right. I, too, sat through yesterday’s debate, and that seemed to be what was being said. The Brexit Secretary himself said that there will have to be some sort of checks, which is inevitable. If we are to diverge from the current rules and Northern Ireland is to remain within them, there will have to be checks. It is no wonder that the people of Northern Ireland are concerned about the potential impact on their place within this United Kingdom.
Businesses in Bristol West have already told me of their anxieties, as I said, but they had a right not to expect there to be border checks within the UK. Northern Ireland’s place is enshrined in the Good Friday/Belfast agreement, but this is not just about trade—that is why I mentioned the agreement. This is about people. It is about values. It is about hopes and fears for the future, and it is about the feeling of belonging. It is about relationships between and within communities.
There is a perception among some in Northern Ireland, as hon. Members have mentioned, that a border nobody voted for will be created within the United Kingdom down the Irish sea. A border in the Irish sea does not bring people together, as the Good Friday/Belfast agreement does; it divides people and pulls them apart.
Amendment 1 seeks to give the Government a way of renewing their commitment to the Good Friday/Belfast agreement by showing that they still believe in the Union—the full Union of the United Kingdom of Great Britain and Northern Ireland. The amendment would require them to report openly and transparently on the implications of the protocol for the movement of goods between Northern Ireland and Great Britain and vice versa, for the Northern Ireland economy, for the fiscal and regulatory compliance of goods travelling between Northern Ireland and Great Britain, and for barriers to trade for third-country goods entering Northern Ireland and Great Britain from the rest of the EU and third countries.
Amendment 1 would require the Secretary of State to publish a report and lay it before both Houses of Parliament and each devolved legislature, and to provide for debate and proper scrutiny in both Houses. The first report should appear before 31 October. I can see no problem with that. If there is no problem, as the right hon. Member for Old Bexley and Sidcup says, what is the problem with transparency? It would not take the Government very long to do that reporting, and our constituents and the people of Northern Ireland have a right to expect such transparency.
If the Government do not support amendment 1, I can only ask them to respond. Do they feel they owe it to the people of Northern Ireland to report sufficiently on the commitment they made earlier in this process to avoid a hard border? What is it about transparency and accountability to the people of the whole United Kingdom to which they object?
Sir Jeffrey M. Donaldson
On transparency and reporting, it is important that Northern Ireland is represented on the proposed Joint Committee on the Northern Ireland protocol so that we have a direct input into how the arrangements are enacted.
Thangam Debbonaire
That sounds like an eminently sensible idea.
The Opposition support the cross-party amendment, new clause 55, and I will come on to the other clauses. The Labour party has consistently proposed a solution to the possibility of Brexit causing a border either on the island of Ireland or in the Irish sea, and our customs union proposal would prevent both. There will be a chance to discuss that proposal later today, and the Government will have a chance to consider it. In the meantime, I ask them to consider amendment 1.
Clause 37 is an astonishing breach of faith with some of the most vulnerable children in the world. Our amendment 4, which we will push to a vote, seeks to restore that faith. My right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and the noble Lord Dubs, our dear friend and colleague, have today written jointly to all Conservative Members to urge them to support amendment 4 and thereby scrap clause 37.
Bambos Charalambous (Enfield, Southgate) (Lab)
The UK has already reneged on its commitment to the 480 child refugees who were due to come to the UK from France under the Dubs scheme. This withdrawal agreement is a further regression of the UK’s moral duty to help vulnerable refugee children, so does my hon. Friend agree that amendment 4 would require the UK to show that it is serious about its humanitarian obligations?
Thangam Debbonaire
I absolutely agree with my hon. Friend. This is about who we want to be as a country—who I believe the British people already are—and how we want to be seen. As Conservative Members will know, there is no mandate for this change. The change was not in their general election manifesto or in any statement of support for the withdrawal agreement of which I am aware, although they are welcome to contradict me. It is deeply wrong for the Government to seek to remove this provision on protecting vulnerable children just because they can.
I am sure that many Conservative Members are troubled by this, and I hope some are having words with their Whips right now. I know their constituents will be shocked by the breach of trust between the people of this country who, no matter who they voted for in December, believe that protecting vulnerable children is part of who we are as a country. Brexit or no Brexit, that is who we are.
I believe the Minister is an honourable man, and perhaps he will seek to remedy this breach of faith by not objecting to amendment 4, and thereby not put his MPs in an awkward position. We shall see.
Clause 37 removes the commitment to negotiate an agreement with the EU27 on protecting child refugees. If the Government will not back our amendment to change that, I hope they will explain it. The hon. and learned Member for Edinburgh South West (Joanna Cherry) has already outlined much of the case, and I am grateful to her for supporting our amendment and for laying out the legal detail, as I am not as capable as her of doing so.
This commitment belongs within the Bill. The Government have said otherwise, but we believe it belongs here because, as well as keeping faith with the noble Lord Dubs and others both inside and outside Parliament, the existing provisions for the protection of children would then be the basis for negotiating an agreement. We must consider the fact that the clock is ticking; we leave the EU at the end of this month and we will then have only a few months more to agree the future relationship. The regulations that currently provide the legal basis for child refugees to be reunited with adult relatives will end if we do not put any other negotiated agreement in place in that time.
Surely, there can be no right hon. or hon. Member in this place who does not respect and admire the work of our colleague and friend Lord Dubs, who, with warmth and determination, eternal optimism and good faith, has campaigned, and inspired others to campaign, for us to do more, not less, for vulnerable child refugees travelling alone and trying to get to safety. Who among us can fail to recognise his extraordinary example and his achievements? I hope that I am wrong, but it would seem that, unfortunately, the Government do not recognise them. That is certainly Lord Dubs’s view and it is mine, too, because in clause 37 they have reneged on that commitment. More importantly, they have reneged on a commitment to child refugees themselves, to secure arrangements at the earliest opportunity on how to protect children elsewhere in the EU who have an adult relative legally in the UK, either with status or in the asylum process.
Family reunion is one of those things that should not need explaining, but apparently it does: families belong together. Families who are traumatised by war, persecution and conflict are often forced to make decisions that none of us would ever want to have to make. Sometimes, in their journeys to safety, they are separated, and we should be doing everything we can to help reunite them, wherever they are, because that is part of who we are as a country. The British Red Cross and other refugee organisations have recommended that clause 37 be removed and that the provision be restored, and the Government could do just that. They have said that there is no change of policy and that it is just not appropriate for this provision to be in this Bill—the Minister is nodding. Why should it not be in this Bill? It was in the October version. The provisions end this year and I have heard no whisper of any negotiations so far with the EU about this provision, although I am happy to be corrected if the Minister knows otherwise.
In numerous reports, such as the House of Lords European Union Committee report “Brexit: refugee protection and asylum policy” and the House of Commons Foreign Affairs Committee report “Responding to irregular migration: A diplomatic route”, the importance of providing safe and legal routes to protection has been noted. They point out, for example, that policies that focus
“exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups.”
They have warned:
“In the absence of robust and accessible legal routes for seeking asylum in the UK, those with a claim are left with little choice but to make dangerous journeys by land and sea.”
The Government have rightly shown concern about people setting out on those dangerous journeys, but making it harder to come by legal routes is what prompts them. The Government recognise the need—I have heard them do this—to do more to prevent desperate and vulnerable people setting out in leaky boats and taking other dangerous routes, but this recognition is hollow words if it is not followed up with the action needed to increase safe and legal routes. The Minister will know, as I have pressed on this on many occasions, in different contexts and different debates, that refugee resettlement and refugee family reunion saves lives and prevents those dangerous journeys.
Clause 37 is worse than I have set out, as not only does it fail to increase our response, but it goes backwards. It risks going backwards because we have no commitment on what will happen and it is totally unnecessary. Let me set out some things the Government could choose to do and commit to right now. They could commit that family reunion rights will be protected, with priority afforded to unaccompanied children. They could tell us they will replace the family reunion elements of Dublin III by prioritising negotiation with the EU and with key member states so that there is an agreement that allows individuals who have claimed asylum to be reunited with their family members. The Government could commit to allowing children to join extended family members in the UK who have the legal right to be here because they are in a process or they already have status.
We hope that the Government and their Back Benchers will recognise the rightness of this cause and the moral justification for it. We hope that they understand that the people of the United Kingdom will want them to do this. We hope they will also join us in paying tribute to the many community organisations, volunteers, councillors and individuals who have shown our national values, and demonstrate them daily, by protecting, and offering to protect, still more vulnerable people. We hope the Government will acknowledge that and accept our amendment.
Finally, I come to the issue of parliamentary scrutiny. An extraordinary turn of affairs has occurred between versions 1 and 2 of this Bill: the Government have totally removed the process of parliamentary scrutiny over the negotiations for the future relationship with the EU. Our new clause 1 therefore seeks to restore this scrutiny. Do we want to leave the European Union just for the Government to be able to ride roughshod over the views of the democratically elected Members of this House of Commons, on our side and on the other? Do our constituents really want us to have less say, not more, over the relationship with our nearest neighbours? Did the people we represent really go to the polls on a dark, cold, rainy and windy day in December to elect us, on this side of the House and on that, so that we can simply agree to hand over power to the Executive on this, the single most important issue of our times? Is this really what “Get Brexit done” means?
Sir Desmond Swayne
Throughout the proceedings yesterday the Labour Back Benches were empty. For half the time there was only one Member there—Labour’s only surviving Eurosceptic—but for most of the time there was nobody there at all and we ended up finishing early, such was Labour’s determination to provide scrutiny.
Thangam Debbonaire
The right hon. Gentleman is well aware that the Labour party had leadership hustings last night and that the Front-Bench team were here and fully engaged. I am talking now about the future relationship. Labour Members know, reluctantly or not—for many of us, this will be a sad moment—that on 31 January we will leave the EU. We accept that, but I am now talking about scrutiny of the future relationship. The shamefully misleading impression given by the Government that electing them in December would mean that Brexit would be “done” by the end of January and that we could move on to other matters is a terrible way to treat the people of the United Kingdom, whoever they voted for.
I am sure the Prime Minister and his entire Front-Bench team are fully aware that Brexit does not just get “done” when we leave, as we are going to and as the Opposition have acknowledged, on 31 January. I am certain that newly elected, as well as returning, Conservative Members know perfectly well that all that will happen on 31 January is that we will leave the European Union. They know that none of the agreement on the future relationship, or of the arrangements for sharing information about criminals or trading, or for co-operating on research or on moving life-saving medicines between the UK and the rest of the EU, will be “done”. That will all be still to do. The Government have set a wildly unrealistic expectation, not only that Brexit will just get “done”, but that the many aspects of the future relationship will be “done” by the end of June this year, for the transition to be over by the end of December. In doing that, the Government treat the economy, jobs, lives and welfare of the people of the UK recklessly.
Clause 33 means that the implementation period comes to an end on 31 December, in all circumstances, as Ministers said yesterday. Even if we have not worked out how people who currently work across borders in the EU can continue to do so, Ministers are prohibited by law—they will be by the end of tomorrow—from asking for an extension period. If the agreements on how we share information about terrorists and criminals, or on other important aspects of data sharing, are only days away, we will still not be allowed to ask for an extension, even one that is just for days. Even if the arrangements for the movement of medicines are not complete, there will be no extension. [Interruption.] This is related to this amendment, because we are asking for scrutiny of the process. If the Government are going to insist on this transition period coming to an end no matter what, surely we should have a right to scrutinise the process.
Joanna Cherry
The hon. Lady is making a powerful speech. She should ignore the jeers and concentrate on the forcefulness of the points she is making. Does she agree that the situation she has just described, whereby favourable agreements just a few days away from being negotiated would be given up in favour of this shibboleth of a certain date, is the classic definition of cutting off your nose to spite your face?
Thangam Debbonaire
I do agree with the hon. and learned Lady on that. I say again that that shows why we need this amendment, because it is about the scrutiny of the process. If we are to accept this ridiculous idea that there must be no extension to the transition period, even if it is for just days, at least we should have the right to scrutinise that process, on behalf of the people we were sent here to represent. This is not about whether there is good or bad faith on the part of the EU member states. I am sure that they will, as we all hope, negotiate in good faith, but there are practical implications here about the sheer volume of work to be done to reach agreements on all these vital aspects of our future relationship and secure the parliamentary approval of 27 other countries by the end of this year.
I am saddened, but no longer shocked, that the Government rejected our sensible proposal yesterday, but I hope that today they will consider our sensible proposal on scrutiny. It is not too much to ask that we, the elected representatives of the United Kingdom—of all parties, including the Government party—have the right to hear from our Ministers on the aims and objectives of the negotiations, the progress made and the outcome. It is not too much to ask that we be guaranteed that right, with the opportunity to debate and discuss, rather than having to wait for possible a ministerial statement or being forced to beg for information via an urgent question.
Surely, Government Members can see the wisdom in our proposal. They, too, were elected to represent their constituents, not just to be lobby fodder for their Prime Minister. If they have a business in their constituency on which jobs depend, and the ability to trade relies on the continuation of an agreement between the UK and the EU, do they not want to be able to ask their Government about whether that is included in the negotiating objectives and to be able to find out how that is going? If they have a constituent whose life depends on the movement of a medical device from one EU country to the UK, do they not want to be able to find out whether that is part of the negotiations and how that is going? Surely, they will want to be able to represent their constituents.
Members may not realise that the Law Society has recommended reinstating the scrutiny role. They may have forgotten that the Supreme Court judgment in the 2017 Gina Miller case made it clear that the Government cannot make or withdraw from a treaty that amounts to a major change to UK constitutional arrangements without parliamentary oversight. Or maybe this does not count. I ask all Government Members to consider pushing their Government, and I ask the Minister—I say again that I know him to be an honourable man—to consider restoring the full process of parliamentary scrutiny. I ask them to commit today to doing that. They could choose to adopt the Opposition amendment, or they could achieve it in some other way. I do not mind; I just believe that, as elected representatives, we should be able to represent the people who sent us here on the most important change to our way of life, our jobs, our businesses and our security in our lifetimes.
The Parliamentary Under-Secretary of State for Northern Ireland (Mr Robin Walker)
Before I address the provisions we are debating, I wish to acknowledge the enormous hard work and professionalism of officials in the Department for Exiting the European Union, in which I had the privilege to serve for more than two years, and in the territorial offices in which I have served since, in bringing this Bill and the withdrawal agreement to the position they are in today. I pay tribute to all those in the devolved Administrations and the Northern Ireland civil service who have contributed to our work on EU exit and to ensuring that the whole UK is able to leave the European Union in an orderly way. The Bill may have been a long time in coming, but it is delivering on a mandate for the whole United Kingdom. It has been a privilege to work with colleagues from every part of the United Kingdom in preparing and delivering it.
I agree with the hon. Member for Bristol West (Thangam Debbonaire) about the importance of the Good Friday Belfast agreement. It is absolutely right that it has been a central focus of the exit process from the start. We do not need amendment 1 to state our firm commitment to both the Good Friday agreement and the principle of consent, or, indeed, my party’s absolute commitment to the United Kingdom.
I shall talk briefly to the purpose of clauses 18 to 37 and schedules 3 and 5 before I go into the detail of the amendments. As a Northern Ireland Minister, I make no excuses if most of my focus in respect of the amendments is on Northern Ireland. I am sorry not to have heard from more Northern Ireland colleagues so far; I shall try to make time to ensure that I can.
First, the clauses set out how EU law will be wound down at the end of the implementation period. Secondly, they enable the UK to fulfil its international obligations under the financial settlement. Thirdly, and crucially, they implement the regulatory, customs and other arrangements contained in the Northern Ireland protocol; protect rights and arrangements contained in the Belfast Good Friday agreement; and avoid a hard border. Fourthly, they update the European Union (Withdrawal) Act 2018 so that it operates as intended in the light of the withdrawal agreement. Fifthly, they allow UK courts to interpret UK laws and not to be inadvertently bound by historic European court cases. Sixthly, they provide a mechanism for Parliament to consider EU legislation that raises a matter of vital national interests, thereby increasing parliamentary scrutiny. Seventhly, they ensure that the Government are properly accountable for their work in the withdrawal agreement Joint Committee, and that Parliament should be informed on formal dispute proceedings that arise from the withdrawal agreement. Eighthly, they guarantee that we can ratify the withdrawal agreement on 31 January by ensuring that once the Bill receives Royal Assent there are no further parliamentary hurdles to ratification. Ninthly, they repeal unnecessary or spent enactments relating to EU exit.
I shall now address the amendments—
Mr Walker
I am happy to take interventions as I address the amendments; perhaps the right hon. Gentleman will let me move on to that first.
I agree with what the right hon. Member for Lagan Valley (Sir Jeffrey M. Donaldson) said in an intervention about the importance of every part of the UK being heard. I recognise that many of the amendments are focused on securing Northern Ireland’s interests in the next phase of the Brexit process, and we absolutely recognise the support they have received from across the Northern Ireland business and political community. If and when the Executive are restored, the UK Government will be ready to consider commitments concerning the Executive’s role in future discussions with the European Union and to engage with them as we safeguard Northern Ireland’s integral place in the UK. The Government cannot accept any of the amendments to the clauses that implement the protocol on Ireland and Northern Ireland, for a number of reasons.
First, let me address new clauses 14, 15, 39 and 40, all tabled by the right hon. Member for Lagan Valley, as well as new clauses 63 and 13. At the outset, I should confirm that the protocol does not affect the constitutional status of Northern Ireland, which remains part of our political and economic union.
Stephen Timms
The Government’s impact assessment for the Bill states:
“Goods moving from Great Britain to Northern Ireland will be required to complete both import declarations and Entry Summary (ENS) Declarations”.
Is that statement correct?
Mr Walker
It is clear that there are reporting requirements in the functioning of the protocol, but, as is clearly set out in article 6 of the protocol, we want to ensure that we use the Joint Committee to reduce them and make sure that we have the absolute minimum burden. The protocol itself clearly gives the Government the ability to provide unfettered access. I shall address that in more detail as I go on.
Northern Ireland remains in the UK customs territory and can benefit from future trade deals that we strike with the rest of the world. The Prime Minister has repeatedly made it clear that the deal is good for businesses and individuals in Northern Ireland.
Simon Hoare (North Dorset) (Con)
Does the Minister agree that it would be enormously helpful if the Government’s stance ensured that whatever regulatory regime is required, it is not only of the lightest touch but is as cost-neutral as possible? Therefore, there needs to be detailed discussion with Treasury colleagues to see what mechanisms may exist for reclaiming, either through the VAT process or offsetting against personal or corporation tax, in order to make it cost-neutral, with the understanding that we need to be able to do something.
Mr Walker
My hon. Friend raises an interesting and important point. As he will appreciate, I cannot necessarily make commitments on behalf of Treasury colleagues at this stage, but I have no doubt that he will assiduously press for Northern Ireland’s interests with the Treasury.
Gavin Robinson
The Minister is humble enough to recognise that he cannot make commitments on behalf of the Treasury, but he should go a step further and say that he cannot make commitments on behalf of the European Union, either. That is our fundamental problem with the withdrawal agreement and its implications for Northern Ireland. There is no point asserting sovereignty and indicating that Northern Ireland is fully in compliance with the customs territory of United Kingdom, only to hand that power to a Joint Committee with the European Union.
Mr Walker
As he always does, the hon. Gentleman makes his point powerfully. It is clear from the protocol that Northern Ireland is part of the United Kingdom customs territory, and that we want to make sure that we maintain unfettered access between Northern Ireland and the rest of the United Kingdom. There are powers in the protocol for the Government to do that.
Let me make a little progress. The Government are committed to ensuring that the Belfast Good Friday agreement is upheld throughout our departure from the European Union. The protocol is clear that it protects rights contained in that agreement, and the Bill gives effect to the UK’s commitments in that regard. We are confident that the new functions conferred on the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland are sufficient for them to carry out their roles in the dedicated mechanism. It will be of particular interest to some Opposition Front Benchers who have raised concerns with us that the Bill confirms the Northern Ireland Human Rights Commission’s “own motion” standing under the Human Rights Act 1998, as well as providing for such standing under the protocol. I direct Members’ attention to paragraph 5 of schedule 3. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland will form the bedrock of the dedicated mechanism established under article 2(1) of the protocol. All the powers necessary for these bodies to perform their necessary functions are provided in schedule 3. I therefore urge the hon. Member for North Down (Stephen Farry) to withdraw amendments 32 and 34, which are unnecessary, so that we can allow for the dedicated mechanism.
Stephen Farry (North Down) (Alliance)
I am happy to withdraw my amendments in the light of the Minister’s comments, but I ask him to respond further on the need for both the Human Rights Commission and the Equality Commission to receive the same notification as the Attorney General on human rights or equality issues that come before the courts or tribunals.
Mr Walker
I hear the hon. Gentleman’s point, which I am happy to look into, but my understanding is that under the Bill those bodies have the powers they need to acquire the necessary information. I am grateful to him for his gracious withdrawal.
New clauses 11 and 12 were tabled by the right hon. Member for Lagan Valley. I want to make it clear from the outset that the Government’s commitment to the Northern Ireland Act 1998 and the Belfast agreement, which it implements, is unfaltering. The consent mechanism contained in the protocol, for which the Government will legislate before the first vote is required in 2024, operates on the basis of a majority of democratically elected representatives in Northern Ireland being able to continue or end alignment with EU law. I am certain that this is the right mechanism. The right position in principle is not to hand a veto to any one party—not to Brussels, not to Dublin and not to any one party or community in Northern Ireland. That is what our consent mechanism does. I therefore urge the right hon. Gentleman to withdraw his amendments and back this arrangement.
Sammy Wilson (East Antrim) (DUP)
Does the Minister not recognise the incompatibility of the two statements he has made? He wants to adhere to the letter and the spirit of the Belfast agreement, yet he is prepared to set aside one of its most fundamental parts—that, on controversial issues and issues that one community feels threatens its identity and the things it values, there should be a mechanism whereby there is a difference in the majority vote. He seems not to understand that the protocol and the terms of this Bill set that very vital safeguard aside.
The Chairman of Ways and Means (Sir Roger Gale)
Order. Before we proceed, let me provide this clarification. The Minister referred to withdrawing an amendment, as did the hon. Member for North Down (Stephen Farry). At this stage, there is no need to withdraw amendments, because none of them has been moved. It is only the lead amendment that has been moved.
Mr Walker
I apologise, Sir Roger. I stand corrected.
I absolutely recognise the principle in the agreement on contentious domestic matters in Northern Ireland. We are talking about a consent mechanism that is being given to the Assembly uniquely in the case of an international agreement, because we recognise the importance of the issue. We also recognise the benefits of cross-community consent, which is why our approach would mean that a vote recurs more often if a decision is taken without that cross-community consent.
It is the responsibility of the Northern Ireland Executive and the Irish Government to develop consultation, co-operation and action within the island of Ireland—including through implementation on an all-island and cross-border basis—on matters of mutual interest within the competence of the Administrations north and south and not the responsibility of the UK Government. That is why clause 24 ensures that the UK cannot agree to the making of a recommendation by the Joint Committee, which would alter the arrangements for north-south co-operation. As the protocol ensures these aims and the Bill give effect to those commitments, I urge the hon. Members for Belfast South (Claire Hanna), for Foyle (Colum Eastwood) and for North Down to withdraw amendment 36 as it is not necessary to achieve the aims that it seeks.
Karin Smyth
I am grateful for the Minister’s comments on clause 24. I am a favoured, seasoned bureaucrat, and I do like a bit of transparency around governance and process. I am struggling to understand how the relationship works between the proposals from the Good Friday/ Belfast agreement bodies, particularly the North South Ministerial Council, to this specialised committee, which has no enforcement power but has an ability to recommend to the Joint Committee, which apparently has a supervisory power. We are not sure whether that body can then take action, or whether it just makes recommendations back to the North South Ministerial Council. We are in an ever-moving circle of recommendations, but with no action. The real concern with clause 24 is that it is in aspic in 2020. The ability to move on relationships seems to be lost, and the ability to do that with democratic accountability back to the people across Ireland and the United Kingdom is lost, and that is a serious governance point that the Government need to address.
Mr Walker
I hear the hon. Lady’s point and I have great respect for the work she does in this space, but I think she misunderstands. Clause 24 simply means that, as a result of the protocol and the UK Government’s role in the Joint Committee, there will not be decisions taken to change north-south co-operation. It does not prohibit or restrict in any way a restored Executive from taking decisions on that within the confines of the North South Ministerial Council. I have to move on now, but, in fairness, I think that that addresses the point.
The Government urge the hon. Member for North Down and the hon. Member for Foyle to withdraw amendment 33 and new clause 61 as they risk creating legal uncertainty for businesses and individuals in Northern Ireland, which is unacceptable to the Government. Our departure from the EU requires the Government to ensure that the statute book is able to function post exit, and these amendments put that at risk.
I wish now to turn to the important amendments 12, 19, 50 and 51 and new clauses 44, 52, 55 and 60. As Members can see from article 6 of the protocol, nothing in the withdrawal agreement prevents the Government from ensuring access for Northern Ireland goods to the market in Great Britain. The Prime Minister has been absolutely clear that, beyond our obligations under international law, there will be no new checks and processes on the movement of such goods. Our manifesto commitment is absolutely clear: the Bill gives us the power to deliver this. We recognise the strong voice with which Northern Ireland’s businesses have been speaking on the importance of unfettered access and of protecting Northern Ireland’s position within the internal market as a whole and the cross-party, cross-community support for this to be delivered. It can be delivered through clause 21 and through the opportunity to follow up through the Joint Committee, as we discussed earlier. We will, of course, continue to engage with businesses and stakeholders, but I none the less urge the right hon. Member for Lagan Valley and the hon. Member for Foyle to withdraw these amendments.
Mr Owen Paterson (North Shropshire) (Con)
I am listening very carefully to my hon. Friend’s comments. Does he agree that, as expressed in the DUP’s amendments, there is very widespread concern across Northern Ireland and among business groups about the proposal of the protocol? He is trying to explain the details, but it is still going to be complex and it is still going to cause unhappiness and concern. Does he agree that it would be best if, in the course of this year, the Government committed to a comprehensive free trade agreement in which Northern Ireland comes out absolutely on a level pegging status on every issue with the rest of the United Kingdom? All the problems with the detail of the protocol would disappear, because Northern Ireland would be on a level pegging with the rest of the UK as part of a free trade agreement.
Mr Walker
My right hon. Friend speaks with considerable experience and passion on these issues. Of course I agree with him, but what we want is a free trade agreement for the whole of the UK that addresses these issues and allows us the most frictionless access to our neighbours and good trade for all of us. For Northern Ireland, that would be an excellent result. We have to focus on the fact that this Bill is about the withdrawal agreement, and that includes the protocol. We need to take through the protocol to ratify the withdrawal agreement and move forward into that negotiation.
The Government are committed to maintaining the highest levels of transparency and scrutiny in relation to this Bill and to the implementation of the withdrawal agreement. We have been clear on that, but the exact form of accountability needs to be appropriately framed, so the Government cannot accept new clauses 53, 54 or 65, which would place an undue burden on the Government but not provide the transparency and scrutiny that they purport to achieve. It is no surprise that the Opposition, through amendment 1, seek to place hurdles in the way of our exit, but the result of the general election across the United Kingdom shows that they lack the mandate to do so and that we have a clear mandate to proceed. We should do so without the hurdles that the previous Parliament consistently threw in the way of progress.
Sir William Cash
I wish to ask my hon. Friend to reflect on one point. Under this Bill, the European Scrutiny Committee, both in the Commons and the Lords, will have the power to examine certain matters. I know that he knows about that, but there is also the question of interpretation, which comes up in this set of proposals. I wish to reinforce the exchange that I had with my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), which is that clause 5 has not been addressed, and that reaffirms the supremacy of EU law before exit day. We need to keep an eye on the question of the quashing and disapplication of Acts of Parliament as we proceed.
Mr Walker
I will also come back to the issue raised by my hon. Friend.
As is standard in international agreements, the withdrawal agreement sets out procedures for dealing with disputes concerning compliance with the agreement. Amendment 24 would require parliamentary approval for the payment of any fines or penalties under the withdrawal agreement. The withdrawal agreement is a binding agreement that will place the UK under a legal obligation to make those payments. We have to be clear that we will honour our international legal obligations, and we therefore cannot accept any conditionality on payments.
I turn to amendments 38 and 46 in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). It is essential that the powers in clauses 18 to 22 can be used to enable all appropriate measures required by the withdrawal agreement to be implemented by the end of 2020. Restricting the power in the manner proposed would limit the Government’s ability to implement the withdrawal agreement in the most sensible way. I remind the hon. and learned Lady that the use of “appropriate” in statute is not at all new. There are myriad examples elsewhere on the statute book of powers that use the term “appropriate” to describe the discretion available to Ministers when legislating. I remember well that we discussed the question of “appropriate” versus “necessary” many times during the passage of the European Union (Withdrawal) Act 2018, and Parliament accepted the use of the word “appropriate”. There is no persuasive reason why we should depart from that approach here.
Joanna Cherry
In the Scottish Parliament’s legal continuity Bill—which of course was struck down by the Supreme Court after the Conservative party retrospectively changed the law in the House of Lords—the power that Scottish Ministers afforded themselves for making delegated legislation used the word “necessary” rather than “appropriate”, so it is not the case that all Governments in these islands afford to themselves the sort of sweeping powers that the Minister is planning on affording himself. There are very legitimate concerns about this issue that are shared not just by politicians but by members of the judiciary. What does he have to say in response to the points raised not just by me, but by the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who was the Chair of the Select Committee on Justice in the previous Parliament?
Mr Walker
I obviously pay heed to those points when they are raised, but I am told that the term “appropriate” actually better allows us to take better steps to ensure that multiple options can be explored when the legal changes are complex and interact with numerous pieces of existing legislation; so there are other elements to take into account.
Sir Robert Neill
I have three points to make. First, perhaps the Minister could set out what those “better steps” are. Secondly, will he address the issue of consideration under the affirmative resolution procedure as opposed to the negative resolution procedure, which might put some of my concerns to rest? Thirdly, before he finishes, will he tell us why we moved from the formulation of the Supreme Court in clause 26 to the lower courts?
Mr Walker
I will absolutely come back to my hon. Friend on the latter point. There are a number of places in the Bill where it is very clear that there will be active consideration by the Commons of the secondary legislation. That is an important part of the parliamentary scrutiny process.
I turn to amendment 10 in the name of the hon. Member for Central Ayrshire (Dr Whitford). It would inhibit our ability to implement part 3 of the withdrawal agreement and the protocol, particularly with regard to the ability to legislate for the consent mechanism and the provision of unfettered access. However, I reassure the Committee—this picks up from the point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill)—that any amendment to primary legislation through clauses 18 to 21 would have to be actively approved by votes of Parliament.
Dr Whitford
But this changes clause 8 in the original European Union (Withdrawal) Act 2018, which included limitations meaning that these sweeping powers without a sunset clause could not be used in relation to the Human Rights Act, the Government of Wales Act, the Scotland Act or the Northern Ireland Act. What changes exactly does the Minister feel he would need to make to the Scotland Act to meet the relevant aspects of the Northern Ireland protocol? Why is the legislation being changed? The Minister should justify why those protections and limitations existed in the original Act but he now feels bound to take them out. What is he planning to change in the other devolved settlements, for Scotland and Wales?
Mr Walker
The hon. Lady is making a comparison between two separate pieces of legislation. We have no dastardly plans to change the devolution settlement. However, we want to ensure that we are able to take the necessary steps to implement the protocol, including providing unfettered access across all parts of the UK, in the limited period available. We will want to engage with the devolved Administrations and legislatures about the most effective way of achieving that.
Mr Walker
I will not, I am afraid.
The Government cannot accept amendment 49, as it would mean that we could be inadvertently bound by European Union rulings for many years. Instead, clause 26 ensures that we and our courts will be able to determine the extent to which courts are bound by historic Court of Justice of the European Union decisions after the implementation period. This will be done sensibly, so I can provide some reassurance to my hon. Friend the Member for Bromley and Chislehurst. The Bill commits us to consult the senior judiciary across the UK before making regulations, and we do not intend this in any way to upset long-standing constitutional principles such as the structure and hierarchy of the court system. This clause simply enables us to take back control of our laws and disentangle ourselves from the EU’s legal order, but in a way that will be consulted on carefully with the judiciary, recognising the structures and hierarchies that exist there.
New clauses 1, 6 and 17 and amendment (a) to new clause 6 all seek to introduce various statutory roles for Parliament, and for the devolved Administrations and legislatures, in the future relationship negotiations. These are unnecessary requirements that risk impeding and delaying negotiations. New clause 6 in particular imposes onerous requirements for consultation and impact assessments, but would make it very challenging indeed to conclude negotiations by the end of 2020.
Caroline Lucas
Does the Minister recognise that what he refers to as “onerous requirements” are precisely what our colleagues in the European Parliament enjoy right now? Does he not find that there is a rather ironic point here, which is that we are supposed to be taking back control—although we assumed that meant to elected representatives, not just to No. 10—but we actually have less control than the colleagues we have left behind in Brussels?
Mr Walker
I fundamentally disagree. The purpose of the Bill is to deliver on the withdrawal agreement and take that forward. It is not to set out the future of negotiations. This legislation is focused on allowing us to move forward into those negotiations. It would be a profound mistake to tie the hands of the Government in achieving the best result for the whole United Kingdom.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Given that we have flatlining life expectancy and an increasing infant and child mortality rate—the worst in western Europe, which is quite staggering—will the Minister explain why he is not prepared to introduce an assessment of the impact on health of the trade deal, because there will be a significant impact? I really would like an adequate response.
Mr Walker
The hon. Lady talks about assessments of future deals. The place in which to do that is not legislation that is focused on implementing the withdrawal agreement. I am afraid that it is simply not the case, as it was in the last Parliament, that the political arithmetic means that the Opposition can tie the Government up with all sorts of commitments and assessments. We need to ensure that we get the best deal for our economy, our health and our country, and it is right that we move forward by accepting the withdrawal agreement, legislating through the Bill and focusing on the next stage.
Hilary Benn (Leeds Central) (Lab)
As the Minister will be well aware, new clause 1 bears a marked resemblance to clause 31 in the previous version of the Bill. The Prime Minister said to the House on 22 October, talking about the now disappeared clause 31, that
“the intention is to allow the House to participate actively and fully in the building of the future partnership”—[Official Report, 22 October 2019; Vol. 666, c. 840.]
and the clause set out a whole process for doing that, so why was it a good idea to have that in the version of the Bill produced in October, but now it has apparently become completely unnecessary and terribly onerous for the Government?
Mr Walker
The answer to the right hon. Gentleman’s question is perhaps in some of the exchanges we had during that debate, when I was reaching out to him to suggest that he ought to support our orderly withdrawal from the European Union so that we could get on to the next phase of negotiations. Since then, we have had a general election that provides a clear mandate for this Government to take us forward, to deliver the withdrawal agreement, and to get into that next phase of negotiations. I think we need to focus on that.
We have are already engaged extensively with the devolved Administrations in our preparations for the negotiations, and we will of course continue to involve all parties, including those in Northern Ireland, as we begin those negotiations. Indeed, this speaks to the absolute necessity and the vital urgency of restoring a functioning Executive in Northern Ireland as soon as possible. The Government will support Parliament in scrutinising the negotiations. We have made a clear commitment in this Bill to Parliament’s scrutiny of the withdrawal agreement Joint Committee. To that end, clause 30 provides that when disputes arise, they must be reported to Parliament. Further, clause 34 states that only a Minister will be able to act as the UK’s co-chair of the withdrawal agreement Joint Committee, and clause 35 ensures that all decisions must be made by a Minister in person. That Minister will be accountable to Parliament. We therefore believe that new clause 47 should not be pressed.
The Government fully recognise the important role that devolved Administrations will play in ensuring that our independent trade policy delivers for the whole of the UK. It is the responsibility of the UK Government to negotiate on behalf of the United Kingdom, and it is vital that we retain appropriate flexibility to proceed with negotiations at pace. However, we have been clear that the devolved Administrations will remain closely involved. Therefore, there is no need to make provisions in statute when the Government are already working tirelessly to ensure that the views and perspectives of devolved Administrations are given full consideration in the United Kingdom’s trade policy. As such, I would urge hon. Members not to press new clause 64.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
There is something deeply ironic about the fact that if we were to remain in the European Union, trade negotiation objectives would have to be agreed with individual nation states. Indeed, in Belgium, the devolved legislatures for Wallonia, Flanders and the Brussels region would have an individual say. Does the Minister not agree, therefore, that in this situation, given the different nature of the economy of Wales, with its manufacturing, farming and services to people, Wales’s devolved legislature, alongside the devolved legislatures of Scotland and Northern Ireland, should have a say in the objectives of the trade agreement negotiations as a very minimum?
Mr Walker
We have always taken the interests of Wales, Scotland and Northern Ireland very seriously in this process. We have always engaged. I have personally been to the Welsh Assembly on a number of occasions to give evidence.
The conduct of international relations is reserved to the UK Government, so representation at the Joint Committee, the specialised committees and the joint consultative working group is a matter for UK Ministers. However, I recognise the particular interests of the Northern Ireland parties given the role of these committees in the protocol, and this is a matter we would like to discuss further with the parties in a restored Executive. However, it would be wrong to pre-empt such discussions in this legislation. As such, I would urge hon. Members not to press new clauses 22, 26 and 42.
New clause 66 would require the Government to report to the devolved Administrations—
Mr Walker
No.
New clause 66 would require the Government to report to the devolved Administrations on maintaining alignment with EU law, but devolution settlements already lay out the terms under which devolved Administrations can make law, while the common frameworks provide a forum for intergovernmental deliberation on the use of these powers. This new clause is therefore unnecessary.
John Redwood (Wokingham) (Con)
Will the Minister make sure, in the discussions with the devolved Governments, that the interests of England are also central to his considerations? We do not have a devolved Administration, but we have a very strong wish to see Brexit through, because we think there are a lot of gains from Brexit.
Mr Walker
My right hon. Friend is of course right that people across the whole of the United Kingdom, including in England, voted for Brexit, but we should not forget the large numbers of people in Scotland, the almost 1 million people in Northern Ireland and those in Wales who also voted for Brexit.
David Linden
I am most grateful. Earlier, the Minister talked about respecting the devolved Administrations and listening to what they were saying, so can he tell me what the Government have actually done with regard to the words in the 2016 document, “Scotland’s Place in Europe”?
Mr Walker
I have answered that question many times. I am very happy to talk about many of the aspects of the political declaration that reflect some of the concerns raised in “Scotland’s Place in Europe”, but that is not a matter for this debate.
On the important question of child refugees, which the hon. Member for Bristol West spoke about at length and with commendable passion, this Government are fully committed both to the principle of family reunion and to supporting the most vulnerable children. Our policy has not changed. Although she said that she had heard no whisper of negotiations, I can confirm that the Home Secretary wrote to the Commission on 22 October to start negotiations with the European Union on future arrangements. We will also continue to reunite children with their families under the Dublin regulation during the implementation period. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) made clear, there is very strong support on the Government Benches for the principle of family reunion.
John Howell (Henley) (Con)
Perhaps I can help the Minister out. Is he aware that in 2017 the UK signed up to the Council of Europe’s action plan on protecting refugees and migrant children, which, among other things, enhances the integration of children into host societies, and that that commitment remains, regardless of what happens to these amendments?
Mr Walker
My hon. Friend makes a very important point. Of course we have to take action on this across a number of areas, but the right place to do that is not in this legislation. We do not need further reporting requirements such as would be required by amendment 4, unilateral measures such as those set out in amendment 26, or legally binding negotiating objectives.
In new clause 21, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) shows his admirable ambition for the UK’s independent trade policy enabled by leaving the European Union. We absolutely share those ambitions. I can assure my right hon. Friend, who was a privilege to work with, that the Government will be working in the national interest to kickstart the UK’s international trade policy in both bilateral and multilateral fora. I know that he has discussed this with the Secretary of State for Exiting the European Union. However, he will know, perhaps better than almost anyone else in this Chamber, how important it is that the Government do not have their hands tied in negotiation, so I would ask him not to press his amendment.
Mr David Davis (Haltemprice and Howden) (Con)
I thank my hon. Friend for that undertaking, but will he give me one other undertaking, which is that the United Kingdom will take its place in the World Trade Organisation immediately we leave the European Union, which will be, after all, on 1 February?
Mr Walker
I hesitate to give that from the Dispatch Box because I am not a Trade Minister, but I am pretty sure that if my right hon. Friend asked a Trade Minister that question, the answer he would get is yes.
The Government have been given a mandate following the UK general election to get Brexit done. That is what this Bill aims to achieve. The withdrawal agreement and the protocol deliver a good deal for the United Kingdom and leave the door open to improving their operation in the Joint Committee to minimise disruption to businesses and individuals right across the United Kingdom, including in Northern Ireland. I urge hon. and right hon. Members to withdraw their amendments and progress this Bill so that we can get on with delivering on our commitments to the whole country. This will kick-start a bright new future for the people of all four nations of the United Kingdom.
Sammy Wilson
It is a great pity that the time is restricted in this debate because there are so many amendments and so many people want to take part in it.
The amendments that we have tabled are designed to be positive—to ensure that the promises that the Government have made are honoured, as is the manifesto commitment that they have made in relation to Northern Ireland, which states:
“Guaranteeing the full economic benefits of Brexit: Northern Ireland will enjoy the full economic benefits of Brexit including new free trade agreements with the rest of the world. We will ensure that Northern Ireland’s businesses and producers enjoy unfettered access to the rest of the UK and that in the implementation of our Brexit deal, we maintain and strengthen the integrity and smooth operation of our internal market.”
All our amendments are intended to ensure that that promise is delivered on. I am sure the Minister will understand, given the experience of the withdrawal agreement, that we wish to see some of these things secured within the Bill rather than in the promises that are made here.
Tim Farron (Westmorland and Lonsdale) (LD)
A lot of the DUP’s amendments are about trying to secure the future of access to UK markets for Northern Ireland farmers. That is massively important to farmers in Cumbria as well, vice versa across the Irish sea. Is the right hon. Gentleman aware that the Government have today announced at the Oxford farming conference that they are refusing to delay the phase-out of the basic payment scheme, which makes up 85% of the income of English livestock farmers, and that their doing so would massively undermine Britain’s farming economy and our ability to provide food security and protect our historic landscape?
Sammy Wilson
All these kinds of things ensure that people want to see these issues nailed down in the Bill, rather than hear the promises that are made.
Our amendments fall into three categories. I want to deal mostly with the first group, on unfettered access to the UK market. The second group aim to ensure proper representation for Northern Ireland on the Joint Committee and specialised committees, which will be very powerful and will be able to make decisions that have a dramatic impact on Northern Ireland. The third group aim to ensure that the Northern Ireland Assembly is consulted in accordance with the Belfast agreement.
The Minister has argued that the Bill guarantees unfettered access to the UK market—the protocol does not stop it, and the Bill facilitates it—and yet, when one reads clause 21, it is quite clear that none of these issues has been hammered down. Ministers “may” make regulations to facilitate access to the GB market. If disagreements arise in the Joint Committee or if the terms of the protocol require there to be checks between Northern Ireland and the rest of the United Kingdom, Ministers may well compromise and decide, “We’re not going to make regulations. We have to balance the arguments up. We may make regulations, but according to the Bill, it is not necessary for us to do so.”
The Bill simply refers to regulations
“facilitating the access to the market”.
That access to the market may require businesses in Northern Ireland to undertake a huge number of checks, with costly administration. The term “unfettered access” is not in the Bill, and despite the promises that the Minister has made, no one yet knows what unfettered access means. Our amendments are designed to ensure, first, that the Bill states that Ministers must bring forward regulations; secondly, that those regulations must ensure unfettered access to the GB market, which is the biggest market for the Northern Ireland economy; and thirdly, that that unfettered access is defined in the Bill.
Gavin Robinson
My right hon. Friend is making a powerful point about unfettered access to Great Britain for Northern Ireland, but of course a marketplace is somewhere where we buy and sell, and while he is considering west to east transit, east to west—Great Britain to Northern Ireland—will be a much greater concern, because that is where the EU will have the greatest interest.
Sammy Wilson
That is why there must be guarantees on the face of the Bill that Ministers will ensure that regulations are designed in a way that does not stop trade, whether from east to west or west to east. The Bill singularly fails to do that at the moment, and our amendments are designed to ensure that it happens, for not only manufacturing but fishing.
Jim Shannon
The Democratic Unionist party has tabled new clause 39 in relation to fishing. If one of my boats leaves Portavogie, goes out and catches a fish in the Irish sea and comes back into Portavogie, it owes tariffs, with administrative and bureaucratic costs. But if it goes and lands its catch in Scotland or England, it does not have to pay any charges whatsoever. The Government promised a golden dawn for the fishing sector when we left the EU. Quite clearly, boats in Northern Ireland—boats from Portavogie, Ardglass and Kilkeel—will not get that advantage. Is it not time that the Government considered the future of the fishing sector in particular and ensured that it has the golden dawn that the rest of the United Kingdom seems to have?
Sammy Wilson
My hon. Friend illustrates once again the potential unforeseen consequences.
Our amendments have the support of all the political parties in Northern Ireland, such is the degree of concern about the impact on the Northern Ireland economy. We could support Labour’s amendment 1, but it does not go as far as we would like. We already know from the Government’s own assessment that there will be impacts on the Northern Ireland economy, and while amendment 1 asks for a picture at a particular time, new clause 55 asks for a moving picture over a period of time, with independent assessments on a year-to-year basis of the impact of the Northern Ireland protocol on the Northern Ireland economy. That is as important as the assessment proposed in amendment 1.
Claire Hanna (Belfast South) (SDLP)
I thank the right hon. Gentleman for giving way. I regret that in the two hours allocated to speak about the Northern Ireland protocol, he is the only representative of Northern Ireland who will be allowed to speak on the substantive amendments we have tabled on north-south co-operation, the environmental impact and democratic oversight. That will contribute to the very real feeling that Brexit, and this form of Brexit, is being forced on Northern Ireland, which has never given its consent.
People will appreciate that the right hon. Gentleman and I come from very different perspectives, but all the Northern Irish parties and all the business community have worked together on our common interests, because they are so vital to protect businesses and consumers, who cannot absorb the costs of this Brexit. Does he agree that if the Government mean anything they say about protecting Northern Ireland and the assurances they have given on unfettered access and non-tariff barriers, they should at a minimum accept new clause 55?
Sammy Wilson
Yes. New clause 55 is very reasonable. It asks, first, for a 12-monthly assessment of the impact of the protocol on Northern Ireland; secondly, that if there is divergence in trade policy, the administrative costs of the impact should not be borne by the private sector in Northern Ireland; and thirdly, that it is done independently, to ensure that the true costs are not glossed over. It is a very reasonable new clause, adding to Labour’s amendment 1, and I hope that the Government will accept it. They want to give an assurance that they do not want there to be a detrimental impact on Northern Ireland. The only way we will know whether the terms of the protocol are having an impact on Northern Ireland is to make a regular assessment of the protocol, the regulations enforced as a result of it and the costs.
Our first set of amendments would require the Government to define unfettered access on the face of the Bill and would oblige Ministers and devolved Administrations to ensure that unfettered access. The second set is about representation on the Joint Committee. It will be a powerful Committee, and therefore it is important that there is Northern Ireland representation on it. The third set is on consultation with the Northern Ireland Assembly. I have already said to the Minister in an intervention—
Thangam Debbonaire
I beg to move amendment 11, in clause 38, page 37, line 24, at end insert—
“and has been so during the period since the passage of the European Communities Act 1972.”
The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)
With this it will be convenient to discuss the following:
Amendment 35, in clause 38, page 37, line 39, at end insert—
“insofar as future primary legislation may expressly repeal all or any provisions of this Act, but only to that extent.”
This amendment would ensure that existing and future primary legislation that impliedly repealed Section 7A, etc of the European Union (Withdrawal) Act 2018 would be invalid, despite the doctrine of parliamentary sovereignty.
Clauses 38 to 40 stand part.
That schedule 4 be the Fourth schedule to the Bill.
Clause 41 stand part.
That schedule 5 be the Fifth schedule to the Bill.
Amendment 9, in clause 42, page 41, line 6, leave out from “force” to end of line 6 and insert—
“only when each House of Parliament has approved a motion tabled by a Minister of the Crown considering a ministerial economic impact assessment of the commencement of this Act.”
This amendment would require the House to endorse an economic impact assessment of measures this bill would implement.
Clause 42 stand part.
New clause 28—Conditional approval subject to a confirmation referendum—
‘(1) The condition in this subsection is that a further referendum has been held on the UK’s withdrawal from the European Union in which the electorate has been offered two options—
(a) the option for the UK to leave the European Union in accordance with the withdrawal agreement and a framework for the future relationship; and
(b) the option for the UK to remain in the European Union on existing membership terms
and that the Chief Returning Officer has certified that a majority of voters has supported the option for the UK to leave the European Union in accordance with the withdrawal agreement and the framework for the future relationship.
(2) If the condition in subsection (1) has been fulfilled, then—
(a) the approval of the withdrawal agreement by the House of Commons required under section 13(1)(b) of the European Union (Withdrawal) Act 2018 is deemed to have been given;
(b) the House of Lords is deemed to have debated the motion required under section 13(1) of the European Union (Withdrawal) Act 2018;
(c) the European Union (Withdrawal Agreement) Act 2019 is, for the purposes of section 13(1)(d) of the European Union (Withdrawal) Act 2018, an Act of Parliament which contains provision for the implementation of the withdrawal agreement;
(d) the Government must ratify the withdrawal agreement within the period of three days beginning on the day after certification by the Chief Returning Officer under subsection (1); and
(e) requirements in section 20 of the Constitutional Reform and Governance Act 2010 (Treaties to be laid before Parliament before ratification) do not apply to the withdrawal agreement (but this does not affect whether that section applies to any modification of the withdrawal agreement).”
This new clause would require the Government to give the public the final say on Brexit through a people’s vote, with the choice between leaving under the terms of the withdrawal agreement and remaining in the EU.
Thangam Debbonaire
I rise to speak about parliamentary sovereignty. Clause 38 is a puzzle, and we have tabled our amendment 11 to tease out more of that puzzle, to try to work out what it is for and to expose some of what we on this side believe has been quite puzzling leadership on the part of those who have been peddling the idea that we are going to take back control of our laws, our money and our borders because they have somehow not been under our control for the last 40 years. I am going to stop using the phrase “take back control” in a moment, but I will first analyse it to make my point about our amendment.
We have been repeatedly told that the EU referendum was about taking back control and restoring parliamentary sovereignty. I am seeing nods from certain esteemed Government Members telling me that that is indeed what it was about. It was not about that, however. I find this most puzzling. Have we ever actually lost our parliamentary sovereignty? The answer is, of course, no. Saying that Brexit is about taking back control of our laws, our money and our borders is quite extraordinary. Let us start with laws. Have all the laws we have passed in the past 40 years been just a dream? Did we imagine all those laws? Just in the four years since I took my seat, we have passed law after law. We have put Bills through a process of scrutiny, debate and amendment.
John Redwood
But does the hon. Lady not understand the message of the referendum and the election? There are very large numbers of directly acting regulations that we can do nothing about, and we have had a lot of legislation going through this House directed by EU directives, which the UK was not happy with.
Thangam Debbonaire
I understand the difference between a law and a directive. I also understand the fact that we were perfectly capable of making our own laws during the past 40 years. Let us take an example that I am very fond of—[Interruption.] The right hon. Member for Wokingham (John Redwood) is shaking his head, but he knows perfectly well that we have passed laws. For instance, let us take one that was passed on the very last day of the last Parliament. My dear friend Stephen Pound, the former MP for Ealing North, was standing right here at the Dispatch Box making his last speech as shadow Northern Ireland Minister. He was closing for the Opposition on the final stages of the Historical Institutional Abuse (Northern Ireland) Bill, which would at last provide compensation for victims of historical child abuse. He marked that occasion with tributes to the victims, some of whom were in the Gallery, with respect for cross-party collaboration and with a heartfelt plea for the law to be implemented fully and speedily and never to be needed again. Anyone who was in the House that day, as I was, cannot fail to have been moved by his speech but also by the impact of the law, whose value to the lives of people who had suffered will continue for many years. Many of us will always remember that debate.
John Redwood
Nobody is disputing that we can pass laws while a member of the EU as long as the EU allows us to. It is quite simple.
Thangam Debbonaire
I am going to continue with my example, because this is incredibly puzzling. I do not recall such a thing at any stage in the passage of this Bill or any other Bill that I have been part of—as a Whip I have served on many a Public Bill Committee in the past four years—because at no point during the passage of the Historical Institutional Abuse (Northern Ireland) Act 2019 did anybody have to ring up the EU and ask for permission.
Chris Grayling (Epsom and Ewell) (Con)
Does the hon. Lady not understand how nonsensical her argument is? Of course there are laws that remain within the remit of this Parliament; but equally, many areas of government and political activity in this country are in the gift of the European Union. There are also European Union regulations that are directly applicable within the United Kingdom over which this Parliament has no control. Does she not understand that?
Thangam Debbonaire
Regulations that would have been discussed either in the European Parliament or the Council of Ministers, and those people are also elected and have been for decades. Members have been elected to the European Parliament since 1979. I know that, as I am sure Conservative Members do, because I have campaigned for those Members in elections.
Sir William Cash
The hon. Lady just referred to the Council of Ministers. Would she deny for a minute, as is well understood by everybody else, that decisions are taken in the Council of Ministers by a majority vote of other countries behind closed doors and without a transcript? They are therefore not democratic. How can she talk about people being elected when the decisions are actually taken in that manner?
Thangam Debbonaire
The last time I looked, most—although admittedly not all—of the Government’s Ministers were democratically elected. We participated in the creation of the rules of that Council. I am going to skip ahead in my speech and then come back again, because I wish to remind Conservative Members that it was, for instance, a Tory Government who took us into the single market, with all its rules. They rightly recognised the benefits of the shared rules of a single market. They recognised that they were worth it and that they did not compromise our sovereignty.
Sir Desmond Swayne
Is the hon. Lady in denial, or has she been living in a bubble? We had a referendum, and we have just had a general election that reinforced the referendum result. Whatever she may say from that Dispatch Box, that ship has sailed, as one of her colleagues said.
Thangam Debbonaire
I understand that we are leaving on 31 January. I understand the result of the general election. I am addressing this clause and our amendments to it, which is entirely proper and entirely in keeping with the rules of Parliament and the Standing Orders and is actually what sovereignty is supposed to be about. Is not parliamentary sovereignty supposed to be about elected right hon. and hon. Members holding the Executive to account?
Patrick Grady (Glasgow North) (SNP)
Many folk on the Government side of the House will be terribly disappointed when this all comes to an end and their hobby-horse of the past 40 years disappears. The real loss of sovereignty and the real power grab is the amount of power being handed to mandarins in Whitehall and Cabinet Ministers here to pass Executive decisions without scrutiny in this House of Commons.
Thangam Debbonaire
Indeed. I find it most puzzling that Conservative Members who argued for a so-called return to parliamentary sovereignty in this country are quite happy to nod through a Bill that wipes away parliamentary scrutiny of the process of negotiating the future relationship. It is quite extraordinary.
I remind Conservative Members that it was under a Tory-led coalition Government that section 18 of the European Union Act 2011 clarified that limits on sovereignty are at Parliament’s own behest and can, if explicitly provided for, be revoked. The right hon. and hon. Gentlemen who have intervened were presumably here at that time. I was not, but I have read the text and I know what it says. The Government’s own 2017 White Paper said
“Parliament has remained sovereign throughout our membership of the EU”,
and I watch with interest to see whether a Minister will go back on that.
Chris Grayling
Does the hon. Lady not understand that it has always been in the gift of Parliament to repeal the Act that took us into the European Union and to take us out of all European laws in their entirety? It has never been in the gift of Parliament, as long as we are subject to the rules of membership, to reject an individual agreed EU measure. That is the difference.
Thangam Debbonaire
This is quite extraordinary because, again, the right hon. Gentleman seems to have forgotten that there was a referendum in which the British people chose to be in the European Union, and they have voted for Members of the European Parliament over the course of four decades. I have acknowledged that the result of the 2016 European Union referendum is going to happen on 31 January, but we are arguing here about a clause that is in the Bill, and it is entirely proper for the Opposition to propose an amendment to try to probe what on earth it means.
Did I imagine that we considered the Northern Ireland historical abuse Bill? I checked Hansard this morning and it appears that I was not dreaming—I was actually there. I did not dream the passage of the world’s first Climate Change Act in 2008. Nobody had to ring Brussels to ask, “Can we pass this law?” or if we could equalise marriage. We have been passing our own laws all this time. We have never needed to ask for permission. It is not true that we have no say on EU rules; we have had democratically elected representation in the EU Parliament since 1979.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
The hon. Lady has made two points that I think are incorrect. First, the British people voted to join something where we had a full veto over anything that we did not agree could be imposed on the UK. Secondly, on judicial activism and the mission creep of the European Court of Justice, perhaps the hon. Lady would like to comment on the way in which power was grabbed through two court cases—namely, those of Van Gend en Loos and of Costa v. ENEL.
Thangam Debbonaire
One of the things that interests me about the right hon. Gentleman’s argument is what we will do when we are trying to resolve a dispute over a trade agreement at a supranational court—[Interruption.] They will not be elected representatives. The World Trade Organisation court of dispute does not consist of elected representatives. Government Members seem quite happy to hand over control to the WTO court of dispute resolution and pretend that that is somehow more democratic. [Interruption.] Calling me silly is not worthy of the right hon. Gentleman.
We have been sovereign all this time. On our money, we have always had our sovereignty. We set our own budgets. We are represented at EU budget setting by our democratically elected representatives. As I have said, we have even had opt-outs, negotiated by Tory Governments, from some of those financial agreements. We have negotiated opt-outs, variations, rebates and all sorts of specific conditions for the UK.
The phrase used is “money, laws and borders” and I cannot remember which way around they are, but on borders we chose, rightly or wrongly—and we can decide for ourselves whether it was right or wrong—how we interpreted the requirements on the free movement of people, one of the four freedoms of the single market, which, I remind hon. Members, a Tory Government took us into. Other EU nations have interpreted that freedom differently. We chose, as a sovereign nation, not to participate in the Schengen area. We decide how we police our borders and whether or not there are enough border police.
We have also chosen to benefit from freedom of movement, which I acknowledge will end after 31 January. It is a freedom that I wish we had valued more and whose passing I will truly mourn, but it never undermined our sovereignty. That is implied even in the wording of the clause, because it states that “sovereignty subsists notwithstanding” various provisions. Of course, we agree—and will continue to agree after debate, scrutiny and amendment—to many other rules beyond our borders. International treaties, trade agreements and security co-operation arrangements all carry commitments to shared rules and to abiding by the rules of supranational bodies of dispute resolution, most of which are not elected, but Parliament’s sovereignty will remain intact.
I ask the Minister respectfully if he will explain the legal and practical purpose of clause 38. Even the phrase, “It is recognised”, has the feel of a political rather than a legal statement. The purpose of the Opposition’s amendment 11 is to discover the Government’s intention. We think that stating that Parliament is sovereign
“and has been so during the period since the passage of the European Communities Act 1972”
is entirely consistent with what the Government themselves said in their White Paper only a few months ago. We have been sovereign all that time.
I am sure that Members know this, but our sovereignty was never in doubt and was not diminished. I could spend a long time asking what this non-argument about sovereignty has all been about, but I am pretty sure that a lot of it—perhaps most of it—has been a false argument to distract attention from the desire to deregulate this country and turn us into a bargain basement nation with no attention given to workers’ rights, environmental protections, health and safety or any of the other regulations in which we played a part in Europe, which we have implemented and which have helped us help the people we represent. I would like the Government to explain the point of clause 38.
The Parliamentary Under-Secretary of State for Exiting the European Union (James Duddridge)
Parliament is sovereign, was sovereign and will be sovereign, and the clause recognises that fundamental principle in our constitutional arrangement, which is of great significance to many hon. Members. Membership of the European Union has felt as though we have ceded control. We cannot pull back sovereignty piece by piece—Conservative Back Benchers mentioned a number of examples. Anybody who has sat on a delegated legislation Committee will have been told by the Minister, “We cannot change this because it has gone through the European processes and we have to rubber stamp it.” The presumption was that we were full members, and that was made worse by qualified majority voting; previously, we had the ability to come back to each individual matter.
Sir William Cash
A very simple example of what my hon. Friend mentions is the EU’s port services regulation, which was opposed by every trade union, by the Government and by every one of the 47 port employers but went through this House simply because it had been passed by a majority vote in the Council of Ministers. That regulation was imposed upon us by the abdication of our sovereignty under section 2 of the European Communities Act 1972.
James Duddridge
My hon. Friend is right. We could not do anything about that law or any other specific issue without coming out of the European Union, taking back control and asserting our sovereignty. Clause 38 reaffirms that sovereignty going forward and, crucially, during the implementation period.
Geraint Davies
Does the Minister accept that our sovereignty is diminished, because we currently have a veto on many votes? Some of them are subject to majority voting, as the former Chair of the European Scrutiny Committee said, but we are one of 27 nations. Now, under World Trade Organisation terms, we will be one of 164 countries and unable to change the rules. Those terms will jack up the cost of drugs and stop us nationalising things, which will constrain our sovereignty much more. The idea that we will have more sovereignty rather than less is wrong, and the clause is therefore misleading.
James Duddridge
I disagree with virtually all the hon. Gentleman’s points. We will take back control, hold that sovereignty, take our seat as an independent nation state on WTO rules, and engage in international forums to look globally, rather than looking within Europe in European forums.
Clause 39 relates to interpretation. This type of clause is standard practice in primary legislation and contains key definitions. Subsection (1) lists items used in the Bill with accompanying definitions, such as the relevant agreements with the EU, the EEA, EFTA and Switzerland. Given the possibility of a change in EU summer-time arrangements, the clause provides for consequential changes in the exact time of the implementation period on 31 December in the United Kingdom. Let me be very clear: this power cannot be used to change the time and date of the implementation period for any other purpose. The clause is fundamental to ensuring the operation of the Bill.
Clause 40 and schedule 4 make further provision for regulations to make powers under the Bill, which is of interest and importance to Members of Parliament. Schedule 4 provides for the parliamentary scrutiny procedure for secondary legislation under the powers in the Bill. We recognise that our exit from the EU is momentous and Parliament will want to scrutinise any changes that we make to the statute book as part of that process.
John Redwood
I am very much in favour of clause 38, which reasserts our sovereignty. If the European Union wanted to legislate punitively against us during the implementation period, can I take it from the Minister that we would use this clause to prevent such legislation from having effect?
James Duddridge
Yes. Clause 38 not only restates the historical position but reasserts our sovereignty during the implementation period. Parliament will be given extra powers, such as the powers being taken by the European Scrutiny Committee, which is important because we will not be participants in the decision-making process.
Sir William Cash
In a nutshell, laws are democratic when they are made in line with a manifesto following a general election. The bottom line, therefore, is that decisions taken by the European Scrutiny Committee on vital national interests will also go through departmental Select Committees, and then there will be a vote on the Floor of the House. That means this House will decide whether it wants to obey a legislative arrangement that has come out of the European Union, which is completely different from anything that happened since 1972.
James Duddridge
I thank the Chair of the European Scrutiny Committee. As he knows, the powers will also extend to the House of Lords, allowing for an additional check.
Geraint Davies
Does the Minister agree that if we must have a certain level of equivalence to sustain a reasonable level of trade, we will be obliged to accept the EU’s changes, which will be made without our consent because we will be outside the room, or else take the economic cost? That is not sovereignty; it is just self-harm for the sake of opposing things. If we just agree to the changes, what is the point of it?
James Duddridge
If we were taking the hon. Gentleman’s version of Brexit, of staying in dynamic alignment, he would be right, but we are not doing that. We are taking back control, so we will be an independent nation state.
Under schedule 4, the general position will be that the affirmative procedure will apply when the Bill’s core powers are exercised so as to modify primary legislation or retained direct principal EU legislation. Although not all the modifications will be substantial, this approach has been adopted given the exceptional context and the uniqueness of the matters dealt with in this Bill. Clause 40 recognises that Parliament wants a greater place in scrutinising legislation.
There is one exception to this rule, and it relates to the exercise of powers to make provision by regulation for citizens to appeal against immigration decisions. That exception is made to ensure such provision can be made in time for 31 January, and the made affirmative procedure is therefore adopted for that exceptional process.
Parliament has a duty to provide the British people with a functioning statute book. Clause 40 and schedule 4 provide essential further provision on the powers in the Bill, and I urge hon. Members to support their standing part of the Bill.
As hon. Members know, consequential provisions are standard, even in legislation of great constitutional importance. Equally, transitional provisions are a standard way to smooth the application of a change in the UK statute book. Schedule 5 already makes many consequential amendments, but there will be more. As is standard practice, we are therefore taking a power to amend those constitutional amendments.
I understand Members’ concerns about delegated powers in this Bill, and I would like to allay those fears and concerns today. This power is naturally constrained. It can be used only to make provisions that are consequential to the Bill. Transitional, transitory and saving provisions are equally standard in smoothing the introduction of a change to the statute book. As we implement the withdrawal agreement, it is in everyone’s interest that we ensure legal continuity for businesses and individuals. Again, schedule 5 introduces some of those measures, but we will need the flexibility to ensure that the withdrawal agreement can operate smoothly and efficiently for the people of the UK.
Patrick Grady
Is the European Statutory Instruments Committee, which operated so effectively in the last Parliament, expected to be re-established in this Parliament to scrutinise statutory instruments made under this Bill?
James Duddridge
I thank that Committee for the work it has done, although I must admit that my focus has been on the work the European Scrutiny Committee is doing during the implementation period. I am more than happy to get back to the hon. Gentleman later on the specific point about the Committee he mentions. As hon. Members will know, case law and an array of legal authorities provide a very narrow scope for Governments to exercise powers of these types. They are standard provisions to permit “housekeeping” modifications.
Dr Whitford
The Minister is talking about the delegated powers, which are sweeping and extensive throughout this Bill. Why are the Government so reluctant to have limitations that protect key primary legislation such as the Human Rights Act and the devolved Acts, which were just voted against by Government Members?
James Duddridge
Our withdrawal from the EU does not impinge on our human rights commitments. That issue is dealt with in later new clauses. I will make some more detailed comments on human rights then, but our commitments to human rights are unaffected by this Bill.
Clause 42 provides for the extent and commencement of the Bill and sets out its short title. It sets out that the Bill will extend to England and Wales, Scotland and Northern Ireland, save for a limited number of exceptions, with one being that section 1 extends to the Isle of Man, the Channel Islands and Gibraltar. The European Communities Act currently extends to the Crown dependencies and Gibraltar in a limited way. This means that the saving effect of the European Communities Act to allow for the implementation period must similarly extend to these jurisdictions—in effect, we will be continuing as we are during the implementation period. The Government have regularly engaged with the Crown dependencies throughout the EU exit process to keep them apprised of developments and to provide a forum for ongoing dialogue. That has been an important aspect of ensuring that this clause is fit for purpose.
The clause also sets out which parts of the Act will commence immediately at Royal Assent, and provides a power for the Minister to commence other provisions at different times by regulation. Provisions such as the consequential and transitional powers, and certain definitions, will commence immediately. It is also usual practice for the Bill to allow provisions to be commenced at different times through commencement regulations. This is an essential part of how the Act will come into place in an orderly manner.
On schedule 5, the House will remember the debates on section 8 of the European Union (Withdrawal) Act 2018 and the power to fix deficiencies in retained EU law. It was written so that in the event that the UK left the EU without a deal, deficiencies arising from our withdrawal would be corrected. Since that Act was passed, the Government and the devolved authorities have laid secondary legislation under the 2018 Act and other primary legislation to ensure a functioning statute book on exit day in the event of no deal. We do not want this legislation to come into force on exit day—rather, we want to defer these bits of secondary legislation en masse so that they come into effect at the end of the implementation period. This schedule provides for the mass deferral of this secondary legislation so that it comes into force by reference to “IP completion day” rather than “exit day”.
The schedule also contains the power to make exceptions to the mass deferral. It also covers the devolved Assemblies’ use of this power, and provides for a similar deferral of commencement, and a power to make exceptions in respect of certain primary legislation made by the devolved authorities. In addition to the provisions I have just set out, the schedule also expands the consequential power in the 2018 Act so that it can be used to make fixes in consequence of amendments that this Bill makes to that Act. A number of Acts now need to be updated to reflect the terms of the withdrawal agreement, including the implementation period. These amendments alter previous changes made by the 2018 Act to other legislation. The provisions contained in this schedule are necessary to ensure the proper functioning of the statute book for the whole of the implementation period and beyond, so it must stand part of this Bill.
Amendment 11 was, I believe, a probing measure to allow us to discuss sovereignty. It has been a good place-setter, enabling us to have a robust discussion of what is meant by “sovereignty”. We have been able to confirm that the UK has been able to do things while inside the EU. We have strongly confirmed that we have felt constrained, and have been constrained, as part of the EU in not disagreeing with things that have been put through by the EU. We now have a closer understanding of what Conservative Members mean by parliamentary sovereignty and why we asserted ourselves during the Brexit debate and the general election, which we won resoundingly.
Geraint Davies
The pleasure is all mine.
Does the Minister agree that the United States is undermining the WTO by not appointing judges to the appellant court? The Americans do not want a rule-based system; they want a power-based system—their power, and they put most of the money into the WTO. The body has 164 members, so the idea that on our own, rather than as part of the EU bloc, we will have influence in the WTO that compares to our influence by virtue of our population in the EU is surely not credible. We will simply have less sovereignty.
James Duddridge
We will have more influence: we will have influence with the Americans, who want to do a trade deal with us early on, and we will work with other international partners. The WTO has been of immense value in liberalising trade, and in many ways the EU trading within itself has been a block on the liberalisation of global trade, although it has opened out trade within the EU. I have made that point around Parliament and I think Members support the principle.
John Redwood
Let me elucidate the point. I sometimes think the Opposition do not seem to understand that we are in the WTO through the EU anyway. The whole EU is governed by WTO rules and the WTO court, yet the Opposition say that we would sacrifice control by going into the WTO. That bit of it already applies to us. We will get our vote and our voice, so we will actually get some power.
James Duddridge
My right hon. Friend is right. I disagree with some of the points made by the hon. Member for Swansea West (Geraint Davies), but if he was right we would be suffering those problems at distance through the EU; if indeed it was the problem that he describes, it would not be a new problem.
James Duddridge
I am going to make some progress on amendment 9. I look forward to hearing the hon. Gentleman’s speech as a trade rep; I shall listen carefully to his remarks and intervene on him if that is appropriate and helpful to the debate.
The House will be aware that the Government previously published an impact assessment in support of the Bill. It is a standard assessment of the direct costs and benefits to businesses of elements of the Bill, and is available to Parliament and the public.
The assessment is in addition to the Government’s analysis, which was published in November 2018. It is detailed and robust and covers a broad range of scenarios.
In his letter to the Treasury Committee on 21 October last year, the Chancellor of Exchequer committed the Government to provide continued analysis of the appropriate points through the next stages of the negotiations. Hopefully, that will reassure the hon. Member for Bristol West (Thangam Debbonaire), in addition to the reassurance she received from my hon. Friend the Under-Secretary of State for Northern Ireland, who spoke on issues of parliamentary scrutiny in the debate on the previous group. The Government remain committed to providing that analysis and will inform Parliament with the best analysis on which to base decisions. We will do so at the appropriate time, and so that it does not impede our ability to strike a good deal. I do not think that Members of Parliament or the British public would want us to do otherwise.
The British people have voted to get Brexit done and we must honour that by leaving with a deal. Fundamentally, amendment 9 is sadly another attempt to delay Brexit. We do not want to test the people’s patience further by adding another step to the process, so I urge the SNP to withdraw the amendment. An impact assessment already exists and is there for everyone to see.
I thank the hon. Member for North Down (Stephen Farry) for tabling amendment 35, but unfortunately we cannot accept it. The clause recognises a principal fundamental to our constitutional relationships: that Parliament is sovereign. Nothing in the Bill derogates from the sovereignty of Parliament, as the clause makes clear. In passing legislation to give effect to the withdrawal agreement, Parliament is exercising that sovereignty. Clause 5 is a critical component of the Bill: it provides individuals and businesses with some clarity, such that they can rely on the withdrawal agreement. It also provides for the withdrawal agreement to take priority over domestic law where it is incompatible. That is consistent with parliamentary sovereignty. Parliament is giving effect to the priority of the withdrawal agreement. The effect of the hon. Gentleman’s amendment would go beyond that. It would be novel and it would bind Parliament’s hands in exercising its ability to make and unmake law. He should be assured that such an amendment is entirely unnecessary, so I hope that he does not press it to a vote.
Dr Whitford
Clause 38 addresses parliamentary sovereignty. Independent reviews of the clause, including by the Library and the Institute for Government, point out how completely meaningless it is. It purely states something without giving it any power. It has no power in law, yet throughout this Bill, sweeping delegated powers are being taken from this Parliament to the Executive. The Government have just voted against limiting those powers in the standard way that they were limited in the 2018 withdrawal Act to protect things such as the Human Rights Act, the Government of Wales Act, the Scotland Act and the Northern Ireland Act. The Parliamentary Under-Secretary of State for Northern Ireland, who was at the Dispatch Box for the previous group of amendments, could not explain why the Government felt that they could not accept such limitations. That is where the concern comes, particularly on clause 21. There is no sunset clause—there is no limit. This plan to rebalance powers between the Executive, Parliament and the courts was in the Tory manifesto, and we literally see it coming to life inside this Bill.
The Minister mentioned clause 5, which gives the withdrawal agreement supremacy over all domestic law. It will not allow parliamentary scrutiny of any of the changes that result from that. These sweeping, broad-brush powers are concerning people. In particular, the removal of clause 31 of the original withdrawal agreement Bill in its entirety means that Parliament has no voice, no influence and no ability to set the terms or aims of the future relationship, which goes way beyond any trade deal. Such actions are making people afraid of what is going on. Furthermore, we have not heard any good argument from the Government as to why Parliament is suddenly being excluded in this way.
It is bizarre now to take this stance of “The lady doth protest too much” and, “Oh, we all believe in parliamentary sovereignty.” In actual fact, what we see is a complete undermining of the sovereignty of this Parliament. We also see an undermining of the sovereignty of the other three Parliaments in the United Kingdom. The devolved Governments are being undermined. They also will have no influence over the future relationship. They are also having to face delegated powers being taken from them, so that the Government can legislate on devolved areas even without the involvement of devolved Ministers. Twenty years after devolution, this is seen as an absolute power grab and an absolute attack on the devolved Parliaments of the United Kingdom.
In amendment 9, we specifically talk about an economic impact assessment. There has not been one since 2018—and that was on the Chequers agreement. Frankly, having read the Chequers agreement, which many Members on the Government Benches, including the Prime Minister, did not support, I can say that it was a complete cake-and-eat-it agreement. Frankly, it was never an agreement; it was just a wish list that had no chance of happening. There has been no economic impact assessment since then, and certainly no economic impact assessment of what this Bill will do.
We have heard all the representatives of Northern Ireland coming together across the divide of the communities to ask for regular economic impact assessments on what this Bill does to Northern Ireland. As someone from a coastal, west of Scotland constituency, let me point out that we will be looking across at Northern Ireland, which will be sitting in the single market. Fishermen in my constituency are talking about losing their businesses or having to register in Northern Ireland to try to compete. Our farmers will face delays at ports and may face tariffs. They will certainly face huge bureaucracy that farmers in Northern Ireland will not face. I have two big just-in-time industries in my constituency: aerospace and pharmaceuticals. How are we going to keep those industries, let alone attract other businesses? They will look at Ayrshire and they will look at Northern Ireland; one is in the single market and one is not. I am sorry, but the idea that the economic assessment that was done on the Chequers deal would count for this deal and this Bill is frankly complete nonsense.
When this Government talk about their precious Union, it is important that they respect the devolved Governments, who are being given no locus in the future relationship. The fact that the Scottish Parliament will be voting on withholding a legislative consent motion for this legislation was dismissed as irrelevant by the Prime Minister himself at the Dispatch Box before Christmas. If it is so important to Members on the Tory Benches to preserve their precious Union, may I suggest that it is a bit like a marriage? Imagine turning around and saying to the missus, “Tough, I won’t give you a divorce”, “Tough, I don’t want to listen to you”, or “Shut up, because I’m in charge.” Imagine saying things like, “Yeah, give me half your wages” and “You can’t leave me, because I bought a big 4x4 and now we have an overdraft.” That is what the relationship looks like from Scotland.
As the former Prime Minister and the Attorney General both pointed out, it is not possible to maintain a union of nations that is not voluntary and that countries do not wish to be a part of. That has repeatedly been put forward as a Brexit argument. You will not keep Scotland in your precious Union with the utter disrespect that is being shown for her Government, her people and how her people voted. The Scottish National party is the party that people voted for, so repeatedly saying that the people of Scotland “don’t want this” and “don’t want that” is nonsense. If Government Members believe in democracy, they should be respecting not just the Scottish Government, but the Scottish Parliament. They cannot ride roughshod with delegated powers over the devolved Governments of Northern Ireland, Wales and Scotland. It will certainly not protect their precious Union.
Sir William Cash
The hon. Member for Bristol West (Thangam Debbonaire) said, “What is this sovereignty?” It is terribly simple; it is the ability to make our own laws in our own Parliament, in accordance with the electoral decisions taken by the people in line with a manifesto and with their constitutional arrangements, which have been in place for many generations. It is this for which people fought and died in world wars. The very simple reality is that sovereignty is about whether or not we can govern ourselves.
My rebellion against the Maastricht treaty was based on the simple proposition that that treaty created European government. In 1971, we entered into arrangements—then enacted through the European Communities Act 1972—on the basis of a White Paper that said we would never give up the veto under any circumstances, and furthermore that to do so would be not only against our own national interest, but contrary to the fabric of the European Community itself. Believe it or not, it was understood in Government circles at that time that the veto enabled us to retain the actuality and reality of the ability to make our own laws. Gradually, over the next 30 or 40 years, that veto was whittled away to extinction, and the processes that I have to deal with day in, day out in the European Scrutiny Committee—and have been doing so since I first went on the Committee in 1985—have demonstrated to me that, in fact, we have not been governing ourselves. That is why I entered into opposition to the Maastricht treaty and then to Nice, Amsterdam and ultimately Lisbon. The reality of what has been happening is that the individuals who sit on these green Benches have simply had their ability to make the laws that they are entitled to make on behalf of the people who vote for them reduced to rubble.
In return, we have been faced with an increasingly dysfunctional European Union that did not work in the interests of the British people, and that is why we got the result we did in the referendum. It was the people who voted. Interestingly, when the decision was taken to hold the referendum, it was decided by six to one in the House of Commons. We voluntarily agreed that we would abdicate our right as Members of Parliament and let the people of this country make that decision on their own behalf. All the resistance we have seen over the past three years from the Opposition Benches and from a number of our recalcitrant colleagues, many of whom are no longer in the House, was based on a complete failure to understand that the decisions that were taken in that referendum were authorised by Parliament and, indeed, by themselves.
Section 1 of the European Union (Withdrawal) Act 2018—I did the first draft of the Bill, which was accepted by the Government—said that the European Communities Act 1972 would be repealed on exit day. That is now in fact implementation period day, but for practical purposes it comes to the same thing. The Opposition religiously—or irreligiously, depending on how one cares to put it—decided that they would oppose that Bill in principle, as they did on Second Reading and on Third Reading. Every single Conservative, even my recalcitrant colleagues—even Kenneth Clarke—voted for the withdrawal Act on Third Reading, but the Opposition denied not only the sovereignty that was being restored by the repeal of the ’72 Act but the democracy that went with it. That is a fundamental issue. They destroyed their credibility with the British people, and I believe that the ordinary man in the street—the people who voted in the last general election—understood that.
I have already made the point that European laws are made behind closed doors by a majority vote. Nobody can say that the decisions that were taken, which we had to accept because we had no alternative, were laws made by our elected representatives. I have never heard such trash coming from a Front Bench as the suggestion that the fact that these people happen to be elected Members of Parliament in the Council of Ministers conferred upon them some form of democratic right to decide.
Sir Iain Duncan Smith
My hon. Friend is making absolutely the right case about sovereignty. I mentioned Van Gend en Loos and Costa v. ENEL. The point about those two cases is that they were judicial statements. One was about direct effect and the other was about the whole idea that European law had supremacy. They were never voted on in this House. Nobody agreed to them. Nobody said, “This is what we wanted.” That led to something quite interesting—the imposition of the extension of welfare payments to EU migrants who came here was the result of a judicial review of something that we had never voted for, and it cost us a lot of money.
Sir William Cash
That is a very good point. Those cases happened before we came into the European Union, and they invade the very concept of the constitutionality of this country and of other countries too, because they say that we are obliged to obey not just any law, not just all laws, but even constitutional laws. That is the point. It is an utter invasion. It is a complete and total destruction of the decision of people through the ballot box in general elections. That is the problem. Sovereignty and democracy are intertwined at the heart of our constitutional system. The hon. Member for Bristol West ought to reflect on the rather absurd propositions in her speech, because she cannot prove a single point that she made.
Mr Paterson
A key function of Members sent here—the earlier Parliaments were in Shropshire, of course; it is a regrettable tendency that we have had them in Westminster for the last few hundred years—is that we pass supply, vote funds and are responsible for moneys raised from our constituents. “No taxation without representation” is fundamental. The current rules are in complete breach of that. It is worth reading the National Audit Office report which says that between 2005 and 2015, the EU demanded £642 million back because of the unsatisfactory manner in which the last Labour Government introduced CAP reform. There was absolutely nothing that a single Member of Parliament could do by voting here to stop that money being demanded from the UK Government.
Sir William Cash
In conclusion, I will simply say that I entirely endorse what my right hon. Friend has said, as indeed I endorse what my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said. The bottom line is that our passing of the withdrawal Act, in conjunction with the general election that we have just won, gives us back the opportunity to make laws on behalf of the people of this country in a democratic, constitutional arrangement of such importance that I believe it will go down as a historic moment when the Bill’s Third Reading is passed tomorrow.
Stephen Farry
I rise primarily to address amendment 35 in my name and its intersection with clause 38. I do not intend to press it to a Division, but I want to highlight some of the issues that arise from it.
More generally, on the point of parliamentary sovereignty, I want to make a couple of comments, as other Members have, about the irony with respect to the level of delegated powers that the Bill will create, as well as the lack of scrutiny of the future relationship, which is of particular importance to us in Northern Ireland but also, of course, for all colleagues across the United Kingdom. The Northern Ireland/Ireland protocol, which is of such importance to us in Northern Ireland and has almost bedevilled the process of Brexit for many years, was only in effect programmed for two hours today. Many of the Northern Ireland voices were not properly articulated on that.
The concern of my amendment is the rights protections under the Good Friday agreement. The Good Friday agreement is, of course, an international agreement, but its implementation in domestic law falls to the UK Government. The agreement sets out a comprehensive set of rights, including the political participation of women, the right to freely choose one’s residence, freedom from sectarian harassment, a statutory equality duty and, perhaps most significantly, the requirement for the incorporation of the European convention on human rights into UK domestic law.
Most of the debate in Northern Ireland and beyond around Brexit, as it pertains to our situation, has focused on issues around borders, including the business community, the economy, trade and what the future holds in that regard. But people are also deeply concerned about rights issues, for a whole range of reasons. Article 2(1) of the protocol on Northern Ireland/Ireland provides a commitment that there will be
“no diminution of rights, safeguards or equality of opportunity”.
That is very much welcome, but we have seen a gradual weakening of the level of commitment to rights protections since the original draft of the joint report in December 2017. The European Union is very clear that it falls to the United Kingdom Government to ensure that the rights under the Good Friday agreement are protected as part of the future relationship.
The specific concern that I am trying to raise through amendment 35 is that there seems to be an inconsistency between section 7A of the European Union (Withdrawal) Act 2018 and clause 38 of the Bill, which is the focus of this section of our debate. Clause 38 stresses parliamentary sovereignty notwithstanding section 7A, which is used to give some degree of reassurance that there will not be any threat to rights, but there is the potential that section 7A could be overridden in some shape or form. There are several reasons why we have some concern in this respect. First, not all Good Friday agreement rights relate to the European convention itself; some are broader than what the convention contains. Some of the proposed legislative commitments apply only to Northern Ireland Departments and public bodies, and do not extend as far as the UK Government themselves, and in that there may well be some potential danger.
There are also concerns about whether the UK Government have, to date, fully respected some of the rights under the Good Friday agreement. As Members will appreciate, identity is a very complex issue across these islands, but it has been managed to date through a number of different forms—for example, the common travel area; more recently, the Good Friday agreement; and hitherto, of course, the joint membership of the European Union by the United Kingdom and the Republic of Ireland. Up until now, both jurisdictions have moved in tandem on issues involving the European Union, including on matters such as the Schengen agreement, which the Republic of Ireland has also opted out of. We are now faced with the fact that, for the first time ever, we are going to see the UK and Ireland move in different directions in terms of the European Union. That may well throw up a whole range of issues, challenges and anomalies that will need to be managed successfully.
Brexit strips away a lot of those protections, and perhaps does create a certain degree of risk. If I may, I will take one example in that regard. Members may well be aware of the Emma DeSouza case regarding immigration. It drew attention to the fact that the UK Government have not reflected in UK domestic law, particularly in relation to revision of the British Nationality Act 1981, the right of someone born and resident in Northern Ireland to identify solely as Irish, and to have Irish citizenship. What the law currently says is that anyone born in Northern Ireland is, by birth, automatically British, and to many that goes against both the letter and the spirit of the Good Friday agreement.
As long as that case, and indeed other situations, go unresolved there is a latent fear of these anomalies persisting and, indeed, potentially growing, particularly if there is greater divergence between the UK and the rest of the European Union, including the Republic of Ireland in particular. That has implications for what is a very complex situation, which has been managed by the Good Friday agreement—on a faltering basis over the past 20 years, but none the less managed—and we may well be in very difficult and rocky territory. It is important that the Government reflect on some of the fears that are being expressed in Northern Ireland. Although I am not going to press the amendment today, I think it is important that the Government reflect on the matter.
Ian Paisley (North Antrim) (DUP)
The hon. Member must of course reflect that the fact of the matter is that the Republic of Ireland is an independent country in its own right. By being independent it is entitled to go its own way, and if it wants to go a different way with Europe it is entitled to do that. We would not want to restrict it and say it has to come with Britain. I would be delighted, whenever we leave the EU and Europe increases its bill of membership to the Republic of Ireland—when the Republic sees how costly it is to be a member—if those in the Republic of Ireland had a national conversation about their role as Irish citizens in the EU. Ultimately, however, that is a choice the Republic of Ireland has made—that it wishes to remain within the EU—and we should not try to restrict its hands, either.
Stephen Farry
I am always grateful to hear comments from my counterpart in Northern Ireland, but I think it is worth stressing for the record that there is no significant movement or debate whatsoever in the Republic of Ireland about any form of “Irexit”, as it might be framed. There is deep commitment to membership of the European Union in the south of Ireland, as indeed there is, on a majority basis, in Northern Ireland and in Scotland and other parts of the UK as well.
While Ireland will make its decision to remain part of the European Union, it is of course the UK that is diverging. That debate has been had, and I recognise the outcome in that respect. None the less, it is important to recognise that Northern Ireland is a complex society, and it only works on the basis of sharing and interdependence. A very careful set of balanced relationships has been built up over the past number of years, with the support of those on both Front Benches in this House over that period. Brexit does potentially strip away some of the sticking-plaster over some of the cracks and we do not know exactly how things will work out. It is important that the Government pay regard to, and are sensitive to, the very particular implications in rights terms for Northern Ireland as the Brexit process unfolds.
John Redwood
Clause 38 is welcome. I pay tribute to my hon. Friend the Member for Stone (Sir William Cash) for being one of the co-authors of that excellent piece of Government-proposed legislation. I also support the Minister in opposing various new clauses and amendments before us.
It seems to come down to the question, “What is sovereignty?” and I think the public understand it so much better than many Opposition MPs seem to. The public fully understand that our constitution should be based on the proposition that the public decide who should represent them in the House of Commons and then the House of Commons decides what laws are appropriate, what taxes to raise and how to spend that money, and at the end of four or five years—or sometimes a shorter period—the public get to judge whether we collectively made a good job of it or not, or whether there is some new configuration of Members of Parliament that can make it better. So the public are ultimately sovereign but they trust us, their elected Members, with their sovereignty for a period of up to five years to exercise the powers of government.
When we first joined the European Economic Community, the country was assured that that sovereignty —that set of powers—would not be damaged in any way. To underwrite that promise the Government said, correctly then, that there would be no matter decided in the European Economic Community that could be forced on the United Kingdom against its will; we always had a veto so that if it proposed a law, a charge or a tax that we did not like, we could use the veto. Over our years of membership, we have seen those vetoes gradually reduced—those powers taken away—so that today, although we are still a full member of what is now the European Union, there are huge swathes of policy areas where we are not free to legislate where we wish, or in some cases not free to legislate at all, because it is entirely occupied territory under the Community acquis.
The ultimate sovereign power in the United Kingdom today is the European Court of Justice; that is the ultimate appeal of any legal issue, and it can overrule what the two Houses of Parliament decide, it can overrule a statute, and it can strike down a law passed in this place. It is that which a majority of the British people decided they thought was unsatisfactory. When they had voted many years ago to support our continued membership of the European Economic Community it was called a Common Market and misrepresented as a free trade area, which of course is rather different from a customs union with complex rules, and they were given an assurance that their Parliament would still be able to choose their taxes, spend their money and pass their laws in the traditional way. That turned out not to be true.
The loss of those freedoms was progressive under the Single European Act, under the Maastricht treaty, under the Amsterdam treaty, the Nice treaty and, above all, the Lisbon treaty. The Lisbon treaty was the culmination of that journey towards a very strong European Government that was superior to the United Kingdom Government, and the implied substantial strengthening of the wide-ranging powers of the European Court of Justice, because every directive and every regulation that was passed—and there were thousands of them—not only produced a more directly acting legal power over our country that we could not modify or change, but also gave so much more extensive powers to the European Court of Justice because it is the ultimate arbitrator of that body of law.
It is that body of law which this legislation today is seeking to put under United Kingdom control. We have been arguing over this for three and a half years now. The public thought it was a very simple matter and told us to get on with it. We had a fractious and unhelpful Parliament until recently, which did all in its power to thwart the putting into law of the wishes of the United Kingdom electors.
I hope today, after a second general election and after a referendum where the British people made it clear that they wished their sovereignty to rest again with them and be delegated to their Parliament, that the Opposition might have understood that, and might have understood that currently, contrary to what we have been told by the Labour Front Bench, there are a very large number of areas where we cannot do as we please.
Sir Iain Duncan Smith
May I just pick up on one point? My right hon. Friend talks about, “should we wish to give them benefits”. The reality now is that the British Government have to pay benefits even to families of people working over here when their families are not with them. That is roundly disliked across Europe, but those countries all accept there is nothing they can do about it because the European Court of Justice imposed that as part of freedom of movement. It was never debated as part of freedom of movement and it was never supposed that it would happen. It is an end to sovereignty when one can no longer make a decision to change something like that.
John Redwood
My right hon. Friend puts it brilliantly; that is exactly the kind of limitation of our sovereign power, and of our freedom to make decisions that please our electors, that I have been talking about. It is quite important, given the history of this debate.
Turning to the Scottish nationalists, I agree with what the Scottish nationalist spokeswoman, the hon. Member for Central Ayrshire (Dr Whitford), said: we only want volunteers in our Union. We are democrats. We believe that the Union works, but that if a significant portion of the Union develops a feeling that it is not working for them, we need to test that. I was a strong supporter of accepting the Scottish National party idea, just a few years ago, that there should be a referendum. That referendum had the full support of the United Kingdom Parliament, which is the sovereign authority for these purposes on Union matters. I also fully agreed with the then SNP leadership when I talked to them about it—I think our formal exchanges were recorded in Hansard. They said that they agreed with me that whichever side lost should accept the result, and that it would be a “once in a generation” event, not a regular event that happened every five years until one side got the answer that it liked. I hope that the SNP will reflect on that. We are democrats and we want volunteers in our Union, but we cannot pull it up and examine it every two or three years through a referendum, which is very divisive, expensive and damaging to confidence and economic progress. We should live with the result.
Dr Whitford
Does the right hon. Gentleman accept that we did respect the result? We have been here for four and a half years. We would not have been if we did not respect it; we would have been independent, and we would not be being dragged over the EU cliff at the end of this month. He should accept that the claim of right that Scotland has had for 331 years did not disappear in 2014, and that his party has changed the entire fabric of the United Kingdom. It cannot continue to treat Scotland’s views with disrespect.
The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)
Just before the right hon. Gentleman continues, we do not want to be dragged into a debate on Scottish independence on clause 38. Let us continue to debate these amendments and the clause.
John Redwood
Good advice, but I am trying to address the SNP point related to its proposals on how we treat devolved government fairly and whether we are listening properly to Scotland. I think that we are very much listening to Scotland, but we have to understand that the matter of the Union is a responsibility of the Union Parliament, and that the matter of our membership of the European Union is a responsibility of the European Parliament. It is the hon. Lady’s misfortune to have been on the wrong side in two referendums, but there has been a deeply democratic process in both cases, as to whether Scotland stays in the Union and whether we stay in the EU.
I urge my right hon. and hon. Friends on the Front Bench to remember that there is a fourth country in our Union: the country of England. We are very reasonable people, and we do not go on and on about English issues. However, when we get to this debate over how the different parts of the United Kingdom are consulted and respond to the issue of how we leave the EU, England too needs a voice within the Government and needs to be seen as an important part of the process.
The overwhelming vote for Brexit was an English vote because in numbers, England is a very large part of the Union. That is important, just as the Scottish and Northern Irish view is. I hope that the Government will look at this machinery of government issue and make sure that there is, within Government, a clear and definitive English voice. In due course, I think that we need to discuss whether this Parliament should have an English Grand Committee that can not only veto proposals that England does not like, but make proposals that England wants, because that would do something to correct the obvious imbalances that make this a particularly difficult matter to settle, when the largest part of the Union, with the overwhelming Brexit vote, is not formally represented in the discussions.
Geraint Davies
It is a pleasure of sorts to follow the right hon. Member for Wokingham (John Redwood) and the hon. Member for Stone (Sir William Cash). On the issue of sovereignty and democracy, it is worth remembering something. The basis of the 2016 referendum was one person, one vote, one issue, and there was a clear majority then to leave. In 2019, we had another vote, a general election, and had that been counted on the same basis—one person, one vote—we would have had 14.5 million voting for the oven-ready Brexit on offer and 16.5 million voting for a people’s vote or remain. Obviously, that vote was on a different basis—on a constituency representation basis and on a number of issues—and the clear decision was for a Conservative Government with a majority of 80. That is clearly understood, but to try to conflate the two is wrong. In fact, there remains a compelling case that the oven-ready Brexit being railroaded through—in my view, a reckless Brexit that would undermine the sovereignty, power and financial and trading credibility of Britain—should go back to the public for a final vote.
John Redwood
I gently remind the hon. Member that during the election senior Labour people argued passionately that it was fine for a leave voter to vote Labour and that they were not all in favour of what he has just said, so I do not think he can say that in all cases the Labour vote was definitely a vote for remain or a second referendum.
Geraint Davies
To be clear, I said that the proposition was remain or public vote on the deal. The Labour party position essentially was that the oven-ready Brexit would be bad for Britain—it would make us more divided, weaker, poorer, more isolated and so on—and that we could put together a better Brexit that protected our jobs through trading alignment and our environment and workers’ rights through dynamic alignment of those conditions.
The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)
Order. This is very interesting, but the hon. Gentleman is not speaking to the amendments or the clause. His speech is more a Third Reading speech, for which there will be plenty of opportunity tomorrow. If he has a speech to make on the amendments, we look forward to hearing it.
Geraint Davies
I apologise for responding to the speech made on this subject by the right hon. Member for Wokingham, but I will not go on about that any more.
I want to focus on clause 38, on sovereignty, and new clause 28, on whether we should have a confirmatory referendum, which I was just talking about. I was making the argument, which I will stop making, Sir Gary, in support of the proposal in new clause 28, that there was a legitimate case for a confirmatory referendum on the grounds that most people voted for either remain or a second referendum and that the position of the Labour party was to have a second referendum.
In defining sovereignty, the hon. Member for Stone and others have said that having sovereignty means we can make all our own decisions here and that everything will be all right. I accept that that is an idea in the minds of many voters, and intuitively it sounds very sensible, but in practice is that really what would happen? I contend that this Brexit will reduce our sovereignty and that therefore clause 38 is misleading. At the moment, we have pooled sovereignty in the EU. We are one of 28 countries, but our vote is proportionate to our population. The right hon. Gentleman suggested that things are rammed through without our being consulted—that they just happen to us—but even in majority voting we have a veto, together with others, such as Germany, for example, which is the biggest player and is very worried that when we leave it will not be able to exercise, with us, certain restraints and constraints on the EU.
Ultimately, if we have a close trading relationship with the EU, to which after all 44% of our trade goes—from a Welsh point of view, more like 60%—we will need some level of equivalence, which will mean our having to accord with standards decided in a closed room without us being in that closed room. Surely, that is less sovereignty, not more. We will have to make the following decision: do we agree with something that has been decided without us rather than our being able to argue and block it, with Germany and others, or do we want to be out of the room deciding whether to accept the rules that are coming over—and if we do not accept them it might hinder our trade? That does not sound like sovereignty improvement to me.
Graham Stringer (Blackley and Broughton) (Lab)
Will my hon. Friend tell me what definition of sovereignty he is using? It is completely confusing me. I have just checked, and the normal definition is
“the authority of a state to govern itself”,
but my hon. Friend is talking about majority voting when we might be in a minority. What is his definition of sovereignty?
Geraint Davies
What we are talking about is the freedom of this Parliament to influence the outcomes for our electorate. [Interruption.] What I am saying, as my hon. Friend chunters in his seat, is that we will move from a position in which we can influence rules that will be applied in Britain to one in which we cannot influence those rules, and they will still be applied. We are not suddenly leaving and going to the moon.
I know that there is a move on the other side for us to become semi-detached, or worse, from the EU, and to thrust ourselves into the fond arms of the WTO. However, as I said to the Minister earlier, and I have had some experience of this as a trade rapporteur for the Council of Europe at the WTO, we will end up negotiating with 164 countries with just one vote, not proportionate to our population—and some of those countries will be dictatorships—as opposed to being in a club of 28 mature economies with a strong bargaining position within the WTO. As I said earlier, the WTO is being undermined by the United States, which wants its own massive power to decide everything, rather than rules. Moreover, it has existing rules that are contrary to what we are allowed to do within the EU.
We may talk of sovereignty, but if at some point in the future the Government of Britain wanted to return the railways, for instance, to public ownership—I appreciate that the Minister may not want to do this—the WTO would be able to stop us. It also has rules about patents which will increase the price of drugs. I do not think that “people in the street” voted for that.
Furthermore, the WTO will impose—as will bilateral trading relationships with the United States—new systems of arbitration courts and panels with independent judges who, unlike the European Court of Justice, are not democratically elected, and who will make decisions on whether big companies can either sue us or threaten to sue us for not pursuing various activities, or will block our legislation.
In case there is any ambiguity, let me give an example. Lone Pine, the big fracking company, sued the Canadian Government because Quebec had a moratorium on fracking, saying that it would affect climate change, or was not in the interests of the environment, or whatever it was. We have started fracking in this country, but let us suppose that the Welsh Government said that they did not want fracking in Wales. If there were to be an investor-state dispute settlement tribunal, the frackers could come along and say “Look here, we cannot have this, we are fracking”, and sue the British Government. Is that sovereignty and control in any normal circumstances? Of course it is not. Courts will be available that will fine, or threaten to fine, the British Government for passing legislation to protect the environment and the public health of our citizens, and their intimidation will deter future Governments from doing that.
We have introduced a sugar tax, but when that happened in Mexico there was an attack on it through an investor-state dispute settlement. If we introduce a plastics tax, we will be attacked for that.
Geraint Davies
This is not sovereignty; it is madness and self-harm, on which point I will give way to the right hon. Gentleman.
Sir Iain Duncan Smith
I really do not understand what the hon. Gentleman and his Front Bench are up to. It is as if they are trying to rewrite the whole concept of the world order in trade. The EU has to abide by WTO rules just as we will when we leave—and we already do. There is no issue here that is going to change. WTO rules apply to the EU as stringently as they apply to us, and when we leave and become a voting member, they will still apply to us. The difference is that if there is a debate for change, we will have a vote which we do not have now because we are subsidiary, underneath the EU. The hon. Gentleman’s argument is specious, and it is total nonsense.
Geraint Davies
Well, that was very helpful.
Some hon. Members have failed to understand this. I remember the big debate over the Transatlantic Trade and Investment Partnership, for example, and over these investor-state dispute settlement clauses being used by the Americans on fracking and other issues. Once we are in a situation where, instead of being in the powerful trading bloc of the EU, negotiating head to head with China or the United States from a position of strength to sustain our environmental and workers’ rights and our standards, we will suddenly instead be broken free, semi-detached, and turning our back on our biggest local market—[Interruption.] It is all very well for the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) to chunter, but that is what will happen. It is already being discussed in the trading arrangements with the United States. The United States is saying, “Right, you’re on your own now and we are going to have this relationship and we will enforce it through the international tribunal.” That is what is going to happen.
Let us take as an example the simple European REACH protection—the regulations concerning the registration, evaluation, authorisation and restriction of chemicals. If the right hon. Member for Chingford and Woodford Green were making chemicals in Europe, he would have to prove they were safe before marketing them. In the United States, he would just be able to market them and an environmental protection organisation would have to prove them harmful. That is why they sell asbestos in America, and that is why there will be pressure for us to have asbestos in our brake pads here. That is why there will be pressure for us to have hormone-impregnated meat from America imposed on our growing children, who could then have premature pubescence. I know that some people think that that is sovereignty, but I do not.
Dr Whitford
Is the hon. Gentleman aware that a threat to the sugar tax is already within the trade papers that have come out, registering the discussions that have already been happening with the US? The sheer threat of a Government, whether a devolved Government or this one here, being dragged through an investor-state dispute settlement can create a fear of public health measures such as the one we have in Scotland on the minimum unit pricing on alcohol, which this Parliament have not got round to. They might find that they struggle to get round to it in the future because they would be challenged, which would threaten the public health of everyone in the United Kingdom.
Geraint Davies
The hon. Lady makes an excellent point about the chilling effect of that overhanging threat.
Let us be clear on the specifics. Lots of people talk about the impact of this on our health service and about the Americans arriving and taking our data and privatising the health service. But apart from that, let us think about the public health impact of these changes in relation to sugar. The NHS spends £12 billion a year on diabetes—
The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)
Order. I understand that the hon. Gentleman is trying to link this to the overall concept of sovereignty, but he is now talking about future trade deals rather than about clause 38 of the Bill and sovereignty. I would just encourage him to come back to the clause.
Geraint Davies
I am grateful for your guidance.
I guess the point is that sovereignty is about our ability to make laws here without intimidation or interference, but that we could find ourselves outside the EU and no longer able, for example, to introduce a tax on sugar that would reduce the cost of obesity to the NHS. We could have a situation where we want to let people know that there are six teaspoonfuls of sugar in a Müller Light yoghurt and nine in a Coca-Cola, and we want to drive down sugar content in order to drive down diabetes and health costs. Instead, we could be fined because the projection of a manufacturer of a sugar-impregnated product was less than that. That is not sovereignty. If we cannot protect our environment, our public health and our trade because we will be under the cosh with these companies suing us through the arbitration panels, that is not sovereignty. This clause should therefore be struck out, because it is completely misleading.
Mark Garnier (Wyre Forest) (Con)
I actually agree with an awful lot of what the hon. Gentleman has said in terms of the construction of his argument, but his conclusions are hypothesised on a trade deal that is yet to be done. The important point about all this is that we have sovereignty over deciding what goes into the trade deal. If we do not want to put stuff into a trade deal, it does not matter what the investment courts say. They can only adjudicate on that which is in a trade deal, and what will go into a trade deal will be decided by this sovereign Parliament. That is where his conclusion is completely wrong. He was putting forward quite a strong argument to start with, and I do agree with it, but his conclusions are completely wrong given the sovereignty of this Parliament.
Geraint Davies
I am grateful to the hon. Gentleman for that intervention. If there has been any lack of clarity let me make it clear that I am saying that we are in the EU at the moment and obviously do lots of trade with the EU—44% of it—and we do quite a lot of trade through the EU indirectly with America and elsewhere, so we are in a reasonable position. If we come out of the EU and suddenly find that we need to make up for lost trade, we will be under a lot of pressure to do a deal quickly with the US. We will also be in a much weaker position, because we will be standing alone.
The US is a big player and knows it, so it will try to get what it wants, as has been pointed out on sugar, fracking and other examples. What is more, it has ISDS powers as part of its normal bilateral trading agreements, and that is already recorded in trading relations. The idea suggested by the hon. Member for Wyre Forest (Mark Garnier), which I respect, is that we could in theory say, “No, we don’t want this. We won’t go ahead with that.” but there would be a huge economic cost. There would also be enormous pressure, while doing all these other trade deals, to agree.
The assumption is that we could just carry on as before with all the other bilateral trading agreements with small countries such as Chile. If you were Chile, Sir Gary, you would think, “Hold on. Instead of negotiating with the big EU, I’m now negotiating with a relatively smaller UK, so I want a better deal.” Therefore, our sovereignty, in terms of our power to deliver what our electorate wants, is reduced. Our sovereignty has therefore been intrinsically undermined, rather than enhanced, which is contrary to what is being spun out here.
Ian Paisley
The hon. Member speaks as if trade is all one way. One of Germany’s biggest trading partners is the United Kingdom. Does he think that it wants to go down the road he is describing? The Germans will want to ensure that they continue to have a good trading relationship with the United Kingdom no matter whether Britain is within or outside the EU.
The Second Deputy Chairman of Ways and Means (Sir Gary Streeter)
I call Geraint Davies to talk on sovereignty and clause 38.
Geraint Davies
That is very helpful. Let us get this point clear. Something like 44% of our trade goes to the EU, so it is enormously important to us. However, less than 5% of the EU’s trade overall comes to the UK. There is a balance of power, and it is the case that two EU countries—the Netherlands and Germany—have a significant trade surplus with the UK, but the others do not. The EU will quite reasonably, as a bloc, want to protect its standards, its environment and its workers’ rights and not be undercut.
We have seen that already in terms of sovereignty, because we want a better environment, but the Government have already decided to withdraw from the carbon trading system, so we will have our own carbon tax. However, my understanding of the Government proposal for the carbon emissions tax is that we will charge £16 a tonne and the EU will tax £25 a tonne. In other words, we are already becoming a sort of pollution dumping ground. The more we diverge negatively away from the EU, the less we will be able to trade and the more we will be in the hands of the US, the Chinese or whoever. That is not sovereignty; that is just being in the hands of others.
I accept your guidance, Sir Gary, and I think I have made my point. We will be poorer, weaker and more divided. This is not about sovereignty. This is about the abdication of sovereignty, and I deeply regret it.
Robert Courts (Witney) (Con)
It is an honour to take part in this debate with you in the Chair, Sir Gary.
I want to make a few brief comments on clause 38. I want to say a word or two about parliamentary sovereignty and why the clause is necessary. We have heard the phrase “parliamentary sovereignty” a lot recently. It is much used and much misused. Although it is certainly a subject for debate, it can essentially be understood to mean that this place is the supreme law-making body in the country. It makes the law and cannot bind its successors, so the law can be changed. The law is made after an election, at which we stand on the basis of a set of promises. We then enact those promises, and at the following election, the electorate judge how well we have performed and whether we have kept those promises, and then they make a judgment at the ballot box accordingly.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
I ask the hon. Gentleman to imagine a scenario in which the United Kingdom has a trade deal with America and this Parliament decides that it is going to say no to genetically modified or hormone-treated beef. How free and how sovereign does he think this Parliament will be in such a scenario? It will not be.
Robert Courts
I am grateful to the hon. Gentleman for his intervention, because he illustrates precisely the point I am trying to make, which is about the nature of sovereignty. Sovereignty is held in this place, which makes the law and is the superior governing body. If there is a trade deal with the United States, the electorate will have a chance at the next election to have their say on whether they agree with it. If the hon. Gentleman’s or any other party wishes to change it, they can say so in their manifesto and stand for election accordingly. If elected, they will be able to enter negotiations to change it.
Angus Brendan MacNeil
The hon. Gentleman is being very generous in giving way; I am grateful to him. Of course, a trade agreement requires a dispute resolution mechanism, and we currently have the European Court of Justice. When and if there is a trade deal with America, the dispute resolution mechanism will give away sovereignty and we will be back to square one.
Robert Courts
No, that is a misunderstanding of the nature of a trade dispute body. Every treaty has to have some sort of dispute resolution—the hon. Gentleman is quite right about that. If there is a trade deal with the United States or any other body, there will of course be a trade dispute resolution, but it will adjudicate on the terms of the agreement approved in this House. The major difference with the ECJ is the one to which I have already referred: its judicial activism. It creates law that is over and above and has to be applied by this House, whereas when law is made by our domestic judges, this House can enact legislation to override it.
Dr Whitford
Does the hon. Gentleman recognise that investor dispute-settlement resolution systems in existing treaties are very one-sided? They allow private business to sue the Government, but do not allow Governments to sue business for deaths from smoking, pollution or other damage that they have caused.
Robert Courts
We are certainly getting into the technical detail, which is exactly what we should do at this stage. The hon. Lady ignores the independent element that takes place in any such independent arbitration mechanisms in interrnational trade organisations.
Robert Courts
I will not—I have taken a number of interventions and have made my point. I will conclude simply with why clause 38 is necessary and why amendment 11 misses the point.
Parliament consented to the European Union’s lawmaking structures while we remained members of the European Union. That consent will be withdrawn when the 1972 Act is repealed and we are in the implementation period. We do not want to be forced into a dynamic alignment in which rules that we have no say over are passed. We need to make it clear that Parliament retains the right to disagree and diverge from those rules if it wishes. For those reasons, the clause is entirely accurate and needed, and the amendment simply misunderstands that.
Patrick Grady
I have enjoyed sitting here for the past couple of hours watching the Maastricht rebels’ farewell reunion tour, although it appears that they are getting some young recruits. Fair play to them; they have been trying for 40 years and think that they will achieve what they have always wanted. I feel slightly sorry for them because I do not know what they will do after 31 January.
We heard all the greatest hits: “Supreme lawmaking body,” “Brussels bureaucrats,” “Common Market,” “No taxation without representation,” and of course the platinum hit, “Parliamentary sovereignty,” which has been enshrined in the Bill for absolutely no reason at all, as was said by the hon. Member for Bristol West (Thangam Debbonaire) and my hon. Friend the Member for Central Ayrshire (Dr Whitford).
As the hon. Member for Witney (Robert Courts) touched on, as far as the UK constitution is concerned, Parliament has shared and will continue to share its sovereignty. The devolution settlement effectively did that by recognising the desire of the people of Scotland, Wales and Northern Ireland and other regional Assemblies. Power has been devolved from this place, and are we not all grateful for that? The notion of restoring parliamentary sovereignty is completely unnecessary and is a total showpiece in the Bill. Power has always been shared across the European Union and across the United Kingdom.
The right hon. Member for Wokingham (John Redwood) appears to be a reborn federalist. Perhaps that could be a new solo career now that the band is coming to the end of its tour. I will happily join him in further devolution and the assertion of federalism across the United Kingdom, if that is what he wants to do. He should be worried, however, because parliamentary sovereignty is not being restored by the clause or the Bill as a whole.
In fact, the Bill represents a power grab, first from the devolved Assemblies, by taking back the right to legislate without their consent. The Bill is an example of that. As we speak, the Scottish Parliament is withholding its consent for the Bill, but this House will ride roughshod over it tonight and tomorrow. This is also a power grab by the Executive, because sweeping Henry VIII powers are included in the Bill and in accompanying Brexit legislation that has already been passed.
The Brussels bureaucrats—that favourite hit of the Maastricht rebels—are being replaced by the new one-hit wonder of the Whitehall mandarins, except it will be one hit for the rest of time if this Parliament does not stand in the way of what the Executive are trying to do.
In fact, we are not restoring anything great here. I would be interested in an answer from the Minister at some point on whether the European Statutory Instruments Committee will be reconvened in this Parliament. It was one of the achievements of the European Union (Withdrawal) Act 2018 to enshrine that Committee in statute for the lifetime of the previous Parliament, so let us see the Committee come back if scrutiny and sovereignty are so important to this Government.
This place will be diminished in its powers and sovereignty, and in due course, it will be reduced in its numbers because 59 Scottish MPs will not be sitting here anymore when Scotland’s power and sovereignty are restored to its Parliament, which will be very happy to share them with its continental neighbours as a member of the European Union.
Thangam Debbonaire
As the Minister cleverly spotted, amendment 11 is a probing amendment. We have explored the concept of sovereignty extensively, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 38 to 40 ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 41 ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 42 ordered to stand part of the Bill.
New Clause 2
Protecting workers’ rights
‘(1) It shall be an objective of the Government to secure an agreement with the European Union that achieves the following outcomes—
(a) that the United Kingdom will not introduce any measure which would have the effect of reducing in any way the protection provided by any Retained EU Worker Rights after IP completion day;
(b) that the United Kingdom shall take all steps necessary to ensure that, from exit day, all Retained EU Worker Rights will continue to have at least the same level of protection in the United Kingdom as is applicable in other Member States;
(c) that where, after IP completion day, the European Union brings into force or effect any New EU Workers’ Rights, the result and legal consequences in the United Kingdom of those New EU Workers’ Rights shall be the same as if those New EU Workers’ Rights had been Workers’ Rights brought into force and effect by the European Union before IP completion day;
(d) that those parts of the Treaties which, before IP completion day, provide for any matter concerning the interpretation of Workers Rights in any part of the United Kingdom to be determined by the Court of Justice of the European Union shall continue to apply to the United Kingdom or such part of the United Kingdom to the same extent after IP completion day;
(e) that after IP completion day, the procedural rules, including limitation periods, rules of courts and tribunals and remedies, governing actions for safeguarding New EU Workers’ Rights and Retained EU Worker Rights in the United Kingdom shall continue to be no less favourable than the procedural rules governing similar actions under United Kingdom law;
(f) that nothing in this clause shall prevent the United Kingdom from introducing amendments to Workers’ Rights for the purpose of making such provisions more favourable to the protection of workers;
(g) that the terms at (a) to (f) shall have direct effect and shall be recognised and available in law and be capable of enforcement by individuals and their trade unions in courts and tribunal.
(2) Subsections (3) and (4) cease to apply if the Government has secured an agreement with the European Union that achieves the objective in subsection (1).
(3) A Minister of the Crown must make an oral statement to the House of Commons on the objective in subsection (1)—
(a) within three months of this Act coming into force;
(b) at least as frequently as every 28 days thereafter.
(4) Each statement made under subsection (3) must set out—
(a) the steps taken by the Government, and the progress made in negotiations with the European Union, for the purpose of achieving the objective in subsection (1); and
(b) whether in the Minister’s opinion an agreement with the European Union achieving the objective of subsection (1) is likely to be achieved by IP completion day and, if not, setting out the reasons for this.
(5) For the purpose of this section—
“New EU Worker Right” means any Workers’ Rights—
(a) which Member States are obliged to confer by an EU directive published in the Official Journal of the European Union on or after IP completion day; or
(b) that are conferred by an EU regulation or other instrument published in the Official Journal of the European Union on or after IP completion day; or
(c) that arise out of a judgment of the Court of Justice of the European Union on or after IP completion day;
and shall include any improvement to a Workers’ Right which existed before IP completion day;
“Retained EU Worker Rights” means Workers’ Rights which—
(a) immediately before IP completion day, the United Kingdom was obliged to confer by virtue of the Treaties and the EU directives listed in Schedule 1, or which were, without further enactment, given legal effect in the United Kingdom; and
(b) on IP completion day, continued to have effect in any part of the United Kingdom;
“Workers’ Rights” means rights of individuals, classes of individuals and their trade unions, in all areas of labour protection including—
(a) fundamental rights at work, including all forms of discrimination;
(b) fair working conditions and employment standards;
(c) information and consultation rights;
(d) restructuring of undertakings and acquired rights; and
(e) health and safety at work.
“Exit day” shall have the same meaning as in the European Union (Withdrawal) Act 2018.
“IP completion day” shall have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.”—(Nick Thomas-Symonds.)
This new clause would require the Government to negotiate a comprehensive agreement with the EU protecting workers’ rights.
Brought up, and read the First time.
Nick Thomas-Symonds (Torfaen) (Lab)
I beg to move, That the clause be read a Second time.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
With this it will be convenient to discuss: Workers’ retained EU rights: the EU directives Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work. Council Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health requirements for the workplace (first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Commission Directive 91/322/EEC of 29 May 1991 on establishing indicative limit values by implementing Council Directive 80/1107/EEC on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work. Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship. Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 92/58/EEC of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work (ninth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (eleventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 92/104/EEC of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral extracting industries (twelfth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 93/103/EC of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC - Annex: Framework agreement on part-time work. Council Directive 98/23/EC of 7 April 1998 on the extension of Directive 97/81/EC on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC to the United Kingdom of Great Britain and Northern Ireland. Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) - Annex: European Agreement on the organisation of working time of seafarers. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on the minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports. Commission Directive 2000/39/EC of 8 June 2000 establishing a first list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Directive 2000/54/EC of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers’ Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA). Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation. Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities. Directive 2002/44/EC of the European Parliament and of the Council of 25 June 2002 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (vibration) (sixteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees. Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time. Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (codified version). Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector. Commission Directive 2006/15/EC of 7 February 2006 establishing a second list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC and amending Directives 91/322/EEC and 2000/39/EC. Directive 2006/25/EC of the European Parliament and of the Council of 5 April 2006 on the minimum health and safety requirements regarding the exposure of workers to risks arising from physical agents (artificial optical radiation) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work. Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC. Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast). Directive 2009/104/EC of the European Parliament and of the Council of 16 September 2009 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work. Commission Directive 2009/161/EU of 17 December 2009 establishing a third list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC and amending Commission Directive 2000/39/EC. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC. Council Directive 2010/32/EU of 10 May 2010 implementing the Framework Agreement on prevention from sharp injuries in the hospital and healthcare sector concluded by HOSPEEM and EPSU. Directive 2013/35/EU of the European Parliament and of the Council of 26 June 2013 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and repealing Directive 2004/40/EC. Directive 2013/38/EU of the European Parliament and of the Council of 12 August 2013 amending Directive 2009/16/EC on port State control. Directive 2013/54/EU of the European Parliament and of the Council of 20 November 2013 concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention, 2006. Council Directive 2013/59/Euratom of 5 December 2013 laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation, and repealing Directives 89/618/Euratom, 90/641/Euratom, 96/29/Euratom, 97/43/Euratom and 2003/122/Euratom. Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’). Council Directive 2014/112/EU of 19 December 2014 implementing the European Agreement concerning certain aspects of the organisation of working time in inland waterway transport, concluded by the European Barge Union (EBU), the European Skippers Organisation (ESO) and the European Transport Workers’ Federation (ETF). Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015 amending Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and Council Directives 98/59/EC and 2001/23/EC, as regards seafarers. Council Directive (EU) 2017/159 of 19 December 2016 implementing the Agreement concerning the implementation of the Work in Fishing Convention, 2007 of the International Labour Organisation, concluded on 21 May 2012 between the General Confederation of Agricultural Cooperatives in the European Union (Cogeca), the European Transport Workers’ Federation (ETF) and the Association of National Organisations of Fishing Enterprises in the European Union (Europêche). Commission Directive 2017/164/EU of 31 January 2017 establishing a fourth list of indicative occupational exposure limit values pursuant to Council Directive 98/24/EC, and amending Commission Directives 91/322/EEC, 2000/39/EC and 2009/161/EU. Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law.
New clause 3—Future relationship: Customs Union and Single Market—
“(1) It shall be an objective of the Government to secure an agreement with the European Union that achieves the following outcomes—
(a) a permanent and comprehensive UK-wide customs union involving alignment with the Union customs code, a common external tariff and an agreement on commercial policy that includes a UK say on future EU trade deals;
(b) close alignment with the single market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution;
(c) dynamic alignment on rights and protections so that UK standards keep pace with evolving standards across the EU as a minimum;
(d) UK participation in EU agencies and funding programmes; and
(e) Close cooperation on security including access to the European Arrest warrant and databases such as EUROPOL and SIS II.”
New clause 8—Maintaining the UK’s place in the Single Market and Customs Union—
“(1) It shall be an objective of the Government to maintain the United Kingdom’s status within the Single Market and Customs Union of the European Union within the framework of the future relationship between the United Kingdom and European Union.
(2) A Minister shall lay before each House of Parliament a progress report on aims noted in subsection (1).”
This new clause ensures that the UK Government will negotiate for the maintenance of the United Kingdom’s membership of the single market and customs union.
New clause 10—Implementation period negotiating objectives: Erasmus+—
“(1) It shall be an objective of the Government to secure an agreement within the framework of the future relationship of the UK and the EU before the end of the implementation period that enables the UK to participate in all elements of the Erasmus+ programme on existing terms after the implementation period ends (“the Erasmus+ negotiations”).
(2) A Minister shall lay before each House of Parliament a progress report on the Erasmus+ negotiations within six months of this Act being passed.”
This new clause would require the Government to seek to negotiate continuing full membership of the EU’s Erasmus+ education and youth programme.
New clause 16—Economic impact assessment—
“(1) A Minister of the Crown must—
(a) lay before each House of Parliament and
(b) submit to the Presiding Officers of each devolved legislature
a comprehensive economic impact assessment of potential outcomes arising from the conclusion of negotiations on the future relationship with the EU.
(2) An assessment under subsection (1) must include—
(a) an analysis by NUTS1 and NUTS2 regions of the United Kingdom including (but not limited to)—
(i) impact on employment as both a nominal figure and percentage, and
(ii) impact on Gross Value Added;
(b) a sectoral analysis including but not limited to agriculture, health and social care, manufacturing, the aerospace industry, and financial services.”
This new clause would require the Government to produce an economic impact assessment on the future relationship negotiated with the European Union.
New clause 20—UK-EU trade agreement: mutual recognition and standards—
“(1) The Government must, during and after the implementation period, seek as part of any future trade agreement between the United Kingdom and the European Union mutual recognition, adequacy or deemed equivalence arrangements across all product regulations and standards covered by the agreement in the following areas—
(a) goods,
(b) services,
(c) data protection,
(d) environmental standards,
(e) labour standards,
(f) professional qualifications, and
(g) any other technical regulations or standards which it seeks to negotiate.
(2) Nothing in any trade agreement between the United Kingdom and the European Union shall prevent Parliament from enacting laws and setting technical regulations and standards within the United Kingdom.
(3) “Technical regulations or standards” shall include any law, regulation or administrative action that affects the trade of goods, including agrifood and agricultural goods, including those covered by the World Trade Organisation’s Technical Barriers to Trade Agreement and the World Trade Organisation’s Sanitary and Phyto-Sanitary Agreement.”
This new clause would mandate the Government to seek mutual recognition, adequacy or deemed equivalence arrangements on standards to be included in the future trade relationship, while preserving the right of Parliament to set laws and standards in the UK.
New clause 27—Non-regression from EU standards—
“(none) After section 14 (financial provision) of the European Union (Withdrawal) Act 2018 insert—
‘14A Interpretation: “regressive”
(1) In this section and sections 14B to 14D “regressive” means—
(a) reducing the level of protection provided by retained EU law in respect of a protected matter (specified in subsection (2)), or
(b) weakening governance processes associated with retained EU law in respect of a protected matter (specified in subsection (2)).
(2) The protected matters are—
(a) the environment;
(b) food safety and other standards;
(c) the substance of REACH regulations; and
(d) animal welfare.
14B Primary legislation
‘(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—
(a) make a statement to the effect that in the Minister’s view the provisions of the Bill are not intended to have, and are not reasonably likely to have, a regressive effect, or
(b) make a statement that although provisions of the Bill are intended to have, or are reasonably likely to have, a regressive effect, the Government nevertheless wishes the House to proceed with the Bill.
(2) If the Bill relates to environmental law—
(a) in preparing the statement the Minister must—
(i) consult the Office for Environmental Protection (“OEP”); and
(ii) publish their response, and
(b) if the OEP’s response asserts that provisions of the Bill are reasonably likely to have a regressive effect on environmental law, that response must also suggest how to avoid that effect.
(3) A Minister who makes a statement under subsection (1)(b) must also—
(a) publish the reasons for including in the Bill provisions that are intended, or reasonably likely, to have a regressive effect (“regressive provisions”);
(b) arrange for a motion to be moved in the House of Commons, before the Bill leaves that House, for a resolution that the House approves the inclusion of regressive provisions; and
(c) arrange for a motion to be moved in the House of Lords, before the Bill leaves that House, for a resolution that the House approves the inclusion of regressive provisions.
14C Subordinate legislation
‘(1) Regulations under this Act are unlawful if and to the extent that they are intended to have, or in practice are reasonably likely to have, a regressive effect.
(2) A statutory instrument under any other Act which is made for the purposes of or in connection with the withdrawal of the UK from the EU is unlawful if and to the extent that it is intended to have, or in practice is reasonably likely to have, a regressive effect.
14D Other action by public authorities
‘(1) Any action taken by or on behalf of a Minister of the Crown under this Act is unlawful if and to the extent that it is intended to have, or in practice is reasonably likely to have, a regressive effect.
(2) Any action taken by or on behalf of a Minister of the Crown for the purposes of or in connection with the withdrawal of the UK from the EU is unlawful if and to the extent that it is intended to have, or in practice is reasonably likely to have, a regressive effect.
(3) A public authority exercising a function in respect of a protected matter must not exercise the function in a way that is intended to have, or in practice is reasonably likely to have, a regressive effect.
14E Guidance
‘(none) The Secretary of State must publish guidance for government departments and other public authorities designed to ensure and facilitate the avoidance of action that would be unlawful by virtue of sections 14B to 14D.
14F Divergence tracking
‘(1) In this section “divergence report” means a report containing—
(a) a summary of new EU environmental laws;
(b) a summary of steps taken by the Government in relation to the issues addressed by those laws;
(c) a summary of steps taken by the Government as set out in previous divergence reports;
(d) an independent review identifying any divergence between UK law and EU law in respect of those issues and recommending action to remedy the divergence;
(e) a statement of action Ministers propose to take; and
(f) if Ministers do not propose to give effect to the recommendations of the independent review, the reasons for that.
(2) The Secretary of State must publish a divergence report—
(a) within the period of 6 months beginning with the date of commencement of this section; and
(b) during each subsequent period of 6 months.
(3) The Secretary of State must—
(a) prepare each divergence report in consultation with persons appearing to the Secretary of State to represent the interests of businesses, workers, public bodies and relevant non-governmental organisations;
(b) publish each divergence report;
(c) lay it before Parliament; and
(d) arrange for a motion to be moved in each House of Parliament, within the period of 28 sitting days beginning with the first sitting day after the date of publication of the report, for a resolution that the House approves the divergence report.
(4) If a Committee of the House of Lords, or a Joint Committee of the House of Lords and the House of Commons, publishes a report relating to matters to be considered in a divergence report, the divergence report must contain Ministers’ response to the Committee report.
(5) If a motion in either House for the approval of a divergence report is not passed unamended, a Minister of the Crown must as soon as reasonably practicable publish a report—
(a) setting out the steps that Ministers intend to take to rectify any divergence between UK law and EU law in respect of environmental matters, and
(b) including, in particular, legislative proposals designed to remedy the divergence, together with a timetable and strategy for enacting the legislation.
(6) In this section “independent review” means a review undertaken by a body established by regulations made by the Secretary of State for the purpose of reviewing new EU law and giving independent advice to Ministers about divergence.
(7) Regulations under subsection (6)—
(a) may include provision about the membership, funding and proceedings of the body;
(b) may confer appointment and other functions on the Secretary of State or another specified person;
(c) may include incidental, supplemental, consequential and transitional provisions;
(d) must be made by statutory instrument; and
(e) may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.
(8) Provision about membership of the body under subsection (7)(a) must, in particular, aim to ensure the inclusion of individuals who are independent of the government and have relevant knowledge and experience including expertise in environmental law’””
This new clause aims to prevent of substantive regression from EU standards in legislation after leaving the EU.
New clause 29—Implementation period negotiating objectives: level playing-field—
“(1) It shall be an objective of the Government to secure an agreement within the framework of the future relationship of the UK and EU to secure agreements that achieve the following outcomes—
(a) close alignment with the European Union single market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution;
(b) dynamic alignment on rights and protections for workers, consumers and the environment so that UK standards at least keep pace with evolving standards across the EU as a minimum, and;
(c) participation in EU agencies and funding programmes, including for the environment, education, science, and industrial regulation.
(2) A Minister of the Crown shall lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1) (a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”
This new clause would require the UK Government to seek close alignment with the EU single market on key level playing-field provisions such as workers’ rights and environmental and consumer standards and protections as part of its negotiations for the future relationship with the EU.
New clause 30—Maintaining the UK’s place in the Single Market and Customs Union—
“(1) It shall be an objective of the Government to maintain the United Kingdom’s status within the Single Market and Customs Union of the European Union within the framework of the future relationship between the United Kingdom and European Union.
(2) A Minister of the Crown shall lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”
This new clause would require the UK Government to seek to keep the UK in the Single Market and the Customs Union as part of its negotiations for the future relationship with the EU.
New clause 31—UK participation in the European medicines regulatory network—
“(1) It shall be the objective of an appropriate authority to take all necessary steps to implement an international trade agreement which enables the UK to fully participate after exit day in the European medicines regulatory network partnership between the European Union, European Economic Area and the European Medicines Agency.
(2) ‘Exit day’ shall have the meaning set out in section 20 of the European Union (Withdrawal) Act 2018.
(3) A Minister of the Crown shall lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”
This new clause would require the UK Government to seek to maintain participation in the European medicines regulatory network as part of its negotiations for the future relationship with the EU.
New clause 32—Maintaining the UK’s membership of Euratom—
“(1) It shall be an objective of the Government to maintain the United Kingdom’s membership of the European Atomic Energy Community within the framework of the future relationship between the United Kingdom and European Union.
(2) A Minister of the Crown shall lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”.
This new clause would require the UK Government to seek to maintain the UK’s membership of Euratom as part of its negotiations for the future relationship with the EU.
New clause 35—Implementation period negotiating objectives: security partnership—
“(1) It shall be an objective of the Government to secure an agreement within the framework of the future relationship of the UK and EU to secure agreements that achieve the following outcomes—
(a) continued UK participation in the European Arrest Warrant,
(b) continued UK membership if Europol and Eurojust, and
(c) continued direct access for UK agencies to the following EU data-sharing tools—
(i) the Second Generation Schengen Information System (SIS II),
(ii) the European Criminal Records Information System (ECRIS),
(iii) the Prüm Decisions,
(iv) Passenger Name Record (PNR), and
(v) the Europol Information System (EIS).
(2) A Minister of the Crown shall lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1) (a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”
This new clause would require the UK Government to seek a comprehensive security partnership as part of its negotiations for the future relationship with the EU.
New clause 38—Independent review of the impact of withdrawal—
“(1) The Secretary of State must arrange for an independent review of the impact of the United Kingdom’s withdrawal from the EU in relation to each of the following periods—
(a) the initial one-year period, and
(b) each subsequent three-year period.
(2) A review must be completed as soon as practicable after the end of the period to which the review relates.
(3) The review must consider the impact of the United Kingdom’s withdrawal from the EU on—
(a) the economy of the United Kingdom,
(b) national security,
(c) climate change and the environment,
(d) human rights, and
(e) social and economic rights.
(4) As soon as practicable after a person has carried out a review in relation to a particular period, the person must—
(a) produce a report of the outcome of the review, and
(b) send a copy of the report to the Secretary of State.
(5) The Secretary of State must lay before each House of Parliament a copy of each report sent under subsection (4)(b).
(6) The Secretary of State may—
(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of a review, and
(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of a review (including arrangements for the provision of staff, other resources and facilities).
(7) In this section—
“initial one-year period” means the period of one year beginning on the day following exit day as defined in section 20(1) of the European Union (Withdrawal) Act 2018;
“subsequent three-year period” means a period of three years beginning with the first day after the most recent of—
(a) the initial one-year period, or
(b) the most recent subsequent three-year period.”
This new clause would require the Government to publish regular independent reports on the impact of Brexit.
New clause 45—NHS protection and devolved legislatures—
“(1) Any provision relating to the National Health Service within a trade deal shall not be made without consultation with, and only after publication of a legislative consent memorandum from, each of the relevant devolved legislatures.
(2) For purposes of this Part, ‘relevant devolved legislatures’ means—
(a) the Northern Ireland Assembly,
(b) Scottish Parliament, and
(c) the National Assembly for Wales.”
This new clause requires each devolved legislature to give legislative consent to any trade deal affecting the National Health Service.
New clause 46—Impact assessment—
‘(none) The Government must publish undertake equality, environmental and economic impact assessments, by each region of the United Kingdom, on any proposed future relationship or Free Trade Agreement, before initiating legislation to implement any such proposed future relationship or Free Trade Agreement.”
This new clause requires the publication of regional equality, environmental and economic impact assessments of any proposed future relationship or Free Trade Agreement.
New clause 48—Maintaining the UK’s membership of Horizon 2020 and future Horizon programmes—
‘(none) It shall be an objective of the Government to maintain the United Kingdom’s membership of Horizon 2020 and its successor programmes within the framework of the future relationship between the United Kingdom and European Union.”
This new clause would require the Government to seek to negotiate continuing full membership of the EU’s Horizon 2020 research programme and its successor programmes, such as Horizon Europe.
New clause 49—UK citizens resident in the EU: protection of rights—
“(1) The Secretary of State must make arrangements to preserve, as far as is possible, the United Kingdom’s obligations under EU law to British citizens who are resident in any EEA country, or in Switzerland, on the day before IP completion day.
(2) The arrangements in subsection (1) must include—
(a) arrangements for people in receipt of a United Kingdom state retirement pension to continue receiving that pension under the same uprating and other arrangements as apply on the day on which this Act is passed, for the rest of their lifetimes as long as they remain resident in any other EEA country, or in Switzerland,
(b) arrangements for British citizens to continue receiving the same level of publicly-provided healthcare as they do currently as EU citizens.
(3) The duty in subsection (1) applies whether or not the United Kingdom reaches any relevant reciprocal arrangements with other EEA member states, or with Switzerland.”
This new clause requires the Government to take steps to preserve the rights of UK citizens living in the EU, including continuing to uprate UK state pensions for Britons living in the EU and paying for publicly-provided healthcare.
New clause 50—EU Charter of Fundamental Rights impact assessment—
“A Minister of the Crown must, on or before 30 June 2020, publish a comprehensive impact assessment of the effect of removing the EU Charter of Fundamental Rights from domestic law.”
This new clause would provide that the UK Government commits to conducting and publishing an impact assessment of the effect of removal of the EU Charter of Fundamental Rights (by virtue of section 5(4) of the EU (Withdrawal) Act 2018).
New clause 51—Protection for workers’ rights—
“(1) After section 18 of the European Union (Withdrawal) Act 2018 (customs arrangement as part of the framework for the future relationship) insert—
‘18A Protection for workers’ rights
(1) Part 1 of Schedule 5A (which requires statements of non-regression in relation to workers’ retained EU rights) has effect.
(2) Part 2 of Schedule 5A (which provides for reporting requirements and parliamentary oversight in relation to new EU workers’ rights) has effect.
(3) Part 3 of Schedule 5A (which contains interpretative provision) has effect.’
(2) After Schedule 5 to the European Union (Withdrawal) Act 2018 (publication and rules of evidence) insert the Schedule 5A set out in Schedule (Protection for workers’ rights) to this Act.”
This new clause reinstates what was Clause 34 and Schedule 4 of the EU Withdrawal Agreement Bill (Bill 7) in the October-December 2019 Session and provides additional procedural protections for workers rights that currently form part of EU law, but which would not be protected against modification, repeal or revocation in domestic law once the transition or implementation period has ended.
New clause 59—Representation in the European Parliament—
“(1) It must be a negotiating objective of the United Kingdom Government to seek to secure ongoing and formal representation in the European Parliament, at not less than observer status, for the devolved nations and regions of the UK.
(2) Once secured, this representation shall be determined and co-ordinated by each devolved administration.”
New schedule 1—Protection for workers’ rights Protection for workers’ rights—
“Protection for workers’ rights
The Schedule 5A to be inserted after Schedule 5 to the European Union (Withdrawal) Act 2018 is as follows:
‘Schedule 5A
Protection for workers’ rights
Part 1
Workers’ retained EU rights
Acts of Parliament: statements of non-regression
1 (1) A Minister of the Crown in charge of a relevant Bill in either House of Parliament must, before Second Reading of the Bill—
(a) make a statement to the effect that in the Minister’s view the provisions of the Bill will not result in the law of the relevant part or parts of the United Kingdom failing to confer any workers’ retained EU right (a “statement of non-regression”), or
(b) make a statement to the effect that although the Minister is unable to make a statement of non-regression Her Majesty’s Government nevertheless wishes the House to proceed with the Bill.
(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.
(3) Before making a statement under sub-paragraph (1)(a) or (b) in relation to a Bill, a Minister of the Crown must consult—
(a) persons representative of workers,
(b) persons representative of employers, and
(c) any other persons whom the Minister considers it appropriate to consult.
(4) But that duty does not apply to a statement made in relation to a Bill if—
(a) it is not practicable for the consultation to take place in relation to the statement by reason of urgency, or
(b) the statement is being made before Second Reading of the Bill in the second House of Parliament and the Bill was not amended in the first House of Parliament.
(5) In this paragraph—
“first House of Parliament”, in relation to a Bill, means the House of Parliament in which the Bill is first introduced;
“relevant Bill” means a Bill which contains provision that—
(a) extends to England and Wales or Scotland (or both), and
(b) relates to any of the workers’ retained EU rights;
“relevant part of the United Kingdom”, in relation to a Bill, means—
(a) England and Wales, if the Bill extends there;
(b) Scotland, if the Bill extends there;
“second House of Parliament”, in relation to a Bill, means the House of Parliament to which the Bill moves after completing its passage through the first House of Parliament.
Part 2
New EU workers’ rights
Reports on new EU workers’ rights
2 (1) As soon as practicable after the end of each reporting period, the Secretary of State must—
(a) produce a report under sub-paragraph (2) or (3) relating to that period (“the relevant reporting period”),
(b) publish the report in such manner as the Secretary of State considers appropriate, and
(c) lay copies of the report before Parliament.
(2) A report under this sub-paragraph is one that contains a statement that no new EU workers’ rights have been published by the EU during the relevant reporting period.
(3) A report under this sub-paragraph is one that contains—
(a) a statement that one or more new EU workers’ rights have been published by the EU during the relevant reporting period, and
(b) as respects each new EU workers’ right published during that period, either—
(i) a statement to the effect that in the Secretary of State’s view the law of England and Wales and Scotland confers a workers’ right of the same kind as the new EU workers’ right (a “statement of non-divergence”), or
(ii) a statement to the effect that the Secretary of State is unable to make a statement of non-divergence.
(4) If a report under sub-paragraph (3) contains a statement under sub-paragraph (3)(b)(ii) as respects a new EU workers’ right, the report must also contain—
(a) a statement of whether or not Her Majesty’s Government intends to take any action in respect of the new EU workers’ right, and
(b) if it does, a statement describing the action which it is intending to take.
(5) In relation to each report under sub-paragraph (3), a Minister of the Crown must make arrangements for—
(a) a motion, to the effect that the House of Commons has approved the report, to be moved in that House by a Minister of the Crown within the period of 28 Commons sitting days beginning with the day on which a copy of the report is laid before that House, and
(b) a motion for the House of Lords to approve the report to be moved in that House by a Minister of the Crown within the period of 28 Lords sitting days beginning with the day on which a copy of the report is laid before that House.
(6) When producing a report under sub-paragraph (3), the Secretary of State must consult—
(a) persons representative of workers,
(b) persons representative of employers, and
(c) any other persons whom the Secretary of State considers it appropriate to consult.
(7) In this paragraph “reporting period” means—
(a) the period that—
(i) begins with IP completion day, and
(ii) ends with the day which falls six months after the day on which IP completion day falls;
(b) subsequently, each period that—
(i) begins with the day (the “start day”) that comes immediately after the end of the preceding reporting period, and
(ii) ends with the end day.
(8) The “end day” for that purpose is decided as follows—
(a) if any new EU workers’ rights are published by the EU during the period of six months beginning with the start day, the end day is the day which falls six months after—
(i) the day on which those rights are published by the EU, or
(ii) if they are published by the EU on different days, the earliest of those days;
(b) if no new EU workers’ rights are published by the EU during the period of six months beginning with the start day, the end day is the day which falls twelve months after the start day.
(9) A reference in this paragraph to a new EU workers’ right being published by the EU is a reference to the EU directive or EU regulation which provides for its conferral being published in the Official Journal of the European Union.
Part 3
Interpretation
Interpretation
3 (1) In this Schedule—
“new EU workers’ rights” means any workers’ rights—
(a) which member States are obliged to confer by an EU directive published in the Official Journal of the European Union on or after IP completion day, or
(b) that are conferred by an EU regulation published in the Official Journal of the European Union on or after IP completion day;
“workers’ retained EU rights” means workers’ rights of the kinds which—
(a) immediately before IP completion day, the United Kingdom was obliged to confer by virtue of the EU directives listed in the table in paragraph 4, and
(b) on IP completion day, continued to have effect (by virtue of this Act and as modified by any provision made by or under this Act or otherwise) in the law of England and Wales or Scotland;
“workers’ rights” means rights of individuals, and classes of individuals, in the area of labour protection as regards—
(a) fundamental rights at work,
(b) fair working conditions and employment standards,
(c) information and consultation rights at company level,
(d) restructuring of undertakings, and
(e) health and safety at work.
(2) The reference in the definition of “workers’ retained EU rights” to rights which continued to have effect by virtue of this Act includes a reference to rights which form part of retained EU law by virtue of section 2 but which would have continued to have effect irrespective of that section.
(3) References in this Schedule to rights being of the same kind as new EU workers’ rights are to be read as references to rights being of the same kind so far as that is consistent with the United Kingdom’s domestic legal order following its withdrawal from the EU.
(4) For the purposes of this Schedule a right under the law of England and Wales or Scotland is conferred whether or not it is in force.
4 (1) The table referred to in the definition of “workers’ retained EU rights” is as follows:
(2) The Secretary of State may, by regulations, make such modifications of the list of EU directives in that table as the Secretary of State considers appropriate in consequence of any changes before IP completion day in EU directives relating to workers’ rights.
(3) No regulations may be made under sub-paragraph (2) after the end of the period of one year beginning with IP completion day.”
Nick Thomas-Symonds
As this is my first appearance at the Dispatch Box this year, I would like to thank my constituents for re-electing me and send all hon. and right hon. Members my very best wishes for 2020.
I draw attention to my relevant entries in the Register of Members’ Financial Interests regarding my support from trade unions.
We fully accept that, following the general election, we will be leaving the European Union on 31 January, but winning a mandate for that exit, as the Government have, does not give Ministers a free pass to avoid any scrutiny. The Government should be held to account between elections as well as at elections, and that is what the Opposition propose to do. We will continue to make the case in the post-Brexit United Kingdom for jobs and livelihoods, for environmental safeguards, for consumer protections and for employment rights, as we have over recent years.
New clause 2 is about protecting vital workers’ rights, and subsection (1)(a) would ensure that the Government cannot introduce measures that would, in any way, have the effect of reducing the protections provided on the day the transition period ends. We believe this must go further.
Subsection (1)(b) confirms that the Government, after our exit from the EU, will ensure that workers’ rights in the United Kingdom are, as a minimum, at the level they are in other EU member states. We also insist that the Government are held to account in Parliament on those objectives. The Government must never be allowed to sell out the workers of this country, and we will not let them off the hook. We will stand with those to whom this Government and the Prime Minister have made promises.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I welcome the hon. Gentleman’s tone and his acceptance of the result of the general election. In turn, will he accept that workers’ rights in the UK are greater than those enjoyed within the EU and that we do not need to be members of the EU in order to have them? Sick pay, maternity leave and the minimum wage are examples in this regard. Does he accept that those rights are already enhanced and that this sovereign Parliament guards them, not the EU?
Nick Thomas-Symonds
I am delighted to see the hon. Gentleman giving credit to past Labour Governments and their achievements, and he is absolutely right in what he says about the national minimum wage. We can go back even further and talk about the Health and Safety at Work etc. Act 1974, which was another fine achievement by a UK Labour Government. However, there are also rights whose genesis has been in European law, as we know if we talk to agency workers and think about the working time directive. We should be praising these things. Labour Members say they should be not only preserved but enhanced in future years, and that is what this new clause is all about.
I say to the hon. Gentleman that the Government’s record on workers’ rights is concerning to say the least. Let us consider the previous incarnation of this Bill, which was in October 2019. Schedule 4 to that Bill outlined that, first, a Minister would have to consult businesses and unions on the impact on workers’ rights of any new proposed legislation and then state formally how that would happen, and that, secondly, the Government would have to report regularly on any new EU directives. At the time, those proposals were described by the TUC general secretary as “meaningless procedural tricks”, which is why Labour Members tabled a similar amendment to the one before us today so that stronger protections would be in place. The position of the Government in October 2019 was weak on workers’ rights and now it is even weaker. If the Prime Minister cared so much, he would not have moved the provisions on this from the legally binding withdrawal agreement to the non-binding political declaration. Why bother to make that change if not to prepare the ground to make changes in the future? It was no surprise that the Government started off this Parliament indicating that they want to attack the right to strike in the transport sector.
None of those are the actions of a Government who want, as they claim, to
“protect and enhance workers’ rights as the UK leaves the EU”.
They are not the actions of a Government who want to make Britain the
“best place in the world to work.”
Let us not forget that the Conservative party is the party of employment tribunal fees, which were a barrier to those whose rights at work had been infringed and were seeking justice. The Government now ask for trust on workers’ rights, but their record on this bears no reasonable scrutiny. The Home Secretary, in the EU referendum campaign, talked of the
“burdens of the EU social and employment legislation”.
Another member of the Government said:
“The weight of employment regulation is now back-breaking: the collective redundancies directive, the atypical workers directive, the working time directive and a thousand more”.
Who said that? It was the man who now claims to be the workers’ friend, the Prime Minister himself. This Government cannot and will not be trusted on workers’ rights—rights that have been hard won over generations by the labour movement. That is why this new clause is needed in the Bill, in order to safeguard the millions of workers in this country who deserve our continuous protections of their rights. That is why the Opposition will press that new clause to a vote when the time comes.
New clause 3 sets out details about our future relationship, putting the protection of jobs and livelihoods at the very top of our priorities as we depart the EU. It sets out the arguments that have been made by the Opposition for some years now, arguments for a UK-wide customs union, with a say in external trade deals, for strong, high-quality single market access, and for ensuring that rights and protections—for workers, as I have mentioned, but in other areas too—in the UK never fall behind those across Europe. I also think of our manufacturing sector, where our exporters are currently benefiting from tariff-free access to the single market. In all our constituencies, whether through direct employment or the many supply chains that exist, workers and businesses will rightly look to this House to protect their interests going forward, and that is what we should do.
In the course of this Parliament, we will hold the Government to account on their record on jobs and investment. The basis upon which they secure the new relationship with the EU will have consequences for now and for decades to come. Parliament has lost its right to set a negotiating mandate, so that task now falls squarely on the shoulders of the Government. They will be judged on what they do and the impact it has on employment prospects up and down the land.
Subsection (1)(d) refers to participation in EU agencies, many of which have been debated in the course of our deliberations on Brexit in recent years. I wish to focus on and make some remarks about the issue of security, because in a digital age, when crime knows no borders, there are extraordinary new challenges in the task of keeping the public safe. Nobody can doubt the value of working together, and continuing to work together, on security with the EU and other international partners, but the Government have not yet produced a credible plan on how the current advantages we have—the current set of tools—will continue in the post-Brexit age.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
My hon. Friend is making a crucial point. Although I agree with the other parts of the new clause on the customs union and the single market, security is an aspect that was largely lost in many of the debates that we had in the House, yet we members of the Home Affairs Committee regularly heard evidence from experts—from law enforcement agencies, the Metropolitan police and others—of the risks to our security of not getting a comprehensive security arrangement in place. Does my hon. Friend agree that we should listen to those experts and the Government should listen to them, too?
Nick Thomas-Symonds
My hon. Friend is absolutely right. I shall develop that point, because one issue is that the non-binding political declaration contains an aim for a broad, comprehensive and balanced security partnership, but that is currently just words on a piece of paper. We urgently need a plan. When the former Prime Minister spoke at the Munich security conference in February 2018, she spoke about a security treaty with the EU27, but we are still waiting for the planned architecture of that co-operation.
Let me give some specific examples. Things such as the European arrest warrant, Eurojust and Europol are critical to the successful investigation and extradition of wanted suspects or criminals. National Crime Agency statistics show how important this is. In the period from 2010 to 2016, the UK made 1,773 requests to member states for extradition under the European arrest warrant and received 48,776 requests from member states for extradition. Not only can the UK currently bring people to these shores to face justice, but we can send dangerous people to other countries to face legal proceedings.
It seems the Government have accepted the importance of the European arrest warrant. Their July 2018 White Paper said that
“the UK has arrested more than 12,000 individuals, and for every person arrested on an EAW issued by the UK, the UK arrests eight on EAWs issued by other Member States”.
That White Paper also showed the challenge that the Government face. It said:
“Existing extradition arrangements between the EU and third countries do not provide the same level of capability as the EAW.”
We cannot allow our capability to be diminished.
Hannah Bardell (Livingston) (SNP)
The hon. Gentleman is making an important point. Before the general election I produced a report with the all-party group on deaths abroad and consular services and assistance, which I chair. He may be aware that there are already significant challenges when our citizens die, get into trouble or are incarcerated abroad. All the officers and the people I have spoken to have said that Brexit is only going to compound those issues and make it more difficult for our citizens to get proper representation and support from the Foreign Office after Brexit; does the hon. Gentleman agree?
Nick Thomas-Symonds
The hon. Lady is absolutely right to highlight the challenges, which are precisely what I wish to come on to and develop.
Yesterday, I heard the Secretary of State for Exiting the European Union respond to an intervention by my hon. Friend the Member for Rhondda (Chris Bryant); my fear is that as yet the Government’s thinking just has not moved beyond the implementation period, which ends at the end of 2020. What happens after that is so important, because it will determine what our law enforcement agencies have in their armoury to deal with pan-European crime. It is an urgent task.
The issue of data sharing and continued data sharing is crucial. Were the UK ever to lose access to the EU’s security databases, information that today can be retrieved almost instantaneously could take days or weeks to access. That would create a significant hurdle to effective policing, to say the least.
On Europol, how do the Government see the future? Do they envisage full participation, or only observer status at board meetings? We just do not know. The fact that the situation is critical and the position wholly unsatisfactory is the fault of the Government and not of those who work in our security sector. After all, the UK makes a great contribution to European security. Through the Schengen information system—or SIS II as it is known—the UK is contributing to the sharing of real-time data on wanted criminals, missing persons and suspected terrorists, and that co-operation is beneficial to us all. The data shared in that database are used millions of times each year by UK police, and that surely must illustrate to all Members the profound risk of there being no long-term deal on security.
In conducting the negotiation, the Government must emphasise the UK’s contribution and the mutually beneficial nature of European co-operation in dealing with the most serious organised crime on our continent. I listened carefully to the new European Commission President today. She said that the threat of terrorism is real, and that we have to share the necessary information to stop terrorists crossing borders and attacking us. She is right. When we are fighting crime, we are better working to eradicate it collectively than working alone, and we need a formal legal basis to continue to do so. That is why new clause 3 is so important, and I commend it and new clause 2 to the House.
Joanna Cherry
I rise to give the support of the Scottish National party to the official Opposition’s new clause 2 and to speak to new clause 8, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford); new clauses 50 and 51 and new schedule 1 in my name and those of some of my colleagues; and new clauses 45 and 46, in the names of SDLP Members.
I want to turn first to the issue of workers’ rights. What is being done in this Bill is very serious, which is why new clause 51 and new schedule 1 seek to reinstate the missing clause and schedule that were in the October version of this Bill. The Government have suggested that the substance of the deleted clauses will be covered in a separate employment Bill, but, as it has yet to be laid before Parliament, we are understandably suspicious given the history of these matters. It is simply not true or accurate to suggest that the United Kingdom has done a better job than the European Union in protecting workers’ rights. There are some respects in which the United Kingdom has progressed matters, and it is true to say that those came under a Labour Government, and I congratulate Labour on that.
Joanna Cherry
I want to develop my point before I take any interventions from the hon. Gentleman.
There are many other respects in which the European Union and our membership of it have advanced the cause of workers’ rights. Judgments of the European Court of Justice, expanding the law in the way that some hon. Members seem to find so objectionable, have also led to greater protections for workers in the United Kingdom. As well as the disappearance of what was clause 34 in the October Bill, this Bill also removes the provision that pre-Brexit judgments of the European Court of Justice will continue to be binding on UK courts until the UK Supreme Court departs from them. Instead, it has provision for Ministers of this Government to make regulations under clause 26—[Interruption.] I can see the Minister frowning at me, but we spoke about this in some detail earlier today. I am talking about regulations to enable certain courts and tribunals to depart from the CJEU case law. That, of course, underlines the concern that many trade unions feel in relation to this matter.
I have read very carefully what Unison, the TUC and the Scottish TUC say about this matter. I have also seen what has been said by Thompsons Solicitors, a well-known legal firm that many of us have had dealings with in the past, which has worked hard in the area of protection of workers’ rights. The fear is that the combination of the missing clause and the power that the Government are taking to themselves to interfere with the Supreme Court’s ability to overrule previous European Court of Justice decisions will create a chaotic free-for-all on workers’ rights in the United Kingdom, whereby the courts could potentially weaken existing workers’ rights and ignore past ECJ rulings from which trade unionists and workers across the United Kingdom have benefited. If that does not happen in the courts, it could well happen as a result of the unilateral action of Government Ministers through delegated legislation.
Chris Stephens (Glasgow South West) (SNP)
Many of those who advanced the leave cause during the referendum campaign said that one of the reasons they wanted to leave the European Union was to do away with workers’ rights and employment rights. Now that many of those people are on the Treasury Bench, the suspicions held by many of us are only going to intensify.
Joanna Cherry
Not all, but many Members on the Government Benches have spoken about just the sort of free-for-all on rights that we fear. Of course, this partly comes from the conceit that somehow the United Kingdom—by which they normally mean England—has a monopoly on rights, which is not shared by other countries across the world, including the other countries in the European Union. Unfortunately, the lived experience of working men and women across the United Kingdom is not one of confidence in Governments of the UK to protect them, particularly when those Governments are of the Conservative and Unionist party. That is why they have been so reliant on the jurisprudence of the European Court of Justice, and on directives and regulations passed by the European Union institutions, in which Britain has of course had significant input over the years. My new clauses and the Labour party’s seek to achieve some minimum guarantees in relation to the continued enjoyment of many rights that exist only because of the European Union.
Geraint Davies
Does the hon. and learned Lady agree that the European Court of Justice underpins our fundamental values of democracy, human rights and the rule of law? Does she also agree that, outside it, workers’ rights, the judiciary and the rule of law are under attack, and that our civil service, the BBC and all such institutions are now a free-for-all? It is not just workers’ rights; it is the judicial system itself.
Joanna Cherry
As I said earlier, it is clear from the Conservative manifesto that the Government intend a rebalancing of power between the Executive, Parliament and the judiciary. I think this comes from a sense of hubris about the Prime Minister’s defeat in the Supreme Court at the tail end of last year. Of course, it is important to remember that that was not a political decision, but a legal one. The distinguished Scottish judge Lord Drummond Young said in the Scottish Supreme Court, “It is not for the judiciary to scrutinise the Government. That is the job of Parliament. But when the Government prevents Parliament from doing its job, then it is the job of the judiciary to step in to make sure that Parliament can fulfil its function.” I see that that comment from a distinguished member of the Scottish bench is going down like a lead balloon on the Government Benches, but it simply mirrors what Lady Hale was careful to do in the Supreme Court, which was to underline that these were legal judgments, not political ones.
Our memberships of international institutions such as the European Union and the European convention on human rights, separately, have given important guarantees that regardless of the complexion of government in the United Kingdom, there will be certain minimum standards. Withdrawal from the EU undermines that in a number of areas, particularly workers’ rights, and that is why these amendments are so important.
My second point relates to the charter of fundamental rights, which was of course removed by the European Union (Withdrawal) Act 2018 and is not dealt with in this Bill. However, there remains widespread concern about the effect of the removal of the charter because, as we heard at length in the last Parliament, it guarantees certain rights that are not guaranteed by the convention on human rights or by the domestic legal systems of these islands. My SNP colleagues and I believe that this Parliament should ensure that the Bill does not lead to the diminishing of the rights of UK citizens or EU citizens living in the UK. One way of doing that would be for the Government to commit to conducting and publishing an impact assessment on the effect of the removal of the EU charter of fundamental rights later this year. That is what my new clause 50 seeks to achieve. I would respectfully suggest that, in the interests of certainty, no reasonable parliamentarian in this House who cares about the rights of his or her constituents could oppose an inquiry into the impact of the withdrawal of the charter on their constituents’ rights.
New clause 8, in the name of my right hon. Friend the Member for Ross, Skye and Lochaber and a number of other colleagues, sets out a requirement for the UK Government to negotiate a deal keeping the UK close to the single market and the customs union. I have no intention of pressing it, because I know that that ship has sailed. However, it is intended to remind the House of, and to put on record, the position of the Scottish National party and the Scottish Government in relation to membership of the single market and the customs union.
The Minister said earlier that the UK Government have engaged with the devolved Administrations throughout the negotiations to leave the European Union, but I am afraid that the evidence of the past three years shows that while engagement has taken place, it has been very much a superficial box-ticking exercise. That is not just the view of the SNP; I see others who represent seats in areas covered by other devolved Administrations nodding their heads.
In December 2016, the Scottish Government published a document called “Scotland’s Place in Europe”, which was the first comprehensive proposal from any Government in these islands to address the outcome of the EU referendum. It contained an evidence-based analysis showing that the least damaging option for leaving the European Union—the optimum case being to remain—was to continue membership of the single market and customs union. The document demonstrated how that could be done for the UK as a whole, notwithstanding other parts of the United Kingdom such as Northern Ireland and Scotland. The proposals represented a very considerable compromise by the Scottish Government, but despite cross-party support in the Scottish Parliament, they were almost instantly dismissed by the former Prime Minister. Indeed, they were read more carefully by Michel Barnier than by the British Government.
Thereafter, Scottish Government colleagues engaged fully in good faith with the process set up by the UK Government apparently—I use the word “apparently” advisedly—to involve and consult the devolved Administrations in formulating the UK position for withdrawal. The terms of the Joint Ministerial Committee on EU negotiations, which was set up for that very purpose, were agreed in October 2016, saying that through the Committee the Governments would
“work collaboratively to…seek to agree a UK approach to, and objectives for, Article 50 negotiations; and provide oversight of negotiations with the EU, to ensure, as far as possible, that outcomes agreed by all four governments are secured from these negotiations”.
Sadly, it was soon clear that the UK Government had no intention of honouring those commitments. There is more to engagement than simply turning up and speaking at people. Engagement involves listening, compromising and collaborating.
Chris Elmore (Ogmore) (Lab)
The hon. and learned Lady is making an important contribution, as she often does. This is not just about the withdrawal process. We cannot even get discussions about what is happening with the shared prosperity fund. It is 19 or 20 months since the consultation should have ended. I understand from Welsh Assembly Members and Welsh Government colleagues that they cannot even get a discussion with the Treasury, the Department for Business, Energy and Industrial Strategy, the Wales Office or the Scottish Office. If we cannot even get what happens to our funding right, there is little hope of genuine consultation with the devolved Administrations on the process of leaving.
Joanna Cherry
That is very much the experience of my Scottish Government colleagues across the board in this engagement with the British Government. In fact, in a recent keynote speech to the Institute for Government, my friend and colleague Mike Russell, the Cabinet Secretary for the constitution in the Scottish Government, said that
“at no point have the views of the Scottish Government, the Welsh Government or Northern Irish representatives been addressed”
in a way that has led them to believe that they have been listened to and would be taken account of in any meaningful way. Still less has there been any recognition of any need to accommodate the pro-EU majority in Scotland and in Northern Ireland, or of the position of Scottish MPs or, indeed, the Scottish Parliament, which normally votes by more than two thirds to one third on substantive Brexit issues. Indeed, just this afternoon as we have been debating here, the Scottish Parliament has voted by 92 votes to 29 to withhold legislative consent to this Bill. I am afraid that the Government cannot just blame the bête noire of the Scottish National party for that. It has involved all parties in the House—the Lib Dems, Labour and the Greens, but not the Scottish Conservatives, who are not interested in what the majority of people living in Scotland want. They are more interested in doing the bidding of their Westminster-based masters.
The point is this: there has been no meaningful engagement with the Scottish Government. There has been no meaningful engagement with the Welsh Government. As we heard even from the DUP, which has a genuine right to be annoyed about recent developments, there has been no meaningful engagement with Northern Irish representatives.
While we hear a lot of rhetoric again and again today about how the British people have spoken, the will of the people and a suggestion that the Opposition are somehow an affront to democracy for turning up and scrutinising this Bill, it is important to remember that, far from being an affront to democracy, my hon. Friends and I speak for majority opinion in Scotland—the majority opinion in Scotland is to remain in the European Union. Every electoral opportunity that has been afforded to Scotland since the EU referendum, including the last general election, has resulted in a resounding majority of seats for parties that support remaining in the European Union. So can we tone down a wee bit the rhetoric about the will of the British people and acknowledge the reality of the degree to which engagement has taken place?
Members need not just take my word for it or that of my colleagues in the SNP Scottish Government. The Public Administration and Constitutional Affairs Committee of the Commons concluded in July 2018:
“It is clear from the evidence to this inquiry that Whitehall still operates extensively on the basis of a structure and culture which take little account of the realities of devolution in the UK. This is inimical to the principles of devolution and good governance in UK.”
That was the conclusion of a cross-party Committee of this House. I do not expect any support from Government Members for the SNP’s new clause 8, but it gives me the opportunity to correct some factual misunderstandings about the degree of engagement that has taken place over the last few years.
Before I conclude, I would like to express my support for new clauses 45 and 46, tabled by my colleagues in the Social Democratic and Labour party. New clause 45 would require each devolved legislature to give legislative consent to any trade deal affecting the NHS. It is very similar to the SNP’s new clause 68, which was not selected for debate. The SNP manifesto in Scotland contained a commitment to protect the NHS from a trade deal with the United States of America. We won the election in Scotland with 45% of the vote and 80% of the seats, and it would perhaps be a courtesy to take on board an amendment that reflects the will of the majority of people who bothered to vote in Scotland.
Stephen Doughty
I am sure the hon. and learned Member would acknowledge that a similar pledge has also been made by the Welsh Health Minister, and my constituency colleague, Vaughan Gething. Welsh Labour’s commitment on this, and I am sure that of Plaid Cymru and others, is absolutely clear: we will defend the NHS in Wales in trade negotiations.
Joanna Cherry
I am very grateful to the hon. Gentleman for reminding me of the position in Wales. That of course reflects the fact that, again, this is a concern not just of nationalist parties, but of the parties that support the devolved settlements but perhaps do not wish to go as far as independence.
The SDLP’s new clause 46 requires regional equality, environmental and economic impact assessments of any proposed future relationship or free trade agreement. Again, that is eminently sensible. It is similar to Plaid Cymru’s new clause 16, which is looking for a UK-wide economic impact assessment. Again, those are matters that I would have thought any MP who cares about the outcome of these negotiations and the future of their constituents’ livelihoods would be well advised to support.
I will conclude by saying that we need to take account in these proceedings of the different positions of the devolved nations. What I say and will continue to say to the Government is that if they continue to act as if there is no difference between the wishes of the electorate in England and the wishes of the electorate in Scotland, Northern Ireland and Wales, they will do so at their peril, and the Union that they say they care about so much will be further undermined by that behaviour.
Layla Moran (Oxford West and Abingdon) (LD)
I rise to support new clauses 10 and 29, on which we will be seeking a vote today. These should absolutely be no-brainers.
New clause 10 is about the Erasmus programme. For students, young people, those in training and staff who work in the education sector, the Erasmus scheme has been absolutely incredible. I wonder how many of us on these Benches have used that programme ourselves, or have had our children or others in our family do so. From 2014 to the end of this year alone, €1 billion has been allocated to support the UK as part of Erasmus+. New clause 10 would only require the Government to seek—to do what they say they want to do, but let us be sure—to negotiate continuing full membership of the future Erasmus education and youth programme.
We could secure access to the programme through negotiations, but we would be an associated third country and that would never be as good as the programme we are part of now. However, at least with new clause 10 this Parliament would be instructing the Government that, as part of the next phase, that is something we absolutely want.
Let us remind ourselves what Erasmus does. It allows our young people to go abroad to European universities, to learn new languages, to meet new people, to put down some roots abroad and to build the international understanding that, in my view, is a big part of what it means to be British.
Jim Shannon
I congratulate the hon. Lady on bringing this matter to the Committee for consideration. Today I had the opportunity to meet representatives from the Russell Group, which encompasses 24 universities across the whole of the United Kingdom of Great Britain and Northern Ireland, and the Erasmus scheme was one of the schemes they mentioned. They intimated how good the scheme was and how important it was, and stressed the opportunity that it brings. I want to support the hon. Lady in what she has said. When we have universities with the capacity and strength of membership that we have across all four regions, it indicates to me that the Erasmus scheme is a good scheme and needs to be retained.
Layla Moran
I thank the hon. Member very much for his intervention; he makes the point beautifully. It is such a no-brainer: this is something that we should want to keep.
When people who have used the scheme return and apply their skills, the economy is boosted. The scheme increases their chances of getting a job and increases their confidence and sense of independence—and Brexit puts all that under threat. If full access to the scheme is not negotiated, it is those from the poorer families who will suffer. Those from well-off families will be able to study abroad if they want; their parents could pay the fees. The Erasmus scheme gives those from poorer backgrounds the ability to do that in a way that simply was not available before it came to fruition.
Alison Thewliss
The hon. Lady is making some excellent points on the reasons why we should keep Erasmus. Pollokshields Primary in my constituency is one of the very few state primary schools that participate in the exchange programme, and it broadens the horizons of children from a Scottish Pakistani background by twinning with a school, Colegio Hernández, in Spain. So horizons are being broadened in all kinds of different ways under the scheme. It would be such a shame to lose it.
Layla Moran
That is another reason why we need to keep it, and I will simply say this: while Brexit suggests to those abroad that Britain might be not quite as international-facing as it was before, every time I meet a young person—particularly during the most recent election campaign—they point to things like Erasmus as the older generation pulling up the drawbridge to the opportunities that we had, and that they wish they had for their future. It would be such a shame for us to conclude this debate this week without a firm assurance from the Government that they want to keep that programme, and that there is nothing that they would love more than to see that written in the Bill itself; I do not understand why they would not want to do that.
The same goes for Horizon 2020, so I will broaden what I am saying slightly. As we know, the productivity gap is one of the biggest crises in our country and Horizon 2020 is another example of the best of European co-operation. Between 2007 and 2013 the UK received €8.8 billion on research and development and innovation from the EU. When, over the past few years, I have raised this in the House, I have heard Ministers say from the Dispatch Box, “We will replace the money.”
I will make the following point through the voice of a constituent who is a professor of chemistry at Oxford University, so I hope we will concede that he probably knows. It is not just about the money, he says:
“It’s important for Ministers to recognise that access to EU funding only plays a part and is certainly not the full sum of UK scientists’ concerns. Science is indeed Humboldt’s “country without borders”; in 2018, over half of all scientific research papers published from the UK acknowledged international collaboration through author addresses, and well over 30% of all publications involved one or more EU countries.”
That says it all; I hear it over and over again. If we want to attract the best, a visa will not help; they need to know that they will be absolutely welcome in our country, and that they are welcome for those research opportunities. We are already seeing it in our institutions—not just Oxford University but Oxford Brookes as well, and in the number of professors and others who are coming to me and saying, “I tried to put in for a certain grant; it is not being accepted any more because of the uncertainty this is causing.” If new clause 10 were part of the Bill, it would give them the certainty they need to be part of that collaboration from now—and, believe me, when those people go and they go to the other European universities that will have them, that is where they will put down roots and that is where they are more likely to stay. We cannot afford to lose those people. I know the Government want to keep the best and the brightest; well, these are they, and they are saying that they are leaving.
Finally, I shall speak to new clause 29, which is about that level playing field. I shall obviously support the Labour Front Bench in the Division, when it comes, because that level playing field and its effect on workers’ rights is incredibly important, but I will continue to stress that it is not just about workers’ rights; it is also about environmental standards, and that is the bit that I am seriously concerned about.
The best feature of the election campaign we have just had was that the environment was, apparently, at the top of all political parties’ agenda; we kept hearing from the Government that they wanted to supersede the level playing field arrangements when it came to environmental standards, and that is brilliant. All the level playing field is actually is a minimum standard; why would we not want to keep it?
The same goes for workers’ rights. The same goes for anything else when it comes to that level playing field. The problem, as we have heard before, is that removing it and deregulating opens the door to lower standards. We talk about America. It is not just about America, but let’s face it, we know that that is where the Government are looking to their next trade deal.
I want to be clear about what the problem is. The environment Bill, which the Government say will replace EU legislation, does not operate on the stronger precautionary principle to which the EU’s environmental standards currently operate. We are in a climate emergency. We cannot help but be moved—I am sure we all are—by the images coming out of Australia. We need to ensure that those minimum standards are the absolute minimum. My worry is that in a post-Brexit world we will be looking for trade deals with other countries who would much prefer it if we lowered our standards. That would open the door to our compromising in this area, when I heard time and time again that there was no appetite across the country for any kind of compromise.
Caroline Lucas (Brighton, Pavilion) (Green)
The hon. Lady is making a very powerful case. Does she agree that not only non-regression but dynamic alignment is vital? EU legislation is constantly modified. For example, the REACH legislation has been updated 38 times since it first came into law in 2006. If we are to avoid the risk of so-called zombie legislation—EU legislation brought across to the UK statute book but not updated—we need dynamic alignment, too.
Layla Moran
Absolutely. I thank the hon. Lady for her point and commend her for her tireless work on this issue. I think the broad consensus across the House is that we must now take the environmental crisis seriously. As the science progresses and as we understand where the technologies are going, we must stay close to our nearest neighbours. That matters when it comes to the environment and to biodiversity. We have to make sure that we do that. I ask us all, as a sign to ensure we stay within that level playing field and within programmes such as Horizon and Erasmus, to vote for new clauses 10 and 29.
Debbie Abrahams
It is lovely to see you in the Chair, Sir George.
I rise to speak to my new clause 27, which seeks to ensure that there is no regression from EU standards on the environment; food; the substance of REACH regulations, which seek to protect human health and the environment from the use of chemicals; and animal welfare. It addresses the points that have just been made.
The UK currently enjoys high standards in areas such as habitat protection and product safety. Having developed those standards with our European neighbours, we now benefit from cleaner beaches, safer food and the best chemicals regulation in the world. The Government have committed to legislate to ensure high standards of environmental protection, but they have not yet delivered on that commitment. The 2018 withdrawal agreement contained a legally binding mutual commitment to non-regression in most areas of environmental law, if the transition period did not produce an agreement on the future relationship. That has been removed from the Bill and I wonder whether the Minister can explain why that is the case.
Climate change is the defining issue of our time and we are at a defining moment. The world is now experiencing a climate emergency, and an urgent and rapid global response is now necessary. From shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding and the horrendous bush fires we currently see in Australia, the impacts of climate change are global in scope and unprecedented in scale. After more than a century and a half of industrialisation, deforestation and large-scale agriculture, quantities of greenhouse gases in the atmosphere have risen to record levels that have not been seen in 3 million years.
We know that as populations, economies and standards of living grow, so does the cumulative level of greenhouse gas emissions. In October 2018, the Intergovernmental Panel on Climate Change issued a special report on the impacts of global warming of 1.5° C, finding that limiting global warming to 1.5° C would require rapid, far-reaching and unprecedented changes in all aspects of society. The IPCC said we must cut global emissions in half by 2030 and achieve net zero emissions by 2050. The UK should be leading the way both nationally and internationally. The Government must play their role.
Caroline Lucas
The hon. Lady will not be surprised that I completely agree with her. She will know that the Prime Minister has said that he wants to bring forward what he has called the most ambitious environmental programme of any country in the world. That being the case, does she share my bewilderment that Ministers could even conceive of not supporting the new clause? What would they have to fear from an amendment that simply seeks to ensure that we do not go backwards, if they are absolutely serious about delivering for the environment?
Debbie Abrahams
My hon. Friend makes the point that I am trying to make: if the Government are committed to this, why are they not putting it in the Bill?
Last September’s UN climate action summit delivered a boost in momentum, co-operation and ambition, but as the UN Secretary-General said:
“we have a long way to go…We need more concrete plans, more ambition from more countries and more businesses. We need all financial institutions, public and private, to choose, once and for all, the green economy.”
This year’s UN climate conference must see existing commitments renewed and increased, not least by the Government. The political declaration, agreed by the UK and EU in October 2019, proposed that the UK and EU should uphold “common high standards”. However, the declaration is only indicative and is not legally binding. Including an amendment on environmental non-regression in the Bill would help to ensure that standards are not weakened across the UK during the process of EU withdrawal. Given that the scope of the Bill is focused on actions in connection with EU withdrawal, further non-regression guarantees will be needed, both in domestic legislation, such as the environment Bill, and in the future relationship agreement with the EU.
The new clause is broken down into a number of different sections. Proposed new section 14A of the European Union (Withdrawal) Act 2018 defines regressive and protected matters covered by the proposal, which include
“the environment…food safety and other standards…the substance of REACH regulations; and…animal welfare.”
Proposed new section 14B adds a procedural check—similar to that already carried out on new legislation in relation to human rights—for primary legislation. This requires Government either to state that new legislation does not weaken environmental standards or, if it does, to explain why and require explicit parliamentary approval of that regression. The new office for environmental protection must be consulted during this process.
Proposed new section 14C prevents withdrawal from the EU being used as a route for lowering environmental standards by secondary legislation.
Proposed new section 14D prevents withdrawal from the EU being used as a route for lowering environmental standards by other public body action.
Proposed new section 14E requires the Secretary of State to publish guidance for Government Departments and other public authorities to support them in avoiding any regressive actions.
Finally, proposed new section 14F ensures that all new EU environmental law is reviewed by an expert independent body to track potential divergence. If any potential divergence is identified and not approved by Parliament, the Government must commit to taking steps to rectify that divergence.
An argument has been made that the new clause is not needed, as the UK will have better standards. However, Ministers have stated many times that environmental standards will not be weakened, so it should not be controversial to guarantee that in legislation, as my hon. Friend the Member for Brighton, Pavilion (Caroline Lucas) mentioned. What objection can the Government have to committing to the new clause? I would very much welcome the Minister’s comments on that. A meaningful commitment to non-regression is essential if the UK is to genuinely put itself forward as a world leader in environmental protection. I urge the Government to support the new clause; we need to ensure that their deeds match their words.
I was very disappointed that my new clause 9, with which I sought to prevent any Minister of the Crown from financially benefiting from any proposed trade deal, was not selected for debate. I was under no illusion that the Government would support it, but I wanted to highlight the issue. If anybody has not read the excellent book by Professor Danny Dorling on what is driving Brexit, I thoroughly recommend it. If national policy is being driven by the narrow interests of a few, and their interests are their own enrichment, our politics is not just damaged but broken. As I am sure many here would agree, politics is about public service, not what it can do for us personally.
Claire Hanna
I rise to speak to new clause 45, on the protection of the NHS from future trade deals, and new clause 59, on ensuring political representation for Northern Ireland in the European Parliament.
I suspect it goes without saying that I deeply regret the arrival of this point in the Brexit process. We still view Brexit as an extraordinary act of self-harm for Britain. We on our side of the Irish sea will suffer immense political, social and economic collateral damage. To protect ourselves, and indeed other regions of the UK, my hon. Friend the Member for Foyle (Colum Eastwood) and I have tabled amendments that would provide for impact assessments, prevent the diminution of rights, on which the hon. Member for North Down (Stephen Farry) has expanded very well, and give the Good Friday agreement institutions the flexibility they need to respond to the challenges that Brexit will bring. I do not need to remind Members that the Good Friday agreement is sovereign in Northern Ireland and has been endorsed overwhelmingly by the people—more so than anything else before or since. It is not just an ornament on the mantelpiece; it is a toolkit that can help us to weather the storm of Brexit, but it has to be given the powers, flexibility and opportunity to respond to the many challenges that we know are coming but the shape of which we do not yet know.
Ensuring European parliamentary representation for Northern Ireland is part of that. Thankfully, we will be within the regulatory orbit of the EU. Members will know that the Good Friday agreement mandates the Government to ensure no diminution of rights for people in Northern Ireland because of Brexit, but one of those rights, because they are Irish citizens and therefore will continue to be EU citizens, is the right to political representation in the European Parliament. There is therefore a duty on the Government to continue to provide that right for continuing EU and Irish citizens.
In many ways, the new clause merges amendments tabled by others around democratic oversight, transparency and parliamentary consent as this Brexit evolves. For the many reasons Members have laid out, if Brexit is to deliver even a fraction of what Government Members are promising, they should have no concerns about oversight and allowing people to see the process as it evolves. In matters of public policy, I have always found sunlight to be the best disinfectant. We must allow people to see how the processes are happening.
New clause 45 is self-explanatory. It seeks to protect the NHS from future trade deals and to ensure, if a future relationship affects the devolution settlement on health, that legislative consent is sought from the Northern Ireland Assembly—fingers crossed, it will exist again next week—and from the Scottish Parliament and the National Assembly for Wales.
We have tabled several other amendments—and support amendments that mirror them—around a level playing field, the maintenance of workers’ rights, Erasmus and Horizon 2020, which are so fundamental to Queen’s University in my constituency, and safeguards for EU nationals living here.
Jim Shannon
The hon. Lady is making some very pertinent points. In my constituency, the agri-food sector is important for jobs. We need workers’ rights enshrined so that those in the sector can have their jobs and immigration status retained. In some cases, people might fall through the cracks. If that is the case, we need to ensure that, even at this late stage, they can apply for and have the status they need. Does she think the Government should enshrine in legislation provisions that enable them to retain their immigration status in the United Kingdom of Great Britain and Northern Ireland so they can help our agri-food sector to grow and provide more jobs?
Claire Hanna
I do agree. In fact, I have been surprised to find myself in the same Lobby as the hon. Member several times today. That is how important these issues are to protecting jobs, consumers and our economy. He and I come from a place that has an emigration problem, and that problem is young people feeling the need to leave for opportunities elsewhere. That we have EU workers making their homes and paying their taxes where we live contributes to and enriches our economy, our community and our cultural lives. Everything must be done to protect those already feeling the cost of Brexit.
We spoke about the economic impact earlier, but I have spoken to EU citizens in my constituency who are already feeling the chill. Perhaps they are already being passed over for jobs or promotion because their employers do not know whether they will even be allowed to work here next year, or are asking, “Will I have to fill in lots of forms in order to continue to employ you?”
As I have said, we have covered an array of issues which have been set out very well by a number of Members, including the issue of child refugees. I do not mean this as an insult, but in many ways Conservative Members are the dog that caught the car. They have been chasing Brexit for a very long time, and now they have it. They have the numbers to get it done, and with that comes a duty to protect people from it. I do not believe that there is any good way to do Brexit, but they have those numbers, and they have that duty to take the roughest edges off it for the most vulnerable people.
David Linden
It is an honour to follow the hon. Member for Belfast South (Claire Hanna). I agreed with much of what she said.
I refer Members to my new clause 56, entitled “Implementation period negotiating objectives: annual celebration of Europe Day”. Unfortunately it was not selected by the acting Chairman of Ways and Means—[Interruption.] The Minister is chuntering, which is unusual for him. Members of the European Research Group, in their infinite wisdom, talk of Big Ben chiming away on 31 January, but if the Minister and the Government are serious about a strong future relationship with the European Union, it is important for them to consider our suggestion that an oral statement should be made on Europe Day, and that European flags should be flown above Government buildings.
Alan Brown (Kilmarnock and Loudoun) (SNP)
I thank my hon. Friend for giving way so early in his speech. He has made a good point. His new clause is about celebration and recognising what we had in Europe, as opposed to the triumphant attitude of the ERG and the Brexiteers who talk of Big Ben chiming on the 31st. I was contacted by a constituent, Paul from Kilmarnock, who requested the Government not to organise a triumphant celebration because of the fear felt by so many other people about what they are losing. Does my hon. Friend agree that those who want Big Ben to sound should recognise what EU citizens will feel like on that night when we exit Europe?
David Linden
Absolutely. My hon. Friend’s constituent Paul has made a fair point. Brexit should not be about the narrow nationalism of the European Research Group and inward-looking “little Britain” attitudes. My new clause suggests a way of expressing a more outward-looking view of the future relationship. I am sure that when the Bill goes to the other place, the Government will be able to table an amendment to that effect. However, I want to stay in order, so I shall now speak in favour of new clause 8, tabled by my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), and new clauses 50 and 51 and new schedule 1, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry).
I will not detain the Commitee for too long, but will confine my remarks to amendments relating specifically to membership of the single market and the customs union and, subsequently, those relating to workers’ rights. First, however, let me say that it is important to reflect on the new reality of where we are following the general election. Like it or not, the Conservatives must accept that their Brexit message failed in Scotland. They lost more than half their seats, and the SNP now holds 80% of the Scottish seats in the House; but, in the most undemocratic manner possible, the Tories are choosing to ignore Scottish voters by pressing ahead with their hard Brexit plans. To put it simply, we are being dictated to by a minority party in Scotland. During the election campaign, one of the Prime Minister’s more bizarre media stunts saw him drive a JCB digger through a polystyrene wall to deliver his “Get Brexit Done” message. It is now very clear that that wall represents Scotland, and that this Tory Government intend to forge ahead with their “Bulldozer Brexit”.
Like so many people in Scotland, I distinctly remember leaflets being delivered during the Scottish independence referendum campaign, imploring people to accept that a No vote was a vote to protect our rights as EU citizens and to maintain our membership of the European Union. Understandably—although it was not how I voted—many of our fellow citizens voted No in good faith, believing that that truly was the best way of protecting our EU membership. Five years on, having voted to stay in the United Kingdom, the people of Scotland now face the harsh and sad reality of our country being dragged out of the European Union by a British Government we did not vote for and by an intransigent Prime Minister who has no mandate from Scotland for this utterly reckless move.
Bim Afolami (Hitchin and Harpenden) (Con)
Is not the principle, though, whether it be on workers’ rights or anything else, that this House will be the place where the decisions on those issues will be legislated upon? Of course there are political differences on all sorts of issues. I happen to take issue with the way in which the hon. Gentleman characterises them, but that is beside the point. However, this House will decide what the workers’ rights for UK citizens should be. Surely that is the aim of this House.
David Linden
I am grateful to the hon. Gentleman for his intervention, but it is very much my concern that we have a Tory majority Government who will morph into Thatcherism on steroids over the course of the next five years. For me, the idea that we just sit back and let the Prime Minister and the current Foreign Secretary dictate what direction we take with employment rights is not a chance that I am willing to take.
Chris Stephens
Is it not the reality that in the last 20 years the advances in workers’ rights have come mainly from Europe? When we look at the fixed-term workers directive for those on temporary contracts or doing part-time and agency work, we see that it was not this place that was advancing the cause of those workers; it was the European Union and the European Parliament.
David Linden
Absolutely. I think that was the very reason why 62% of people in Scotland voted to remain in the European Union. They did not want workers’ rights to be controlled somehow from London.
I want to go back to what I was saying about the right hon. Member for Esher and Walton and his remarks about the working time directive and some of the “obstacles” that he identified in relation to British businesses. The fact that he did so in an article calling for a renegotiation of the UK’s future relationship with the European Union does not bode well now that he is in one of the highest offices of Government. Our hard-won workers’ rights secured from 40 years of EU membership cannot be forgotten, diluted or abolished by this right-wing neo-liberal Government whom Scotland did not vote for. I therefore urge hon. Members to support new clause 51.
Let us be honest: we know the results of tonight’s Divisions before they even take place. We need to face the truth that this majority Brexiteer Government think that Scottish voters will simply lie down while they steamroller over their interests. The choice for the people of Scotland could not be clearer, because Scotland has the unquestionable right to choose its own future. Do we stay shackled to Brexit Britain and failed Tory economics, or do we rejoin the family of European nations, which is outward-looking, progressive and treats its member states with respect, dignity and equality? Of course, the Tories often accuse the SNP of trying to break up Britain, but the reality is that it is the SNP who are driving the bulldozer. Make no mistake: the Scottish independence referendum is coming, and the passage of this legislation tomorrow will doubtless result in people taking a very different view from that in 2014.
Philip Dunne (Ludlow) (Con)
I am grateful to be able to make a brief contribution this evening and to follow the hon. Member for Glasgow East (David Linden), who reminded me of the debates that we have been having over the past three and a half years since the referendum. There was an overwhelming sense of déjà vu in that some Members who supported the remain position at the 2016 referendum have still not properly recognised that time has moved on. I was one of those who voted remain in the referendum and I, in common with many Conservative colleagues, am reconciled to the fact that the British public voted to leave, as demonstrated forcefully in the general election. The déjà vu that I am experiencing is that many of the arguments that we have heard ad nauseam for hours, days and weeks in this Chamber are still being trotted out again in this debate today.
Several hon. Members rose—
Philip Dunne
I want to make some progress. The reason why I stood to speak this evening is that I made my maiden speech in a debate on the EU in my first month in this House 14 and a half years ago. It is therefore fitting that I should say something in this debate just before we hopefully cease debating whether we are leaving the EU this month, because that matter has now been resolved.
I want to make a specific contribution in relation to new clause 27, which was tabled by the hon. Member for Oldham East and Saddleworth (Debbie Abrahams). I have considerable sympathy with the spirit and principles underlying the new clause, which she spoke eloquently on earlier, but the reason why I want to refer to it is to ask the Minister, in his summing up before the Committee ends this evening, how the Government intend to take account of that spirit and intent in future legislation. I recognise that it is not appropriate to adorn this Bill with commitments that have nothing to do with the withdrawal agreement per se, but they are none the less worthy in themselves.
I draw the House’s attention to the part in the Conservative manifesto, on which I was proud to stand recently, that says:
“we will legislate to ensure high standards of workers’ rights, environmental protection and consumer rights.”
We have already heard from others this evening about the existing higher level of workers’ rights that apply in the UK over and above those that are applied across the EU, and we as a Government have an ambition to maintain environmental protections in many areas at a higher level than those that currently apply across the EU.
Debbie Abrahams
This is not meant to sound trite, but a number of different commitments were made in different manifestos. For example, the Conservatives party’s 2015 manifesto committed to halving the disability employment gap and to introducing new starter homes, neither of which was delivered. This is about backing up commitments. If the Government are seriously committed to this—I understand that the right hon. Gentleman certainly is—what is wrong with including it in the Bill?
Philip Dunne
I will give one example of what is wrong with the hon. Lady’s new clause, and that is its territorial jurisdiction. I remind her that environmental protection is primarily a devolved matter. The territorial jurisdiction of the environment Bill that was in the Queen’s Speech and that will be brought before this House will relate to England primarily and, to a small extent, Northern Ireland. I am rather surprised that hon. Members representing the Scottish National party, who are here in force this evening and who have spoken before me, did not choose to raise that point.
Alan Brown
It is great to hear that the right hon. Gentleman is such a great defender of devolution. As a defender of devolution, does he respect the fact that the Scottish Parliament today rejected the UK Government’s legislative consent motion, and does he also respect the right of Scotland’s people to choose their future?
Philip Dunne
As the Prime Minister said, far more eloquently than I could, during Prime Minister’s questions earlier today, the Scottish people did decide in 2014 and that is the vote that should be respected by this House. [Interruption.] I am going to move back to my point rather than engage—
Philip Dunne
I am not going to take the hon. Gentleman’s intervention, because I know what he is going to say.
In conclusion, will the Minister, if he has the opportunity to do so, refer in his winding up speech to the environment Bill that will shortly be brought before this House and explain the extent to which the protections sought in new clause 27 are likely to be enshrined in it?
James Duddridge
It is always a pleasure to follow my right hon. Friend the Member for Ludlow (Philip Dunne). I think I will be able to reassure him throughout my contribution, particularly on non-regression issues.
We have heard a number of good speeches. In the days since the general election, I have sensed a change in tone in Parliament, an acceptance of that which is happening, and a better debate across the House about what is actually going to happen. [Interruption.] There is a little bit of laughter, or chuntering, as the hon. Member for Glasgow East (David Linden) would call it. I have been an offender in that sense, but I do sense a small change in tone.
I would like to speak to 21 new clauses, but I will focus my time because I understand that the House wants to make progress on the substantive new clauses, as opposed to those that are technically flawed. Some are probing new clauses—that point has been made a number of times—and I hope they are more in number than the substantive new clauses that will be pushed to a vote.
I will first speak to new clause 2, tabled by the official Opposition, and to new clause 51 and new schedule 1, tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry), who has been omnipresent throughout the day. I am grateful to her for her contribution. The amendments relate to the protection of workers’ rights. As the Government have stated and the Prime Minister has confirmed, we are committed to ensuring that workers’ rights are protected as the UK leaves the EU. I want to reiterate that and add some detail. There is no suggestion that this Government would propose, or that this Parliament would allow, a change or regression in workers’ rights to make them lower than currently required by EU law. We have been clear, in fact, that we will protect and continue to improve workers’ rights. We do not need to be in the EU to do that; we can do it on our own.
James Duddridge
I give way to the hon. Gentleman, to save him from chuntering at me.
David Linden
I am grateful to the Minister for allowing me to chunter on the record. He is talking about workers’ rights and what the Government are going to do. If we are to believe the Government’s promises, we understand they will be coming by way of the employment Bill. When will that Bill be presented to the House and published?
James Duddridge
Very soon after the Queen’s Speech, and the timetable will come through the normal channels in the normal way. I am afraid that I cannot give the hon. Gentleman any notice now, but if I get an inkling of when that Bill will be introduced, I will be sure to tell him as soon as I can. As he has pointed out, we announced in the Queen’s Speech that we would bring forward legislation to deliver on the good work plan and the Taylor review. It will give workers in the UK the protections that they need in a changing world; I think that there is an increasing recognition that the world of work is changing.
Michael Tomlinson
Is it not precisely the point that it is for this Chamber and this sovereign Parliament to pass laws? My hon. Friend has mentioned the forthcoming Bill, and this House of Commons will determine the appropriate rights. We already enjoy enhanced rights, and we do not need to be a member of the European Union to have those rights.
James Duddridge
I thank my hon. Friend for his succinct contribution. He is entirely right to say that, on this issue, we will have the freedom to determine our future. New clause 2 would require the UK to negotiate to become, effectively, a rule-taker in perpetuity. We would be subject to EU employment rules with little or no influence over their development. The type of alignment envisaged in the new clause is not necessary to maintain high standards and protection for UK workers. This Parliament has set higher standards than those in many EU directives. For example, the UK’s race and sex discrimination protections and equal pay rights were decided before we entered the EU.
Nick Thomas-Symonds
I want to clarify what the Minister said about dynamic alignment. Is he saying that if rights were to be enhanced by the European Union, it would not be the Government’s intention to follow?
James Duddridge
No; that is not what I said, and our intention is not as the hon. Gentleman suggests. But it is for this Parliament to decide what it wants to do, rather than simply following what an outside body recommends.
Chris Stephens
The Minister mentions the Taylor review. The European Parliament and Commission are debating similar issues and will offer something stronger than what the Government have proposed with the Taylor review. If the European Parliament goes further, will it be the UK Government’s aim at least to match what comes from the European Union?
James Duddridge
Later in my speech, I will highlight areas where we are going to go further. Perhaps I will give way to the hon. Gentleman again at that point if what I say does not give him sufficient reassurance. The Government are committed to delivering high standards, and I will provide a bit more detail when I come to talk about other clauses.
I turn to new clauses 3, 8 and 30, which relate to alignment with or continued membership of the EU single market and customs union. I am grateful for the confirmation that new clause 8 is a probing amendment. The Prime Minister has set out a deal, and the political declaration contains a framework for a comprehensive and ambitious free trade agreement. The result of the general election shows that, across the whole United Kingdom, the public support that, notwithstanding the points that have been made in the Chamber today about different areas.
That mandate did not include negotiating a customs union or maintaining the UK’s place in the single market, as proposed in the new clauses. The public want us to move on to negotiating the future relationship without any unnecessary hurdles, and that is what the Government will do. Only by leaving the EU customs union and single market will the UK be able to pursue an ambitious free trade agreement and strike new trade deals with new and existing global partners. The political declaration provides a framework for all that.
The political declaration also provides a framework for security co-operation. That will include access to the European arrest warrant, which several colleagues have mentioned, as well as to Europol and SIS II. We have committed to being involved in them, and our European partners have committed to engaging in that through the political declaration.
We have also agreed to put in place a streamlined extradition arrangement, on which we continue to work with Europol and Eurojust. Beyond that, we have agreed to look at further areas of co-operation on the exchange of information. Beyond SIS II, on the broader point raised by the hon. Member for Torfaen, it will also include Icarus.
The detail, however, means this is best done in co-operation over the period. After all, the point of the level playing field is to do this in a paced way. As a cross-cutting Minister, I have engaged on this issue with a number of Ministers who are engaged much more directly. The hon. Gentleman will be reassured as this issue rolls out, but it is not for today’s Bill, although it is a perfectly acceptable placeholder for a probing amendment.
On new clause 29, I make it clear that we want an ambitious future economic partnership with the EU that allows us to control our own laws, with the benefits of trade with other countries around the world. Adopting this amendment would prevent that. Dynamic alignment with future EU rules is not in the best interests of this country. It is here, not in Brussels, where decisions should be made on the laws that govern our country. That point has been ably made by other hon. Members.
We will maintain and uphold high standards for workers, consumers and the environment. We do not have to follow EU rules to achieve that; we can do it on our own. We have made that clear in the revised political declaration and through our commitment to introduce legislation that will enshrine those high standards in our laws.
Debbie Abrahams
Can the Minister confirm, as the right hon. Member for Ludlow (Philip Dunne) mentioned, that the principles of new clause 27 will be included in the environment Bill if they are not to be included in this Bill?
James Duddridge
Forgive me if I am not definitive and if I have not ticked off every single point, but the underlying point is that there will be no regression. We have committed to environmental rights, and I will go into more detail on how we will move ahead of what the EU is currently doing and of what it proposes to do. The answer, in spirit, is yes, but I do not want to give a resounding yes, just in case there is one comma in one part of the hon. Lady’s amendment that deviates from what we are doing.
On the broader suggestions about participation in EU funding programmes, the political declaration envisages close co-operation across a range of areas, including science—I am coming on to that—and education. The declaration already provides a possibility for programmes, which will be done during the negotiation period.
The political declaration sets out that the parties will also explore co-operation between the United Kingdom and all the appropriate EU agencies. The nature of that co-operation will be subject to negotiation.
Alan Brown
The Minister says we do not need to be in the EU to protect environmental standards. I know from my experience as a young civil engineer that the EU had to take a Tory Government to court to force action on cleaning up our bathing beaches across the UK. That happened purely because we were a member of the EU; otherwise we would still have raw sewage in the seas and waters around the UK.
James Duddridge
I will come on to the environment. If I do not answer the hon. Gentleman’s underlying point, he should feel free to intervene again.
It is good to see the hon. Member for Oxford West and Abingdon (Layla Moran) in her place, as she tabled new clause 10. The Government secured agreement to participate in all elements of the Erasmus+ programme during the implementation period, and that will be done in the future relationship. We made it clear that we are open to maintaining and expanding co-operation in education. We strongly believe, as she does, in the value of international exchange, not just European exchange, and it is very much part of our vision for global Britain to extend that concept, rather than simply looking at the narrow area of the United Kingdom. We believe that the UK and European countries should continue to give young people and students opportunities around the world in universities and elsewhere—through other elements of Erasmus and support—post-Brexit. The political declaration envisages the possibility of UK participation in EU programmes, and we will negotiate the general terms of participation, where appropriate, throughout the implementation period. Ultimately, decisions about our participation will be a matter for wider negotiations, but we will look at all the available opportunities.
Drew Hendry (Inverness, Nairn, Badenoch and Strathspey) (SNP)
The Minister mentions EU funding programmes. Scotland has been benefiting from €872 million of EU funding over the past seven years. In the highlands and islands, this is a net contribution benefit and it has changed communities across our entire area. Does the Minister have any idea, and can he give us any inkling, as to when the shared prosperity fund is going to be launched and what it will cover? Can he give us any information about that?
James Duddridge
The hon. Gentleman makes an important point. In the broader arena, we will be taking back control of our money and spending it as we choose. As for his specific point, those decisions will come after a cross-governmental spending review and I am more than happy to commit the Treasury to write to him with any more detail if it is available.
New clauses 16 and 46 are on economic assessments, with the latter standing in the name of Social Democratic and Labour party Members. These would require environmental and equality impact assessments. We have had a few calls for impact assessments across the board, and I have made the point about their cost a number of times. In some cases, we are already making commitments, and this would be bad government spend, for the sake of producing a report. This debate is about the Bill and exiting the EU, whereas a lot of these reports would be about the future relationship, so this Bill would be an inappropriate place to put provision for these reports, even if they were the right thing to do. It simply would not be possible to agree to publish a detailed analysis of something that has not yet been agreed. In November 2018, the Government published a detailed analysis covering a broad range of— [Interruption.]
The First Deputy Chairman of Ways and Means (Sir George Howarth)
Order. It is a great discourtesy for people to be carrying on separate conversations when any Member of the House is speaking.
James Duddridge
Thank you, Sir George. I suspect that the Committee is encouraging me to make progress, and I will take the hint. I do ask Members to bear with me, because I am dealing with 21 new clauses and it is important to cover them, as they have all been tabled with seriousness and deserve the Government’s attention.
On new clause 38, the Government have been committed to publishing an objective spending analysis of the UK’s withdrawal ever since the people voted to leave the EU three and a half years ago.
On the economy, we have already spoken about the objective analysis, and I am not going to say any more on new clause 38. I will address human rights in more detail when dealing with a slightly later clause.
New clause 20 deals with mutual recognition and raises a number of important issues relating to adequacy and equivalence with the EU in a number of areas for the future relationship. The Government fully agree that in some areas it would be appropriate to agree arrangements of the sort that my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentions. For instance, the political declaration envisages reciprocal adequacy decisions in the area of data protection. However, the Government do not believe that adequacy decisions, mutual recognition or equivalence arrangements are always in the best interests of the country, with one example being where they rely on alignment with future EU rules. Although I understand the thrust of his proposal, I do not think it is helpful to constrain the Prime Minister and his negotiating team by prescribing negotiating objectives too precisely. The Government will always listen to the views of my right hon. Friend the Member for Haltemprice and Howden and we are particularly grateful for his stewardship of a Department that is about to come to an end as a result of the success of his work and that of many other contributors, including some fantastic civil servants and a truly exceptional Secretary of State, in the shape of my right hon. Friend the Member for North East Cambridgeshire (Steve Barclay). It is always a good idea for me to be nice about my boss.
New clause 27 addresses further environmental issues. Sadly, the Government cannot support the new clause; I shall go into some detail on why. The UK is an advanced modern economy with a long history of environmental protections supported by strong legal frameworks that in some cases predate the EU. We will shortly bring forward an environment Bill that will set ambitious new domestic frameworks for environmental governance, including—crucially—the establishment of the office for environmental protection. The legislation will build on the 25-year environmental plan, which we are part-way through—admittedly, it is early on in the 25-year plan—and provide the assurances that will be upheld.
Caroline Lucas
On the new environment Bill and the Office for Environmental Protection, will the Minister guarantee that it really will have sharp teeth and the same enforcement powers that we have been used to seeing from the European Court of Justice? The previous environment Bill certainly did not have that kind of watchdog—it was much more of a poodle than a dog with a bark.
James Duddridge
There ain’t no point in having one of these things if it does not have teeth and if it does not bark and have a bit of bite, so I can commit the Government on all those points. The Government are committed to remaining a world-leader in environmental protection once we have left the UK. Leaving the EU gives us the opportunity to put the environment front and centre in our policy making.
Jamie Stone (Caithness, Sutherland and Easter Ross) (LD)
The NHS is of course devolved in Scotland. May I make a personal appeal, with which I am sure my colleagues in the Scottish National party will agree? Will the Government work as closely as possible with the Scottish Government to ensure that the laudable position that the NHS should not be for sale applies to Scotland as much as it does to the UK?
James Duddridge
I agree, and I am meeting with the Scottish Government tomorrow so will make that point in my first sentence.
I am conscious of the time and the fact that Members will hear from me again after two more speeches, so I shall not go into any more detail on new clause 49 because citizens’ rights have been covered quite extensively.
On observer status of the devolved Assemblies in the EU, it would be wrong, given that, as a country, we are leaving the European Union, to give special status to the devolved Assemblies. The devolved Assemblies will come out with us.
Finally, turning to new clause 50 on the charter of rights, there is no need for a report. We will maintain our human rights and liberties. They are fundamental to the European Union and nothing that we do in leaving the European Union changes that.
Sir George, I thank you and your team for standing in for this Bill. I think that there has been a change of tone in the House. I am looking forward to serving in this Parliament over the next period. I think that it is a better place, and a better place for delivering Brexit. It is now over to the House of Lords.
The First Deputy Chairman of Ways and Means (Sir George Howarth)
Order. It is very kind of the Minister to say so, but I do not think that I can take any personal credit for the change in tone of the House.
Question put, That the clause be read a Second time.
European Union (Withdrawal Agreement) Bill
Thursday 9th January 2020
(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 8 January 2020 - (8 Jan 2020)
16:55 - The House divided: - Ayes: 62 / Noes: 329 - Question accordingly negatived.
17:10 - The House divided: - Ayes: 330 / Noes: 231 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I must inform the House that Mr Speaker has selected the amendment in the name of the leader of the Scottish National party.
The Parliamentary Under-Secretary of State for Exiting the European Union (James Duddridge)
I beg to move, That the Bill be now read the Third time.
This Bill will implement in UK law the withdrawal agreement between the United Kingdom and the European Union, ensuring that the United Kingdom departs from the European Union with a deal at the end of this month. We are delivering on our promise to the British people. It was a pleasure to spend yesterday afternoon in Committee of the whole House, and I would like to pay tribute to Members across the House for the contributions they have made throughout the debates and the constructive spirit, particularly more recently, in which everyone has engaged. I have no doubt that today’s proceedings will be of a similar calibre, and the Secretary of State, who is in his place, and I are very much looking forward to today.
I would like to thank the Public Bill Office for its support to all Members and officials across Government, not just at the Department for Exiting the European Union, for their hard work in ensuring the delivery of this Bill and for supporting Ministers throughout, many of whom have contributed behind the scenes rather than at the Dispatch Box. I would also like to thank the three knights of the realm who stood in as Deputy Speakers in Committee and Her Majesty’s loyal Opposition.
This Bill is essential in preparing our country for leaving the European Union and will ensure that the deal that has been reached can be implemented. It also ensures that we can protect the rights of citizens who have made their lives here, that there is no hard border on the island of Ireland and that we take back control of our money and our laws. The Bill will shortly move to another place, with its substantive stages beginning on Monday, and I know that the House will be watching its progress with great interest.
Sir Edward Leigh (Gainsborough) (Con)
I notice that today, the President of the European Commission is reported as saying that it will be virtually impossible to conclude a trade deal within a year. Given that we start off with exactly the same regulations and tariffs, I am mystified as to what the problem is. What does the Minister think the problem is, given that we are going to protect workers’ rights? Unless they want to shackle us forever with business rules, what is the problem?
James Duddridge
I have seen that report, but from my discussions with the Secretary of State, that does not reflect the tone of the meeting with the Prime Minister. There is a political declaration and an interest to move forward and sort this within 11 months.
Dr Julian Lewis (New Forest East) (Con)
The Minister mentioned the fact that the Bill will be going to the other place and the much more positive atmosphere that has applied in this place. Does he believe that that sends a message to the other place as to how they should conduct themselves, and does he have any reservations about the fact that the unrepresentative make-up of the other place, in respect of the over-representation of remain forces, might derail the hitherto smooth progress of this excellent Bill?
James Duddridge
I thank my right hon. Friend for his intervention. Just as we will be watching the House of Lords carefully next week, they have been watching us carefully during the Bill’s passage. They will have listened to the change in tone and seen the majorities by which votes were won, and I am sure that they will reflect on that in their deliberations, doing a proper job of scrutiny as part of the whole democratic process. Mr Speaker—sorry, Madam Deputy Speaker—
James Duddridge
I will give way, because it will give me an opportunity to get the sex of Madam Deputy Speaker right the second time.
Mr Perkins
The Minister might have said in his answer to the right hon. Member for New Forest East (Dr Lewis) that if he thinks the other place is unrepresentative, there is a way that we could deal with that and ensure that they are elected by the people, like we are.
James Duddridge
We do like elections on this side of the House at the moment, but I am not going to be drawn into reform of the House of Lords, which is slightly out of scope of the withdrawal agreement Bill.
Madam Deputy Speaker, this is an historic milestone—leaving the European Union with a deal on 31 January. It will soon be upon us, and I am delighted that we can then move on to other national priorities and help the country come together. I commend this Bill to the House.
Paul Blomfield (Sheffield Central) (Lab)
I join the Minister in thanking the panel of Chairs for presiding over the Committee stages and the work they did in preparation for the debates we had, the staff in the Public Bill Office for the work they did over the Christmas recess and all Members who contributed to the debate in Committee.
The last two days have had their highs and lows. On the one hand, there have been very many thoughtful and considered contributions, and on the other hand, there has been a disappointing and resolute refusal of the Government to seriously consider any amendments however constructively intended. The Minister is right that there was a different tone to the debate, and that is clearly because everybody recognises that the result of the general election means we are leaving the European Union in 22 days’ time. But I think there was also a recognition, I hope on both sides, that leaving the EU does not mean that we will have got Brexit done. We will have completed the first step, departure, but the difficult stage is yet to come: agreeing the new relationship not just on trade, but as many pointed in Committee, on security crucially—but much more besides, from data sharing to research collaboration and more. These are in many ways more complex issues than those we have wrestled with over the last three and a half years, and they are issues with deeply serious consequences for the country.
Catherine West (Hornsey and Wood Green) (Lab)
May I thank my hon. Friend for his speech and add to his list the anguish that many of my constituents are feeling—not just EU nationals, but those whose neighbours or family are EU nationals? This is, for many, quite a difficult moment.
Paul Blomfield
I very much agree with my hon. Friend. It is a difficult moment for many, and I will come on specifically to some of the issues involving EU nationals that were not resolved by our discussions in Committee.
As we move into this next stage, I would urge the Government not to overinterpret their mandate in the general election. Yes, they have clearly secured an overwhelming majority of seats, but not of votes. Most people in this country voted for parties that did not support the principle of getting Brexit done at any price. As the Prime Minister observed, many of those who voted for him and colleagues had lent him their vote. I hope, and I sense, that part of the different tone—the subdued mood of those on the Government Benches—was a dawning realisation that they may find it hard to deliver on the high expectations that they have created over the last three and a half years. The Prime Minister has talked about bringing the country together—the Minister echoed that—and we all share the hope after the divisions promoted by the debates of the last three years. However, I have to say that it will need a different approach from the one we have seen over the last couple of days. It needs open ears and a willingness to reach out.
I understand why the Government rejected some of the amendments that we and other opposition parties tabled, but not all. Many were simply restoring previous Government commitments and others were to improve the Bill; none was to frustrate Brexit. In the short debate on the Bill in Committee, we as an Opposition pressed five main issues that in our view reflect the serious problems with both the withdrawal agreement and the way in which the Government have chosen to implement it. Over 100 amendments were tabled in Committee, but not a word of the Bill has changed, and we will therefore be voting against its Third Reading today.
Our first issue with the Bill is that, despite all of Parliament’s efforts to avoid a no-deal Brexit last year, it introduces a trapdoor to no deal at the end of December 2020—something that the Brexit Secretary appeared quite relaxed about in his reported comments following yesterday’s discussion with Ursula von der Leyen. Other Conservative Members over the last couple of days have expressed total confidence—total confidence—in the Government’s ability to secure trade and security deals by the December deadline, citing the EU’s commitment to use its best endeavours and good faith to agree a future trade treaty. That good faith was evident from Mrs von der Leyen yesterday, but I hope Members have also heard her warning, which was echoed by the right hon. Member for Gainsborough (Sir Edward Leigh), that it would be impossible to reach a comprehensive trade deal by the end of 2020.
I hope Members will reflect on whether it really is wise for the Government to have added clause 33, barring Ministers from extending the implementation period. Of course, this is just a gimmick, and with their majority, the Government could at any point repeal that clause and negotiate a short extension. However, whatever our views on these issues, we should all be concerned that this Bill removes any role for Parliament in shaping that decision, so if the Government have not concluded and ratified an agreement with the EU on our future relationship, the supposed sovereignty reclaimed for this Parliament will be meaningless. We will have no say on whether we crash out on World Trade Organisation terms, even if the Government are days away from securing an agreement with the EU.
Mr Steve Baker (Wycombe) (Con)
It occurs to me, as I listen to the hon. Gentleman, that foreign policy is often common ground between successive Governments of different parties. I wonder if it has occurred to his party to take such an approach here: to recognise that the political declaration on the future relationship is now agreed between the EU and UK, and to get behind it as the Labour party, so that there can be absolutely no doubt in the mind of the Commission that where we want to go as a nation is the landing ground that is now common territory between both negotiating parties. Does he not agree that that way we could go forward as one United Kingdom and succeed?
Paul Blomfield
I will come on to my observations on how we could have gone forward much more successfully as one country in delivering on the mandate of the referendum in 2016, but I think—this reflects the comment made earlier by the right hon. Member for Gainsborough—that the whole problem with the way in which Conservative Members talk about the ease of moving forward, because we are starting from a point of convergence, is that the objective of this Government is to seek divergence, and that is precisely why these negotiations will be so difficult.
Pete Wishart (Perth and North Perthshire) (SNP)
Could we just dispense with this one country, one nation business? The United Kingdom is a Union of nations, and all of them have a particular set of views about Brexit. In Scotland, we overwhelmingly reject their Brexit, and that has to be recognised in the way we go forward from now on. I hope the Labour party takes that on board; I am beginning to sense that it is. Does the hon. Gentleman understand it, and will we now stop all this talk about one nation, one UK? It is a Union of nations with their own particular set of views.
Paul Blomfield
I understand the hon. Gentleman’s point that we are a country of nations and regions and I hope, in relation to the comments I was making to Ministers, that in reaching out they will seek to reach out and obtain agreement and understanding on the way they move forward across the entire country of nations and regions.
Paul Blomfield
It would not be the same debate if I did not. I am happy to do so.
Sir William Cash
I refer to what has just been said from the Scottish nationalist Benches because in fact this is about the United Kingdom, which made the treaty in the first place and abdicated its responsibility and its sovereignty, but is now reasserting its status within the United Kingdom. It is about parliamentary sovereignty, and it is also about democracy because that decision was taken by the British people in the full knowledge of the voters of the United Kingdom, not any one part of it.
Paul Blomfield
I take the hon. Gentleman’s point. We had a whole debate around sovereignty in which my hon. Friend the Member for Bristol West (Thangam Debbonaire) made some very astute observations, but the hon. Gentleman needs to recognise my underlying point: the decision of the general election is not a mandate to bulldoze through a particular version of Brexit at any cost on all the peoples of the United Kingdom, and the next few months must be approached with sensitivity and caution if we are to stay together as a United Kingdom.
Mr Perkins
May I take this opportunity to congratulate my hon. Friend as we approach the end of this Bill on the incredibly gallant and diligent work he and his colleagues have done in attempting to investigate and scrutinise this legislation? It is tremendously sad that the Government have, in the minds of many people who voted leave, successfully brought forward the idea that any kind of scrutiny and any kind of amendment to their legislation is somehow disrespecting that mandate, as though whatever the Government say is what that vote back in 2016 meant. I accept that we are leaving the EU and I think we need to get on with that process, but it is extremely regrettable that under the guise of taking back control they have sought to disrespect parliamentary scrutiny in the way that they have done, and this will have serious consequences for us in the future.
Paul Blomfield
I thank my hon. Friend for his kind comments, but also endorse the point he makes, and it has been a constant strand of the discussions over the past two days.
Paul Blomfield
Yes, three years.
Through our new clause 4 we tried to offer a way of giving Parliament the role for which we were elected—and it is the role that my hon. Friend describes—without requiring an extension to the transition that is longer than necessary. Some Conservative Members who are not here today expressed sympathy with that approach, but not with our specific formulation, so I hope that this issue will be revisited when the Bill moves to the other place.
The second point that was a key concern to us was citizens’ rights. Colleagues from all Opposition parties set out why we believe that a declaratory system is essential to deliver on the Prime Minister’s commitment to EU citizens during the referendum campaign and subsequently, and to avoid a repeat of Windrush. This came up this morning in Brexit orals. In the Committee debate, I was pleased to get an important clarification from the Government on appeal rights, but I am afraid that I did not find the Minister’s speech on the broader issue of citizens’ rights at all reassuring. In a relatively convoluted argument—which the Secretary of State to a degree repeated this morning at Brexit questions—the Minister attempted to put the blame for the Windrush scandal on the safety net that ensured that victims could seek recourse against the treatment that they endure from immigration legislation and argued that the way to avoid a Windrush scandal for EU citizens was to take away the safety net provided by guaranteeing their rights.
We have already seen that almost half of applicants to the EU settlement scheme have not been granted settled status; they have been granted pre-settled status. Ministers have told us that we should be relaxed about this, claiming that pre-settled status is an automatic pathway to settled status. I am afraid we have every reason to be concerned, because it is not.
Catherine West
Does my hon. Friend agree that there is a real risk here that once again the Home Office is making a pig’s ear of this whole thing?
Paul Blomfield
Well, the Home Office has got form on these things, hasn’t it?
Let me explain why I am concerned specifically on this issue. Pre-settled status is intended for those EU citizens who have been living in the UK for less than five years. However, many EU citizens who have been living here far longer, many for decades, are being granted pre-settled status. They will be required to reapply to the scheme before their five years of leave under pre-settled status is up. If they do not, they will lose all their rights in the UK and, as the Home Office Minister pointed out, be liable to deportation.
Despite these risks, my understanding is— I would be very happy to be corrected— that the Government have no plans to notify EU citizens when their leave is about to expire, and prompt them to apply for settled status. If they do not even know of the need to reapply, many EU citizens will face the same difficulties evidencing their five years’ residency, so in any closing remarks from the Government Front Bench I would be grateful if Ministers can tell us what will happen to EU citizens who are granted pre-settled status for five years, then reapply to the scheme for settled status but are not able to evidence the required five years’ residence, which was the basic problem leading to their being granted pre-settled status in the first place.
Alison Thewliss (Glasgow Central) (SNP)
The hon. Gentleman is making an excellent point about the limitations of pre-settled status, but does he agree that there is as a gender element to this, too? Women, and particularly older women, who may have had many years of caring responsibilities and who may not have had their own bank accounts or paid the bills in the household may find it even more difficult to evidence that now and in the future?
Paul Blomfield
The hon. Lady makes an important point, and it came up in Committee. That is why I have pressed Ministers time and again to release their equalities impact assessment of the settled status scheme, which they have refused to do. That failure presents real worries.
The scheme is clearly open to error—and, as has been pointed out, the Home Office has form on these things. It has already thrown up problems, and it is therefore crucial that there is proper and independent monitoring. The independent monitoring authority was set up in the withdrawal agreement, but schedule 2 to the Bill makes it far from independent from Government. I hope this issue will be re-examined when the Bill moves to another place, to ensure that the Government are not allowed to mark their own homework.
The third, and most immediate and outrageous, consequence of the Bill will be to remove the commitments on unaccompanied child refugees. This was a heartless move by the Government, signalling their intention to abandon our moral commitments to the most vulnerable. My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) was right to point out yesterday that this move is troubling because the measures on unaccompanied children in the EU withdrawal Act were previously supported by the Government and by this House. There is no good reason for them to be removed at this point.
Moving to the fourth point, we have had significant discussion on this and we saw a remarkable moment in the House yesterday. All the Northern Irish parties represented here joined together to table an amendment on the impact of the Northern Ireland protocol in response to the overwhelming calls from the business community there, who fear the deep and long-lasting effects of this agreement. The hon. Member for Belfast South (Claire Hanna) was absolutely right to express her concern that in the two hours allocated to discussion of the protocol only one representative of Northern Ireland was given the chance to make a speech. By voting against new clause 55 yesterday and rejecting Labour’s amendment 1, the Government confirmed that they intend to avoid transparency about the impact of the Northern Ireland protocol and will continue to cut out the people of Northern Ireland from Brexit negotiations. There are clearly serious concerns across the House on that.
Finally, there were amendments on the future relationship with the European Union. The Bill paves the way for the UK to leave, as the Minister pointed out, on 31 January, but that is only the first part of the story. In our negotiations with the EU on our future relationship, Labour has consistently argued for a close economic partnership with our nearest neighbours and our biggest trading partner.
Stephen Kinnock (Aberavon) (Lab)
My hon. Friend is making an excellent speech, and I would like to echo the comments about the diligent way in which he is going about this task. Does he agree that 52-48 was a mandate to move house but stay in the same neighbourhood? if we are actually about respecting the democratic mandate from 2016 that is about leaving the European Union—yes, leaving the political project—we should be staying aligned on workers’ rights, environmental protections and consumer standards? That is respecting the democratic mandate from 2016.
Paul Blomfield
I thank my hon. Friend for his comments, which anticipate a point I was just about to make. He is absolutely right. Throughout this process we have called for alignment on workers’ rights, environmental standards, equalities and human rights not simply because that is right—although that is hugely important—but because it provides the basis for the close relationship on which our trade and our economic partnership with the European Union depends.
Chris Grayling (Epsom and Ewell) (Con)
I am slightly puzzled by the hon. Gentleman’s decision to oppose the Bill today, since the consequence of the Bill going down would be us not leaving the European Union on 31 January, which is clearly still Labour policy. Is he actually saying that he wants, once we have left the European Union, future laws in this country on employment rights and the environment to still be decided not by this Parliament but by the European Union, without us having any involvement whatever in the shaping of those laws?
Paul Blomfield
I will explain precisely what I mean by my comments, which echo the intervention made by my hon. Friend the Member for Aberavon (Stephen Kinnock).
The last four years have divided our country like no others. It did not have to be like that. If only, after the referendum, when David Cameron ran away from the crisis he created, the then new Prime Minister had been straight with the British people. If only she had said that our country is split down the middle; it has voted to leave but by a painfully close margin of 52:48, which is a mandate to end our membership of the EU but not to rupture our relationship with our closest neighbours and most important trading partners. If she had said that we would leave but stay close—aligned with the single market in a customs union, and members of the agencies we have built together over 47 years—we would have supported her. She could have secured an overwhelming majority within this House. She could have brought the country together again after the divisions of the referendum. Instead, she pivoted to those whom her Chancellor—not those on the Opposition Benches but her Chancellor—described as the Brexit extremists in her party, risking the economy and security of our country. The Bill continues on that path. We have consistently rejected that approach, and that is why we will do so again today by voting the Bill down.
Sir John Hayes (South Holland and The Deepings) (Con)
May I welcome you, Mr Deputy Speaker, to your place? I look forward to your wisdom and benevolence.
In our age, hyperbole is commonplace. Exaggeration permeates debate and colours discourse. Superlatives litter our language. Yet there are few in this House who would disagree with my claim that it is almost impossible to exaggerate the significance of the Bill and what it facilitates—our departure from the European Union. The case I make today is that even more important than the Bill’s provisions is its purpose. Even more important than leaving is the reason that we are leaving. That is the people’s rejection of the prevailing political paradigm that the chatterati and glitterati, the denizens of the liberal elite, believed for years was beyond question. At the core of this perversity was an attachment to pan-nationalism and a consequent affection for supranational governance. This led, among the liberal establishment, to a diminished sense of meaningful place. They came to regard it as not just permissible but desirable to erode the familiar touchstones of enduring certainty.
Joanna Cherry (Edinburgh South West) (SNP)
Will the right hon. Gentleman give way?
Sir John Hayes
I won’t right at the moment; perhaps a little later. I know the hon. and learned Lady will want me to repeat that poetic phrase: the familiar touchstones of enduring certainty, epitomised by a spirit of local allegiance and a sense of national pride. The truth is that the bourgeois liberals—and at that point I give way to the hon. and learned Lady.
Joanna Cherry
I am not going to deny that I am a bourgeois liberal, but many people in Scotland who are not bourgeois liberals voted to remain in the European Union. Will the right hon. Gentleman acknowledge that the situation he is describing pertains in England but not in Scotland, where 62% of the population voted to remain and where my party, which I do not think really could be described as a bourgeois liberal party but does contain some old bourgeois liberals like myself, won 48 of the 59 seats? Will he do us the courtesy of acknowledging that he is talking about England, not Scotland?
Sir John Hayes
I congratulate the hon. and learned Lady on her honesty. She separates herself not only from most of her party but from most of the voters. She says that she is part of the bourgeois liberal elite, but they are not.
Joanna Cherry
The right hon. Gentleman has made a very personal comment about me separating myself from most of my voters. Would he like to explain why, if I have separated myself from most of my voters, my majority over the Conservative and Unionist party went from 1,000 to 12,000 votes in the general election?
Sir John Hayes
One day, if the hon. and learned Lady continues, and maybe she will for many, many years, she just might attain the 30,000 majority that I got in South Holland and the Deepings, but I think it is very unlikely indeed.
As I say, the bourgeois liberals find it hard to stomach that hard-working British patriots do not share their affection for globalisation and their preoccupation with diversity.
Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Will the right hon. Gentleman give way?
Sir John Hayes
No, I won’t give way, because I want to make some progress as others want to speak.
Those hard-working patriots prefer tradition, order and established values to the politically correct, poisonous cocktail of egalitarianism and assertive individualism. This paradigm shift is at the heart of the message broadcast first in the 2016 referendum and then still more loudly in the general election at the end of last year. GK Chesterton spoke of the people who had “not spoken yet”. Well, the people have now spoken. They have spoken loudly, clearly and decisively. They have sent a message that this House had better hear. On the Conservative Benches I think we have. Indeed, not only have we heard it, we have rearticulated it and we are proud to do so.
Sir John Hayes
I have the greatest regard for the hon. Gentleman and so on that basis alone I will happily give way to him.
Angus Brendan MacNeil
I am very grateful to the right hon. Gentleman. He is being very kind in giving way. I would not want to puncture his balloon too much, but here goes. The reality is not as he paints it. The reality is that 43% of people voting in a first-past-the-post system is why all this is happening. It is not that the great British whatever he wants to call them decided it, but that 43% in first past the post and the winner takes all. It is not the great sweep of the proletariat or the bourgeois, or whatever he wants to call it.
Sir John Hayes
I do not want to go off on a tangent. Despite what I described earlier as your wisdom and benevolence, Mr Deputy Speaker, you would not let me, but I will just say this to the hon. Gentleman. This Prime Minister went to the people, at some risk to himself and to others on the Conservative Benches, and put a very clear message to them. He essentially said, “I cannot make progress in the current parliamentary arrangement because of the arithmetic. Do you want me to deliver Brexit? Do you want to get Brexit done or don’t you?” The British people said, “That is exactly what we want you to do.” They have sent us here to do just that. Any further prevarication or hesitation will, frankly, ring hollow in the ears of those people. I simply advise the hon. Gentleman that in victory the test of character is humility, but in defeat the test of character is being wise enough to learn the lessons of that defeat. One or two people on the Opposition Benches have learnt those lessons and have made that clear, but others need to do so very quickly indeed.
I know that others want to contribute, so I will bring my remarks to a conclusion by saying this. The Bill is the first step not on a trip to a different place but on a return journey: a return journey for this United Kingdom to hope, to patriotism and to greatness.
Dr Philippa Whitford (Central Ayrshire) (SNP)
I beg to move,
That this House declines to give a Third Reading to the European Union (Withdrawal Agreement) Bill because the Scottish Parliament has not consented to those parts of the Bill which encroach on devolved competencies, and because it fails to take into account the fact that the people of Scotland voted overwhelmingly to remain in the European Union; and further believes that the Bill is not fit for purpose as it continues to undermine the fundamental principles of the Scotland Act 1998 by reserving to the UK Parliament powers that would otherwise be devolved to the Scottish Parliament upon the UK leaving the European Union.
I congratulate you, Mr Deputy Speaker, on your new position in the big comfy chair—hopefully you have your feet up on the footstool.
I thank all the staff of the Public Bill Office and the Clerks for the support that they have given right across the House in helping to put the Bills together and in helping Members to draw up and submit amendments, which is no easy thing for many of us. They have had to do that through all the stages of Brexit legislation, and all of us should thank them for their work.
Despite all the understandable triumphalism after winning the election in England, we see in this Prime Minister’s deal the potential of a repeat of the Brexit saga of the last three and a half years, as through hubris he is making similar mistakes to his predecessor. She painted herself into a corner with her red lines before carrying out an economic assessment to decide what form of Brexit would be least damaging. There has been no economic assessment of this deal. The last one was in 2018, on the Chequers “cake and eat it” plan, which was such a fairy tale that we could hear the unicorns galloping down Whitehall.
The former Prime Minister launched the article 50 process, with its fixed end-date and the clock ticking all the time, without a scooby as to what the UK actually wanted to ask for from the EU. This Prime Minister has made it illegal to extend transition despite the fact that 11 months is a ridiculously short time to negotiate even a basic free trade deal, let alone the complex shopping list of the political declaration.
The former Prime Minister kept her cards close to her chest, so Parliament had no input or influence on the withdrawal deal as it developed. The removal of clause 31 from the Bill means that Parliament, and indeed devolved Governments, will have no influence on the future relationship with the EU, despite the impact on all our constituents and local industries.
The former Prime Minister was then terribly shocked that, when she finally produced her deal, it was such a flop, drawn like a lifeless rabbit out of a hat and rejected by those on both sides of the Brexit debate, including the current Prime Minister. Members of this House are being sidelined and can therefore only wonder what the future relationship will look like when it is eventually unveiled in December.
Sir William Cash
I say, first, how much I respect the hon. Lady. She sits on the European Scrutiny Committee, which I have had the honour to Chair for some time.
On the question of how the negotiations were conducted—as she knows, we have been conducting our investigation into that—a very important point that we made was that the terms and conditions were set by the European Union and accepted by the UK. That will change now because of the general election result—I just thought that I would make that observation.
Dr Whitford
I thank the hon. Gentleman for his contribution. I think that the tone was set when we saw the former Brexit Secretary, the right hon. Member for Haltemprice and Howden (Mr Davis), turn up to the first meeting with not a piece of paper in his hand to meet the EU negotiators. That was rather naive.
Early in her premiership, the former Prime Minister spoke of consulting across the House, and across the UK, before she went to Europe, but she never did. This Prime Minister has sought no common ground, within this Parliament or with the devolved nations, despite the fact that two of them voted to remain.
Brexit was never defined during the referendum. Indeed, Nigel Farage and some of the most ardent Brexiteers suggested that of course the UK would stay in the single market—that it would be madness to leave. They just wanted to get back to a common market.
The Scottish Government’s report, “Scotland’s Place in Europe”, put forward as early as December 2016— three months before the article 50 letter was sent—the compromise proposal that the UK should stay in the single market and customs union. With a 52:48 referendum result, that might even have provided the basis of a compromise between leavers who did not want closer political union and remainers who wanted to keep as many EU benefits as possible. However, if England and Wales wanted to diverge further, the proposal was that Scotland and Northern Ireland should be allowed to stay in the single market and customs union, which would have respected how those nations voted.
Sadly, the proposals were dismissed by the Government out of hand, and the fact that 62% of Scottish voters voted to remain has been completely ignored, with no quarter given and no compromise offered. Indeed, Scotland and the majority of her elected representatives have been treated with growing disrespect in this place over the last three and half years. I gently point out that we do actually have television and the internet in Scotland and that this is being seen by the Scottish people.
Our request for a devolved or, at least, regionalised immigration process after Brexit has also been dismissed, despite Scotland’s demographic need for immigration. We have to be able to ensure that EU citizens, who have made their home in Scotland—including my other half—can stay without being exposed to the notorious hostile environment of the Home Office, but, in future, we also need to be able to attract immigrants from Europe and across the world. With the risk to our public services and key industries such as tourism and farming, and the threat of depopulation in the highlands and islands, this UK Government are certainly not acting in Scotland’s interests.
The UK Government have already taken the overall power to set the rules in 24 areas of devolved competence. All that the Scottish and Welsh Governments requested was that any new UK frameworks should be agreed rather than imposed, but the Tory Government refused—hardly the respect agenda that we used to hear so much about. With the inclusion of fishing, farming, food standards, food safety and food labelling, as well as public procurement, it is clear that this is about being able to tie up Scotland and sell it out in a trade deal. This power grab already drives a coach and horses through the Scotland Act 1998, but in voting down yesterday my simple amendment to protect the devolution Acts from sweeping delegated powers we saw a Government taking power to alter the devolution settlement without even parliamentary scrutiny.
Last night, the Scottish Parliament voted by 92 to 29 to withhold legislative consent from the Bill, due to the risk that it poses to Scotland and the current devolution settlement. Ignoring this voice and riding roughshod over the legislative consent process after 20 years of devolution will undermine the very Union that Conservative Members protest to hold so dear.
Mr Owen Paterson (North Shropshire) (Con)
I heartily congratulate you on your re-election, Mr Deputy Speaker, and I wish you and the new team the very best of luck in your endeavours as you work with the new House.
I congratulate the hon. Member for Central Ayrshire (Dr Whitford) on her speech. She made her points very well, but she will not be surprised that I disagree with virtually every single word. Above all, I disagree with her attitude and the gloom and the misery on the Opposition Benches, when I see this as a day of great celebration.
I also congratulate the hon. Member for Weaver Vale (Mike Amesbury) on coming top of the private Members’ Bill ballot today; I hope he chooses a subject that gets agreement across the House. A long time ago, in 2005, I came 16th in the ballot. I must acknowledge the part played by my near constituency neighbour, my hon. Friend the Member for Stone (Sir William Cash). He and I worked together closely drafting a private Member’s Bill, the European Communities Act 1972 (Disapplication) Bill, in which was used the memorable “notwithstanding” phrase, in clause 1(2):
“This subsection applies to any enactment which includes the words: ‘The provisions of this enactment shall take effect notwithstanding the provisions of the European Communities Act 1972.’”
Sir William Cash
Is my right hon. Friend aware that the wording of this Bill’s parliamentary sovereignty clause, clause 39, which is about to pass its Third Reading, is exactly the same as that in our private Member’s Bill and in the amendment I tabled in 1986?
Mr Paterson
With great prescience, my hon. Friend makes exactly the point I was about to make. Here we are, 15 years later, and, moved by the Government, the “notwithstanding” clause is going into law, subject to the other place being sensible. I pay tribute to him. He has been mocked, traduced and insulted, but he has stood for the simple democratic principle that members of the public, every few years, are given the opportunity to vote for individual human beings to come to this place and make laws. If those laws are satisfactory, they will get re-elected; if not, they will get booted out. They will be sent here to raise money by extracting it compulsorily, by law, from people’s bank accounts—that is what taxation is—and if that money is well spent, they will be re-elected; if it is not, they will be kicked out. It is an incredibly simple, basic idea. I find it staggering that we are still today listening to miseries from the Opposition Benches cavilling about this simple principle.
Angus Brendan MacNeil
I will give the right hon. Gentleman something joyous to think about: 57% of the people of the United Kingdom did not vote for him or his Government, yet because of our dodgy system, as the 43% and people across the world can see, the Conservative party is in charge—winner takes all.
Mr Paterson
I am sure the hon. Gentleman will not mention that 56% of the votes in the recent general election were for parties that wanted to keep Scotland inside the United Kingdom.
I have made this point many times, so I will be very brief. How many more times do the people have to be listened to? We had the Cameron referendum promise, which granted a very clear in/out referendum. We had the referendum itself. [Interruption.] It’s no good the right hon. Member for Leeds Central (Hilary Benn) shaking his head. Four times the people have spoken. The result of the referendum was clear: 17.4 million people voted to leave. We then had the 2017 election, when the Labour party and the Conservative party stood on a platform of honouring the referendum result, and 80% of the votes went to parties who promised that. Still the people did not get what they wanted.
With the complexities of the last Parliament, we had the creation of the Brexit party. Incredibly, that party, from nowhere, came top in the European elections. The Conservative party managed to come fifth behind the Greens, which was a remarkable achievement. Then we had the recent election. Yet again, people were bombarded with propaganda, and told they were racist and stupid, and again they voted in huge numbers for the very simple principle that they should send Members of Parliament here to make their laws and that if they cannot make satisfactory laws, they can be removed.
Several hon. Members rose—
Mr Paterson
No. I’m not giving way. We know where the Scottish nationalists are coming from, because they make the same point every time. Just to keep them happy, though, I will give them a little anecdote.
In the town where I was born, Whitchurch, we have six polling stations in one building, the civic centre. On referendum day, people came up to me off a building site, covered in dust, and said, “It is good to see you here, Mr Paterson, because it’s about them”. I asked, “Who’s them?” They said, “We can get rid of you, we can vote you out, but we cannot get rid of them”, and then they made the very telling point, “You can do nothing about them either”.
We had an interesting debate yesterday about this. We can do absolutely nothing about European law, which is imposed upon us. I had the honour to serve on the European Scrutiny Committee with my hon. Friend the Member for Stone. One day, a Labour Member was ill and a Liberal Democrat got stuck in the lift and we managed to vote that a measure on the dairy industry—of great interest to my constituents—would be passed for a vote on the Floor of the House. It would not have been amendable, but we could have made our points. What happened? The Leader of the House at the time, the right hon. Member for Derby South (Margaret Beckett), turned up at business questions and said, “You’re not even having a debate”. That was the amount of scrutiny we had. I find it extraordinary that people do not welcome the chance to scrutinise Ministers. From now on, they will be able to harpoon Ministers who make bad decisions. They can have Adjournment debates and criticise law. We can get law amended and repealed. None of that will apply to European law until we pass the Bill.
There are so many areas where European law has damaged this country, but the winner by a mile is still fish. In 2005, as shadow Fisheries Minister, I wrote a green paper called “A Consultation on a National Policy on Fisheries Management in UK Waters”. It is the paper on which we fought the 2005 general election. For the first time, a serious political party proposed repatriating a power. I come from North Shropshire. One of the most fascinating experiences of my 22 years here was going all around the coast of the UK—right up to Whalsay, right down to Cornwall and Dover—but above all going to the maritime nations of Norway, the Faroes, Iceland, Newfoundland in Canada and then down the east coast of the United States. I also went to the Falklands. It was extraordinary to see how modern techniques could bring thriving fishing communities—some of the most remote communities in the world—wealth, prosperity, jobs and investment.
By contrast, in this country we have utter devastation. This wonderful occupation delivered wealth and jobs for centuries until we were stupid enough to give the power to the continental level, and we now have the shameful, wicked waste of 1 million tonnes of fish thrown back dead into the sea as pollution every year, and yet Opposition Members this afternoon are defending staying in the EU and the common fisheries policy.
Sir John Hayes
My right hon. Friend will remember that I was shadow Fisheries Minister before him. I was very good and he was even better. The truth is—this is the question that Opposition Members in particular need to answer—that the CFP was not only disastrous for fishing communities and fishermen; it was also a conservation disaster for our oceans. Anyone who signs up to the EU signs up to the CFP and the decimation of our oceans.
Mr Paterson
My right hon. Friend is quite right. The opening line of my paper said:
“The Common Fisheries Policy is a biological, environmental, economic and social disaster; it is beyond reform.”
Today we are giving ourselves the power to reform it and take back this power. I would like those on the Front Bench to remember that this is a crucial, totemic issue. We have to take back full power and complete control over our exclusive economic zone and all the marine resources within it.
David Duguid (Banff and Buchan) (Con)
Given his previous experience, I am sure my right hon. Friend was coming to this point, but does he agree that in the negotiating phase, which we would have been into 10 months ago had Opposition Members voted for the original deal, we must not trade access to our waters for a free trade agreement, and that, despite the scare- mongering—perhaps even wishful thinking—from Opposition Members, there is no evidence that the Government will do that?
Mr Paterson
My hon. Friend, who speaks with great knowledge of this subject and represents his constituents so well, has just spoken with total wisdom. It is fundamental that we do not make the mistake of the 1970s, and allow the allocation of fish resources to be a trading card in these negotiations.
We have said that we will take back control, and I am looking at the Secretary of State. We will take back full control, and we will then behave like a normal independent maritime nation. We will have the very best bilateral relations with our neighbours, exactly like Norway and exactly like Iceland, and, on an annual basis, we will have discussions and possibly do reciprocal deals with them. Let me say emphatically that we must not allow fisheries to be snarled up in these negotiations.
I was disappointed yesterday that President von der Leyen—in what I thought was a very interesting speech, much of which I welcomed—talked of a
“partnership that goes well beyond trade”,
and mentioned fisheries. That is unacceptable. As my hon. Friend has just said, it is absolutely essential that we take full, total, sovereign control of the EEZ and all that is within it, and that from then on we negotiate as an independent maritime nation.
Sir Desmond Swayne (New Forest West) (Con)
My right hon. Friend will, of course, recall that prior to our accession to the common market, there was no common fisheries policy. It was concocted entirely in anticipation of our accession, so that our waters could be plundered.
Mr Paterson
I want to move on, because others wish to speak.
I really hope that Ministers take this on board. It is fundamental that we take back full control, and, however much pressure we are under from our current European partners, regain our status as an independent nation, partly because of the environmental harm—the shocking shame of throwing back a million tonnes of fish.
There is one other issue which we did not have time to discuss fully yesterday, and which I hope very much will be resolved in the negotiations. That is the essential benefit of a comprehensive free trade agreement whereby Northern Ireland will be level-pegging with the rest of the UK on every aspect of policy, which will mean that we can drop the current protocol. As the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Worcester (Mr Walker), agreed yesterday in reply to me, the current protocol is a fallback position. With a comprehensive free trade agreement, all the complexities such as the worries of the Northern Ireland business community—mentioned yesterday by the hon. Member for Sheffield Central (Paul Blomfield)—will fall away, and we will also have a great opportunity to embrace growth around the world.
It is worth pointing out that our exports to the EU grew by 1.3% last year and now total £296.8 billion, while our exports to non-EU countries grew by 6.3%, reaching £376.7 billion. The European Commission itself has said that 95% of world growth over the next 20 years will be outside the European Union, which is why the International Monetary Fund predicts that soon the only continent with a slower rate of growth than Europe will be Antarctica. This is a great day for our economy. This is a great day to escape all the rubbish on the other side about gloom and doom. If we do a proper, comprehensive deal, we will have opportunities to work with the 11 countries in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership—which represent 13.4% of GDP—and, of course, we will have a huge opportunity to do a deal very rapidly with the United States.
Alan Brown (Kilmarnock and Loudoun) (SNP)
If we can just assume that the right hon. Gentleman’s Brexit utopia will not happen, we are only 11 months away from a no-deal crash-out. We have 11 months in which to agree and ratify all the trade agreements with the EU. The right hon. Gentleman is a former Secretary of State for Northern Ireland. Can he tell us what is the magic technology that is available to man the borders and prevent a hard border in Northern Ireland in the event of a no-deal crash-out, bearing in mind that it has been said that there will no infrastructure at the border either?
Mr Paterson
We have done much work on that, assessing alternative arrangements, and I have fed into this. As the hon. Gentleman knows perfectly well, these issues have been massively exaggerated. There is a border today for VAT, there is a border today for excise duties, there is a border today for alcohol duties, and there is a border today for currency. It works perfectly smoothly with modern technologies, and that will continue.
Yet again, the Scottish National party is anti-business, cavilling away and looking for problems. There are fantastic opportunities for Scotland. Our largest export industry is food and drink, and a large element of that is Scottish whisky. When I was in the Department for Environment, Food and Rural Affairs, we calculated that if we did a deal with India, where there are currently duties of up to 550%, and we got duties down, there is not enough distilling capacity in the whole of Scotland to satisfy thirsty Indian quality whisky drinkers.
On that happy note, let me add that the other great opportunity is of course the United States, and I urge the Government to move rapidly. From 1 February we should be negotiating rapidly in parallel with the 11 countries of the CPTPP, and we should be moving rapidly to a deal with the United States. I met President Trump in October. For all the colourful aspects of his character, which are much criticised, he is probably the most pro-British President we have had for decades, and we have an extraordinarily well-informed and active US ambassador in Woody Johnson. We will never have another team that is so well disposed towards us. However, the window is tight, given the presidential election timetable, and I strongly urge the Government to push on rapidly. As we saw yesterday, the European Union wants to drag its heels. If we can do a deal with the CPTPP and the United States, that will probably shame the EU into doing a deal with us.
I wish the Bill well, but, touching on the comments of my right hon. Friend the Member for New Forest East (Dr Lewis), I give a very clear warning to those who will deal with it in the other place. They are overwhelmingly for remain, and many of them benefit from their previous employment in the European Commission. However, they should respect four massive votes from the people. The Bill has gone through this House rapidly. Notwithstanding the bleating from the official Opposition, we did not use the time available in the last two days: on both Tuesday and Wednesday, we bunked off early because the Loyal Opposition could not come up with enough good arguments or speakers. Indeed, they can hardly man their own Benches. I hope that those in the other place have watched what has happened.
The Government have a clear and determined goal, which is to honour those votes, honour the result of the general election, and ensure that we leave the European Union at 11 o’clock on the evening of 31 January. I look forward to voting for the Bill’s Third Reading tonight.
Pete Wishart (Perth and North Perthshire) (SNP)
It is a real pleasure to see you back where you belong, Mr Deputy Speaker—in the Chair—and I congratulate you on your stunning success in securing that position. I think that we have a fantastic team of Deputy Speakers, and I look forward to serving under you for years to come.
I wish I could say that it is a pleasure and a privilege to follow the right hon. Member for North Shropshire (Mr Paterson), but it is not. I think that I represent the almost extreme other side of the Brexit debate. I usually say that it is good to speak in a Third Reading debate, but unfortunately I cannot say that either. This is something that the people of Scotland will very much regret and mourn. We are not “leaving” the European Union; we are being taken out of the European Union against our national collective will, and believe me, Mr Deputy Speaker, that is something that will not stand.
As is conventional on Third Reading, I shall offer my congratulations to a series of speakers. I congratulate the Secretary of State—who has just departed—and his team on getting the Bill through the House of Commons. He is the one Secretary of State to be actually attuned with his Prime Minister, unlike a succession of others who did not quite see to eye with their Prime Ministers and the direction in which their Brexit was travelling. I also pay tribute to all the Opposition teams, and, in particular, to my hon. Friend the Member for Central Ayrshire (Dr Whitford), who has just assumed her new role and who, as always, has led our debate with such distinction and articulateness.
The people I most want to congratulate, however, are the real winners of today, the hard Brexiteers and the Farageists. Their success has been total, brutal and absolute. Not only have they managed to secure the hard Brexit that they have craved for years, but, with this Bill, they have kept in place the bullseye, the gold standard, of all hard Brexits—the possibility of a no-deal departure from the European Union. Their anti-European obsession will be quenched today: insatiable lifetime ambitions of wrenching this country out of the EU will be realised. Their victory is even more impressive because they started as a small, insignificant, cult-like fringe on the edge of the Conservative party. Such is their tenacity and commitment to the cause that they have now gone mainstream. Just one generation ago they were the B-A-S-T-ards of John Major folklore. Now they run the country. Their commitment to the cause has been so absolutely determined that they were prepared to bring down their own Prime Ministers to get their way—[Interruption.] And I shall give way to one of them now.
Sir William Cash
I thought it might be helpful if I could distinguish ourselves from what the hon. Gentleman described as the Farageists, for the simple reason that UKIP and now the Brexit Party were never going to form a Government. They could therefore never negotiate, nor could they legislate and nor could they deliver Brexit. They have now been reduced to dust by the decision that was taken by the British people, including in Labour leave marginal constituencies. It is the Conservative party that has now come back into its own and is doing the right thing for the right reason in the national interest.
Pete Wishart
I am so grateful to the high priest of hard Brexiteers. The reason that UKIP and the Farageists—whatever incarnation they are on just now—have disappeared is that they have become the Conservative party. Their whole agenda has been accepted and subsumed into the Conservative party so that it is almost impossible to tell the modern Conservative party from the UKIP and the Farageists of the past.
Angus Brendan MacNeil
That victory is so complete that, on 43%, their utter arrogance is such that they never need to go back and check with the people that they are doing the right thing. In Scotland, on 45%, we demand a referendum, not to do what we want but to ask the people if they want independence. But that is not for the Brexiteers, oh no; on 43% they will do what they want. The arrogance is massive on that side.
Pete Wishart
My hon. Friend makes a good and concise point. I want to return to some of these issues, and I hope that he will come back in, because I think that this is worth being aired, discussed and debated in this House. It is an important key issue—[Interruption.] I can tell that the high priest wants to come back in again, and I will obviously indulge him.
Sir William Cash
The Maastricht rebellion took place in 1992-93, long before either UKIP or the Brexit party was even really thought of.
Pete Wishart
There is a fascinating journal, account and book to be written about this, and I am looking forward to the hon. Member’s memoirs after all this.
I want to pay tribute to some of the other people who have won today, in the great victory of this Brexit. I know that the Conservatives will, uncharitably, not do this, but somebody has to congratulate Nigel Farage. It is his vision that has been realised today. Without Nigel Farage, there would be no Brexit. Without the pressure that was put on the Conservative party from whatever incarnation of his party existed at the time, there would not be the hard Brexit that they are all celebrating today. Come on, Conservatives—give the man a peerage, for goodness’ sake! He, more than anybody else, deserves it. And wouldn’t it be comedy gold for a man who rails against unelected politicians to be given an unelected place in the legislature? Please do it, just for the comedy value.
We are not just passing a piece of legislation today. We are actually entering into a new age, a new epoch: the age of hard Brexitism. Everything that this House does from this point on will be informed and directed by this new atmosphere, culture and direction of the United Kingdom. I am trying to think of a poster boy for the new hard Brexit age, and the only thing that comes to my mind is the right hon. Member for Rayleigh and Wickford (Mr Francois) in combat casuals flying a Spitfire to the sound of hope and glory heading straight to the ground because his aircraft has suffered engine failure. That is the image that comes to mind in the new Brexit age, and God help us as we go forward. It is viciously right-wing and isolationist, and takes no account of the views of anywhere else around the whole world today. It is this new age of hard Brexit that we are now entering into.
I am looking around for some of the other hon. Members on the Conservative Benches. Obviously the right hon. Member for North Shropshire is here, but I am looking for the newly knighted dark lord of Brexit austerity, the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith). He is not in his place, and neither is the right hon. Member for Wokingham (John Redwood), who so excited us with his tales of English nationalism. None of them is here, but all of them have to be congratulated. They are now the mainstream of the Conservative party. They effectively manipulated what was a moderate centrist party to become this party of Brexit extremists. They booted out all the moderates; none of them is here now. There is no debate or discussion, or any sort of contradiction of the views of hard Brexiteers any more, because they have booted all the moderates out. This is the new Conservative consensus, and I hope that the party today in the Bulldog Club is generous and full of largesse, and that they very much enjoy it.
Sir Desmond Swayne
My right hon. Friend the Member for North Shropshire (Mr Paterson) spoke of the gloom and doom on the other side of the Chamber, and I think that the hon. Gentleman put his finger on it in his complaint about the hardness of this particular Brexit. What was clear throughout the Committee stage was the harking back of Opposition Members to a previous Bill that did not make it through this House in December of last year. It did not make it through this House because those Members voted against the programme motion, and they now feel guilt for having delivered the very situation about which he complains, but which we rather regard as the intervention of providence.
Pete Wishart
I am grateful to the right hon. Gentleman. I know he is tempting me to speak about the Labour party, but that is just cruelty. I will resist the opportunity to say a few words to Labour Members, other than: for goodness’ sake get your act together, because you have to be an Opposition. Not one of their Back Benchers is standing to be called in this debate today, which shows how humble they have become in this whole debate. However, I say to the right hon. Gentleman that it is a bit rich blaming a useless Labour party for sinking that last Brexit deal, because it was the hard Brexiteers who brought it down. They were prepared to sink their own Prime Minister and reject a deal because of their ultimate vision, objective and all-consuming obsession with the hardest of hard Brexits, which is what is being delivered today.
Alan Brown
It is ironic that the Conservatives are now saying, “You should have voted for our crap deal, but now we’ve made the deal even crappier, so get it up ye.” Does that not sum it right up?
Pete Wishart
My hon. Friend has a very delicate use of phrase, and I have to say that nothing could be put more elegantly than that. That is well understood from this side of the House.
The Brexit deal could have been anything. It could have involved a customs union or single market membership. It could have been Canada-plus-plus-plus or Norway-minus-minus-minus, but it is none of those. It is the hardest of hard Brexits because nothing else was good enough for the Conservatives, and that is what is being passed today.
Angus Brendan MacNeil
Not only that; their victory has been so total that it has also been a victory over arithmetic. They know, or they should know, that their Brexit is going to damage GDP and economic growth by 5% to 6%, and that even if they get a trade deal with every country in the world, they can only make up 1.4% of that. America is only going to give them 0.2%, or a thirtieth of the damage they are going to do. To make up this damage, they are going to have to find 47 planets populated with people as rich as Americans today. That is the level of damage and arithmetical oversight that the hard Brexiteers have achieved in their victory. Numbers do not matter to a Tory party that was once obsessed with numbers. This is just the sweep of Brexit harking back to the 19th century and probably to opium wars and gunboat diplomacy. That is where their minds are stuck, sadly. The unfortunate thing is that the rest of us across England, Scotland, Wales and Northern Ireland are going to pay a very heavy price for their lunacy.
Pete Wishart
I am grateful to my hon. Friend for his very brief intervention. All I can say to him is that they couldn’t care less about the economy or about the damage to the UK. They couldn’t care less about our relationship, about isolationism or about all the other things that this Brexit does. The only thing they care about is their hard Brexit. That is the only thing that has underpinned their whole approach in the course of the past few years. That is the only thing they wanted. Nothing else mattered other than securing a hard Brexit, so there will be huge celebrations down the Bulldog Club tonight and I hope the champagne tastes good. Will we be celebrating in the White Heather Club in Scotland, or here? Nobody bothered to ask me. Well, no, we will not. We most certainly will not be celebrating this Bill passing today.
The Government may have won their hard Brexit, but they have most definitely lost Scotland. Nothing could sum up the alienation of Scotland from the rest of the United Kingdom more than the passing of this Bill. This Bill symbolises the difference between Scotland and the rest of the UK. I sometimes think this House forgets Scotland’s relationship with this Brexit disaster and chaos, so let me gently remind Conservative Members what happened. One MP was voted from Scotland with a mandate for the EU referendum, and one MP from Scotland voted for the Bill that allowed a referendum to take place. When Scotland was obliged to vote in an EU referendum that it had nothing to do with, we voted 62% to remain.
Now, people may have thought, given all that has happened, that Scotland’s voice would be accommodated, listened to and somehow taken account of—not a bit of it. Every representation was rejected. Everything to try to minimise the blow to a Scotland that wanted to stay in the European Union was ignored out of hand before the ink was even dry. Everything that we brought forward that said, “Listen. Maybe we have a different view about Brexit than the rest of you down here,” was totally and utterly ignored and disrespected.
That is why yesterday, when the Scottish Parliament was asked to agree to a legislative consent motion to allow the Government to progress and pursue this hard Brexit, the Scottish Parliament overwhelmingly said no, and only the rump of Scottish Conservatives in that Parliament voted for it. Will that matter to this Government? Will that be listened to? Absolutely not. It will be rejected, ignored and disrespected. I say to Conservative Members that that is what is driving the new demand for Scottish independence. We will no longer be ignored, disrespected, and rejected out of hand. That is why we are back here with 48 Members. That is why we have 80% of the vote. That is what the people of Scotland voted for.
Pete Wishart
I am going to enjoy this intervention from a representative of the Scottish Conservatives, who lost half their seats. Why did that happen?
David Duguid
I just want to gently correct the hon. Gentleman. I do enjoy hearing him speak, and we have been known to share a stage together, in fact, because I enjoy his entertainment that much. I will gently correct what he may have said inadvertently. He said that 80% of the vote in Scotland—
David Duguid
—80% of the seats—[Interruption.] Listen, I have absolutely no compunction about accepting that the SNP gained seats in Scotland during last month’s UK general election. We lost some seats, but it was ultimately a general election to form a Government in this place, not a general election in Scotland. Nicola Sturgeon is not the Prime Minister. On the percentage of the vote, I gently say that 55% of people in Scotland voted for Unionist parties, not for the SNP—[Interruption.] I have made my point.
Pete Wishart
I am grateful to the hon. Gentleman, who is of course right that the SNP won only 80% of the seats, and I am glad that that is on the record. I say ever so gently to him that it is all very well him standing up and telling me to correct all that, but his party in Scotland has one message—I do not expect him to dispute this—and all the signs in the fields of Perthshire and Banff and Buchan and all the leaflets that went through every door said, “Vote Scottish Conservative to stop indyref 2.” All he needs to do is shake his head. That was the main message.
Pete Wishart
No, he should just let me finish, then I will let him come back in. That was the main message put out by the Scottish Conservatives at the general election. The result was that they lost more than half their Members of Parliament. They said, “Send Nicola Sturgeon a message,” and the Scottish people did. The message they sent was, “We want to decide our own future.” The hon. Gentleman must be a little humbler about what happened. He must accept his defeat and understand the reason behind it because at some point—not today, next week, or next month—he will have to respect Scottish democracy. He will have to say that it is up to the Scottish people to determine their own future.
David Duguid
On the subject of democracy, this should be well known, but I point out to the House that each and every SNP Member has two main jobs. One is to speak for their constituents, of which the SNP has more because it won more seats. The other is to speak for their party. It is not necessarily their job, solely, to speak for Scotland. The SNP does not represent Scotland. I am just as much a Scottish MP. The hon. Gentleman asked me whether I accepted my defeat, but I won my seat. I am here with an increased majority, thank you very much.
Pete Wishart
I congratulate the hon. Gentleman on that, but he really must accept what is happening in Scotland. Something dramatic is going on. I think all of us agree that there will be another referendum at some point, because things are totally and utterly—[Interruption.] Conservative Members are saying no. Did my hon. Friends hear them?
Pete Wishart
We heard them say no, but whenever they say no to Scotland and say that they will deny Scottish democracy, the only thing that that does—this is a note of caution to Conservative Members—is drive support for Scottish independence. The more they say no to us, the more we will assert our rights, and the idea of Scottish independence will continue to grow and will overrun and consume them.
My little bit of advice to right hon. and hon. Gentlemen opposite is to say, “Just get on with it.” Just give us that independence referendum and acknowledge that we are on a different trajectory to the hard Brexit UK that they want. They can have their hard Brexit. If that is what they want, and if they want an isolationist United Kingdom, please have it. That is their choice and their democratic right. Nobody is preventing them from doing that, and I will be the first person to say, “Good luck.” Let us hope they get on and make a success of it, but do not hold my country back, do not subsume my country into what they are trying to achieve. We do not want it, and we have told them that on numerous occasions. It is over. Scotland will be an independent country, and the sooner this House recognises that, the better.
I will finish now, because I realise that I have kept the House attention’s for long enough. The battle for hard Brexit is over, and Conservative Members have won, but the battle for Scottish independence has just begun.
Craig Williams (Montgomeryshire) (Con)
Thank you very much, Mr Deputy Speaker. It is good to see you return to your place, as have I. I know that you will correct me if I say that I am making my maiden speech, but it feels a little like that. With your Welsh heritage, I hope that you will allow me a little leeway to talk about my new constituency and pay tribute to a person whom we will all miss: my predecessor, Glyn Davies.
I wanted to make my non-maiden speech on the Third Reading of this Bill, because I was reminded by a colleague that they had looked me up on TheyWorkForYou and saw that I done little speaking for two and a half years, so I hope that I can correct the record, because I have very little opportunity to do so. I have worked with the Secretary of State for Exiting the European Union and the Front-Bench team for several months in different guises, and I pay tribute to him and his team for their diligent professionalism. He has overseen a very difficult situation over the past six months.
This feels a little like Groundhog Day—not giving another maiden speech but talking about this particular subject. I recall being encouraged to leave Parliament by a different constituency when we were on this subject, and I have now returned with a healthier majority while we are still on this subject, and I appreciate that we can now get it done.
If I may say a bit about my home, the seat I now represent is not just my constituency but my home—born and bred. Montgomeryshire is incredibly important to me and was important to my predecessor. It is an old county of Wales and forms the gateway to mid-Wales, covering an area from Welshpool over to Machynlleth, which was the seat of the Welsh Parliament in days gone by, to Llanidloes and Llandinam. It is good to see my neighbours by my side, including my right hon. Friend the Member for North Shropshire (Mr Paterson) and my hon. Friend the Member for Brecon and Radnorshire (Fay Jones). It is truly wonderful—other Members across the House will feel the same—to represent somewhere that I call home.
There are issues—they will, of course, be pertinent to this Bill, Mr Deputy Speaker—that I will look to champion, and it has been terrific over the past month to see so many opportunities and ideas come to the fore as we settle the Brexit issue.
I have been given many ideas by organisations, such as opening the Montgomeryshire canal to the network. The Welshpool and Llanfair railway campaign captured the spirit of both Montgomeryshire and this country, and it received the Queen’s award for voluntary service. This week—just to reinforce the fact that Powys and Montgomeryshire are not complacent on any issue, despite our being the safest place in England and Wales—we received the knife angel, which is touring the country to demonstrate and reinforce the message that we need to engage with the community on knife crime and other serious crime to minimise it as much as we can.
I hope the House will forgive me for spending some time paying tribute Glyn Davies, my immediate predecessor, who is a great man. He has 50 years of public service to date, and it is not capped. I know Glyn and, in fact, I was with him on the weekend as he continued his public service. I am sure he will continue in some guise. I know the House will miss him, but I can assure the House that I will not miss him because he will continue to guide, advise, inform and, I am sure, take part in Montgomeryshire life.
Glyn’s passion for representing his home, his passion for Welsh politics and his passion for his nation, Wales—and for the Union of the United Kingdom of Great Britain and Northern Ireland, before my Celtic cousins start—inspired me early in life, and he is one of the reasons I got involved in politics. He is one of the reasons I stand before the House again, representing my home seat. That other true son of Montgomeryshire, who I am sure will either read or listen to this debate, can be very proud of what he has achieved, having been an Assembly Member, a councillor and a Member of Parliament. At his tender age, which I will not mention, he is fit and able. I will send the House’s good wishes to him.
This Third Reading debate is a significant moment for the House and the country, and it presents me with an opportunity to talk about some of the issues I will seek to champion during my time as the Member of Parliament for Montgomeryshire. I represent one of the most rural seats in England and Wales—I would be immediately corrected by my hon. Friend the Member for Brecon and Radnorshire if I claimed it was the biggest in England and Wales—and it has both agriculture and tourism, with the former being primarily affected by this Bill.
I was taken by the exchange at DExEU questions this morning, when my right hon. Friend the Member for Central Devon (Mel Stride) spoke precisely about the challenges and opportunities facing hilltop farmers as we leave the EU. He spoke about how the Brexit vote and bringing sovereign power back to this place, which we are doing right now, will mean that we can do things differently. I am heartened to see us moving straightaway on our manifesto commitments on agricultural funding to 2024, and I will be working with the Assembly Member for Montgomeryshire, Russell George—he is a Conservative Assembly Member, so I had better mention him—and the Welsh Government to ensure that that funding and support continues and gives certainty to farmers.
Agriculture is important, but so is tourism. This Bill will now provide certainty. For those who have not visited Montgomeryshire, I give a special shout out to Lake Vyrnwy. The private investment in the hotel and the wider developments at Lake Vyrnwy will push on at pace now that we have certainty on where this country will be going next. That certainty on opening up infrastructure is important to a rural area.
I will mention my right hon. Friend the Member for North Shropshire one last time because I want to work with him on opening up the important Pant-Llanymynech bypass. I will continue apace so that Mr Deputy Speaker does not notice my getting that into this debate.
Finally, the Union is incredibly important to me. I realise that this is not a maiden speech and Members can intervene—I will tiptoe around it so that my SNP colleagues will be kind—but the Union is important to Montgomeryshire and the Welsh Conservative party. It is important to think about the Union in relation to the withdrawal agreement.
When we joined the European Union, the United Kingdom’s powers on agricultural support were given to Brussels en bloc as we joined a bigger single market. We are now leaving, and we will be forming a single market between the four nations of the United Kingdom. It is incredibly important to the farmers, businesses and residents I represent in Montgomeryshire that there is a united and regulated framework that allows us to keep our porous border between England and Wales and to continue as one of the most successful Unions in the world.
I will continue to champion the role of Wales, as my nation, in the Union of the United Kingdom of Great Britain and Northern Ireland. I will build on the work of my predecessors, such as Glyn Davies and Lord Carlile. So many things have changed over the two and a half years that I have not been here, but there are many similarities. It is good to see Lord Davies of Gower in the Gallery, as it was a privilege to watch his maiden speech in the other place yesterday. I am heartened to see him return favour.
So many things have changed, but there are some similarities. I am delighted to represent my home, and I am delighted to take part in this important Third Reading debate. I pay tribute to all the parliamentarians on both sides of the House, the civil servants and the other bodies that have got through what looked from the outside, at times, like quite a challenging two and a half years. I hope we can now move on, and I am glad to have given my semi-maiden speech on Third Reading.
Fleur Anderson (Putney) (Lab)
Thank you, Mr Deputy Speaker, for the honour of calling me to give my maiden speech, especially on this European Union (Withdrawal Agreement) Bill that has dominated our political life for years and will dominate and define our country for a generation or more. There could not be anything more important to speak about.
I start by thanking God, and I start as I mean to go on by thanking the residents of Putney, Roehampton and Southfields for putting their faith in me and for electing me to represent them. I also thank my family for all their support.
I pay tribute to my predecessor Justine Greening, who is held in very high respect for being a hard-working local MP. Many people told me during the campaign and before that she made their issues her own. She championed local causes and, nationally, she championed the cause of social mobility. She represented our views on Brexit, even when it cost her politically. We can always have a few more independent-minded female MPs, and I wish her and the Social Mobility Foundation all the very best.
Putney, Southfields and Roehampton are fantastic places to live and work. We have the best of urban London life, the river and brilliant green spaces. For any new MP looking for their London home, I cannot imagine anywhere better. Please come to Putney.
We have a strong community. We have faith groups, residents associations, great pubs to meet up in and community organisations that bring people together, including—I hope the House will forgive me for indulging a few local organisations—the Putney Society; Regenerate and Regenerate RISE; the Independent Food Aid Network; local food banks; Growhampton—doesn’t that sound fantastic?—Green the Grid; Abundance, which makes cider; the tidy towpath group; the Roehampton cultural centre; the over-60s lunch club in Roehampton; and over 20 rowing clubs and the most famous boat race in the whole world.
I have been running a local community centre for three years, so I know how important and how threatened community spaces are, and I will continue to champion them. Clement Attlee is one of Putney’s most famous former residents. He was born in Putney in 1883, when it was in Surrey, and he went on to be Labour Prime Minister from 1945 to 1951. He also went into politics because of his experience running a London community centre, so we have much in common. His Labour Government founded the welfare state—both the NHS and the benefit system—which defines us a country. To this day, it is one of the jewels in our crown, which I will make it a priority to defend.
But the current welfare state is failing families in my constituency. One in three children is in poverty and 30% of families in Roehampton live in overcrowded homes, most of them hard-working families. More than 3,000 children in Wandsworth borough are homeless, living in temporary accommodation. The Alton Estate and Putney Vale include areas that are among the most deprived 10% in the country in terms of income and housing. It is not all about the boat race. Two of the most important marks of the Government’s success or failure in the next five years must be whether they reduce child poverty and end the need for food banks.
Before I turn to the subject of the debate—I know that we are talking about Brexit; I will get there—I want briefly to highlight some important issues for Putney and the country. The first is the environment. This must be the climate Parliament. I have worked with aid agencies around the world, and in Bangladesh I have sat down with communities of women whose jobs, livelihoods and ways of life have been devastated by rising sea water as a result of climate change. It is already happening. I have also met parents, like me, who know that our London children have permanently damaged lungs because of our air pollution. In both situations, it is always the poorest who are most affected. We need urgent action on climate change. We cannot wait five years.
Housing is a major issue. Overcrowding, uncertainty for private renters, leaseholders’ rights, lack of social housing and homelessness must be a priority for the next five years.
Youth services and youth centres are closing across our country. More than 700 have closed in the last nine years. Together with school cuts, that takes away opportunities for our young people. Roehampton youth centre was closed just last summer.
Adult social care is beyond crisis. It came up time and again in all my seven hustings during the election campaign. It needs urgent action. Joining up the NHS and community care services is essential. We do not need just a cross-party wish list, but urgent action. I know that that was in the Queen’s Speech, and we will have to see what the result will be.
The NHS, crime, transport, daily commuter misery, saving our high street, international development and saving the Department for International Development, not merging it with the Foreign and Commonwealth Office, are all issues that I will return to in future debates.
And so to Brexit. It was the main issue of the election in Putney: 74% of Wandsworth residents voted to remain—an even higher figure than in Scotland. More than one in 10 constituents in Putney are from other EU countries and are a very welcome part of our community. I believe that Brexit is an act of monumental self-harm. In Putney, I have spoken to people who have burst into tears on the doorstep, not just from seeing me, but because of their heightened anxiety about their rights and status as EU citizens, no matter how many years they have been here. I have met NHS workers who are struggling to cope at work because so many other staff have left and returned to other EU countries, and people whose businesses have been damaged and even closed—and we have not even had Brexit yet. We know the risks. We know that Brexit will not be done for many years, so my mandate to protest against the harm that it will do is certainly not over.
The Government have made big promises over the days of the debate, which I do not believe, given their track record in the past nine years, but I hope they prove me wrong. For a start, there are promises that there will be no regression on environmental standards. We must have a UK version of dynamic alignment on environmental policies. I know that the Government do not want dynamic alignment because it means that we are in hock to the EU, but there must be a UK version, whereby we do not end up with zombie policies and stay backward while the EU moves forward. We must always vie to keep outdoing the EU on climate action. We must phase out diesel and petrol cars, bring in eco-friendly homes and achieve 100% clean energy. I hope that all those policies will be in the upcoming Environment Bill. The measure must have teeth to match the European Court of Justice.
There have also been promises that workers’ rights will be retained so that we will not have a race to the bottom. I have worked with countries around the world on trade negotiations at the World Trade Organisation and I have seen, time and again, how free trade fails communities and is especially bad for women. We need to know the impact, including the gender impact, of future trade deals.
There have been promises not to have a no-deal Brexit, but we could still face that at the end of the year. We are just pushing it down the line. There have been promises of rights to stay for EU nationals, with yet more paperwork and checks for pre-settled and settled status and issues that are not yet resolved.
There have been promises that the rights of vulnerable refugees—children, whose rights have been removed from the European Union (Withdrawal Agreement) Bill—will be enshrined in the immigration Bill. Why take reuniting children with their families out of the Bill? I am as flabbergasted and perplexed as everyone else on the Opposition Benches. Families belong together. The policy had cross-party agreement. It is not many children. I have seen the conditions in which young refugee children live and I have seen the traffickers circling and preying on them. Those children are amazing. My children often cannot find their way from the table to the dishwasher to put their plates away, but those children have found their way across Europe to other countries, desperate to return to their families here, who are just as desperate to see them. Yet we have closed the door on them. I do not understand why and I hope that it is not a sign of the kind of country we are going to become.
There have also been promises that the NHS is not for sale to the US. Well, we’ll see. The Bill is a huge power grab, with the Government running scared of scrutiny and transparency, yesterday rejecting all the amendments that would have meant that we as elected Members rightly saw the aims, objectives and progress of negotiations.
We are leaving, but our role now is to define what leaving means: what our values are and what nationalism means. There is a high risk that racism and discrimination will be given permission by the Bill. I have seen it happen. It happened straight after the referendum and it has happened since. It is therefore important to say here, in this place, that we may be leaving the EU, but we are proud of our place in Europe and the world. We must be a society that is ambitious for everyone, welcomes diversity and is open to all. We must both take pride in our country and define that pride as being more internationalist than ever. That will make us all stronger.
I thank the people of Putney again for electing me. It is such an honour. I promise that I will work hard every minute of every day to serve and represent you.
Sir William Cash (Stone) (Con)
First, Mr Deputy Speaker, I congratulate you on your successful re-appointment. Thank you for everything you have done for us in the past.
I welcome the hon. Member for Putney (Fleur Anderson) to the House of Commons. Her speech was very measured. I do not agree with much of it, as she will expect, but it is a pleasure to have her in the House. I worked extremely closely with her predecessor, Justine Greening. The hon. Lady may not know this, but the International Development (Gender Equality) Act 2014, which I introduced as a private Member’s Bill, got through despite being 16th in the ballot largely because of the support I had from her predecessor, as well as Opposition Members and many others, including Glenys Kinnock and Mariella Frostrup. Justine Greening put real effort and determination into getting the Bill through and it was a real privilege for me to work with her. The purpose of the Bill was to make sure that women and children in the third world and developing countries were protected against female genital mutilation and things of that sort. In saying all that, I want to make it clear that there is a degree of continuity of some sort between the hon. Lady’s speech and mine, although I have to dissociate myself from remarks of hers on which I will not comment right now.
I always enjoy speeches by the hon. Member for Perth and North Perthshire (Pete Wishart)—they are such fun. He comes at us 100% and there is never any let-up. I pointed out that we Maastricht rebels—I had the honour to lead that rebellion in 1992-93—acted as we did because for us it was about democracy and the benefits that will now come to us as we leave the European Union. The European Union was going to take the democratic decision making of this country and hand it over to what was, in effect, a European government. As I said yesterday, parliamentary sovereignty and democracy run together. We are not “hard Brexiteers”; we are democrats. We are people who believe that this country should be governed by the people, that people should be governed by themselves, and I would have thought that SNP Members, above all others, understood that.
Sir William Cash
In a minute. It may surprise the hon. Gentleman to hear that, while I am a fervent believer in the United Kingdom, which includes Scotland, Northern Ireland, Wales and England, I do understand, for reasons not far removed from my reasons for wanting the UK not to be subjugated to the European Union, why the hon. Member for Perth and North Perthshire and his colleagues indulge this passion—understandable but wrong—for leaving the United Kingdom. I understand where they are coming from, so to that extent I appreciate some of the remarks he made, but I disagree fundamentally regarding the outcome they desire. It would lead to a lot of trouble for Scotland were it to leave the United Kingdom, as the referendum demonstrated.
The European Union (Withdrawal Agreement) Bill is not just about Brexit. It is primarily about the United Kingdom and our future. The reason why we adopted the position we took on Maastricht, and later on Nice, Amsterdam and Lisbon, and in the debate of the past few years and on the referendum, hinges on one simple principle: the ability of the people of this country to govern themselves through their elected representatives on the basis of their free choice in general elections. We are not little Englanders or trying somehow to make our country less democratic. We fought this battle for democracy and the rights of our own people, our own voters. That is why I am delighted that we now have a significant majority and will be able to put into effect the right of the British people to govern themselves through a range of policies, unconstrained by the European Union and the European Commission.
Angus Brendan MacNeil
The argument the hon. Gentleman is making about voters getting who they vote for and governing themselves is pertinent in Scotland. His party have been rejected by 75% of the people of Scotland. We have an unelected Tory Government governing Scotland. Surely he sees the justice of being able to ask the Scottish people whether they want to continue with a Government that 75% of them have rejected, and what they want to do about the European Union, where 62% of them want to remain.
Sir William Cash
If the people of Scotland ever were to obtain independence and stay in the European Union, the extent to which they would be subjugated in a range of areas—fishing and many others—would become very apparent to them. That would be extremely damaging to the Scottish economy. Through the qualified majority votes of other countries, Scotland would find that, as a relatively small country, the experience would not be at all advantageous.
Sir Charles Walker (Broxbourne) (Con)
Is it not so nice, after so much anguish over the past three years, that tonight we are at last delivering on the result of this referendum, a democratic vote that we are now respecting?
Sir William Cash
I so much agree with what my hon. Friend has said, because he has been with us right the way through the passage of this over the past decade and more. People on this side of the House have fought, sometimes against the establishment, in order to achieve this objective. I can only thank the British people with all my heart for the decision they have taken. We have been the catalysts. We have tried to present the arguments. If the hon. Member for Perth and North Perthshire is right at all, it is about the fact that there has been a victory in the general election: the British people have spoken and they have supported the idea of leaving the EU, and we will do so accordingly on 31 January.
I wish to make a further point. The decision to leave was taken by the British people, but not on a party political basis. The argument in this House always gravitates around party politics, but the decision in the referendum was taken by the British people in their individual homes; at breakfast or on the night before they sat around and talked to one another, asking, “What are we going to do tomorrow?” They made that decision but then found that remainer MPs, whether on the Opposition Benches or even on our Benches, were repudiating the decision that the individual voters had made, whether they came from Labour, Liberal Democrat or, more likely, Conservative constituencies. They deeply resented the fact that they had decided, with their families, to go to the ballot box to vote to leave the EU in that referendum and then found, to their intense annoyance, fury and disappointment, that their Member of Parliament had used the position they had in this House to frustrate the decision that the people had taken. That is why so many Labour Members lost their seats. People in this House did not appreciate the fact that in Labour leave marginals—in particular, in places north of Coventry in coal and steel communities—the European Coal and Steel Community and the massive subsidies given to the other countries had deprived people of their livelihoods, with much of the collapse of the steel and coal industry being driven by the anti-competitive nature of the European Coal and Steel Community framework. If we were to take a map of the UK and superimpose upon it the coal and steel communities, we would see a direct correlation with the decisions taken in the general election, when people drove out Labour Members of Parliament because they were not doing what voters wanted them to do. They wanted to leave the EU, and the Labour Members who were driven out had refused to allow them to determine their own constituency and national interest. That is where the problem lies. The Labour party simply cannot bring itself, even now, to understand the feelings of the people north of Coventry and in other parts of the country who found that their own Member of Parliament had let them down.
There was a simple reason for the referendum: it was clear that the collusion between the two Front-Bench teams in 1992-93 would lead to our having to stay in the European Union and accept the Maastricht treaty. That was what the referendum was all about. We now have a huge opportunity, in a completely new environment where we take control of our own laws in this House in accordance with proper democratic principles, to create a new global trading relationship to ensure that we are able not only to govern ourselves but to work in co-operation with other countries on our own terms, not on the terms that were laid down by the European Union. I look to the Secretary of State in the full knowledge that he and the Prime Minister, and any other Ministers involved in developing policies on the European Union over the next year or two, will do so on our terms and conditions and not those imposed upon us by the European Union.
This is a great moment in our democratic history; furthermore, it is a great tribute to the British people, who listened to the arguments that were presented to preserve their democracy. I have said this before and I will never apologise for saying it: the decisions were taken for democratic reasons. That is why we have ended up getting back our sovereignty, which we abdicated in 1971, after which we gradually gave up the veto. We will now be able to govern ourselves. It is a great tribute to the British people, and to the Members of Parliament who were returned in the election, that they will, through the majority we now have and with our Prime Minister, guarantee that this country will have a bright and effective future.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Like others have done, may I welcome you back to your restored position in the Chair, Mr Deputy Speaker? We very much look forward to your presence moderating our proceedings in the years to come.
I congratulate the hon. Member for Putney (Fleur Anderson) on her maiden speech, which was a very accomplished contribution. There are a number of conventions and courtesies that need to be observed, but, as well as managing to observe them, the hon. Lady had something of substance and significance to say. I am sure we look forward to hearing her future contributions in the House.
A number of contributors to this debate have spoken about the way in which the tone of the debate has changed in the past few days, and that is a fair point to make. Some of that change in tone relates to the inevitability of the fact that the Bill will gain its Third Reading tonight. Another quite remarkable aspect is that there has been, if anything, an even greater inflation of the claims made about what will be possible. On that, time will tell.
Listening to the speech from the right hon. Member for North Shropshire (Mr Paterson), who was present until a minute or two ago, I was struck by what he said about the fishing industry and the opportunities that would be open to it outside the common fisheries policy. I have heard him make that speech many times over the years. It would, of course, have been a done deal had the Government led by the right hon. Member for Maidenhead (Mrs May) done what they said they were going to do and put the UK’s removal from the common fisheries policy in the withdrawal agreement and not in the political declaration. Had that been the case, we would be looking at an exit from the common fisheries policy at the end of the month. Of course, they did not do that, despite their promise. They did not do it because, frankly, they did not have the political will to do it.
The removal of the United Kingdom from the common fisheries policy remains in the political declaration. It is not in the agreement that was negotiated by the Prime Minister either. Although we have never heard the reason why, I presume that there was not the political will to put it in the withdrawal agreement. As far as the claims made on behalf of Brexit regarding the future of the fishing industry are concerned, we shall have to wait and see. It will require the political will to deliver these promises, probably at the expense of commitments made to other communities and sectors.
David Duguid
The right hon. Gentleman and I obviously share a lot of interests in the fishing industry, as he has one of the largest ports in Scotland—but not the largest—in his constituency. Does he not agree that by virtue of leaving the EU, we have no option but to leave the CFP? We leave the EU, we leave the common fisheries policy—no ifs, no buts.
Mr Carmichael
That is absolutely the case, and I think the hon. Gentleman knows me well enough to know that he will never get me to defend the common fisheries policy. But what follows thereafter will be down to the political decisions made by this Government and others, and to whether they have the political will to deliver the things that they have promised. He will remember the damage that was done to his party by a previous generation of Conservative Ministers who, at the time of our accession to the EEC in 1975, regarded the fishing industry as expendable. That is why the promises become ever more extravagant, but the more extravagant they are, the greater the consequences will be if they are not kept.
The Liberal Democrats will vote against the Bill on Third Reading, because we believe that this is a bad deal that risks the future integrity of the United Kingdom as a single unitary state, principally and most immediately because it risks the possibility of leaving Northern Ireland subject to different regulatory arrangements from the rest of the United Kingdom. That was something against which the former Secretary of State for Scotland, the right hon. Member for Dumfriesshire, Clydesdale and Tweeddale (David Mundell), warned, along with Ruth Davidson, the then leader of the Scottish Conservatives. Those warnings were good and the former Prime Minister was wise to heed them, but the current Prime Minister has ignored them. If after 31 December we do find ourselves in the situation I have described, the future of the United Kingdom as a unitary state will be that much more bleak—and that is quite apart from the division and discord that we have heard mooted from the SNP Benches today.
I am also concerned that this deal very much leaves open the possibility of a no-deal Brexit at the end of 2020. In fact, the inclusion of clause 33 makes it that much more likely. My views on a no-deal Brexit are formed and reinforced by the businesses that come and talk to me. I think of one significant food-producing company in Orkney that directly employs 23 people, which may not sound like a great deal, but it is also an important part of the supply chain for farming in Orkney. Farming, of course, is the staple that keeps our economy in the Northern Isles stable and growing. That company tells me that for the past 20 years it has done everything that any Government would have asked it to. As a food producer, it has not gone for the low end of the market, but for the top—the niche market and the high-quality produce. Part of the reason that it went for that high-end product is that it was able to export. If its exports are now going to be put at a competitive disadvantage as a consequence of tariffs coming from a no-deal Brexit, the future of those 23 jobs and the farms around Orkney that supply the company will be bleak to say the very least.
Angus Brendan MacNeil
The right hon. Gentleman is making a point that pertains to my community in Na h-Eileanan an Iar as well. I heard Conservative voices saying that today the anguish will end. The anguish might end for those in the Conservative party and their psychodrama, but with this Brexit coming—and there is no good Brexit—the anguish is just beginning for an awful lot of people outside this Chamber.
Mr Carmichael
I fear that the hon. Gentleman may well be right on that. As I said in relation to the fishing industry, time will eventually tell. I fear, as I say, that he is probably right. The worst of it is that I really hope he is not, because the people who will suffer are not the people sitting in here but those in the crofts, in the hill farms and in the fishing communities around his constituency and mine.
Another reason we consider this to be a bad Bill is that it is another step in the walk that the Government are taking away from commitments they have previously given on environmental protections, labour rights, food standards, and—worst of all, in a really quite mean-minded step—the protections that would be given to refugee children. If ever there were an illustration of the way in which we risk diminishing our standing on the world stage, that is most surely it.
As we have heard, the Secretary of State’s Department is due to be wound up after the end of the month, but there is no doubting that even after that—even after 31 December—Brexit will continue to be a political phenomenon that will have a dominant effect on our politics for years to come. I make this plea today to those on the Treasury Bench: even if there is not to be a Department for it to shadow, this House should continue to have a Select Committee to look at the nature of the impact that Brexit has on our economy and our society.
The mantra on which the Government won their majority was that they would “get Brexit done”. The Prime Minister told us that he had an “oven-ready” deal. I think that to describe it as oven-ready was actually untypically understated for the Prime Minister. Many of us on the Opposition Benches see it in fact as being more half-baked than merely oven-ready. Ultimately, however, it is a deal that is going to leave us poorer and more isolated on the world stage, and it will affect us all.
Like many in this House, I am the first generation of my family to have had the opportunity to come here and to serve my community in this way. I did that because I was given opportunities principally by access to higher education, which I and my sisters all had. As a result of those opportunities, I have been able to develop whatever talents I have had. It grieves me enormously that the opportunities that we will now pass on to my sons—the next generation of my family—will be lesser than those that we inherited. It is for that reason that we shall vote against this Bill on Third Reading.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
The European Union was a subject of enormous interest to my predecessor as Member of Parliament for Ruislip, Northwood and Pinner, Nick Hurd, and indeed to his father, Douglas Hurd, who served this House with distinction and was the Foreign Secretary who took the United Kingdom into the Maastricht treaty through discussions that we have heard a great deal about in the course of the debate on this Bill. It was my great pleasure to work over many years with Nick as a local councillor in the constituency. I always found him to be someone who was hugely engaged and passionate about the interests of his constituents. I have been very struck by how hon. and right hon. Members of this House on all sides, in all parties, have fed back what a pleasure it was to have him as a colleague, and I am sure we all wish him well as he moves on to new challenges.
It has been a great honour to be elected Member of Parliament for the constituency of Ruislip, Northwood and Pinner, where I have been a councillor since 2002. Among the many characteristics of that outer London suburb is its long history as a place of settlement for those who have sought refuge in our country from persecution elsewhere. In particular, we have very large communities of those Jewish people who fled to the United Kingdom during the second world war and those Polish service personnel who came to this country to join our armed forces in that period and who subsequently settled and are still very significantly represented among our local population today.
The constituency is part of the London Borough of Hillingdon, of which I remain the deputy leader for another few days. Hillingdon is distinctive, among other things, for the fact that it is a gateway authority—one of the ports of entry into the United Kingdom—by virtue of the fact that we have Heathrow airport. Since the 2003 Hillingdon judgment, which clarified the legal responsibilities that local authorities in this country have under the Children Act 1989 and the Children (Leaving Care) Act 2000 for unaccompanied young people in this country, it has been an area of great personal interest for me because of the impact on my home area. For the past decade, I have had the privilege of leading the national work across local government on the resettlement into the United Kingdom of refugees and, in particular, child refugees, alongside politicians from all the nations of the United Kingdom and representing all the political parties that are found in those nations. Over that period, we have seen more than a doubling in the arrival rates of child refugees into the care of local authorities, and we have seen our Government play an ever more active role alongside the UN High Commissioner for Refugees, with schemes such as the vulnerable persons relocation scheme from Syria and the vulnerable children’s relocation scheme.
When I turn to clause 37 of the Bill, which has been the subject of comment and attempted amendments during its passage, it is clear that issues around the resettlement of vulnerable children are very much in the minds of many Members of this House. But it is vital that we recognise the strength of both the Government’s and the United Kingdom’s position when it comes to ensuring in practice the safety and wellbeing of refugee children. Border policy is, and has always been, a national competence, not one of the European Union. It is absolutely right that the opportunity to fully debate these issues will come in due course, when an immigration Bill comes before the House. But those of us closer to the sharp end of refugee resettlement will welcome the rejection of the amendments to clause 37, and I will briefly explain why.
The family reunion provisions are only relevant to a very tiny minority and to those children who are already in the care of authorities in other European countries. Those of us who had the opportunity to visit the Jungle camp in Calais and see the traffickers circling like sharks among nearly 10,000 vulnerable and destitute people will recognise that those provisions have long been seen—in the case of the United Kingdom, because of our geography—as an exploitable route for traffickers to create the opportunity of family reunion and encourage people to consign vulnerable people, sometimes children, to the backs of lorries and to dinghies across the channel in an attempt to open a family reunion route. We hear Members talking with concern about the hostile environment, but I think we have seen in the past few months that there are few environments more hostile than those when it comes to the life and wellbeing of vulnerable refugees.
The second reason that we need to be pleased that those amendments have been rejected is the issue at the heart of family reunion provisions, which is parental responsibility. It has been said by many Members, and it is said a great deal in the media, that we want to reunite children with their families. But those of us who have experience of those provisions have found that, in practice, what tends to happen is that young people are brought to the United Kingdom to be linked up with a distant cousin—maybe a teenager—and they almost immediately become an unaccompanied asylum-seeking child, and therefore in the care system of this country.
That really links to the third reason, which is that young refugees who are in the European Union are already within countries that have child protection systems that are very similar or equivalent to—in some cases better than—our own. The arrangements that the European Union, supported strongly by the United Kingdom, has in place, in particular with Turkey but also with other countries around the middle east and north Africa area, mean that there is usually a very real prospect of reuniting those young people with those with parental responsibility—either mum or dad, or at least close family members—who are in a refugee camp in the system in one of those countries. So it is going to be extremely rare that the best interest test will be passed in demonstrating that someone is better coming to a distant cousin who cannot look after them in the UK, rather than being reunited with mum and dad who may be in a refugee camp in Jordan or, indeed, in Turkey.
In conclusion, our local authorities in the United Kingdom have long battled with the consequences of the exploitation by traffickers of some weaknesses in our border system, and they do a remarkable job in challenging circumstances when we look at the outcomes that those children and young people go on to achieve. The UK has a huge reservoir of good will, and that good will is reflected in the actions of both this Government and previous Governments when it comes to support for child refugees, but our communities expect, in order to maintain that good will, that there will be robust, effective, efficient and just arrangements that minimise the risks to children. Clause 37 of this Bill, as proposed by the Government, opens the possibility of such arrangements when the immigration Bill comes forward. It is in practice a more compassionate and more pragmatic way forward on this issue than anything that I have heard proffered by the Opposition. It is one of many reasons to support this Bill, and I commend that clause to this House and to all Members with an interest in refugee children.
Notwithstanding the overwhelming numbers on this side of the House, many of us are listening with close attention to the points that are being made across this debate and we will be pressing to ensure that, when this Bill is passed today, it is not just the end of something, but the start of a new, constructive and positive relationship with our allies in the European Union.
Caroline Lucas (Brighton, Pavilion) (Green)
Congratulations, Mr Deputy Speaker, on your restoration to the Chair. I am pleased to speak after the new hon. Member for Ruislip, Northwood and Pinner (David Simmonds). I wish I could say that I agreed with more of what he said. I do not for a moment doubt his personal commitment to refugee children, as I hope he will not doubt my own, but I think we have very different solutions to how we would address their plight. Frankly, I think our country has an awful lot more to do to honour our obligations to refugees, and in particular to child refugees, than perhaps was reflected in his words this afternoon.
I want to say a few words about the withdrawal agreement that is to be passed, I fear, later this afternoon, and I want to summarise some of the reasons why I will be voting against it. It does still contain this trapdoor to no deal at the end of this year, and despite everything that has been said from the Government Front Bench, I fail to understand why they are so doggedly remaining with this 11-month period—an entirely arbitrary period—and saying that that is the period within which they want to have agreed a new trade agreement. The President of the Commission said just yesterday that that is not going to yield the kind of deep agreement that apparently the Prime Minister wants, so it is very hard to see how this is actually in the best interests of the country.
Secondly, I worry deeply about the race to the bottom on social and environmental standards, which I think is at the heart of this withdrawal agreement. We heard again yesterday, when we raised these in the debate, that there is no guarantee against regression on environmental standards. There is certainly no dynamic alignment being suggested. Indeed, I fear we will see a wrecking ball being taken to the precious environmental standards in particular, which we have been absolutely dependent on our negotiations in the EU to achieve. The Prime Minister has of course famously said that Brexit is an opportunity to, in his words, “regulate differently”. When he says that he wants to regulate differently, I find it very hard to believe that he actually means improving regulations when it comes to the environment in particular.
Simon Hoare (North Dorset) (Con)
The hon. Lady is raising two very important issues—their importance is, I think, recognised in all quarters of the House. I just wonder on what she is basing these fears. Is it from what she has heard in debates or read in our party manifesto or in anything else? On what is she basing these fears, other than shroud-waving and her own prejudice?
Caroline Lucas
I am basing my fears on the fact that, for example, I was a Member of the European Parliament for 10 years and regularly saw how the British Government, or not necessarily the Government, but Conservative MEPs, were the ones who were watering down. [Interruption.] I appreciate it was a Labour Government; I misspoke. I meant—[Interruption.] It feels as if the Conservatives have been in power for so long that it is easy to forget that they haven’t been. What I want to say—let me say this correctly—is that what I witnessed over my 10 years in the European Parliament was Conservative MEPs constantly trying to water down the positions on the environment that the European Parliament was taking and therefore—
Caroline Lucas
Not until I have finished answering the previous intervention. What I want to say in response to the first person who intervened on me, and who I have not yet finished answering, is that my concerns about what will happen to environmental standards under the withdrawal Bill are not being dictated by dogma; they are being dictated by my experience over 10 years in the European Parliament, watching Conservative MEPs constantly trying to water down environmental regulations.
Caroline Lucas
As the hon. Lady is a former MEP, I happily give way to her.
Vicky Ford
As a former Conservative MEP and as a former member of the environment Committee of the European Parliament and a former Chair of a Committee of the European Parliament, may I completely refute the allegations the hon. Lady has just made? It was Conservative MEPs who led the negotiations on the Paris climate change conference that led to the global commitment to deal with the emissions that are threatening our planet, and it will be a Conservative British Government who will lead the negotiations for the next global climate change conference that will save our planet.
Caroline Lucas
The hon. Lady doth protest a little too much, because the reality is that again and again I saw the briefings being provided by the Conservative party to Conservative MEPs, and they were all about watering down key environmental legislation. I was the rapporteur, for example, for a piece of legislation around illegally logged timber, and I can assure the hon. Lady that Tory MEPs and many others were watering it down.
Caroline Lucas
No, because this is not a very constructive conversation. I am very sure about the position that I am taking.
Caroline Lucas
No, the hon. Lady can sit down.
The fourth thing I want to say is that, as well as being deeply concerned, on the basis of evidence, about the very real risks of the Conservatives watering down environmental legislation, there is the issue that many have returned to again and again today: the cruel and hostile position on refugees in general and on child refugees in particular. Frankly, I thought that what happened yesterday, watching the Tory MPs troop through the Lobby to vote against provisions that would have protected child refugees, was quite shameful.
I want to focus on parliamentary sovereignty—an issue that should be, I would have imagined, a concern to all of us in this place. Surely we ought to be able to agree that, irrespective of our very different positions on Brexit or even on environmental standards, we do want a voice and a say for MPs in this place. For almost four years we have heard that leaving the EU would mean taking back control, and yet it is now clearer than ever that that control will not rest with communities, regions or even Parliament, but will be almost entirely in the hands of No. 10 Downing Street.
For this Government, democratic scrutiny is apparently a mere inconvenience, so MPs are to be denied a say over our most important post-Brexit trading relationship. So let us be very clear: this is an Executive power grab. Indeed, ironically given all the rhetoric about taking back control, this withdrawal agreement Bill gives MPs in this place less of a say over our trade with the EU than Members of the European Parliament will have in Brussels, who have a guaranteed vote on trade deals as well as sight of the pre-negotiation mandate.
Trade agreements may not always be headline-grabbing news, but they are very far from just being a dry subject about tariffs and taxes. They now have a profound impact on our efforts to tackle the climate crisis, and on our food standards, workers’ rights and vital public services. Our future relationship with the EU should be open to scrutiny and approval by this Parliament. We should be able to prevent the setting of a dangerous precedent of MPs being denied any oversight not just of this agreement but of future post-Brexit trade deals, such as that to be concluded with the US. Significantly, as we heard yesterday, the Prime Minister’s previous EU withdrawal agreement did include much-needed provisions for parliamentary scrutiny. They were outlined in clause 31. They gave MPs oversight of the negotiating objectives and a vote on the final deal, and required regular reporting during negotiations. That clause is conspicuous by its absence from the new Bill.
There is to be no parliamentary scrutiny of the future relationship with the EU, which is by far our largest trading partner. Indeed, any transparency will be entirely dependent on the good will of the Executive. We should have had an obligation for the Government to publish their negotiating objectives. They should have been unable to proceed with those negotiations until they had been approved by this House. We should have had real transparency during negotiations. Texts should be published after each round of negotiations, giving MPs the opportunity to review progress. The Government have often sought to reassure the public and parliamentarians alike about trade negotiations, but unless we have full transparency those reassurances are worth nothing.
We should have had a meaningful vote on the deal itself and, of course, it should have been on an amendable motion before any final deal was ratified. The lack of scrutiny afforded to trade agreements is a relic of a bygone era. Today, trade agreements permeate every element of our lives, from the food we eat, to our environment and labour standards to the protection of public services such as the NHS, yet it is staggering that MPs have less of a say over trade agreements than far narrower policy initiatives. Last, but not least, we should have had a comprehensive impact assessment that is available for proper review. So far, the Government have completely failed in their duty to assess the impact of Brexit. In the amendment that I moved yesterday, I proposed an independent body to consider the impact of any new deal on climate change, human rights and the economy. It seems a great shame to me that that amendment was defeated.
All I am asking for is that we should have our democracy upheld, so that MPs can do their jobs and hold Government to account. Significantly, the other place did pass an amendment to the Trade Bill in the previous Session, which would have given Parliament a say over post-Brexit trade deals, including on transparency during negotiations, a vote on the mandate and a final vote on the deal. The other place seems to be doing a better job of standing up for all our interests than we are doing here ourselves. We should not be letting this go through without parliamentary scrutiny. We should not be setting a precedent for Parliament to be denied scrutiny, not just of this agreement but of future trade agreements too.
The final point that I want to make is that clearly, under our rotten electoral system, the Government won the election with a majority of 80 seats. However, that does not reflect the public’s views on the deal, and, indeed, on the confirmatory referendum. I accept that under this electoral system they have a majority of 80, but that gives them particular responsibilities—[Interruption.] One of which might be to actually listen to what someone on the Opposition Benches is saying. A majority of 80 gives the Government particular responsibilities. Those responsibilities are to address the very many reasons that people voted to leave the EU. I have been travelling around the country listening to leave voters on the many reasons they had for voting leave. Of course, yes, some of them did indeed vote that way because they have fundamental disagreements with the EU, but many, many people I spoke to voted leave because they wanted to send a clear message to all of us here.
The message they wanted to send was that they believe the status quo is intolerable. To that extent, they were right. The social contract is broken, and the power game is rigged. The referendum outcome was a resounding radical rejection of the status quo, of an economy that brutally fails so many, forcing parents to use food banks to feed their children, demonising immigrants and condemning us to climate breakdown. It was also a powerful and furious comment on our broken democracy.
All too often, it feels to people—particularly those who are more distant from London—that politics is something that gets done to them rather than by them, or with them. Brexit laid bare the extent to which our governance structures are derelict. When citizens were deprived of a credible representative power that clearly belongs to or is accountable to them, it led to anger with the most remote authority of all. The EU was effectively blamed for the UK’s structural elitism and held responsible as the source of all powerlessness.
The Bill shows no sign of giving us back control, or crucially, of giving back control to many of the people who voted leave in good faith, expecting that that was what it was going to be about. There is no sense here that there will be any change to the settlement on the way we are governed. There is no sense that this Government will be one who, as well as redistributing financial resources, might just consider redistributing power. Those are some of the many reasons why I will vote against the Bill today.
Gillian Keegan (Chichester) (Con)
I congratulate you on your re-election, Madam Deputy Speaker, and on becoming the first woman ever to be Chairman of Ways and Means—you make us all very proud.
It is a pleasure to follow the hon. Member for Brighton, Pavilion (Caroline Lucas). Something that she missed out of her speech—inadvertently, I am sure—was that the Prime Minister’s father led the way on landmark legislation. He led the habitats directive through the European Parliament, showing that Conservative leadership on the environment runs in the family.
I also congratulate my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) on his excellent maiden speech, showing not only that he understands in great detail the plight of refugees, including child refugees in particular, but that he has the experience and some of the solutions to make sure that we keep those people safe. We in the Conservative party always want to keep children—particularly refugee children—safe.
I am delighted that the Bill finally paves the way for the UK to build a relationship with the European Union that is based on a free trade agreement. After nearly three years of being stuck—effectively re-running the result of the referendum—this Parliament is free to take a significant, positive step forward. Once we pass the Bill, a horizon of opportunity is in front of us. The political declaration set out our aim to have no tariffs, no fees and no quotas in the economic relationship. I take this opportunity to thank the Secretary of State for Exiting the European Union and his ministerial team for their relentless determination to deliver on the referendum result. That is what we have been trying to do for the last three years, and I know that he has worked incredibly hard and taken hundreds of flights. It is very much appreciated by me and the British people.
As someone who has worked for decades in impacted industries, including car manufacturing, banking, fintech and travel tech, I am pleased that we will leave with a deal, in an orderly way. This Government’s ambition is to ensure that we not only maintain but build on our relationships with our partners across the channel. It is often said that trade negotiations take many years and that it is therefore overly ambitious to try to conclude an agreement by the end of the year, but there has never been a trade negotiation like this one in the history of the world. We start from a position of 100% alignment. We need to agree where it makes sense to stay aligned and how we do that, and where we want to diverge. It seems to me that this is a perfectly achievable objective, given good political will on both sides of the negotiating table.
Regulatory alignment is a complex system of product standards, safety standards and type approval processes. I want to speak about that as I believe that some of the rhetoric on legislation has been unhelpful. We can all remember talk of bendy bananas, curved cucumbers and unhappy hoovers, but in reality, the vast majority of regulation facilitates trading safely and fairly, especially within the manufacturing sector, where international and EU standards have remained stable for many decades. The vast majority of them are driven not by Government or in Committee rooms but by industry. Most trading arrangements aim to optimise interoperability through the recognition of other parties’ standards and agreements on equivalence and adequacy. This is standard in global trading arrangements.
Alan Brown
If, as the hon. Lady says, all these regulations and agreements are actually driven by industry, what is there to be gained from leaving the EU? The Conservatives claim that the Government are taking back control, but according to her, industry drives all this regulation.
Gillian Keegan
Yes, but it drives standards. There are three global standards across the world—one from the EU, one from the US and one from China—and they do not always have to be the same. They largely do align, but there could be differences based on geography and specific things we want for our industries. As we move forward, we might want to diverge in some areas, particularly in emerging technologies. Yes, industry drives them, but industry will be talking to us here, probably encouraging us to align in areas where there is no reason to diverge, but in other areas there will be opportunities to diverge. I can think of some areas where we could enhance things in a way that the EU has not been able to do. [Hon. Members: “Where?”]
Rolls-Royce is based in Chichester. Like all car manufacturers, it relies on just-in-time supply chains, with parts and components moving across the channel from country to country several times during the manufacturing process. Such frictionless movement requires regulatory alignment or recognition of equivalent standards. This ensures quality, safety and environmental mitigation. It also avoids the need for car manufacturers to invest in large stock levels of critical components, which is important because it enables safe sustainable profit margins in a highly competitive market. We understand this. There is no need to go backwards and put barriers in the way of highly integrated UK-EU manufacturing, but we must work with the industry on both sides of the channel to put new IT systems in place to automate these new arrangements.
Despite my firm belief in recognising and standardising regulations, I recognise that they can stifle growth if they are not implemented carefully, particularly in fast-evolving sectors. Tech is a prime example—another area where I have spent many decades in my career. The UK has a significant advantage in tech and some of the world’s finest academic institutions—we now boast three of the top 10 universities worldwide—and our pool of top talent is world class. Developing and retaining employees with key skills is critical for our knowledge-based economy. We are home to many new businesses, with digital venture capital investment exceeding £6 billion in 2018 alone—the highest in Europe. The UK is one of the world’s largest technology ecosystems.
To ensure that we keep our competitive advantage, I urge the Government to review techUK’s recommendations on our future digital trade policy to ensure that we continue to lead in the global digital landscape. The UK is a global leader in fintech, biotech, environmental tech, which is sometimes referred to as green tech, and education tech—to name just a few fast-growing areas. We are the best country in Europe in which to start a technology business and must continue to be so. To prevent the rise of too many new barriers, we must adapt our regulatory frameworks as new and exciting technologies emerge and we change our interactions with them. That is the opportunity.
Simultaneously, we must be vigilant against the threats that new tech can bring. We must enable cross-border data flows in a way that protects our citizens’ data without impeding business growth. Here we must collaborate internationally, not just with the EU but with the OECD and the G20, and avoid digital protectionism. For example, the forced localisation of data—[Interruption.] Hon. Members asked for advantages, but they do not seem to be listening. I am giving an example of an area where we could improve. We must avoid the forced localisation of data, the imposition of tariffs and the enforced mandatory transfer of source codes, algorithms or encryption keys as conditions of market access. We must also acknowledge where the EU has got it right and co-operate with it. Some of us might have found the recent GDPR legislation a bit tricky in our personal lives, but it is an example of protecting citizens’ rights in the digital space.
In accepting that dynamic alignment in some sectors such as the automotive sector may be advantageous for the UK, I would argue in the same breath that greater divergence will be vital in future emerging technologies. For sectors focused on artificial intelligence, cyber-security, data mining or the internet of things, speed and time to market are key to enabling emerging technologies, and we will have the opportunity to build simpler processes that work for the UK market.
Opportunity awaits the UK, and only by passing this legislation can we get there. I hope that when we do, Members throughout the House will call for compromise, and will take an informed approach to regulation that protects existing industries while creating competitive advantage in emerging ones.
Finally, let me say this, as someone who voted to remain in the referendum of 2016 but has voted to support Brexit ever since—five times, and counting. The step that we are taking in leaving the EU is a major change, and with change comes some risk but also opportunity. We must all show leadership; we should not be scaremongering. The whole of the UK, including all its constituent parts, is a dynamic, agile and trusted global partner, and we are already a global leader in foreign direct business investment. We have so much to build on. I look forward to supporting the Government and colleagues across the House to make Brexit both a reality and an opportunity.
Tommy Sheppard (Edinburgh East) (SNP)
Let me begin, Madam Deputy Speaker, by congratulating you on your recent election. It is a matter of some regard that we now have the first female Chair of Ways and Means.
It feels as though we have been at this for quite a long time. Here we are at, perhaps, one minute to midnight, and we have probably the penultimate opportunity to discuss these matters before the deed is done. It is a matter of some sadness to me that the proposals before us today are an even more myopic, small-minded and miserable set of proposals than the ones that were mooted at the beginning. I was sent here at the election of 12 December to oppose them, which is why I will vote for the amendment and against the substantive motion this evening.
There are many reasons why that is so, but I shall touch on just four. First, this course of action diminishes the character of the people who live in these islands. It makes us seem selfish, unco-operative and insular, and I do not believe that that accurately characterises the people who live not just in Scotland, but in England too.
Secondly, these proposals make foreigners out of many of our neighbours who have lived among us for a generation or more. In my own city, tens of thousands of people who were born in mainland Europe but have made the decision to raise their families and build their homes and careers in our communities will lose their status, or have it fundamentally altered. More important, in the longer term, the loss of freedom of movement will pose an existential threat to the future prosperity of my country.
Thirdly, the proposals represent a fundamental shift in the relationship between the devolved Administrations in the United Kingdom and the central Government. That is not to say that when we talk about a power grab it means that some responsibilities are being taken away from the Scottish Government. I do not say that. The responsibilities remain, but the power to act in those areas is being severely constrained and curtailed by frameworks and statutes set by this Parliament—even to the extent, in these proposals, that United Kingdom Ministers are taking the power to make secondary legislation in areas that this Parliament has decided should be devolved to the Scottish Parliament.
Finally, I am against the proposals because they will impoverish the people whom I represent. I do not say that this catastrophe will be visited on us the day after exit day; I do not even say that it will happen in the weeks and months after that; but there will be a slow, insidious, grinding reduction in the living standards of the people of this country, until we wake up in a few years’ time and realise that we are so much poorer than we might have been, and so much poorer than similar communities in mainland Europe.
Mr Perkins
The hon. Gentleman and I have voted in the same way on many parts of this Bill. He is right to say that all the forecasts suggest that Brexit will make people in Britain poorer, but those same forecasts say that Scotland leaving the UK will make Britain poorer, so why is he in favour of that?
Tommy Sheppard
They do not say that. I will happily supply the hon. Member with lots of compelling evidence as to why Scotland would prosper as an independent country rather than being dragged down by the central Government of the United Kingdom.
I know that many people are looking to the future in this debate, and that many envision this as a bright new dawn for the United Kingdom. They see a world where the authority and status of this nation will be restored in the eyes of the world. I know that people genuinely think that—I do not say that they are insincere in this belief—but I do say that it is a delusion, a mirage, to suggest that this will happen. If you want evidence for this, look no further than what has been happening over recent months. A compromised United Kingdom Government, understanding that their ability to negotiate a trade agreement with the United States will be so much more diminished compared with their ability as part of a major European bloc, have got themselves into the embarrassing situation of demonstrating servility to the Trump Administration in order to try to protect their future economic prosperity. That is what the future holds. We will have to make unholy alliances and awful justifications for doing deals with certain people in order to get trade agreements.
I am sure that there are Conservative Members who have sympathy with some of the points that I have made but they are not going to express them today, because that great political party—arguably the greatest, historically, in Great Britain—has got itself into a situation whereby it is impossible to progress in that party unless one evangelises the cause of Brexit. Dissenting voices are no longer allowed. The right hon. Member for North Shropshire (Mr Paterson) is typical of many whose joy and enthusiasm for what is about to happen are unbridled. He cannot wait to pop the champagne corks and break out the bunting in celebration, but I am afraid that the future is nowhere near as rosy as he expects. He and others who have chosen this path are going to be severely disappointed.
Jim McMahon (Oldham West and Royton) (Lab/Co-op)
Does the hon. Member agree that, regardless of our political views on whether Brexit is good or bad, the reality is where we are? Does he also agree that all Members need an evidence base on which to make informed decisions? Does he share my concern that the Regulatory Policy Committee report that was issued in October stated that the Committee did not have sufficient time to make a proper assessment of the impact and that it had not been able to meet Ministers? Surely there has been sufficient time between October and now to rebuild that impact assessment so that we may all know what we are voting for.
Tommy Sheppard
Throughout this entire process, we have been asked to take decisions without adequate information, so that is entirely consistent with the way in which this matter has been conducted.
I want to move on to consider the question of political mandates, which are quite important in this discussion. To do that, we have to consider the election that took place on 12 December, in which people were asked their view and Brexit was very much the central issue of the campaign, certainly in most of the United Kingdom. Others have said—my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) has said it repeatedly—that a majority of the people who voted in that election throughout the United Kingdom voted for parties that either wanted to stop Brexit altogether or wanted a fundamental re-examination of the terms on which it was being proposed.
Tommy Sheppard
I did not think that there was a factual dispute about that, but I will happily be corrected if I have got it wrong.
Alex Chalk
On the issue of factual disputes, is it not also right to take into account the fact that in Scotland 55% of people voted for parties that are Unionist and want Scotland to remain in the United Kingdom?
Tommy Sheppard
If the hon. Gentleman had had the patience to wait for another couple of paragraphs, he would have allowed me to develop my point. I will address explicitly what he says.
The point is that we have a Government elected on 43% of the vote in an electoral system that I believe corrupts the expression of popular opinion across Parliament, rather than allowing it to be deliberated. But rules are rules, and we all went into the election understanding the rules of engagement and what the contest would be. I am not in any way saying that I do not accept the result and the Government, even with 43% on a first-past-the-post basis and a majority of more than 86, have a legitimate democratic mandate not just in principle to leave the European Union, but to deliver Brexit on the terms that it proposed to the electorate. I accept that.
However, I do not accept—this is my central contention—that that mandate runs in Scotland. The 12 December vote was very much a tale of two election campaigns. The Conservative party won the campaign in England, which was dominated by the relationship that this country will have with the European Union. The SNP won the campaign in Scotland, which was dominated by whether Scotland would have the right to choose to go down the path set here by the United Kingdom—[Interruption.] I am being heckled by the right hon. Member for Braintree (James Cleverly), who I think is still a co-chair of the Conservative party, so let me explain and offer some rationale. I do not say these things glibly.
Others have talked about statistics. The Scottish National party won the election in 80% of the areas in which it was contested in Scotland, and 80% of the Members of Parliament returned here from Scotland are from the SNP. We won 45% of the popular vote, and the central proposition that we put to the electorate was that Scotland and the people who live in Scotland should have the right to choose how they are governed and whether they want to go down the path chosen by the United Kingdom Government.
There are echoes and similarities between what happened in December 2019 and what happened in May 2015. Then, as now, a Conservative Government were returned with a majority. Then, as now, the SNP won an overwhelming majority of seats in Scotland. The difference is that in 2015 we did not seek a mandate from the people of Scotland in relation to the constitutional position or how the country should be governed. We did not do that because the election took place just months after the 2014 referendum, when the electorate made a choice and decided to remain in the United Kingdom. That does not apply now, because in December 2019 we went to the Scottish electorate and explicitly asked them to endorse the proposition that people who live in Scotland should have the right to choose how they are governed and whether they wish to go down the Brexit path being offered by the United Kingdom Government.
Tommy Sheppard
If the hon. Gentleman wants to dispute that that was the central part of our campaign, I will happily take his intervention,
Simon Hoare
I am grateful to the hon. Gentleman, who came into the House at exactly the same time as I did. Unless I was living in some parallel universe, I seem to remember hearing loads of speeches from SNP Members immediately after the 2015 election arguing for and advocating Scottish independence. What he has just said is therefore not actually a correct reflection of history. As close as the 2015 election was to the referendum on independence, his party was advocating it loudly and with great passion from those Benches.
Tommy Sheppard
I am unsure whether the hon. Gentleman is listening. I am saying that the SNP put a proposition before the people in a democratic election and they voted for it. Just to be sure, when I talk about this mandate, it was not only the SNP that talked about this matter. The central proposition of the Conservative party in Scotland was, “Say no to indyref 2.” The Conservative party in Scotland asked the people of Scotland to reject a referendum on independence, but the people of Scotland instead rejected the Conservative party. That is the truth of the matter, and that is why that party now has less than half the Members it had four weeks ago.
We have a new situation in these islands. For the first time in history, in this Chamber, which is charged with representing the whole United Kingdom, are Members elected from the two principal countries within the United Kingdom who have different mandates for the constitution of the country. I invite the Government to say—this will not go away—how they will respond, how they will acknowledge Scottish public opinion and how they will come to an accommodation with the political representatives of Scotland. The start of that process will be to understand what their response will be to the approach from the First Minister of Scotland, who has asked for negotiations with a view to transferring powers to the Scottish Government so that they may consult the people on how they are governed.
To be crystal clear, we are not asking the Conservative party or this Parliament to agree with the notion of Scottish independence. We are not even asking them to agree that there should be another referendum. We are simply saying they should agree that when and whether that happens should be a matter for the people who live in Scotland, and no one else. The decisions on these matters should be made by the people via their elected representatives in the national Parliament of Scotland in Edinburgh and not here in the Union Parliament in London.
That is the central proposition and, in making it, we are consistent with the claim of right for Scotland, which was debated in this very Chamber in July 2018 and endorsed by the House without opposition. I know that many Conservative Members did not really support it and thought the better option was to ignore the debate and pretend it was not happening, but it did happen and it will happen again.
If the request from the First Minister of Scotland and the request from the Scottish Parliament are denied and ignored, it will be inconsistent with the claim of right for Scotland. It will mean this House does not agree that it is a matter for the Scottish people to determine their own form of government. That would be a very serious position, because it would mean this Parliament is advocating that this United Kingdom should continue to include parts of this island even against the wishes of the people who live there. That would undermine the fundamental principle of consent on which this constitution has so far been based.
We would no longer be talking about a Union of equals, or a Union at all; we would be talking about the subsummation of Scotland as a territory into a wider political territory known as the United Kingdom of Great Britain and Northern Ireland. That is a different constitutional position. If people want to argue it, we are happy to take them on and have that debate, but at least be honest about it.
The most important people in all this are not those who voted for the Government or for the SNP in opposition. The most important people in this debate are those who voted for neither. Many people, including in my constituency, put their faith in the capacity of the United Kingdom to reform itself and to give voice and expression to their needs and fears within this Union Parliament. They voted in significant but not overwhelming numbers for the Labour and Liberal Democrat parties in particular, and many of them are now asking themselves whether, indeed, the type of society they wish to live in can be delivered by this Union Parliament and this Government, or whether it would be a better course of action to consider Scotland becoming a politically independent country capable of setting its own priorities and giving vent to the aspirations of its own people.
They have not yet made that decision. They are on a journey and the debate, my friends, is wide open, but one of the key things that will focus that debate is the attitude and reaction of this United Kingdom Government. If the Government decide to keep their head in the sand and to pretend that this did not happen north of the border, if they pretend it is business as usual, if they use their 80-seat majority to railroad stuff through Parliament, if they drag Scotland out against its will, if they refuse to give Scotland a say and if they refuse to make any accommodation, they will become the best recruiting sergeant for the cause of independence in Scotland. We look forward to explaining to the people of Scotland the consequences of the Government’s actions.
We will be voting against this miserable set of proposals because we have not voted for them, the people we represent have not voted for them and the Scottish Parliament will not consent to them. These proposals are wrong and they do not represent the aspirations and the character of the people of Scotland. That, in the long term, will be represented much better by Scotland becoming an independent European nation in its own right.
Neil Parish (Tiverton and Honiton) (Con)
Thank you, Madam Deputy Speaker—patience pays in this House. Congratulations on being elected not only as Deputy Speaker but as Chairman of Ways and Means. It is a great privilege to have you in that role.
This afternoon, we have had three maiden speeches. First, there was my hon. Friend the Member for Montgomeryshire (Craig Williams), whom I very much welcome to the House. I also pay tribute to his predecessor, Glyn Davies, whom I worked with a great deal on the Environment, Food and Rural Affairs Committee and elsewhere. There is huge interest in Montgomery in farming, especially sheep farming. The hon. Member for Putney (Fleur Anderson) made a very good maiden speech, as did my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds), who brings to the House huge expertise on migration and dealing with those whose families are seeking to come to this country.
It is a great pleasure to speak in this debate because it is a historic moment. I pay tribute to the Secretary of State and his team, not only for what is happening now—it is much easier now we have a majority of 80 to win some votes—but for his patience and tenacity through the hours of debate that went on for several years. I pay tribute to Opposition Members who opposed the Bill because they did not like the type of Brexit, but many Opposition Members opposed it because they just did not want Brexit. That is what the British people worked out in the general election. There are no two ways about it. When we were on the doorstep, it was clear that they had worked out that Brexit needed to be done. I therefore welcome the Bill.
I also welcome the fact that the Government will take Executive powers to negotiate in Europe. In the past two and a half to three years, we were dogged by the fact that while we were busily trying to negotiate with the European Union, this British Parliament was busy undermining our negotiations and our negotiators. Did people think that the European Union and the European Commission were not watching what was going on? Were they feeding into it? I do not know. Perhaps that is one conspiracy theory too many and I will leave such matters to the Leader of the Opposition.
To be serious, we are at a moment when we can deliver Brexit. In a way, the two great planks of the European Union are the common agricultural policy and the common fisheries policy. I have had direct experience of chairing the European Parliament’s Committee on Agriculture and Rural Development for two years. Do hon. Members honestly believe that we cannot create a better agriculture policy for the four nations of the United Kingdom instead of the one for 27 or 28 countries in the European Union, from the north of Finland to the south of Greece? Of course we can. Why do we have a three-crop rule that makes us plant all sorts of crops that we do not necessarily need in this country because we grow a lot of grass, which is excellent for the environment? It is because east Germany grows nothing but maize, maize, maize, year in, year out. That is why we have the three-crop rule.
With all those matters, we can make things simpler. We can even help our friends north of the border. We can do all sorts of things to create a better agriculture policy once we have got the Bill through.
Neil Parish
I will give way first to my hon. Friend and then to almost a friend on the other side of the Chamber.
Alex Chalk
I am grateful to my hon. Friend, who is making an excellent and impassioned speech. Does he agree that as part of creating a better agriculture policy, we can include restoring, promoting and incentivising biodiversity so that we have a richer, more diverse and secure countryside?
Neil Parish
My hon. Friend makes a good point. This is not only about the Agriculture Bill; it is about the Environment Bill and how we link the two together. It is about the way we deal with our soils and plant trees. Everybody in this place and outside wants to plant more trees, but let us plant them in a smart way so they hold our soils and prevent flooding. Let us do all those things so that our biodiversity increases. Then we can make sure that we keep good agricultural production and good soils, which are key.
Angus Brendan MacNeil
I will go a step further than “almost a friend” and say that I am grateful to my friend for giving way. Dropping the friendliness for a moment and bringing the politics back into it straight, surely the hon. Gentleman would respect the devolved competences of the Scottish Government in agriculture and fishing in the new way of negotiation that the British Government plan to use to handle things in Brussels? We would not want to see the rise of a UK centralised superstate, would we?
Neil Parish
A superstate is precisely what the European Union wants to make itself into, and that is one of the reasons why we are leaving. To throw the ball straight back, as the hon. Gentleman knows I can, although we do not want to create a United Kingdom superstate, as he puts it, what we do want is some similarity between agricultural policy north of the border and south of it. We do not want to create huge competition in different policy areas. Let us work together to deliver a policy that works. I am not arguing against having an English policy or a Scottish policy, but let us work together to produce a policy that works.
Neil Parish
I had better let the hon. Gentleman, who was on the EFRA Committee, speak next.
Alan Brown
The hon. Gentleman must know he is undermining his own argument about taking back control in saying that we cannot have divergence between Scotland and England. We now face 11 months where there is the risk of a no-deal crash-out. Will he confirm that the EFRA Committee he chaired and which I sat on heard evidence that if we were to trade on World Trade Organisation rules, we could not stop the import of chlorinated chicken or hormone-injected beef because of most-favoured-nation status? We could not prevent that under environmental standards. Did we not hear from the farming industry that the big concern was the market being flooded by Argentinian beef, which would ruin our industry? We can have any policy we want, but if we trade on WTO rules, farming is finished.
Neil Parish
The answer is clear. We now have a clear mandate to leave the European Union, and we can negotiate with the EU having the ability to walk away if we choose. That is precisely why we will get a trade deal with the EU. We have spent three years tying the hands of the Government’s negotiators and making sure that that deal does not happen. I am a farmer, as the House well knows. I know that either you decide to do a deal and shake on it, or you decide the price is too high and walk away. Parliament has spent all its time tying our hands. It is now time to get that deal. I have every confidence in the Secretary of State and the Prime Minister to deliver that deal. Opposition Members have spent the last three years thwarting us, and the British people have finally worked it out.
Mark Garnier (Wyre Forest) (Con)
My hon. Friend has chaired the EFRA Committee. Can he confirm that in relation to sanitary and phytosanitary standards, each country that chooses to import grants a licence specific to the product, so whatever we choose to import, it is down to DEFRA to grant the licence and has nothing to do with WTO rules? It is to do with the individual country’s sanitary standards.
Neil Parish
My hon. Friend is right. With chicken, the issue is not the use of chlorine gas in the processing—in fact, only about 20% of American chicken is dealt with in that way. The point is the Americans rear broilers at probably three or four times the density that we do and they use far more antibiotics, and they use the chlorine process to enable them to bring their chicken to the market. All we have to do as we do a trade deal with the European Union is lay down the rules on the welfare of chickens. We are actually proposing higher welfare standards in the Agriculture Bill. That is how we deal with it. Chlorine is not necessarily the issue.
Deidre Brock
Let me return to the hon. Gentleman’s comments about the NFU and common frameworks that were discussed when we considered the Agriculture Bill in the last Parliament. I was surprised to hear those comments because all the NFUs that gave evidence to the Committee were telling us that they wanted to see their ability to differentiate the different jurisdictions maintained and that frameworks should always be agreed between the four NFUs, not imposed. What does he say to them?
Neil Parish
I have no problem with that proposal, but this is about how people work together. For example, we would not want a beef special premium being paid north of the border and some sort of area payment being paid south of it, because that would immediately create competition in the British market.
Neil Parish
No, I am not going to give way again, because I have been very generous. The key is getting the farming unions to work together in order to say, “Let’s have a policy that has some similarities.” I accept that it will have differences, but we have to make sure that we have a policy that works for the whole of the United Kingdom, because the Conservative party is not the party that wants to break up the UK.
I wish to go on to fishing—
Several hon. Members rose—
Neil Parish
I have given way four or five times, so I will keep going because the Deputy Speaker is saying that at some stage we might like to vote this evening. Do we really believe that there will not be much greater access to fish and fishing rights? Do we not believe we will be able to have a better environmental policy than the common fisheries policy?
Mrs Sheryll Murray (South East Cornwall) (Con)
Does my hon. Friend agree that what we have found when speaking to real fisherman, as he and I have, over the past 30-plus years is that all they have said is that they want to withdraw from this terrible policy, whereby in the south-west 8% of the cod comes to the UK and almost 80% goes to France?
Neil Parish
If anyone can speak for the fishing industry in this House, it is my hon. Friend, who has huge experience of this, as did her previous husband. I pay a huge tribute to that. We need to leave the CFP. As we set our new policies for fishing, we will get greater fishing rights, because the problem in 1972-73 was that the fisherman were sold away and we had terrible quotas. That needs to be put right and I know that she, like me and many others in this House, is determined to ensure that those wrongs are put right. Not only will we be able to address fishing rights and the amount of fish, but there is also the possibility of having much better environmental management. We will be able to examine the types of nets being used and to make sure that we sort out many of the issues relating to porpoises, dolphins and everything that is caught in bycatch. So there are many positive sides of leaving the CAP, the CFP and the EU.
I wanted to make this speech today because I have listened for three years as the opposition of all sorts of shapes, sizes and colours have thwarted Brexit in this House. They put forward all sorts of reasons, some spurious, some right and some not, in order that we would not leave the EU. Now we will leave it and let us be positive. We can get this trade deal, an agriculture policy that works and a fishing policy that works. We have an Environment Bill coming through whereby we are going to put an office for environmental protection in place to make sure that our rules are not only as good as those of the EU, but better. Let us be positive tonight. Let us actually believe in this great United Kingdom. The best union of all is not the European Union but the United Kingdom, so let us not destroy that. Let us go forward and, together, this Parliament will deliver. I look forward to hearing from the Secretary of State and Ministers exactly how we are going to do it. I have every faith in not only the Secretary of State and Ministers, but the Prime Minister being able to deliver a good deal for the UK. For goodness’ sake, let us once and for all actually leave the European Union.
Madam Deputy Speaker (Dame Eleanor Laing)
It is a pleasure to call to make his maiden speech Mr Stephen Farry.
Stephen Farry (North Down) (Alliance)
Thank you very much, Madam Deputy Speaker, but I should say that I have already had that privilege, before the Christmas break. None the less, thank you for the entreaty.
Madam Deputy Speaker
I sincerely apologise to the hon. Gentleman. It will be obvious that I have been absent from the Chair for a few weeks. Given that the hon. Gentleman is not making his maiden speech, he can take lots of interventions and everyone can shout at him.
Stephen Farry
Thank you very much, Madam Deputy Speaker, for setting me up in that regard. May I pass on formally our congratulations on your election as Deputy Speaker?
I wish to introduce Northern Ireland into the debate, given the fact that it has been so central to the Brexit process so far. There are still so many unresolved issues and questions and it is important that we reflect on them as the Bill passes Third Reading, because there is still a long journey ahead.
Before I do that, I wish to make some general comments and to share in the concerns expressed by many Opposition Members about where we are with the Bill. There is uncertainty as to whether a trade deal can be done in the next 11 and a half months; there is the risk of no deal; there is the nature of the future relationship to consider; and there are issues of the parliamentary scrutiny, or lack thereof, of where we go from here. Of course, there is also more general regret about the Brexit process, which is going to leave the UK in a worse position overall in terms of the economy, society, security and the environment. That is particularly true of my own region of Northern Ireland.
I wish to focus on the unresolved issues. Brexit throws up a unique set of challenges for Northern Ireland, because, perhaps more than any other part of the UK, we are part of that wider network—that integrated framework across these islands. We are interdependent in terms of our trade and our society, both north-south on the island and in the wider whole-UK context as well. The problem of Brexit is that, whatever way it falls, it entails some degree of new barriers, borders or friction. In the context of Northern Ireland, that creates a sense of win and loss, in terms not only of the economy but of wider society and the emotional and psychological impacts. We also need to be acutely aware of the potential political ramifications in the medium to long term.
That said, we saw this week the almost remarkable situation in which, across the political divide in Northern Ireland, we had all the parties coming together behind a common set of amendments, which were also backed by—and, indeed, in many respects driven by—the local business community in Northern Ireland, which has itself come together in an almost unprecedented way because of the huge importance of the issues before us. I remain very much convinced, as do my colleagues in the Social Democratic and Labour party, that Northern Ireland’s place is as part of the European Union. The Democratic Unionist party comes from a leave, pro-Brexit perspective. Regardless of how we reached this point, we all share the desire to ensure that we have the seamless, unfettered trade between Northern Ireland and Great Britain that was the theme of the amendments, to protect the wider UK internal market and to ensure that the GB-to-Northern Ireland interface can be managed successfully.
Several wider points need to be made about the context. First, we should not see emerging—or indeed being forced on us—a choice or a trade-off between some sort of border or interface on the island of Ireland and a border or interface down the Irish sea. We want to avoid both those possibilities, but there will be a huge challenge in the way things have fallen in that respect. Indeed, the Assembly has almost been set up with this choice to make in four or eight years’ time: whether to maintain ongoing regulatory alignment for goods on an all-island and European basis, or align with the rest of the UK. It is not a choice that anyone particularly relishes and it builds a degree of instability into our political structures. Members will be aware that talks are ongoing back in Belfast as we speak to try to restore the Northern Ireland Executive and Assembly—I pay tribute to the Secretary of State for Northern Ireland for his work in that regard over the past months—but Brexit adds a new layer of complexity to that wider context.
The focus of the debate and the amendments has largely been the interface between Northern Ireland and Great Britain, mainly because that is much more under the control of the UK Government. However, the process from Great Britain into Northern Ireland—and, indeed, beyond into the European Union—is just as important, if not more so. I think that those plans were not tested so much through amendments because that work depends on the outworkings of the future free trade arrangement. In that regard, it is worth stressing that a free trade agreement—even one that is very far reaching and inclusive—is not the same as the arrangements we currently have as part of the European Union; it is not the same as a customs union and a single market. A free trade agreement is a qualitatively different concept. We currently have a free trade arrangement through which we can access trade agreements with the rest of the world, and that is what we are giving up for an untested future.
There is ambiguity about where Northern Ireland will sit with respect to these future trade relations—whether we are part of a wider European Union framework when it comes to goods, or whether we are part of the wider UK trade policy. There was a time, particularly under the proposals of the former Prime Minister, when Northern Ireland could have had a foot in both camps, and the business community was embracing that. The danger now is that Northern Ireland could be marginalised and peripheral in both UK and EU trade terms, with local businesses facing considerable ongoing economic costs. In particular, there may well be barriers to accessing certain markets or attracting investment, because people will just see Northern Ireland as a complicated place and think that it is too difficult to engage with us. Our economy, which is already struggling from a low starting point, will continue to be marginalised.
As we look to a future relationship, it is important that we bear in mind the importance of integrating goods with access to labour; I am particularly thinking about ongoing freedom of movement and the service economy. It is very difficult to uncouple the four freedoms of the European single market. We need some degree of new deal for Northern Ireland because local businesses are going to face considerable economic costs. There will be a need for financial support as mitigation, or to support the transition as local companies adjust to the new arrangements and the new market frameworks.
Let me return to what happens as we look ahead to the next phase. There is a gap between: the rhetoric, declarations and promises of the UK Government and Ministers, particularly the Prime Minister; what we have been told by a range of different experts; and the reality of international and European law on customs and regulatory matters. That is an ongoing challenge which needs to be addressed, but Northern Ireland businesses want to see the commitments to unfettered access being honoured. We want to ensure that there is no discrimination against Northern Ireland goods, and it is important that we assess on an ongoing basis the economic impact of the Northern Ireland protocol.
My final point is that there has been a lot of focus on the joint report as being the almost magic solution to every unresolved question at this stage, as well as on the free trade agreement and negotiations. Given the very particular circumstances faced by Northern Ireland, my appeal would be for Northern Ireland representatives to be integral to those discussions and for there to be a proper feedback loop to the Northern Ireland Assembly, Executive and whatever democratic structures we can put in place back in Northern Ireland.
Mr Toby Perkins (Chesterfield) (Lab)
It is a great pleasure to speak under your chairmanship, Madam Deputy Speaker. You recently enjoyed a landslide victory of your own, so huge congratulations to you on your appointment.
We finally reach the end of the beginning stage of Brexit. It is a huge matter of regret to me that this Parliament and its predecessor have failed to compromise and the remain camp in the United Kingdom has learned the same lesson that the pro-Union camp did in Scotland: first past the post can be pretty brutal when only one party is on one side of a binary issue. Whereas Scotland, a country that voted against independence, keeps electing pro-independence MPs, at least in the UK there was a majority in favour—
Mr Perkins
Let me make a little progress and then I will give way.
At least in the UK there was a majority, albeit a very narrow one, for leaving the EU.
It is a tremendous failure that the 2017-19 Parliament was unable to agree on a settlement that respected both the referendum and the 2017 general election result. I regret the decision the British public took, but I accept it. I also accept that the indecision and uncertainty that dogged the 2017 Parliament was deeply damaging for businesses and for confidence in this institution. It is tremendously regrettable that the former Prime Minister, having held a general election that she did not need to, refused to negotiate with the Labour party leader and was then put under tremendous pressure by the Eurosceptics in her own party when she did attempt to negotiate. I also regret that my right hon. Friend the Member for Islington North (Jeremy Corbyn) decided to pursue a second general election rather than attempting to get the Brexit matter resolved. Ultimately we are weaker as a result of that.
Alan Brown
The hon. Gentleman correctly said that the SNP have 80% of seats and we favour independence, but a key plank of our mandate was actually Scotland’s right to choose, so it does not matter what our views are on independence. He clearly has a different view. Does he not agree that the mandate we have is for the people of Scotland to choose either independence or to reconfirm that they want to stay in the Union?
Mr Perkins
We had a referendum. I went up to Scotland, as many other people did, during that referendum. It was very interesting that a few moments ago one of the hon. Gentleman’s colleagues proudly said, “We got 45% of the vote.” I thought, “45%—that sounds familiar”, and of course that is because it is precisely how many people voted for independence back in 2016.
Several hon. Members rose—
Mr Perkins
That matter is settled and I am going to deal with the matter that we are dealing with today.
However, I would just say this on Scotland. When people hear Scottish National party MPs stand up and say that the SNP is representing the people of Scotland who all voted in favour of staying in the EU, they should remember that the SNP spent less than 10% of the money on the EU referendum that they spent on the independence referendum. The SNP got exactly the result it wanted, which was that Scotland voted to stay in the EU but the UK voted to leave. The biggest priority for the SNP has always been independence, and that is why it took the position it did.
Mr Perkins
No, I am going to make some progress.
The hon. Member for Tiverton and Honiton (Neil Parish) claimed that it was the uncertainty that we had in the last Parliament that undermined our negotiations. Well, now we will see, because now there are no excuses for Conservative Members. There is no sense that Parliament’s position is unknown. It is clear that we are going to leave the EU, and now they have no one else to blame. It is entirely their responsibility, and the fishermen, the farmers and the car workers up at Nissan will see whether it was this Parliament that was preventing the Government from getting the deal that they promised during the referendum.
As we vote on this tonight—as my hon. Friend the Member for Sheffield Central (Paul Blomfield) rightly said, this is only the first part of all this and we will get on to the detail after that vote—I am minded to remember that Vote Leave promised us during the last referendum that
“we will negotiate the terms of a new deal before we start any legal process to leave”.
That was one of the central promises of the Vote Leave campaign. When we vote tonight, we will be voting against that promise made by Vote Leave—we will be leaving the EU and then deciding on what basis we leave. But let us see if the Government are able to negotiate this much better deal. I confess that I will feel a huge sense of relief when the Bill passes tonight, so that we can move on to the next stage, and we will see whether the Government are able to deliver in any way on the promises that they made.
The future relationship is not sorted, and it is now for the Conservative party and its MPs to decide what that future relationship will be. They may well do it without Parliament having much of a say. Opponents of the new Tory Eurosceptic consensus have been swept away, and the supine, obedient group of Europhobic robots that we see in front of us have taken their place. Like lambs, they will lead us in whichever direction is ordered by the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), who will receive his orders from Dominic Cummings. We will see what direction they take us in.
Angus Brendan MacNeil
On the UK’s future relationship with the EU, the hon. Gentleman is content to leave it to the Tory Government, but on Scotland’s future relationship, all we get is being patronised; we cannot decide ourselves. The reality is that, in 2014, we were promised a guarantee of our place in the European Union by staying in the United Kingdom. That promise is null and void. We cannot have any more non-Scottish MPs patronising the Scottish people. Their mandate must be respected. We must have a referendum, and the Scottish people must decide—not non-Scottish MPs, who think this is better for Scotland. Scotland needs to decide.
Mr Perkins
The hon. Gentleman has made his point. I have already responded to that, and it does not take us any further to go on now.
I voted for the amendments that my colleagues tabled, and we were right to seek to improve the Bill. I regret that the new orthodoxy recognises no value in the Erasmus programme, which enables young people without huge wealth to enjoy some of the opportunities that young people with wealth will continue to enjoy. It was triumphalist and not sensible to remove the assurances from the Bill that the Prime Minister put in place on its Second Reading in the last Parliament. It is ultimately for the victors to decide who they want to appeal to—it is for the Conservative party. It has got the Brexit it wants now, and it can decide, but a party that refuses to try to speak to those who voted against it will find itself in an ever diminishing pool. The next leader of the Labour party will also need to learn that lesson.
I will not oppose the Bill’s Third Reading today, because the desire to get beyond this stage is powerful and palpable. Businesses and communities wish for the Government to map out the future that we foresee for our country after Brexit, but the Government are foolish to continue to pursue the very narrow Brexit that they have suggested.
Our country has a long history of being a global player. We have taken an active interest in global affairs and made a contribution that far outweighs the size of our nation throughout history. Leaving the European Union does not have to mean relinquishing or reducing that global role. It does not have to mean retreating into narrow nationalism, but many who support it want that future for our country. The Conservative party has ceased to be a broad church. Only rampant Europhobia is to be tolerated now. I have never seen a less broad church—[Interruption.] Conservative Members are pointing at the right hon. Member for Rayleigh and Wickford (Mr Francois) to describe what a broad church they are; that is how desperate it has got.
It is now for my party to become a broad church again and recognise the reasons why communities who voted Labour for decades chose to seek a future outside the EU. We need to seek a co-operative and internationalist path for our country. The Labour party will not win votes in this Parliament, but we can, if we choose, lead the way to a different but still close relationship with our nearest neighbours—one that eschews a mean-spirited approach to the most vulnerable people and seeks still to offer the opportunities to the next generation of young people that so many of our generation enjoyed.
Thangam Debbonaire (Bristol West) (Lab)
Madam Deputy Speaker, my congratulations on your election to your new post—a historic appointment—and welcome back.
First, I will say that we in Her Majesty’s official Opposition will be abstaining on the SNP amendment tonight, because while we are sympathetic to its aims, our objections to this Bill are far wider. We object to so much in this Bill that we cannot confine ourselves to voting just for the reasoned amendment. We will be focused entirely on voting against the entire Bill on Third Reading—and no, that is not voting against Brexit; it is voting against this Bill.
Thangam Debbonaire
Some hon. Members appear to think we are still in the Christmas pantomime season; we are not. Just saying that does not make it clever and does not make it right. All the Conservative Members who think they are about to vote to get Brexit done must know what lies ahead. They know—they must know—that trade negotiations take time. They must know that even if we are in alignment now, the Government’s stated intention is to diverge. So be in no doubt: trade negotiations will take longer than the precious few months that the Government have allowed. Getting them done at historic speed does not look very likely when the EU itself has already warned that it will take longer than that.
Whoever’s responsibility this is, the Government with this Bill—clause 33—have boxed themselves in so there is absolutely no get-out. As my hon. Friend the Member for Sheffield Central (Paul Blomfield) has said, clause 33 is a gimmick, but it is a gimmick at the expense of the people of the United Kingdom. At the end of this year, if we are just days away from agreeing a trade deal or a few weeks away from sorting out the arrangements for moving medical devices or airline parts between the EU and the United Kingdom, it will make no difference: this Bill has bound the Government’s own hands. There will be no extension, and that is why we call it a cliff edge.
We did not need to be here. This Opposition have accepted that Brexit is happening on 31 January. [Hon. Members: “Hurrah!”] Triumphalism is not terribly seemly in this circumstance. We also did not need to be in a position where we are letting down child refugees. Let it be on record that the Opposition stood up for child refugees. We stood up for child refugees in trying to hold the Government to their own commitment to Lord Alf Dubs. They have no mandate for doing this. It is mean-spirited and morally as well as politically unjustified. I hope in the other place that their lordships will restore our amendment, which is actually about restoring the Government’s own commitment that the Prime Minister himself agreed should be in the previous version of this withdrawal agreement Bill. I hope they will restore it, and that we will stand up for child refugees in that House and in this.
I come to the maiden speeches. My hon. Friend the Member for Putney (Fleur Anderson) showed the people of Putney that they made an excellent choice. She clearly already knows and loves her constituency and understands the lives and values of her constituents. She has already been a strong voice for them this afternoon. She covered an enormous amount in her first speech, and I salute her ability to do that with clarity and great voice. I am already delighted to have her as a colleague, and I look forward to working with her. The hon. Member for Ruislip, Northwood and Pinner (David Simmonds) also made his maiden speech, and I congratulate him as he also showed his care for his constituency and his clear commitment to represent his constituents and their values in this place.
To the Government and to the Prime Minister, the Opposition say: this is now on them. Despite the lack of provision for scrutiny in this Bill, we will still use every tool we can to scrutinise the progress of the negotiations on the future relationship. Obviously, Conservative Members believe this is a great future. If that is a great future, I will happily stand here and be corrected.
Several hon. Members rose—
Thangam Debbonaire
No, I will not give way.
If, however, trade negotiations do not get concluded with record speed over the next few weeks and months, we will be holding this Government to account. We will expose the consequences to the people we were sent here to represent. We will expose the Government’s actions. We will use every tool that we have in order to do that. We owe it to the people of the United Kingdom to show them that we stood up for them today and every day, so we will vote against this Bill tonight.
The Secretary of State for Exiting the European Union (Steve Barclay)
During the Committee stage this week and today on Third Reading we have had good debates on the withdrawal agreement Bill. This Bill will implement in UK law the withdrawal agreement between the United Kingdom and the European Union, ensuring that the UK departs the EU with a deal, getting Brexit done on 31 January, as we promised the British public we would. It will once and for all deliver on the mandate given to us not once but twice: in June 2016 and again in December 2019.
I would like to thank Members across the House who have contributed to the Committee stage over the last two years—two days. [Interruption.] Sometimes days can feel like years, but the new tone of this House obviously makes time seem to pass much quicker. I also add my thanks to the Clerks and officials in the Public Bill Office, who consistently provide invaluable support to Members in the House.
We have had three excellent maiden speeches in this debate, which also saw the very welcome return of my hon. Friend the Member for Ribble Valley (Mr Evans) to the Chair, continuing the Lancashire theme that we had at departmental questions. There was also the welcome election of the first female Chair of Ways and Means.
My hon. Friend the Member for Montgomeryshire (Craig Williams) gave an excellent maiden speech—although he does have the benefit of having done it before. He spoke with warmth and passion about his home seat. He rightly paid tribute to his much-loved predecessor, who has given 50 years so far of public service. Having worked closely with him as my special adviser in the Department, I know that he will champion Wales throughout his time in the House, and I look forward to resuming my conversations with him on agriculture, and I am sure on rugby as well.
The hon. Member for Putney (Fleur Anderson) gave a very good maiden speech, showing her passion for her constituency, and for the community groups and the community spaces with which she has worked. She referenced Clement Attlee and gave a speech that I am sure he would have been very proud to hear. She is right to highlight the value of the European Union citizens in her constituency. That is one of the safeguards that this Bill delivers, because we value their contribution not just in Putney but across the United Kingdom.
My hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) gave a first-class maiden speech, which displayed his clear and detailed knowledge and experience of immigration issues, and indeed it was clear that he held the attention of the House. It signalled the valuable contribution that I know he will make to forthcoming debates.
We also had a number of very powerful speeches from some of the most experienced Members of the House. My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) spoke of the importance of place and the people who have spoken within that place, and with his 30,000-plus majority they certainly have spoken very clearly on behalf of my right hon. Friend.
My right hon. Friend the Member for North Shropshire (Mr Paterson) spoke about the importance of democratic accountability and of restoring control over our fishing, an issue that he has championed throughout his time in this place. We will restore to this country the advantages of our spectacular marine wealth through this Bill.
My hon. Friend the Member for Stone (Sir William Cash) spoke of this as a great moment in our democracy and it being a tribute to the British people. I gently say to my hon Friend that it is also a tribute to him, who, despite criticism over the years, has stuck fast to his principles, and that is reflected in this Bill.
Mr Mark Francois (Rayleigh and Wickford) (Con)
I entirely endorse that tribute. Under the Bill, and specifically under article 50, we will leave the European Union at 11 pm GMT on 31 January. As we leave at a precise specified time, those who wish to celebrate will need to look to a clock to mark the moment. It seems inconceivable to me and many colleagues that that clock should not be the most iconic timepiece in the world, Big Ben. Will my right hon. Friend make representations to the House of Commons Commission, whose decision it is, that Big Ben should bong for Brexit?
Steve Barclay
My right hon. Friend will know that my opposite number often talked of a clock ticking. He will also know that that decision is for the House authorities, but I am sure they will have heard the representations he makes. This is an important moment in our national story, and I am sure they will want to reflect that in the appropriate way.
My hon. Friend the Member for Chichester (Gillian Keegan) gave a very insightful speech, reflecting her detailed commercial expertise. She is particularly right to draw the attention of the House to emerging technologies as one of the key opportunities unlocked by taking back control of our trade policy. My hon. Friend the Member for Tiverton and Honiton (Neil Parish) spoke with the experience of a former Chair of the European Parliament’s agriculture committee. As a farming constituency MP myself, I know that when he talks about what the National Farmers Union calls the “utter madness” of the three-crop rule, dictating to our farmers what they can and cannot grow, he speaks powerfully of the opportunities that the Bill will unlock.
This evening, the Bill will pass to the other place with a very clear mandate from this House that now is the time to move forwards. I anticipate constructive scrutiny, as we would expect of the other place, but I have no doubt that their lordships will have heard the resounding message from the British people on 12 December and that they will have seen the clear will of this House as expressed by the sizeable majorities in the Committee votes. The other place has, on more than one occasion, shown itself capable of acting at remarkable speed when it considers that it is in the interests of democracy and votes in this House. Given that, it is my sincere hope that their lordships will now give due regard to the clear majorities in Committee and establish their endorsement of the Bill in a similar timely fashion.
The Bill will secure our departure from the European Union with a deal that gives certainty to businesses, protects the rights of our citizens and ensures that we regain control of our money, our borders, our laws and our trade policy. Once the Bill has been passed and the withdrawal agreement ratified, we will proceed swiftly to the completion of a free trade deal with the EU by the end of December 2020, as laid out in our manifesto, bringing the supremacy of EU law to an end and restoring permanently the sovereignty of this place.
The European Commission President yesterday gave what I thought was a very thoughtful speech at the London School of Economics, speaking of old friends and new beginnings. She expressed her desire to establish a future relationship that is “unprecedented in scope”. In our later meeting with the Commission President, the Prime Minister made it clear that we share her desire for a relationship based on our shared history, interests and values. That is what we intend to build as a consequence of the Bill.
Three years ago, Parliament entrusted the decision of our relationship with the EU to the British people. By passing the Bill, we will send a clear message that we have listened and we have acted. In doing so, we will restore trust in this House and in our democracy. Once Brexit is delivered on 31 January, we can turn our eyes towards our other national priorities: education and skills; making our country safer; investing in the future of our much-loved NHS; and levelling up all parts of the United Kingdom. This is what people care about. It is what this people’s Government cares about. Passing the Brexit Bill will unlock the time and energy to make those priorities a reality.
It is time to get Brexit done. The Bill does so. I commend the Bill to the House.
Question put, That the amendment be made.
Ian Blackford (Ross, Skye and Lochaber) (SNP)
On a point of order, Madam Deputy Speaker. This is a historic moment for all of us. We must reflect on the fact that this is the first time that a part of the Union—a country of the Union—is having something done to it that it resents. The Scottish Government and the Scottish National party made it clear over the past three and a half years that we were seeking to compromise and to ensure that what the people of Scotland voted for—staying in the European Union and our rights as EU citizens—was respected.
It was interesting that when the Secretary of State summed up the debate today, he made no reference to my colleagues’ powerful speeches about that desire for our rights to be respected and the fact that we do not consent, under any circumstances, to the people of Scotland and our country being taken out of the European Union against our will. Let us make no mistake: that is exactly what is happening. Yesterday, the Scottish Parliament voted overwhelmingly not to give its consent.
This is a constitutional crisis. We will not and cannot accept what has been done to us. I say to the Prime Minister and the Government—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. That was not me saying “Sit down.” The right hon. Member can finish his point briefly.
Ian Blackford
Thank you, Madam Deputy Speaker. It is an important point. In the election in December, the people of Scotland stood by the Scottish National party on the basis of our right to choose. We will not accept being taken out of the European Union, and I say to the Prime Minister, “Respect democracy. Respect the election result. Respect the right of the people of Scotland to choose our future.” We will have our referendum, Prime Minister, and Scotland will remain an independent European country.
Madam Deputy Speaker
I thank the right hon. Gentleman, but he knows and the House knows that that was not a point of order but a point of debate. In the circumstances, I allowed him to make his point. I am quite sure that he will find a way to continue the debate, and that the Prime Minister will find a way to continue to answer the points he raises.
Alex Cunningham (Stockton North) (Lab)
On a point of order, Madam Deputy Speaker. You may not be aware that Hitachi at Newton Aycliffe, which employs many of my constituents, has today announced that it is making a third of the workforce redundant, meaning that 250 jobs are to be lost. The company says that the restructuring is not being taken lightly, but reflects the need to remain competitive and put the factory on a more sustainable footing for the long term by winning more manufacturing orders in the future. The lost jobs could be the thin end of the wedge, as the announcement could have a knock-on effect on jobs in the supply chain. Do you know whether the Government intend to make a statement on the job losses and on the action they plan to assist the company at this difficult time?
Madam Deputy Speaker
I have heard the hon. Gentleman’s point of order. I deduce that what he is really saying is that he wishes to bring a Minister to the Dispatch Box to answer his eloquently made point. I suggest that, at the beginning of next week, perhaps by way of an urgent question or some other means, he will find a way to ensure that this important issue, which I am sure the House appreciates matters enormously in his constituency, is discussed properly in the Chamber.
European Union (Withdrawal Agreement) Bill
Thursday 9th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: Committee of the whole House Amendments as at 8 January 2020 - (8 Jan 2020)
European Union (Withdrawal Agreement) Bill
Monday 13th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-I Marshalled list for Committee - (13 Jan 2020)
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, it is indeed an honour to open today’s debate on a Bill of such historical significance and I am delighted that we have been able to secure our departure from the EU with a deal that gives certainty to businesses, protects the rights of citizens and ensures that we regain control of our money, our borders and our laws.
This Bill, which has passed its stages in the other place with a substantial majority, prepares our country to leave the EU at the end of this month by implementing the withdrawal agreement in domestic law and ensuring that the government can honour our international obligations. It also allows us to meet our commitments in the separation agreement we have concluded with EEA EFTA states and the agreement on citizens’ rights with Switzerland.
Before I turn to the Bill in more detail, I would like to take this opportunity to pay tribute to the valuable work of the Select Committees of this House that have now re-formed. Their work throughout the EU exit process has been insightful and I look forward to engaging constructively with them during the passage of the Bill. I am also grateful to those Peers across the House who have already taken the opportunity to engage with myself and ministerial colleagues on this important legislation.
Part 1 of the Bill covers the implementation period. The withdrawal agreement sets out that during the implementation period EU law will generally continue to apply in the UK as it does in member states, thereby providing certainty to businesses and citizens as they will have to prepare for only one set of changes. The Bill will save and modify the legal effect of the European Communities Act 1972 for the duration of that period; it will preserve EU-derived domestic legislation and ensure that it continues to operate properly during the implementation period; and it provides a supplementary power to make any further technical modifications that may be needed.
The Bill prohibits an extension of the implementation period: it will end on 31 December 2020. With clarity on the timetable that we are working to, the UK and the EU will be able to progress negotiations and use the implementation period in order to secure the future relationship. This Government will work with the scrutiny committees in both houses to ensure appropriate parliamentary scrutiny of new EU law made or proposed during this period.
Part 2 gives the withdrawal agreement the same legal effect in UK law as it will have in EU law, as required by Article 4 of the withdrawal agreement. It means that individuals and businesses will be able to rely directly on the withdrawal agreement as a matter of domestic law. This is replicated for the EEA EFTA and Swiss separation agreements.
Citizens’ rights have been our greatest priority throughout the EU exit process. Giving legal effect to the agreements is a critical step in providing certainty to those who have chosen to make the UK their home. This Bill also takes a number of delegated powers to allow for changes to be made in relevant areas; for example, enabling the establishment of a permit system for frontier workers, providing for routes of appeal and ensuring that professional qualifications continue to be recognised and that social security co-ordination operates for those covered by the agreements. I reassure noble Lords that these powers are tied to the relevant articles of the agreements which they implement.
The Bill will also formally establish the independent monitoring authority which will oversee the rights of EU citizens and citizens of Norway, Iceland and Liechtenstein who reside in the UK. This new UK-wide public body will be able to launch inquiries, receive complaints and bring legal action. It will be fully independent of government. The Bill requires that the IMA’s board must contain appropriate expertise on citizens’ rights in relation to Scotland, Wales and Northern Ireland, and the devolved Administrations will play a central role in appointing those board members.
The Bill also provides the mechanism to pay the negotiated financial settlement. This will take the form of a standing service provision until 31 March 2021. The majority of the remaining obligations will then be met through the annual supply process, bringing it in line with other government expenditure.
In addition, the Bill covers other separation issues. These provide clarity about what happens to processes and arrangements that are ongoing at the end of the implementation period. Many of the details give effect through the main provisions delivering the agreements in Clauses 5 and 6. However, technical changes will need to be made in certain scenarios. We have therefore taken a delegated power, limited to being able to implement Part 3 of the withdrawal agreement and the EEA EFTA agreement only, which ensures that, for example, our rulebook works for goods being placed on the market before the implementation period concludes.
The withdrawal agreement Bill will make provisions to deliver the protocol on Ireland and Northern Ireland. The deal that the Government have negotiated with the EU protects the constitutional and economic integrity of the United Kingdom. It ensures that the whole United Kingdom leaves the EU customs union and that Northern Ireland remains in the UK customs territory. It also upholds the Belfast/Good Friday agreement. I know that the issue of the access of Northern Ireland goods to the rest of the UK is of great concern to many Members of this House and the other place. The protocol is clear that there is nothing in it which prevents the UK ensuring the unfettered access of Northern Ireland goods to the rest of the UK. Let me reassure the House that the Prime Minister’s commitments in this regard, as well as the commitments made in our manifesto, are clear and that the Government stand by them. Indeed, these commitments were reiterated in last week’s joint UK-Ireland publication New Decade, New Approach, which laid the foundation for the restoration of the Northern Ireland Executive over the weekend, something which I am sure noble Lords agree is a very positive event.
I would like to take a moment to focus on the powers in the Bill, and in doing so I thank the Delegated Powers and Regulatory Reform Committee for its report. In particular, I am pleased that the Committee agrees with the Government’s use of the word “appropriate” rather than “necessary” in the construction of the powers. I seem to remember that this was a subject of much debate in this House during the passage of the withdrawal Act in 2018. In fact, I am reliably informed that it even sparked a fashion trend among our department’s lawyers who had tote bags produced bearing the word “necessary” on one side and “appropriate” on the other. Never let it be said that lawyers do not have a sense of humour.
The Government understand the remaining concerns around the use of delegated powers across the Bill and note the committee’s recommendation regarding a sifting mechanism. However, I hope that noble Lords will see that the circumstances are very different from those we found ourselves in with the European Union (Withdrawal) Act 2018.
First, the volume of statutory instruments made under this Bill will be significantly lower than that under the 2018 Act, meaning that there will be sufficient time for the normal scrutiny procedures to apply and for debates to be held, should noble Lords find them helpful.
Secondly, as the committee’s report recognises, the scope of each power is naturally constrained by the articles of the withdrawal agreement that it seeks to implement. For example, the power at Clause 7 can be used only in relation to setting the deadline for the grace period. The Government have also noted the concerns raised by the DPRRC about the clauses to implement the protocol. I understand noble Lords’ concerns but we are confident that our approach is the best way to ensure that the UK can fully implement the protocol and fulfil its international obligations.
The DPRRC has recommended that the consequential power at Clause 41 be moved to the affirmative procedure to enable Parliament to scrutinise any amendments to primary or retained direct principal EU legislation. However, I remind noble Lords that the negative resolution procedure does not prevent such scrutiny taking place and that Members will still have the opportunity to pray against such regulations, should they consider them inappropriate. Members can see examples of the kinds of consequential amendments that will be made to legislation in Part 1 of Schedule 5 to the Bill.
I should now like to focus on the question of legislative consent. The Bill touches on a number of areas of devolved competence, including important powers granted to the devolved Administrations to protect citizens’ rights. We have sought legislative consent from the devolved legislatures in Scotland and Wales for those areas, in line with the Sewel convention.
It is indeed disappointing that the Scottish Parliament has already refused its consent to the Bill, particularly as the vote took place even before the Bill had completed its Commons stages. I should note that the Scottish and Welsh Governments’ consideration of whether to recommend consent to this Bill turns not on the clauses for which we have sought legislative consent but on reserved matters. I reassure noble Lords that there has been substantial engagement with the Scottish and Welsh Governments before and throughout the legislative consent process, and we are committed to continuing to work collaboratively with all the devolved Administrations.
I turn to Clause 26 on the subject of historic CJEU case law, which I know has raised some interest, particularly among noble and learned Lords. We want to provide legal clarity. We have no intention of undermining the fundamental principles of hierarchy, precedent and judicial independence that are so central to our world-renowned legal system. Nor is this about giving the Government a permanent power to review this matter; the power will expire at the end of this year. My noble and learned friend Lord Keen is of course prepared to respond to any points raised on this subject when he closes the debate later.
I take this opportunity to reassure noble Lords—in particular, the noble Lord, Lord Dubs—that the Government are fully committed to the principle of family unity and to helping and supporting the most vulnerable children. Our policy on this has not changed. That is why the Bill places an obligation on the Government to lay a policy statement before Parliament in relation to a future arrangement between the UK and the EU regarding family reunion of unaccompanied children seeking international protection.
This country receives approximately 15% of all asylum claims from unaccompanied children in the EU, making the UK the third-highest intake country. The Bill does not change that. Our policy is unchanged, but the Bill removes a statutory requirement to negotiate. That is entirely appropriate because these negotiations have already been initiated. Clause 37 makes it clear that supporting the most vulnerable children remains of the utmost priority.
With approximately 80 contributors on the speakers’ list—although that has now come down to about 72—I will draw my remarks to a close. As always, my noble and learned friend Lord Keen is here and stands ready to address noble Lords’ contributions at the end of the debate. Passing this Bill will allow us to honour the result of the 2016 referendum, get Brexit done and focus on our other national priorities. I beg to move that the Bill now be read a second time.
Baroness Hayter of Kentish Town (Lab)
My Lords, today will be a bit like a wedding, where brides are encouraged to wear something old and something new for luck. Today we have the return of that old double act, the noble Lord, Lord Callanan, and the noble and learned Lord, Lord Keen, so no change there, but appropriately perhaps, with brides in mind, we have two maiden speeches. The first is from someone I have known and worked alongside for 30 or even 40 years: the former MP and my noble friend Lord Mann, whose work on tackling anti-Semitism has rightly brought him to this House. The other is from the new noble Lord, Lord Barwell. I have great hopes of him, given how well he responded as Housing Minister to my pleas and those of this House to make client-money protection compulsory for letting agents. He heard the arguments, made a decision and made it happen. If only the current Government were as good.
Before us we have a very poor Bill, and one that is being rushed through Parliament. The rush is perhaps understandable, as 31 Jan is fast approaching, but it is not being just rushed but rammed through. The Government are determined to allow no change whatever, even if deficiencies are identified. This is both stupid, as corrections will have to be made later, and arrogant, with scant regard to our normal, democratic method of law-making.
Lord Forsyth of Drumlean (Con)
That is a bit uncharitable. How can the noble Baroness say that this is being rushed through when the House of Commons did not take the time allocated to discuss it?
Baroness Hayter of Kentish Town
I was saying that it is being rammed through, because no changes will be contemplated. That was the distinction I was trying— obviously unsuccessfully—to make. The issue is that our normal democratic method of law-making is for this Chamber to give serious consideration, and then for any amendments to be seriously debated in the other place to assess their worth and, where necessary, adapt accordingly.
Stephen Barclay, in the other place, warned and threatened us not to defy the will of the country. That reflects a complete—I hope not deliberate—misunderstanding of our role in a bicameral democracy. But it is not just Lords whom Ministers want to ignore. We have heard via the Speaker some serious concerns from the Welsh Government, which are not addressed by what the Minister has just said. Their concerns may lead to the likelihood—for the first time ever and risking the devolution settlement that has worked so well—of the Welsh Assembly denying legislative consent to a Bill; and still Ministers will not listen. A party with “Unionist” in its name should think twice before undermining a shared approach to making the devolution settlement work.
The Bill is also a bit strange. Clause 38 specifically recognises that the Parliament of the UK is sovereign, but the rest of the Bill proceeds to strip powers away from Parliament. It repeals the Benn/Cooper requirements to report to Parliament, disapplies CRaG, abolishes the meaningful vote for the withdrawal and final deals, and deprives Parliament of its say as to whether the implementation period should be extended, despite, as recently as October, Robert Buckland promising the other place that it would
“have its say on the merits of an extension of the implementation period”—[Official Report, Commons, 22/10/19; col. 915]
The Minister might say, “Ah, but that is what Clause 33 of the Bill—agreed by the Commons last week—does”. But the decision for no extension has been taken before we have even left, before we have seen any negotiating mandate either from the EU or from our own Government and before we know how such negotiations are progressing or what obstacles, from Northern Ireland or elsewhere, may stand in the way of a satisfactory agreement.
I have to tell the Minister that we are not going to try to save the Government from having a red face in the summer by giving them wriggle room now, but the chance of a deal, the implementation legislation and all the infrastructure being in place by December is frankly for the birds. I have waiting here my “I told you so” speaking notes, ready for when, in six months’ time, the Minister has to be here saying, “Oops. Can we change what we’ve just agreed?” We will leave that for him to do.
Our worries about the Bill stem from the Government’s own slogan, repeated just now, “Get Brexit done”. The electorate quite rightly judged that to mean “Come out by 31 January”. It did not mean “and do so by government diktat rather than by parliamentary process”, but that is what the Bill allows. There is no say over the implementation of our withdrawal, the objectives for the future relationship or the progress of those talks.
The Government say the Bill will
“ensure Ministerial oversight of the Joint Committee”
that deals with the withdrawal, but it will not ensure parliamentary oversight of what our EU Committee calls a
“uniquely powerful and influential body”
with
“significant responsibilities in relation to the Protocol on Ireland/Northern Ireland”
and with the power to amend the withdrawal agreement, a power immune from
“clear scrutiny procedures or parliamentary oversight”.
So, without UK MEPs, there will be no British parliamentarians able to scrutinise the decisions of government, whether over how we come out or, crucially, over the negotiations for our future relationship, because the Bill removes what was there before: our role on the mandate for and progress of negotiations on our trading, diplomatic, cultural, consumer, environmental and security relations with the EU. The Government have stripped out undertakings that Parliament would have an input into and oversight of these talks. Instead we will be left with a few “take note” debates and responses to Ministerial Statements. That is not proper scrutiny—
Baroness Hayter of Kentish Town
—and excludes the devolved authorities altogether. I think the noble Lord has his name down to speak, so I am sure he can come in later.
These EU negotiations are vital to the UK’s security and well-being. Those talks will not be easy or fast but, despite expert advice to the contrary, government Ministers continue to maintain that they can complete them all without even considering a longer negotiating period, or indeed a transition period to introduce whatever new agreement is then signed.
Eleven months is unrealistic for the negotiation, conclusion and ratification of a free trade agreement, a security agreement and all the other agreements envisaged in the political declaration. Our concern is that, without proper scrutiny over the coming months, and without any possibility of an extension to the transition period, the Government might just turn around in the autumn and say, “Sorry guys, no deal is possible”, and Parliament would be powerless to act.
Even now, as the Prime Minister formulates his objectives for the negotiations, he is refusing via this Bill to put his mandate to the Commons for approval, fuelling fears that it might include no deal—in other words, coming out on WTO terms—although I have to say that, with the schedules yet to be agreed and the WTO in some disarray, even that would be problematic.
The political declaration of 17 October signed by the Prime Minister sets out the framework for a deal, aiming at a
“comprehensive and balanced Free Trade Agreement”
and tariff-free trade in goods. If this is cast aside as the basis for the negotiation, despite Article 184 of the withdrawal agreement, this would be contrary to the spirit of the Vienna Convention that
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Good faith seems in rather short supply just now.
Without any prior discussion, the Government have dropped the new ministerial power into the Bill in Clause 26; we will hear about this shortly from the noble Lord, Lord Anderson of Ipswich, and, I imagine, other noble and learned Lords. Clause 26 would enable Ministers to allow lower courts, not simply the Supreme Court, to decide not to be bound by ECJ rulings on the EU law that has now been put onto our statute book, risking legal uncertainty and possible divergence between English and Scottish jurisdiction, within the English and Scottish interpretation of law, within our UK-wide single market.
Sadly, in this Bill, we have seen a shameful disregard of the rights of vulnerable refugee children to be reunited with their families here. It is not enough to say, “We still believe in their rights.” Why take this from the Bill? There is insufficient fulfilment of guarantees given to EU residents, about which we will hear more from my noble friend Lord McNicol of West Kilbride, towards the end of this debate. In each case—whether to children, citizens or Parliament—the Government have back-tracked on promises made. This is a Bill of which they are proud, but of which they should be ashamed.
Lord Newby (LD)
As your Lordships’ House knows, I and my colleagues on these Benches have spent the last three and a half years arguing that Brexit was not in the best interests of the British people and that they should have the opportunity to have a further say, in the light of the evidence available, on whether they really wished to leave the EU. We reluctantly came to the conclusion last October that, the withdrawal agreement Bill having secured its Second Reading, and in the absence of a majority in the Commons for a confirmatory referendum, a general election was the last and only way in which Brexit by Christmas could be avoided. We knew that this was a second-best way forward—from our perspective, a referendum would have been far preferable—and we knew that it was a risk. We took the risk, but we did not succeed.
I realise that there are many people who fervently believe that we should remain in the EU who would now try to undermine the legitimacy of the current Bill by saying either that the original referendum result itself was flawed or that, given that all the polling shows that the majority of the British people would still like to remain in the EU, there is not a proper democratic mandate for Brexit. I am afraid I disagree. Everybody who voted last month knew that the election was, in reality, a proxy referendum on Brexit. There were of course other factors, notably the quality of the leadership of the Labour Party, but having fought the election on the slogan “Get Brexit done” and having won that election, the Prime Minister has the mandate and the votes in the Commons to take Britain out of the EU.
This does not change my belief that there is no such thing as a good or sensible Brexit. We on these Benches continue to believe that it will damage our economy, our security and our international reputation, but we are now faced with this Bill, which will indeed take us out of the EU. It does not, of course, get Brexit done, but it starts the process—a process which the Prime Minister will oversee with a solid Commons majority behind him. It is his Brexit. He owns it, and he will be judged by its successes and failures. The fact that the Government have a large majority and have indicated that they have no intention of accepting any changes whatever to the Bill is no excuse for your Lordships’ House to fail to scrutinise and challenge its detailed provisions, nor to vote to secure changes which we believe are in the interests of individuals or the country as a whole. This is what we will seek to do.
This is, of course, the second withdrawal agreement Bill presented to Parliament. The first version got its Second Reading in October but was superseded by the election. At that point, the Government lacked a secure majority and were prepared to make sensible concessions to get that Bill through. Now, free from such a constraint, they have removed all these concessions, however sensible or uncontentious they were. They have in their place inserted some new and contentious provisions. Amendments to reverse some of these changes are the principal area in which we will seek to improve the Bill. We will also seek to consider elements of the Government’s negotiating mandate which we believe the Bill should cover.
The removed concessions are, first, the so-called Dubs amendment on allowing unaccompanied refugee children to join family members in the UK. The Bill simply requires the Government to report on their policy in this area and undermines the substance of their earlier commitment. The Government may say, as the Minister has this afternoon, that this will make no practical difference. But if that is so, there is no reason for changing the original provision and we will support the noble Lord, Lord Dubs, in trying to reinsert it.
Secondly, the original Bill had sensible and detailed provisions for parliamentary oversight of the negotiating process. These have been deleted. They provided for Parliament to consider and approve the Government’s negotiating objectives, to report back to Parliament on the progress made in the negotiations and to require Parliament to approve any negotiated future relationship treaty. The only possible reason for the Government to delete these provisions is that they wish to avoid being held to account by Parliament, and to conduct and conclude negotiations with the EU with as little parliamentary scrutiny as they deem fit. We know that in practice this means as little scrutiny as they can possibly get away with. The original provisions should be reinserted.
Thirdly, the original WAB had provisions to protect workers’ rights. This Bill does not, and they should also be inserted.
Of the new provisions in the Bill compared to its predecessor, the most politically significant is Clause 33, which prohibits any extension of the implementation period beyond the end of 2020. This provision means either that the Government are relaxed about the possibility of having no trade agreement in place and operating on WTO terms from next January, or that the provision is a negotiating ploy which will be ditched if and when it proves impossible to reach a quick agreement. Your Lordships’ House has expressed its view on the undesirability of leaving with no deal on numerous occasions. The Prime Minister’s breezy self-confidence will not make such a course any less damaging. Putting a clause in a Bill as a negotiating ploy is simply not what legislation is for. The clause should be deleted.
A second series of new provisions relates to the ongoing rights of EU citizens in the UK. The Government have put in place a system under which all EU citizens currently resident in the UK can apply for and receive new permanent residence status. This is welcome and uncontroversial. Concerns remain, however, about how the system will be managed; for example, on how to avoid EU citizens being deprived of their current rights by default if they do not register in time and on the provisions for appeals. There remain great concerns among EU citizens in the UK on these and other points, and we should take this opportunity to ease them.
Thirdly, in respect of the powers given to Ministers, there are several respects in which the spectre of Henry VIII hovers over this Bill. For example, in Clause 27, it is proposed that Ministers should be able to amend retained EU legislation by secondary legislation under a worryingly broader definition of what constitutes a deficiency in the legislation in the first place. There are also the new proposed powers in Clause 26, which allow Ministers to direct an unspecified range of courts and tribunals on which aspects of EU retained case law they must follow. This is a most extraordinary and unsatisfactory power, and we will support the amendment in the names of the noble Lords, Lord Pannick and Lord Anderson, and indeed my noble friend Lord Beith, to delete it.
Moving on from the changes to the previous withdrawal agreement Bill, there are issues relating to the Government’s negotiating mandate which need to be considered and inserted in this Bill. When we debated the withdrawal Bill in 2018, we sought to include provisions which related to the Government’s negotiating mandate—issues which were covered by the political declaration but which we thought so fundamental that they should be included in that legislation. We will want to discuss some of these issues again and try to include them in this legislation. They include participation in EU programmes including Erasmus and Horizon and the European medicines regulatory framework. They include maintenance of environmental and animal welfare standards. They include the nature of a security partnership. This Bill should cover them all.
We at least have somewhat longer to scrutinise the Bill than was the case in another place. We need to make sure that we use this time wisely to limit the damage which Brexit could do to our economy, our constitution and our values as a liberal democracy.
The Earl of Kinnoull (Non-Afl)
My Lords, annexed to the EU Committee’s report of last Friday is the letter that the committee sent to the Leader of House on 4 November last year, setting out our questions about the Bill’s provisions on parliamentary oversight. I draw the House’s attention to the Government’s response to that letter of last Friday afternoon, 10 January, for which I thank the noble Lord, Lord Callanan.
I want to make just two points concerning Parliament’s role, first, in overseeing the withdrawal agreement’s implementation and, secondly, in scrutinising the next round of negotiations. The Bill leaves much to be desired both areas.
I turn to the Joint Committee that will oversee the implementation of the agreement post Brexit. There will be much for the Joint Committee to do, particularly on Northern Ireland, where the revised protocol is little more than a sketch plan. I note particularly, as did the noble Baroness, Lady Hayter, that the Joint Committee can amend the withdrawal agreement itself. The Bill, however, provides no mechanism for parliamentary oversight of the Joint Committee. There is no statutory requirement to publish decisions, documents or agendas, to report back to the House, or anything else.
Our letter to the Leader last November urged the Government
“to bring forward amendments to provide for appropriate parliamentary oversight and scrutiny of the Joint Committee”.
No such amendments have been forthcoming. In his letter to me of last Friday, the noble Lord, Lord Callanan, said that Clause 34, which requires a Minister to co-chair the Joint Committee, was intended to enhance parliamentary oversight. He continued by saying that
“members from both Houses will be able to hold Ministers to account for actions taken at the Joint Committee. In due course, we would be keen to explore with individual members or committees how we can further strengthen ministerial accountability.”
I confess that I do not quite understand that logic. Ministers are anyway accountable to Parliament, including for the actions of civil servants. It is difficult to see how Clause 34 addresses the issue that we have raised, to which I am sure we shall return in later stages of the Bill. In any event, I ask the Minister whether he will agree to meet me shortly, as part of his exploration of strengthening ministerial accountability.
I turn to parliamentary oversight of the negotiations on the future UK-EU relationship. Clause 31 of the October 2019 text of the Bill provided for this. A resolution of the Commons—and a debate in the Lords —would have been required to approve the negotiating mandate and the final treaty. In between there would have been quarterly reports on progress. Clause 31 has disappeared from the new Bill. There is now no formal mechanism ensuring parliamentary oversight of the future relationship negotiations. There is still the Constitutional Reform and Governance Act, but that is a weak power at the end of the matter only, which can anyway be set aside by a Minister. Accordingly, the Bill means that there would be no legal barrier to the Government negotiating and ratifying the future UK-EU relationship treaty without any parliamentary involvement, other than in passing any implementing legislation.
It is worth contrasting that with the position in the EU. Negotiations under an Article 218 legal base require extensive consultation with the European Parliament and, potentially, its consent. Thus, there will be close parliamentary oversight on the EU side but, as things stand, next to nothing on the UK side. In summer 2016, the then Secretary of State, David Davis, commenting on whether the UK Parliament would enjoy parity with the European Parliament during the withdrawal negotiations, said:
“We will certainly match and, hopefully, improve on what the European Parliament sees.”
In the light of that, why was Clause 31 of the October 2019 Bill removed?
In his letter to me of last Friday, the noble Lord, Lord Callanan, said:
“The Government will however take its obligations to Parliament seriously. We look forward to discussing this role, and the role of Parliament more generally, with both Houses during passage of the Bill.”
I anticipate that this House will spend much time during the passage of the Bill on parliamentary oversight of the future relationship negotiations. If the Government are not willing to move on these issues, we will find that in leaving the EU, and losing the oversight powers of our MEPs and the EU Committees of both Houses, we will have weakened, not strengthened, transparency and accountability where international agreements are concerned, to the long-term detriment of our democracy.
I hope that the Government will hear and respond to these concerns. The best time to make concessions is when one enjoys a position of strength.
Lord Cormack (Con)
My Lords, it is a great pleasure to follow the noble Earl. He made some extremely important points, underlining the fact that there is a continuing role for Parliament. Like other noble Lords, I look forward to the maiden speeches of the noble Lord, Lord Mann, and my noble friend Lord Barwell. It would be entirely right to pay tribute to my noble friend for all he did to produce what we now refer to as the Theresa May agreement, which many in this House would have accepted—with some reluctance—to move forward. However, the electorate have now told us to move forward.
I refer to the time in 1945 when the Labour Party had had a massive victory at the general election and the House of Lords was dominated by hereditary Conservative Peers. Two men with vision, judgment and an ability to compromise—the great Lord Addison, a great Lincolnshire man, leader of the tiny Labour Party in your Lordships’ House, and the Marquis of Salisbury—drew up what became known as the Addison/Salisbury or Salisbury/Addison convention: no Bill that was in a manifesto should be denied a Second Reading in your Lordships’ House. Of course, that obviously applies here, but I would argue that more applies here.
There are many aspects of this Bill that I think make it inferior to the previous one, but there will be ample opportunity during this parliamentary year to look at many aspects of the Bills in the Queen’s Speech, a number of which impinge upon our relationship with Europe. That is the time for us to apply our forensic powers of examining and scrutinising legislation. I very much hope—and it is because I have the future of your Lordships’ House very much at heart—that the Bill will not be subject to a great number of amendments and that there will be no votes on it in this House. It is, however much some of us may regret it, the manifest will of the people. The Prime Minister has a large majority, to which the noble Lord, Lord Newby, referred—very generously. It is the will of the people that we leave, and that we leave by the end of this month. That was explicitly stated throughout the election campaign.
Again, I am not saying that I was enthusiastic about that, but I recognise, as a democrat who believes that the ultimate power must always rest at the other end of the Corridor, that we would be foolish in the extreme to hold up this Bill in any way. There are other opportunities. We have our European Committee. We have a whole range of options for calling people to give evidence and for holding Ministers to account, but this Bill, imperfect as it is, is what the Government are determined to get through. We have to be realistic and recognise that the Prime Minister has two things at his command: a large majority and a large measure of euphoria in the other House, sustaining and impelling that majority. Whatever happens in your Lordships’ House, this Bill will go on to the statute book without amendment. Therefore, I implore colleagues in all parts of the House, if they have a real regard for our important powers of scrutiny and examination, to exercise them throughout this parliamentary Session and throughout this Parliament when there is not a time constraint, as there is on this Bill.
Let us flex our muscles, by all means. Let us have a vote, from time to time, by all means. As one who voted quite frequently against the Government in the last Parliament in your Lordships’ House and who also voted many times against his party in another place, I know that that can be done and sometimes should be done, but there are times when it should not be done, and this is one of them.
The Lord Bishop of Leeds
My Lords, I look forward to the maiden speech of the noble Lord, Lord Barwell, for whom I had great respect when we served together in Croydon some years ago. I think it is important that old arguments are not rerun in this debate: wherever one stands in relation to the 2016 referendum and subsequent debates, we are now where we are. I suspect, however, that it remains important for certain matters of principle to be rearticulated even at this stage, as the record will need to be clear when the history comes to be written, not least regarding the wisdom of writing into law hard deadlines for an implementation period. Do we not have anything to learn from recent history?
I believe it is essential to refute the charge that Parliament stopped Brexit happening. It did not. Parliament did its job and performed its democratic role, fulfilling its responsibility to question, scrutinise and hold the Executive to account. That might be inconvenient to “getting the job done”, but that phrase, widely propagated by people who know very well what they are doing, adds a lie to a lie. Countries where parliament simply nods to the executive’s will are not generally respected as paragons of democratic virtue or freedom. This is the basic reason why amendments will be tabled this week to the Bill as received by this House. The other place might well have the numbers to ignore this House, but it remains this House’s responsibility to make the points, raise the arguments and urge improvement to the text. I will therefore attend to a couple of matters of principle rather than detail.
If the point of Brexit was to restore parliamentary sovereignty, recalling that opponents were seen to be democratically suspect, it seems odd at this stage to seek to limit parliamentary scrutiny of the process after 31 January. Asking the Government to treat Parliament with respect—that is, informing, listening and consulting—must surely lie at the heart of any successful Brexit process, and making Brexit succeed for the good of all in this country must surely be the aim and commitment of all of us, regardless of whether we think Brexit was a wise or good move in the first place.
This in turn means that the Government must assume the best of those who question and not simply write them off as saboteurs; I would be grateful if the Minister, in response, would give this assurance. Failure to do so would risk feeding and fostering the sort of rhetoric and attitude that Brexit was supposed to protect us from as a sovereign nation. Making Brexit work best for everyone and mitigating its negative impacts will require the Government to see questioning and debate as constructive, a means to strengthen parliamentary support. Brexit will not be done by 31 January 2020, and the process beyond then will demand more than just compliance or acquiescence.
Furthermore, it is regrettable that the Bill now seeks to remove what would be universally seen as a touchstone of civilised society. How many children now live in poverty in this affluent country, whose magic money tree has mysteriously started blossoming since the last general election campaign was launched? How many children, surely the most vulnerable people on the planet, find themselves separated from their families through no fault of their own? How many exposed refugee children are now to be kept isolated from familial care and protection because this Parliament appears to deem them incidental to how we do our politics? Their alienation will come at a price later.
I guess noble Lords will hear their own maxims resonating in their consciences. Mine echoes to the sounds of the prophets of the Hebrew scriptures, such as Amos, who, despite economic flourishing, religious revival and military security, warned those who
“trample on the heads of the poor”
that this would not be the end of the story. Our integrity and honour will not be judged by whether we rule the world as global Britain, but rather by how we order our society to ensure justice and the dignity of the most vulnerable. Restoring the Dubs provisions would go a long way to restoring that honour.
The Bill will go through. How it goes through matters. It will say something powerful about who we think we are.
Lord Barwell (Con) (Maiden Speech)
My Lords, it is an honour to follow the right reverend Prelate and to make my maiden speech in this place.
I thank the staff of the House for their warm welcome and my supporters, my noble friends Lord Young of Cookham and Lord Gilbert of Panteg, who between them have been an almost constant companion during my career. I also thank my former boss, Theresa May. I had the honour of serving first as her Housing Minister, then after I lost my seat in the other place as her chief of staff. I saw at first hand her incredible resilience, commitment to public service and—perhaps less commented on—her dry sense of humour. The deal which the Bill before the House today implements is in large part Theresa’s deal. Having spent two years by her side as she negotiated it, I felt that I should speak in this debate, even if there is a convention for maiden speeches to be uncontroversial. I fear that that is impossible on this issue, but, if it is any consolation to your Lordships, I tend to upset both sides equally.
There are three changes to the previous deal, one at least partly for the better, and two for the worse, in my opinion. Two of them are to the Northern Ireland protocol. First, the Government have gone back to what the EU originally wanted: a Northern Ireland-only arrangement. The result is that goods will have to undergo customs checks when they are moved from Great Britain to Northern Ireland, creating a border within our single market. The scale of those checks will depend on negotiations in the Joint Committee about the operation of the protocol that will get under way shortly, and I look forward to the Minister confirming how the House will be updated on those negotiations.
Secondly, the arrangements in the protocol are now a default rather than a backstop but, crucially, there is a way out of the arrangements if the people of Northern Ireland want it. That latter point is a welcome improvement. The third change is to the political declaration on our future relationship with the EU, which now provides for a more distant relationship, akin to Canada’s. Again, the Government have gone back to what the EU wanted at the outset of the negotiations.
I regret two of these changes; I think that they are bad for our union and our economy. However, I believe that the referendum result must be implemented—people have waited too long already—and, having spent two years telling people that they needed to compromise to achieve that, I need to take my own advice. I will therefore support the Bill.
However, in my remaining time, I want to make six points about the negotiations on our future relationship that are soon to begin. First, we need to be honest with ourselves about how difficult they will be. Some seem to believe that the fact that we start aligned will make things easy. They will not be easy even if we wanted to stay aligned, but the Government do not; they want the freedom to diverge. We are about to negotiate something completely unprecedented—an FTA that is not about removing barriers to trade but agreeing when and to what extent they will have to be put up.
Secondly, if we want to succeed in those negotiations, we need to understand the other side’s position. I lost count of the times I was told, “The EU has a trade surplus with us, so it’s in its interest to do a deal”. Well, yes, but only up to a point. Its primary concern is preserving the integrity of its institutions, particularly the single market and the customs union. What it means by that, although it is normally too polite to say it explicitly, is that there has to be a cost to us leaving. That is not because it wishes to punish the UK, but because, if you can leave a club and enjoy all the benefits without any of the obligations, why would anyone stay a member of such a club?
That brings me to my third point. Now that we are definitely leaving, and we can stop refighting the referendum campaign, both sides need to be honest about the benefits and costs of different options. The more distant our relationship with the EU, the bigger the cost, but the more freedom we will have in the deals we do with other countries. I will give the House one example. The Government want to end free movement. I agree. It was one of the main concerns about membership that drove the leave vote. We will take back control of how many people come into our country, but there will be a cost in terms of the free movement of goods, capital and services. However, if we go further than that and decide that we are not prepared to give any preference to certain EU nationals in our immigration system as part of a deal on services—I draw the House’s attention to my declaration of interest, because I work for a number of companies that provide professional services—the cost will be bigger but we will have more freedom to give preference to other countries. There needs to be co-ordination between the negotiation with the EU and the negotiation with other countries, because choices we make in one will impact on the other negotiations.
Fourthly, I fear that we are in danger of repeating the mistake we made in the divorce negotiations. I understand why the Government do not want to extend the transition period. However, there simply is not time to negotiate the entire future relationship, have it ratified by national Parliaments, and for business to prepare to implement it, in 11 months. The substantive provisions of CETA are 550 pages long; the whole thing is nearly 2,000 pages long. Therefore, as President von der Leyen has said, we will have to prioritise. The main risk is not no deal but a very basic initial deal. It is in our interest for everything to be decided in one go, because the moment that is no longer the case, we risk getting into a repeat of the divorce negotiations, where the EU ensured that its three priorities were dealt with first.
For reasons of time, I will miss out one point and will end by saying this. The EU also needs to learn the lessons of the last few years. It may feel that its approach worked and be tempted to repeat the playbook. There is a real danger that, if it publishes a mandate in late February that closes down all the options before negotiations have even begun and seeks to sequence them in its favour, the UK will not ultimately give in but will walk away. Both sides will lose out if that happens. Our countries have much in common and we face mounting threats. We need a relationship that works for both sides and which allows us to work together to deal with those threats. We should not expect the EU to do us any special favours, but I hope it will see the bigger picture. History will judge us both badly if we get this wrong.
Lord Taylor of Holbeach (Con)
My Lords, it is a great privilege to follow the maiden speech of the noble Lord, Lord Barwell. This former president of the Cambridge Union was at Trinity with my daughter-in-law. Having read natural sciences, he naturally came to CCO upon graduating. There, we became colleagues because I was a member of the voluntary party. For more or less the 17 years that I was there, Gavin—I apologise; I must recognise the status of the noble Lord, Lord Barwell, and where we are—was there.
To be honest, he very soon made his mark. He quickly became essential to the running of the place and his dabs were on pretty much everything. He was an architect of David Cameron’s 2010 victory; in the process, he managed to get himself elected to the House of Commons through the marginal seat of Croydon Central. Perhaps that was CCO’s loss but it was certainly Parliament’s gain. People who have worked with him, such as the right reverend Prelate—I know that the noble Baroness, Lady Hayter, also knows him—and people I have been speaking to know what a power he is and what an interesting and open-minded person he is to work with. That was certainly the tone of his speech today. I hope that people will recognise it as a thoughtful speech based on what we might expect from him in future.
I do not know about you but I do not intend to speak long on this Second Reading because there are a large number of people down to speak. Despite what the noble Baroness, Lady Hayter, said—I consider her a friend as well as somebody of a different political persuasion—the public expect us to get Brexit done. If Parliament drags its feet over this Bill and, for that matter, the process, it will build for itself a reinforcement of the mood that existed throughout the latter part of last year: that Parliament is not capable of coping with public opinion.
I think that the noble Lord, Lord Newby—he is also a friend, if I may say so—accepts this. I think that he understands the reasons why this Bill must go through Parliament and why Parliament must facilitate its progress. However, he misunderstands something. For many members of the public, what was seen by this House and by Parliament generally as questioning and revising was seen by them as an opportunity for delay—that is, that somehow or another, if we delayed long enough, there was time to get the British electorate to change their mind. The election showed that that was not the case. We are living in a different time. There is a role for this House, of course; I love this place and I am sure that the noble Lord, Lord Barwell, will be happy here. This is that sort of place. There is a role for us because we are a revising Chamber. Even if the Government have a large majority at the other end, we have something to contribute to the legislative process, and that cannot be denied.
However, I ask noble Lords whether this is the issue on which we wish to put ourselves forward as a revising House. There may be other issues where our parliamentary role will be better understood by the electorate as a whole if we concentrate our efforts on them. In this case we had a clear message. I campaigned for a number of seats throughout the east Midlands which had previously been Labour for almost all their history. I campaigned in Bassetlaw and I am looking forward to listening to the maiden speech of the noble Lord, Lord Mann. But we know that even people who I could not persuade to vote Conservative did say that, in their view, the prime responsibility of Parliament was now to deliver Brexit. That applied to Conservative and to Labour voters throughout that part of the world. I hope that this House will somehow reflect that because it will do it credit if, along with its revising responsibilities, it can recognise selectivity in doing so.
Lord Radice (Lab)
My Lords, it is a delight to follow my fellow “yellow-belly”, if I may call him that —he is wearing a yellow tie at the moment, and rightly so. I congratulate the noble Lord, Lord Barwell, on a most interesting speech and I look forward to his contributions in this House, especially on housing and on how to run a Government. I also look forward to the maiden speech of my noble friend Lord Mann, because I want to see where he stands on these matters.
I am not going to give a re-run of old arguments, but as a historian, I would like to put the Bill into some sort of context. I have to say straightaway that as a supporter of the European Union and of Britain’s membership of it for the past 65 years, Friday 31 January, when the divorce Bill becomes law, as it must, will be a day of great sadness for me and, I believe, for millions of others.
I believe that the main reason for our departure lies not so much with the media but with our politicians. If things went well in Europe, it was a victory for Britain. If there were problems, they said that it was the fault of Brussels. With a few notable exceptions, they never spent time explaining the benefits of British membership. In the 2016 referendum result, we reaped what the politicians had sown.
Once the British people had decided to leave, albeit by a narrow majority, I believe that a pragmatic natural leader ought to have limited the damage to the economy by remaining as close as possible to the EU. Instead, both Mrs May, except just at the end, and Boris Johnson, took a different and much harder line. I have to admit that over the last few months the Opposition have made things worse. Under the Fixed-term Parliaments Act, a general election was not required until 2022, and despite polls indicating a large Tory majority, Mr Corbyn and Ms Swinson, in a mixture of what I believe was short-sightedness and hubris—I was surprised not to hear this from the Liberal Benches—fell into Mr Johnson’s elephant trap and voted for the election which both he and Dominic Cummings so desperately wanted. That is the background to this. As we now know, the result was not only a landslide victory for the Tories, which gives the Government great power—and great responsibility; it has greatly increased the risk of the no-deal Brexit which the last Parliament worked so hard to rule out.
“Let’s get Brexit done” was a clear and, I believe, clever election slogan that appealed not just to leavers but to voters fed up with three years of bickering over Brexit, as they saw it—but in reality it was seriously misleading. The most important issue, the UK’s future relationship with the EU, has still not been decided. That is where we are today, and it will take some time.
I understand that Boris Johnson is allowing us only 11 months for negotiation, and I agree with the noble Lord, Lord Barwell, that that will make it very difficult. Indeed, the new European Commission President, Ursula von der Leyen, has already warned that this timetable does not allow sufficient time to negotiate an agreement satisfactory to both sides. The danger is that there will be either a deal that, in the words of the Financial Times, is “minimal, rushed and last-minute”—a bare-bones agreement that leaves crucial sectors of the economy out—or, even more disastrous, no deal, which could bring Britain to its knees.
Boris Johnson has said that leaving the EU will offer the UK a bright future. We shall see about that. He seems to forget that being a member of the EU has already brought great benefits to this country—I do not think it is rerunning old arguments to remind noble Lords of that—in increased power, influence and security, faster trade, investment and employment, greater affluence and well-being for our citizens, and improved environmental and social protection. Sadly, we are unlikely to enjoy such benefits outside.
I see that my time is coming to an end. Speaking in the House of Lords a year or two ago, I predicted that if we left the EU with no deal or a botched arrangement, the result would be unacceptable to the next generation, and I stand by that prediction. I believe they will have concluded that a medium-sized European power such as the UK should act in partnership with its close neighbours.
Lord Wallace of Saltaire (LD)
My Lords, we all accept that the decision to leave has now been made and that this Bill will go through, but what sort of future relationship the Government will negotiate once the Bill is through remains entirely unclear. Different interpretations leak out from different Ministers, Conservative newspapers and MPs. The Prime Minister himself is still in “cake and eat it” mode, wavering between promises of regulatory divergence and assurances that we will remain close to what he sometimes calls “our European friends”.
I will focus here on the process by which Parliament continues to scrutinise the transition we are entering into, from EU membership to association. I was shocked when Liberal Democrat Peers were told in a ministerial briefing last week that there was now no need for the previous Bill’s clause guaranteeing parliamentary scrutiny of future trade negotiations because the result of December’s election had given the Government sufficient mandate to negotiate them in whatever form they may be able to agree.
There will be difficult trade-offs to be struck in the negotiations about our future relationship. The political declaration sets out an agenda but does not give much indication of how these trade-offs will be struck—between fishery concessions and the interests of our financial services sector; between acceptance of some continuing role for the European Court of Justice and insistence on the purity of UK legal sovereignty.
Any democratic Government need to be held to account not just once every five years but as they continue to make policy month by month. That is the difference between a populist electoral dictatorship and a functioning constitutional democracy. I was reading a book on American populism last week, and noted that George Wallace—my namesake, who was the populist Governor of Alabama—was fond of saying in speeches that the will of the people was more important than the law. Some supporters of this Government, even in this House, have come close to saying the same thing.
In the Queen’s Speech debate last week, the noble Lord, Lord Strathclyde, suggested that the Lords, as Parliament’s second Chamber, should rarely oppose the Government on this Bill or, indeed, on other forthcoming legislation. He is right that a second Chamber should not block legislation in principle, but he is wrong to argue that we should not, entirely properly, ask the Government and the Commons to think again on the content and detail of legislation set before us.
After the speech of the noble Lord, Lord Strathclyde, I checked with the Library on the pattern of Lords’ defeats of the Government over the years. Of course, when the noble Lord first entered our Chamber, the Conservatives had a permanent majority, defeating the Labour Government 126 times back in 1975-76. Since most hereditaries were excluded in 1997, the highest number of defeats of the Government in any one Session was in 2002-03, at 88 defeats, when the Leader of the Opposition—the person whom last week the noble Lord called on to behave with caution and restraint—was of course the noble Lord, Lord Strathclyde, himself. He deplored in last week’s debate that the Conservative Government had been defeated in almost 50% of the whipped Divisions in the 2016-17 Session, calling it an “absurdly high figure”. However, in the 2004-05 Session, the Labour Government were defeated in 58% of such Divisions, again with the noble Lord, Lord Strathclyde, leading the largest opposition group. I rest my case.
There are constitutional issues in this Bill which we are entitled to draw attention to and to which a wise Government should listen. While Clause 31 of the previous Bill, asserting Parliament’s role in continuing scrutiny, has disappeared, we now have the new Clause 38 nevertheless asserting that parliamentary sovereignty is absolute. It is there not for any practical purpose but to throw a bone to the hard nationalists of the European Research Group and the Bruges Group. Sovereignty can never be absolute unless a state disengages from all its obligations under international law. The balance between the fundamental principles of law and the untrammelled power of the Government when controlling a majority in the Commons has been argued over since the time of Justice Coke and others, in the early 17th century.
Insistence on the unlimited power of the Government in Parliament to override our devolved Assemblies would now be unwise as well, and arguably close to unconstitutional in itself. This too we will challenge the Government to justify, in Committee and perhaps even on Report.
Lord Anderson of Ipswich (CB)
My Lords, I will concentrate on the practical effects of this Bill for the sovereignty of Parliament. That principle is recognised in Clause 38 in rather defensive terms. It is said to “subsist notwithstanding” the mass of
“directly applicable or directly effective EU law”
that, by virtue of earlier clauses in the Bill, will continue to bind us during the transitional period. Yet Clause 38 misstates the threat. Parliamentary sovereignty is not endangered by a short and prudent continuation of the arrangements by which sovereignty was pooled in the interests of international influence—arrangements which Parliament itself endorsed in the European Communities Act 1972 and on many subsequent occasions. It is other features of the Bill, not referred to in Clause 38, that threaten the ability of Parliament to perform its proper role. I will refer to two in particular.
First, this version of the Bill sees the removal of parliamentary oversight of the negotiating mandate, the negotiations and the future relationship deal. Parliament will have a say only at the stage of ratification, by which time it will be up against a rapidly expiring deadline that will be extendable only if the Government so wish. This might have been fine when trade deals were about nothing more than tariffs and quotas, but the revised political declaration aspires to
“an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.”
In the previous version of the Bill, a minority Government offered Parliament a voice on how that goal is approached and how far it is achieved—a necessary voice, since not a person in this country will be unaffected by the future relationship, or by the failure to achieve it. Despite their large majority, this Government have chosen to cut Parliament out—a display of their power, but a dismissal of the consent on which that power ultimately depends.
Parliament is sidelined secondly by the inadequate controls on the numerous delegated powers for which the Bill provides. Some are constrained by the terms of the withdrawal agreement—as the Minister said in opening—but others are not. In the context of Northern Ireland, Clause 21 would allow even this Act to be amended by Ministers, without limitation as to purpose and without the usual exceptions for taxation, new criminal offences and so on. This is Henry VIII on steroids.
Statutory instruments made over the last 18 months have been associated by the Hansard Society and the Public Law Project with a worryingly large number of errors and procedural irregularities. These problematic results are described in an article of 9 January on the UK CLA blog. Effective parliamentary control of this regulation-making power requires greater use of the affirmative procedure and a sifting process of the type provided for in Schedule 7 to the 2018 Act, for the reasons so persuasively given by the Delegated Powers and Regulatory Reform Committee in its recent report.
Clause 26, which has been mentioned, presents concerns of a particular kind. Yes, we have decided to take back control of our laws, but this clause is so broad as to suggest that no one has quite decided how to do it, and that all options—including, frankly, some alarming ones—are to be left on the table. Sir Bob Neill, in the other place on 8 January, spelled out the possible consequences of this clause for legal certainty, certainty of policy and the system of binding precedent. Like him, and the noble Lord, Lord Pannick, whose amendment I have signed, I am troubled by a provision that allows Parliament to be bypassed and Ministers trusted with a power that was previously thought appropriate only for the Supreme Court.
Revolutions are said to devour their own children. The original proponents of Brexit, who rode out under the banner of “Our Parliament and Our Courts”, sometimes seem to have little faith in either. But constructive scrutiny, received in a constructive spirit, makes for stronger and more accountable government. I hope that all parts of the House, when looking at this Bill, will not lose sight of that.
Lord Mann (Non-Afl) (Maiden Speech)
My Lords, it is a privilege to contribute for the first time. I thank the staff of the House for their kindness, wisdom and wit in recent weeks, and my introducers, the noble Lords, Lord Sacks and Lord Clarke of Hampstead. The rabbi and the postman; how my parents would have smiled.
I suspect that all of you will have heard much of the Battle of Cable Street, but not of the Battle of Holbeck Moor. Two weeks before Cable Street, Mosley and 1,000 Blackshirts assembled on Holbeck Moor in Leeds. Some 30,000 local people turned out, and the fascists were promptly removed from the city. There is no written testimony, and there are no photographs or artists’ drawings; it is a silent history. For 70 years my family lived alongside Holbeck Moor in those two-up, two-down, back-to-back terraces and cobbled streets. I cannot claim with certainty that one of them threw the cobble that put Mosley in hospital, but there were 30,000 heroes yet nothing recorded.
The true face of this country and the true story of the election is this: in Derby North, Christopher Williamson got 635 votes and lost his deposit. In West Bromwich East, George Galloway got 489 votes and lost his deposit. This is the innate decency of the British people yet again. Across the entirety of the country, people are saying, very vocally and unequivocally, “We reject the extremism of anti-Semitism.”
I wish to pay tribute to Theresa May. Three people have gone to prison in the last two and half years who targeted, among others, me, my family and my staff. She stood by me and my family at that time when some others did not. I salute the integrity and courage she displayed in setting up the Hillsborough inquiry and the national child abuse inquiry when she did not have to. I represented 30 survivors of child abuse—I advise some still—and I thank my staff who assisted in empowering those 30 people; they had to go to hell and back in learning their testimony. So thank you, Theresa May, for that.
We have power: the question is what we choose to do with it. I look at this curious place today. I shall hold my peace for the moment, but now is the time for an era of enlightenment. The northern working-class communities where I come from expect the dignity of being heard. Are their views, their visions, their votes not as valuable as the next person’s? There is no greater poverty than that of being discounted. Imagine retired coal miners who spent 12 months on strike and the women who stood tall alongside them while their children went without. Their anguish at this last election is incalculable, but their determination to see through their democratic decision is not. But that is not for me the defining image of the election, so let me conclude on what is. In north London on election day an elderly Jewish couple, who had voted Labour their entire lives, wept as they went into the polling station, sobbed as they voted and cried as they left it.
I have a role now on anti-Semitism. I am rightly independent and, as ever, I shall work cross-party, but I will be no bystander in driving out the stench of intolerance from the party that in 1906 my family helped to create in the city of Leeds, in the streets around Holbeck Moor.
Lord Forsyth of Drumlean
My Lords, we have just listened to a powerful speech and I congratulate the noble Lord on it. From its timbre, it was a speech drawn from passion, conviction and integrity. Although, even in his own party, people have not always agreed with him, the noble Lord has the courage to say what he thinks. Often his party would have done well to take on board what he thought and said, not only in regard to his work in campaigning against the scourge of anti-Semitism, but also his warning that if his party ignored the wishes of the people on Brexit it would find that the people would take a terrible revenge—and indeed they did. He warned his party that if it went into an election with Jeremy Corbyn as leader there would be a catastrophic result. I have to tell him that I am grateful that his party ignored that advice for it has given the Prime Minister an enormous mandate to carry through what the people of this country voted for. I am delighted to see him in this House, which he described as a curious place, because he is on record as saying that it is a care home for failed politicians. His very presence here shows he was wrong about that.
As I walked across Victoria Gardens last week, the sun was shining, the birds were singing, and when I got to the Peers’ Entrance, there was the sound of silence. There were no mercenaries shouting “Stop Brexit”. It was extraordinary. When I came into the building and looked at the Order Paper, there were no Questions spreading project fear from the Liberals—the questions were on matters that should concern us, such as health, education and other matters—and I began to think that we had crossed the Rubicon. I have to say, however, that, listening to the speech from the noble Baroness, Lady Hayter, although the first part was good, and the speech from the noble Lord, Lord Newby, I am not sure that this House has entirely got the message. The other thing, which I commend to noble Lords, that cheered me up on Thursday was the speech by my noble friend Lord Bates. It was a brilliant speech, which set out what a great country this is and how we have a great future ahead of us if we will pull together and work together. I hope that message was taken on board by this House.
I found it extraordinary that the other place dealt with all the amendments on all the subjects that will be covered in the speeches today—and have already been covered—in less time than had been provided under the guillotine. Is that not remarkable? Only one month ago, we were told that there was not enough time to discuss any of this stuff. What was there reason? It is because the House of Commons has got the message from the voters. This place needs to do the same, for I fear it has strayed from its path like lost sheep—a reference that might make some impact on the right reverend Prelate the Bishop of Leeds. He said this is about democracy. I have to say that there is no democracy in this Chamber. We are all appointed to this Chamber. Democracy lies in the other place. The voters have given a very strong message, and the other place has voted with huge majorities against all the amendments laid and in favour of the Bill.
The Bill is about delivering the mandate given to the Prime Minister by the British people. I do not believe that there is a single soul in this Chamber who believed that he would have such a dramatically positive result. If this House chooses to challenge that—I totally agree with what my noble friend Lord Cormack said, although he and I have not been as one on Brexit —by all means use the time and try to persuade my very reasonable noble friend the Minister to take on board the arguments, but please do not send an amendment back to the other place. It will make this Chamber look ridiculous and it will play into the hands of those people who wish to destroy it, many of them now putting themselves forward to be leader of the Labour Party.
The truth is that we lost our way. We ripped up our Standing Orders. The Opposition took control of the agenda. We moved more closure Motions in one Session than had ever been moved before, and we did so because this House became a campaigning House instead of a revising House. It is time we returned to our proper role and acted as we should, with respect, on issues of health, education, the economy, social care, gambling and a whole range of things. Then we might earn the respect of the British people again.
Lord Campbell of Pittenweem (LD)
My Lords, we have had the opportunity of two outstanding maiden speeches. They differed in style, presentation and substance, but they were undoubtedly the kind of speech which makes it very clear that we shall always look forward to further contributions from these two new Members of your Lordships’ House.
It is always a pleasure to follow the noble Lord, Lord Forsyth of Drumlean. Often it is more of a challenge perhaps than it is today, but I may disappoint him, I think. There is an old Scottish proverb dating from the 1800s that confession is good for the soul, but I am going to make a confession which I doubt will do my soul much good, and it is this: I still believe that, although it is now inevitable that we shall leave the European Union, it is wholly against our economic, political and security interests. Inevitable though it may be, I beg leave to say that the terms upon which we shall finally leave are still wholly unpredictable.
I pause only to observe that the withdrawal agreement obtained by the Prime Minister is based on a concession over Northern Ireland that he would not allow Mrs May to make. However, it has had one helpful consequence, which is to create a new unity of purpose between Sinn Féin and the DUP in Northern Ireland.
In all my political life, I have believed that Scotland’s place was in the United Kingdom and that the United Kingdom’s place was in the European Union, each reinforcing the other. Although I have accepted as inevitable that we shall leave the European Union, I have to offer that it is possible that Scotland will leave the United Kingdom. My judgment is that, if those decisions are taken, they will be the products of nationalism—a nationalism that has been characterised by the assertion that all ills can be cured only by separation. When did you last hear Nicola Sturgeon, or Boris Johnson for that matter, acknowledge any benefits of membership of the United Kingdom or the European Union? All ills are to be blamed on London or Brussels. In Scotland, what about the Barnett formula, which allows Scotland to spend more per head on public services than anywhere else in the United Kingdom? In the United Kingdom, what about the single market—the single market of Margaret Thatcher—which has brought about so much economic advantage and inward investment to the United Kingdom?
We have often been asked what sort of country this act of separation would bring about. In Scotland, the Edinburgh Government have already shown political interference in the governance of Scottish universities. In that regard, I should declare my interest as the chancellor of St Andrews University. The Scottish National Party now sends out to journalists lists of the questions that they should ask when interviewing individuals opposed to independence. Here in England, the Government issue veiled threats to the BBC and the independence of judges, and they conduct a petulant boycott of the morning programmes of the BBC. In so doing, they depart from the responsibility they have to explain and demonstrate their policies and proposals. That is what nationalism does: it subordinates all else to the aggressive self-righteousness of its own cause. Look, if you will, at the Governments of Poland and Hungary and at the judges in Poland having to take to the streets in order to assert their independence.
The Bill before us is a sad, sorry affair, and I await with enthusiasm the contribution of the noble Lord, Lord Dubs, on the issue of child refugees. However, I want to make a point about Erasmus—a programme that has widened horizons and broadened experiences. What is it about that programme that the Government should, for some reason, vote down an amendment in favour of the United Kingdom’s continuing membership by way of statute, followed—in a sinister fashion, one might say—by a spokesman who said that the Government are committed to the programme if it is “in our interests”? What about the interests of the people who want to take part in that programme but might be denied the opportunity if the Government decree that it is not in the Government’s interests that it should continue?
It has already been said that the Prime Minister now owns our departure from the European Union. He has made a lot of promises. He likes throwing about Latin tags, so here is one for him: pacta sunt servanda—all those promises must be kept. We shall hold him to that.
Lord Kerr of Kinlochard (CB)
My Lords, on the morning after the 1996 presidential election, which he had lost, Senator Bob Dole was asked how he had slept. He replied, “Like a baby. I woke up every two hours crying my eyes out.” I know how he felt. I believe that our country has made a historic mistake, but it has made it. The people have spoken, and we leave the EU at the end of the month. This means that we should not consider any amendment which could conflict with that deadline.
However, within that constraint, I have to disagree with the noble Lord, Lord Forsyth—for the first time, I think—and, with great humility, with the noble Lords, Lord Cormack and Lord Taylor. I think the House of Lords should do its job. We are, as the noble Lord, Lord Forsyth, said, a revising Chamber. We need to look particularly closely at what this Bill says and its implications for relationships between the Executive and Parliament, between the Executive and the judiciary, and between the constituent parts of the United Kingdom. We shall spend much more time on this than the Commons did. Some of the issues that we shall discuss were not discussed in the Commons at all. Where we are not satisfied with the Government’s explanations, I believe we should give the Commons the chance to think again.
First, on Parliament, as others have pointed out, there is no provision in this Bill for parliamentary oversight of the Joint Committee. It will carry out the crucial task of developing the detail of how we withdraw. There is no provision for oversight of the negotiations on the future arrangements. The earlier, October version of the Bill, gave Parliament powers on mandate, monitoring and outcome, as the noble Earl, Lord Kinnoull, pointed out. All that is gone. The European Parliament has such powers; this Parliament, apparently, is not to have them. The House may wish to reflect on that contrast.
Secondly, I do hope that we shall hear in Committee from the noble and learned Lord, Lord Judge, the greatest living expert on Henry VIII powers, because Henry VIII is endemic throughout this Bill, particularly, of course, in Clause 21. As others have mentioned, in relation to Northern Ireland, Clause 21 gives the Government the right, for a year, to pass by regulation any change which would otherwise require primary legislation, including changes to the Act itself. That is quite striking; we should reflect on the precedent.
Thirdly, we need to consider what the Bill does not say. Here, for me, the paramount issue is how the devolved Administrations are to be involved in the Joint Committee and in the future negotiations. In the Queen’s Speech debate, we heard from the noble and learned Lords, Lord Hope and Lord Wallace of Tankerness, as well as the noble Lord, Lord Reid of Cardowan, about what is now a clear and present danger to the 1707 union. Edinburgh, Belfast and Cardiff resented being kept at arm’s length by Mrs May’s Government and being blindsided by Mr Johnson’s Irish surrender. With Stormont back up and running, it should be possible to find a way of lancing this boil. The House may wish to consider asking the Commons to write the requirement into the Bill.
Finally, declaring my interest as a trustee of the Refugee Council, I believe that we must not forget the Dubs amendment. The Government want us to do so, although the Minister assured us that government policy has not changed. If the policy has not changed, why are the Government taking away the provision in the 2018 Act? It was a pretty modest provision. I believe we need to seek its retention. The argument is very simple: what kind of country do we think we are? Are we really meaner and less humane than our predecessors were in 1938, 1956 or 1968?
I have not addressed the substantive Brexit question; the Bill is about how, not whether, we leave. I myself fear that the process will be protracted and painful and will end badly for our country and for all of us, particularly those most left behind. However, there is not an end of history; the story will go on:
“that which we are, we are;
… Made weak by time and fate, but strong in will
To strive, to seek, to find, and not to yield.”
I believe my children will see us back where we belong: in the comity of European nations that share common values, work together for the common good and are determined not to yield in its defence.
Lord Bridges of Headley (Con)
My Lords, while it is always a great pleasure to follow the noble Lord, Lord Kerr, who I know, like a number of your Lordships, feels a sense of regret and sadness at the passing of the Bill—and it will be passed—I myself feel a sense of relief, not just because, as my noble friend Lord Forsyth said, there is no longer that blue-suited star-spangled man on College Green shouting “Stop Brexit!” every two minutes but because we are now able to break out of the political gridlock that was exhausting and frustrating not just this Parliament but the entire country, and we can get on with Brexit. I say that as someone who voted to remain.
I have always believed, and argued from the Dispatch Box and from the Back Benches, that we have to honour the result of the referendum, but for the last three years this nation has twisted and turned in the wind because the Government were in office but not in power at Westminster and therefore lacked real credibility at the negotiating table in Brussels. The powers and role of Parliament and those of the Executive, as my noble friend Lord Forsyth said, became blurred. That lack of clarity led to even more uncertainty, not helped by those who rejected the result of the referendum in the first place, and our European partners saw that. The President of the European Commission said just last week in London:
“During the Withdrawal Agreement negotiation, there was always the uncertainty around whether Brexit would happen. It was an uncertainty that made the negotiation inevitably tense.”
That is one way of putting it. I would say that the sense that Parliament was in control rather than the Government made concluding the negotiations nigh-on impossible, and that is why the general election was, as I have argued before, an inevitability. That election in December provided a clear result, so now at last we have a Bill before us that will enable us to leave the EU.
Of course, as we have been hearing from a number of noble Lords, we as the second Chamber should scrutinise its contents. We have heard a number of concerns. I want to focus on one, and it is to do with that little word “scrutiny” and the role of Parliament in the negotiations that lie ahead. What do we actually mean by scrutiny? Do we mean Questions in Parliament, ministerial Statements, Select Committee hearings and debate? Yes. Do we mean the interrogation of Ministers as they bring legislation to this House? Of course. Do we mean searching questions about delegated powers? Again, yes. But if by “scrutiny” what people are really saying is that they want to go back to a situation where Parliament is trying to dictate the terms of the negotiations or the process, I would gently point out that that is what the British public voted emphatically to put an end to at the general election. While I read with interest the views of your Lordships’ European Union Committee, in its excellent report that was published on Friday, that the future negotiations,
“will be subject to detailed and transparent scrutiny by the European Parliament. The UK Parliament and the British people deserve the same transparency and accountability”,
I remind your Lordships that this House’s own Select Committee on the Constitution concluded:
“we do not recommend directly replicating the European Parliament's treaty scrutiny mechanisms at Westminster”,
although I should add that it said:
“lessons may be learned from it, particularly in relation to information provision.”
I am sure we would all agree that information provision is one thing but creating new legislative processes is quite another. We should bear this in mind over the next few days for, as my noble friends Lord Forsyth and Lord Cormack said, how this unelected Chamber handles the Bill is as important as what we say about it.
The last few years have eroded many people’s trust in our political process—trust that was already battered and bruised. If we now want to restore trust in our system and want people to see this unelected Chamber as adding value to the parliamentary process, we cannot and must not allow the public to think that we are frustrating the will of the elected Chamber. They can sense the difference between proper scrutiny on the one hand and wilful obstruction on the other.
The tough part of the negotiations is only now about to begin. However, the battle of Brexit, leave versus remain, is well and truly over. We are leaving. The time has come to turn those Brexit swords into ploughshares and focus on what we begin each day praying for: the uniting and knitting together of our society.
Baroness Taylor of Bolton (Lab)
My Lords, many of us are not happy with where we are in this Brexit saga. I for one wish that the Commons had accepted the amendment on the customs union that was so narrowly defeated. However, all of that is water under the bridge, as others have said. What we must do now is try to ensure that all the legislation related to Brexit is fit for purpose. Indeed, that has been the objective of the Constitution Committee, which I have the pleasure of chairing, since this whole process began. The Constitution Committee met today and agreed a report on this Bill, which we hope will be published tomorrow before Committee. Tomorrow’s report will be our fifth on the legislation required for withdrawal from the EU. I hope that it will assist the House with consideration of amendments. I have to disagree with the noble Lords, Lord Cormack and Lord Forsyth, because I think we have a responsibility to make sure that this Bill is fit for purpose.
In the past, the Constitution Committee has spent a great deal of time scrutinising legislation concerned with Brexit. Our first report anticipated the issues that would arise and, since then, we have looked in very great detail at the issues involved. Our report on what became the European Union (Withdrawal) Act 2018 concluded that that legislation, at that stage, was simply not fit for purpose. Our report was used very widely in the debates in this House on the relevant amendments. We talked about how UK courts should treat the case law of the Court of Justice of the European Union and particularly mentioned the difficulties of defining the status of retained EU law. We also talked at great length and in great detail, when the noble and learned Lord, Lord Judge, was there, about imposing greater requirements on Ministers to justify and explain their use of regulation-making powers.
In consideration of what became that Act, we were never trying to stop or block Brexit. We were seeking to improve the legislation so that it could do what it said it would do in a way which was constitutionally proper. Indeed, at the end of that process, the Government acknowledged that much of what the committee had recommended had been necessary and that changes had to be made. The noble and learned Lord, Lord Keen, was there and may remember saying that he was grateful for the constructive and expert way in which the committee had conducted itself.
We wanted to continue in that vein and continue looking at and being constructively critical of the Bill had we had sufficient time. We asked the Government if we could see an early draft of the Bill in confidence, so that we could carry out our work. That did not happen and we are now faced with this House considering a Bill of intense constitutional significance in a very short time. It is clear that the Government’s intention is to push this Bill through, paying lip service to meaningful scrutiny. Again, I am sorry that the noble Lord, Lord Cormack, disagreed with me on this.
The Constitution Committee has frequently warned, as have others, of the dangers of fast tracking legislation, especially important legislation, which can lead to bad law. The Committee did not have the time to go through this Bill in the detail that it had considered others, but I hope that our report will be of assistance to the House.
There are of course, as we have heard, some policy issues of great significance, in particular that which my noble friend Lord Dubs raised about child refugees, but the Constitution Committee’s report is restricted to constitutional issues. We will be encouraging the House to look at issues such as Clause 26, which has already been mentioned, because it is just not right. If the meaning of UK law, as retained EU law will become after exit day, is to be altered then it is this Parliament that should make the changes and not the ministerial guidance—a factor that is proposed at the moment.
There are many issues of concern such as Henry VIII powers, the responsibilities of the devolved assemblies and so on. However, the basic problem that this House faces is that we have a real challenge in making sure that the Bill is as it should be. I am afraid that I agree with the noble Lord, Lord Kerr: we have to do our job. We have to scrutinise the Bill carefully and I hope that the report of the Constitution Committee will be of assistance to the House.
Lord Paddick (LD)
My Lords, I congratulate the noble Lords, Lord Barwell and Lord Mann, on their thought-provoking maiden speeches and I look forward to their future contributions. The time is rapidly approaching when the Government must deliver on their promises over Brexit. Among other things, they have promised that the UK will not be less safe nor less secure outside the European Union.
At a briefing given by the National Crime Agency lead on Brexit to the APPG on policing in 2017, we were told that the existing legislative framework—that is, regulatory alignment—and existing EU organisations and mechanisms, including the European Court of Justice, enabled greater and more effective co-operation between the UK and the EU when it came to law enforcement. He said that there were workarounds if we left the EU, but that these would not be as effective or efficient, and that the UK would be less safe and less secure as a result. Intelligence such as counterterrorism information tends to be shared on a bilateral basis rather than an EU-wide basis and is likely to be unaffected. What I am talking about here is the ability to act on that intelligence, bringing people such as terrorists to justice.
What is in jeopardy? The Schengen Information System 2—SIS II—and the European arrest warrant, the EAW, are in jeopardy. No non-EU state has access to the European arrest warrant and no state outside the EU, unless it is in the Schengen area, has access to SIS II. It currently enables police officers on the street in the UK to directly access databases that contain the details of all those wanted under the European arrest warrant, missing people, stolen vehicles, travelling sex offenders and those of interest to counterterrorism officers in all EU member states.
The NCA lead told us that new extradition treaties were likely to be needed with each of the 27 remaining EU states. Norway and Iceland, both within Schengen and the European Economic Area, applied to be part of a modified form of the European arrest warrant in 2001. This was agreed in 2006, but they still await implementation. The NCA lead explained that Europol produces pan-European action plans, and serious and organised crime threat assessments, and that a multiagency liaison bureau exists for each member state. Contrary to the impression given by the Security Minister yesterday, third-party states have only partial access to Europol. The UK is one of the top contributors of intelligence; there was until recently a British director, and 40% of data entries are UK-led.
ECRIS, the European Criminal Records Information System, is a secure messaging system where criminal convictions in the courts of one member country are shared across the EU. This information is used to analyse patterns of offending.
Something else at risk is Prüm, which provides rapid electronic comparison of DNA, fingerprints and vehicle registrations across the EU. For example, a DNA profile found at a UK crime scene can be compared with profiles of those convicted across the EU. Checks take from seconds up to 24 hours. Alternative arrangements under Interpol take months, and some inquiries are never replied to.
The NCA lead went on to say that cross-border surveillance arrangements enable UK criminals to be kept under surveillance in other EU countries and EU suspects to be kept under surveillance in the UK. For every request that EU countries make under this scheme, the UK makes seven requests of the EU. This, too, is under threat. There are also joint investigation teams through the Eurojust process.
We know from the experience of Norway and Iceland with the European arrest warrant that some of these ways of keeping the UK safe and secure are unlikely, if not impossible, to secure in the short to medium term, if at all. The Government will no doubt say that everything is subject to negotiation. The time has passed for us to say that the UK will be less safe and less secure if we leave the EU; we are leaving. The time has come to hold the Government to account to ensure that they deliver on their promise that we will be just as safe and secure outside the EU.
We will bring forward a probing amendment in Committee requiring the Government to negotiate with the EU to produce outcomes equivalent to those provided by these European Union systems and processes. If they fail to deliver equivalent outcomes, they will have failed in their promise to keep us as secure and safe outside the European Union as we were inside it.
Lord Boswell of Aynho (Non-Afl)
My Lords, this is the first speech that I have made in a personal capacity since I was appointed by this House to chair the EU Committee, now nearly eight eventful years ago. Perhaps I may begin therefore by expressing sincere thanks for the opportunity that I have had to serve the House and echoing my entire confidence in my successor. I have also recognised the good sense of colleagues from all sides of the House engaged in our work and, equally, the excellent contribution of our expert, enthusiastic and dedicated staff. I might add that I am anxious that all those British officials and others involved in European affairs over now half a century deserve suitable public recognition.
This Bill is a complex and necessary mechanism giving effect to the Government’s electoral mandate, but I hope that it will also be the time for releasing some of the political tension. It is high time now to de-dramatise the process and begin to move on.
That is in no sense to minimise the important details of the Bill. One minor gain is that there are additions in Clause 29 which restore parity of scrutiny process between this House and the other House, but, as noble Lords have already said in relation to the work of the Joint Committees and specialist committees, although Ministers will be involved, there is to be apparently no role for parliamentary scrutiny. I emphasise from the work that we have done as a Select Committee that specialist committees will often touch on the niceties bequeathed to us by history. The Select Committee has rightly focused its attention on them, with particular reference to the Crown dependencies and Gibraltar as well as the Irish problem.
In relation to future scrutiny, the Bill represents some backward steps. To judge by my experience in dealing with Ministers over the negotiations leading to the withdrawal agreement, there is, frankly, a long way to go and much still to learn from our European Commission and European parliamentary counterparts. Ministers have to realise that scrutiny is not an optional extra. Properly handled, it can be a force for good. Frankly, that is the exact point of the more than 40 reports which the EU Select Committee has produced since the referendum.
All this comes to a head in the most salient change in the current Bill, which would in effect prohibit any extension of the transitional period beyond the current year. This is high-wire stuff, particularly as it is only now that we are appreciating the trade-offs. On the other hand, I appreciate that Ministers feel the need to break out of three years of uncertainty and parliamentary stasis. I have no final view on the tactics. I can see the argument for concentrating minds, but not at the expense of our long-term interests. So there might be a case for getting on with a basic free trade agreement, supplemented by essential work on security and police co-operation. That might even fit in with some of the Government’s wish to be seen to take an interest in traditional manufacturing regions where they have gained new political support, provided that they do not lose on the overall infrastructure by losing EU funding.
However, this will simply not be enough in the long term. Our economic life now centres on services, and our future productivity depends on access to research and skills. Geographically, economically and culturally, though perhaps not politically, we shall remain in Europe, though not run by it. We shall need to adapt our institutions to new and subtle challenges and seek to maximise our influence. Alongside efforts to build global Britain, we will need to build a new relationship with our European neighbours, not just over technical and withdrawal issues, but looking beyond to a continuing involvement with agencies and activities, including facing new challenges together. We need to look at this not so much through leverage or bluster, but rather looking to common interests and mutual benefit, in the positive aspects of the political declaration. In two concluding phrases, we leave but we do not stalk off; and in leaving we simply have to try harder to maintain the relationship.
Lord Hannay of Chiswick (CB)
My Lords, it is always a pleasure to follow the noble Lord, Lord Boswell of Aynho. I followed him for a number of years as a member of the EU Select Committee, his chairing of which was remarkably valuable. I am delighted to do it again today. Since my contribution to this Second Reading debate on the withdrawal agreement Bill is on the critical side, I wish, to avoid any possible misunderstanding, to emphasise that I respect the convention that this House does not attempt to frustrate a measure which has figured in the manifesto of a Government who have obtained an overall majority at a general election. We should not, therefore, seek to amend the Bill in any way that would prevent the withdrawal agreement being ratified by the UK in time for Brexit to take place on 31 January.
Nor do I intend to take up much of the time of the House speculating about the credibility of the Government’s objective of concluding an agreement on the new relationship with the EU by the end of this year, to which it has now shackled itself. It may—I suspect it will—turn out to be more of a gambit to win votes than a realistic possibility. Time will tell us soon enough which it is, but I hope that we are not going to be treated in the latter part of the year to a re-run of the “no deal is better than a bad deal” mantra, which is no more likely to squeeze concessions out of our EU negotiating partners than it did in 2017, 2018 and 2019; it is every bit as likely to inflict disproportionate damage on this country as it was then. I note, moreover, that, while the Government are tying their hands in domestic law to not seeking an extension of the transitional period beyond the end of 2020, they are busy ratifying in Brussels an agreement which contains precisely that option. A rum way to proceed, one might think.
I doubt whether anyone would now contest that the May Government made a fundamental error by accepting the EU 27’s sequencing of the negotiations as soon as they began in the summer of 2017, relegating the future relationship to a non-binding declaration after the divorce settlement was agreed. Many noble Lords spoke out against that in this House and privately to the Government, including the noble Lord, Lord Bridges, whose speech I followed with the greatest interest. So let us not repeat the error now by accepting that this year’s negotiations should be focused on trade in goods alone. Of course it is important to achieve duty-free and quota-free trade in goods, but that is now no more than 20% of our economy. Going over a cliff edge into no deal on other matters at the end of 2020 would be hugely damaging for trade in services, which is 80% of our economy; for data processing; for the mutual recognition of professional qualifications; for co-operation on science and research; for maintaining regulatory equivalence; and for the instruments which underpin our internal security and the fight against international crime. I hope the Minister will be able to assure the House that, when negotiations open this spring, they will cover the whole range of issues and not just exclusively or principally trade in goods.
Three words which we will inevitably hear a lot of in the context of these negotiations on a new UK-EU relationship are “level playing field”. They are embedded in the documents that we are being asked to help ratify, even if attempts have been made to reduce their prominence. There will be no ducking them once the negotiations get under way. The concept is an integral part of any free trading relationship between large developed economies in close geographic proximity to one another. If noble Lords doubt that, look only at the agreements the EU has with Norway or Switzerland or, for that matter, at the newly revamped US-Canada-Mexico agreement or even the Trans-Pacific Partnership. That concept was also at the heart of the campaign, led by Margaret Thatcher and Arthur Cockfield, to move on from a tariff-free and quota-free European Community, still festooned with non-tariff barriers and border checks, to the frictionless trade we have today. How we give practical effect to that concept, those three little words will determine the nature and the benefit to us of the new trading relationship. The Government’s views on that remain a mystery, but there will be hard choices to be made this year.
There are plenty of other lacunae in the Bill which could do with being filled in, many of them highlighted in the excellent report by the EU Select Committee. We are promised separate legislative provisions, ensuring that we do not slip below EU standards on the environment, labour and social rights. How secure will they be and when will they be tabled? One of the biggest gaps is the role of Parliament in mandating and overseeing the new relationship negotiations, to which many Members have already alluded in this debate. Are we to find ourselves, yet again, negotiating with an EU whose mandate is endorsed by the European Parliament and whose every step is overseen by that body while this Parliament is left groping around in the dark? Can we really not manage to guarantee access for unaccompanied minors seeking asylum when they have family members here already?
It is reported that the Prime Minister would like to see the back of the term “Brexit”. I am not sure he is likely to succeed in that, nor indeed that it is desirable that he should do so. We are all, on both sides of this argument, going to have to come to terms with the realities of Brexit. We are going to be spending the whole of this year speaking about it. I hope there will still be some sensible consideration of that matter. There are important policy choices to be made in this legislative programme and in these negotiations.
Baroness Berridge (Con)
My Lords, I hate to interrupt, but the noble Lord has spoken for six minutes 48 seconds and the advisory speaking time is five minutes. I would thank him for concluding.
Lord Hannay of Chiswick
The noble Baroness got me in the middle of my last sentence. I am happy to conclude by saying that we should not treat Brexit as something we would rather not talk about or pretend does not exist, because it will have important consequences.
Lord Howell of Guildford (Con)
My Lords, I join in the congratulations to my noble friend Lord Barwell, who spoke succinctly and excellently illuminated where we go next in this whole great saga. I also congratulate the noble Lord, Lord Mann, on both his generous tribute to Mrs May, which she deserves, and his fight against sickening anti-Semitism.
It is impossible not to feel some emotion on this occasion, having spent well over half a century of my life discussing the future of Europe and the UK’s role in it, ever since the editor of the Daily Telegraph sent me to Brussels in 1962 to find out about, as he put it, “this Common Market thing”. Now at last comes this gateway—and it is only a gateway; I see many challenges ahead—confirming the replacement of the European Communities Act 1972, although of course by virtue of this Bill, rather than as an EU member state, we will still be under ECA provisions for another 11 months.
However, I find it a little sad and extraordinary that the debate publicly, and to some extent in the other place in the last few days, continues in an extraordinarily one-sided way. It is all couched in terms of what Britain can and cannot do in face of the supposed EU juggernaut, about solidarity and how difficult it is going to be to fit it all into our 11-month schedule. One would never guess from all this debate that things are changing just as fast on the other side of the channel—if not in Brussels, then deep in the heart of the EU member states—as they are here. People constantly talk about our being in a Westminster bubble and being out of touch. There is a Brussels bubble as well, which is in many ways just as out of touch with what is really happening, and we seem to hear sadly little of that.
The President of the EU Commission, Ursula von der Leyen, spoke at the London School of Economics the other day. Her words were full of good will and friendship, but she spoke of the fear of Britain undercutting regulatory standards and the need for alignment and a level playing field. What neither she nor others seem to grasp is that global technological forces far bigger than Brexit are already undercutting—one should say overcutting and making utterly redundant—many of the EU’s standards and controls, which belong to a past age, whether we are talking about workers’ rights, conditions and benefits, consumer protection, the environment, financial services, taxation methods and state aids or other forms of protection.
To take one specific example, there has been a worry all along—raised in this House last week—about our energy situation. Will that be constrained by the withdrawal agreement and the Bill we are now discussing, given that we get 6.6% of our electricity supply every day through interconnectors in continental Europe? Actually, the withdrawal agreement which this Bill will enact fully protects our continental energy supplies and the excellent diversity of sources they provide; and under the protocol agreement for Northern Ireland, Ulster remains part of the all-Ireland system within the so-called internal energy market anyway. The point I am trying to make is that this is typical of a mass of regulations. We are right to question whether it is sustainable and whether it anything like matches our much higher standards. Frankly, the chief results of energy and climate policy throughout the EU so far has been more Russian gas reliance, extensive and very dirty coal burning, increasing unreliability of supply at a cruelly high energy cost and a miserable overall emissions performance.
These are the very last so-called standards and regulations with which we want to be aligned, dynamically or otherwise. Good Europeans, in my view, should be fighting for superior standards now in all these areas, ones that are truly relevant to the new world economy. If I may say so to my Liberal Democrat friends, if they had stuck to this line of EU reform, instead of trying to revoke and drag us back into the thickets of outdated EU controls, they might have done a lot better in the election. I hope they are not going to become like the Jacobites after the Hanoverian succession and spend the next 60 years fighting vainly for their cause, because that would be very tiresome—not that I shall be around.
The truth is that markets and trade flows around the world in the digital age are going through deep and radical transformation—as are patterns of business everywhere, financial services, data handling, agriculture and many other sectors—in ways with which the EU and the Brexit debate, and many commentators and self-styled experts, have simply not caught up. I am glad a new employment Bill is coming along. I hope it will be really radical. Worker and employee ownership of new wealth is still disgracefully low in this country; we can set the pace for the whole of Europe.
Finally, when it comes to foreign policy, while of course we must always co-operate on security, we certainly need to be well clear of cumbersome EU decision-making—or non-decision-making. As my noble friend Lord Lothian said in the Queen’s Speech debate last week—incidentally, I regard my noble friend as the best Foreign Secretary we never had—this is indeed the opportunity for a new British foreign policy, and defence and security policy as well, which take full account of the transformed and fluidised pattern of world power and international relations that has now emerged. Once out of the EU we can play our own game, agilely and with really skilful diplomacy.
Baroness Berridge
My Lords, it is now over six minutes. I remind all noble Lords—I am trying to play an equal wicket here—to keep within the advisory speaking time. There has been a little latitude, which we are monitoring, to be fair to all noble Lords.
Lord Howell of Guildford
That is the real gateway that the Bill opens. We should now swiftly pass through it to better times.
Lord Darling of Roulanish (Lab)
I will not follow the noble Lord in the time available to me, but I refer the House to my entry in the register of interests. I start by making a fundamental point in view of many of the remarks, especially from the Benches opposite. I do not think anyone can doubt that the Government have a mandate to pass this legislation. That does not stop the House questioning and holding Ministers to account, but I am very clear that they have a mandate: we may wish it otherwise but that is the case. Indeed, I argue that that has been the case since the referendum in 2016. I did not support the call for a second referendum, mainly because of my experience in Scotland, where I said repeatedly that this was a once-in-a-generation chance. It is only sad that the other side do not appear to have accepted that.
I will say one final thing about referendums. I hope there is not another referendum any time soon anywhere in the United Kingdom. They are divisive and anyone who thinks that things will heal over afterwards is, I am afraid, wildly optimistic. However, I think that if there is another one and legislation is passed to enable it, it should be incumbent on the other side to have a done deal—something to vote on—so we know what the choices are. Part of our problem today is that for the last three years no one has been very clear what Brexit actually means, least of all the Prime Minister. The difficulty we have now is that people voted for something different, but that something was never defined. We should never do that again.
I said that the House is entitled to question the Government and to hold Ministers to account: I think that is absolutely right. In particular, I do not expect any amendments to be made, or the Minister to accept this point in winding up, but I think Clause 33 does rather tie the Government’s hands. It is not a year: in something like six months’ time we have to decide things we have been putting off deciding for the last three years. We have to decide on our trade relationship, on free movement and so on, and Clause 33 rather ties our hands. When you go into a negotiation, if the other side know that you have to decide something, it rather undermines your negotiating position.
Let us look at three areas. In our economic relationship, for example, we say we want a free trade agreement with the European Union; it says, “Yes, but we want a level playing field.” A free trade agreement and a level playing field are not consistent with our going off and doing a deal with other countries in other parts of the world. How is that to be resolved in six months? We heard excellent maiden speeches today by my noble friend Lord Mann and the noble Lord, Lord Barwell. I was struck by the warning of the noble Lord, Lord Barwell, who has some experience in this, to not underestimate the difficulties that lie ahead. In services, which of course make up the lion’s share of our economy, or financial services, about which we have not heard, we would like something like equivalence, as it is known. Equivalence is all very well, except that it is open to the European Union to say it is coming to an end, and giving us very short notice indeed. Having accepted that we are going to leave the European Union, I do not see the point in farming out our regulation, in effect, to the European Union: it is something we have to keep within the United Kingdom.
Equally, the Brexiteers have been telling the fishermen of the north-east of Scotland and the south-west of England, “Don’t worry, you’re going to get your waters back.” Countries in the European Union want access to these. There will have to be compromises and we know it, but how we are going to do that in three months, judging by the history of the last three years, I fail to see.
Equally, I have never understood the position on the Irish border; if you have a customs union, you have to have a border. It has now moved from the border between north and south to somewhere along the Irish Sea, and during the election there were at least two different versions—if not three—of what this meant. Again, this has to be nailed down within a comparatively short period.
During the last election and certainly since then, much attention has rightly been paid to those parts of England, particularly in the Midlands and the north, which feel that they have not done as well as they should have. They will be the first to pay the penalty if all this goes wrong, if there is no deal and we fall back on working on WTO terms. All the infrastructure in the world will not solve these problems. Within weeks we could face real difficulties with suppliers of engineering equipment, the automotive industry and so on. Infrastructure, as I well know, takes years to work up—it is very quick to announce, but takes years if not decades to deliver. Anyone who thinks that will be the answer to these problems is profoundly mistaken. That is why Clause 33 unnecessarily ties the Government’s hands.
As a final broader issue, which will no doubt be explored another time—and perhaps I am biased through having sat round the Cabinet table for 13 years—Ministers are accountable to this House and the other place, but I do not think it is any part of our constitutional arrangements that Parliament actually runs departments or negotiations. I would certainly have found it something of an impediment, although maybe I am wrong on that. We are not asking for that. What we are saying to the Government is this: we have three months, maybe six at the maximum, to sort out an awful lot of complicated problems. I fail to see how we will do it. I would like to be surprised, because it is in all our interests to get the best possible deal, but we are some way off that yet.
Lord Oates (LD)
My Lords, I regret that I am speaking in this debate, because I regret that we have to have it. I am sorry to have to acknowledge that in just 18 days this country will no longer be a member of the European Union, that we will no longer be citizens of a union that is the proud outcome of the efforts of European nations determined to find a way to come together so that they could provide peace and prosperity for their citizens in place of years of division and war. I am sorry also that in a few months more, my rights and privileges and all the rights and privileges of all Members of this House and citizens of the UK that we held as EU citizens will be gone.
I am sorry, too, that those who spread bile and falsehood against Europe over decades have triumphed, and that the generation of Brexiteer political leaders—who often occupy the Privy Council Bench opposite—who have enjoyed the huge benefits of our membership of the EU have conspired to deny it to future generations.
However, I understand that the die is cast. We are going to leave despite all our efforts and now we must make the best of it. That is our role here: to try to make the best of Brexit, and to try to make the best of this Bill. I noted the warnings of the noble Lords, Lord Cormack and Lord Forsyth, that we should exercise some kind of self-denying ordinance in our scrutiny role. I have agreed many times with the noble Lord, Lord Cormack, if not with the noble Lord, Lord Forsyth, on issues around the European Union, and I have a great deal of respect for his holding the Government to account on these matters. But I do not agree with him on this occasion. He made the appeal for restraint because he had the future of this House in mind. As we discuss and scrutinise one of our most important Bills—important because it takes us out of our historic relationship—it is the future of the country, not of this House, that we must surely have in mind. That requires us to do our job, while of course acknowledging the outcome of the election and the fact that we should not seek to deny the ability of the Government to exit Britain from the EU on 31 January, however much we might dislike it.
In particular, we need to scrutinise Part 3 of the Bill very closely. We need to look at issues relating to the rights of EU citizens in the UK and of UK citizens in the EU. The Minister said in his introduction that citizens’ rights have been a priority throughout the Brexit process. I am not sure that those citizens have always felt that, but, notwithstanding that fact, the truth is that the guarantees that were made during the referendum by the current Prime Minister and Home Secretary have still not been met. EU citizens were guaranteed that they would automatically gain indefinite leave to remain and that their rights would remain exactly the same. However, the only automatic thing about the system that has been introduced is that they will automatically be declared illegal residents of the United Kingdom if they do not meet the registration date. Their rights will not remain the same; the rights that they will be given are not even enshrined in primary legislation, and may be changed by Ministers at another time. EU citizens have great concern over the lack of physical evidence that they have been granted these rights. I hope we can come back to these matters in Committee.
I believe that the outcome of our leaving the EU will be to leave us deeply damaged, in our prosperity and our security. I believe it as strongly today as I did on 24 June 2016 when the result was announced. It happened to be my 10th wedding anniversary, so it is not a day I will easily forget. Notwithstanding that belief, I accept that it will happen and that we should do nothing to stop the Bill. However, we cannot and should not abdicate our responsibility to exercise our revising function in this House.
Lord Butler of Brockwell (CB)
My Lords, it is a relief, at least to someone like me who has spent a career in government, to have an Administration that can now be effective. It must also be a relief to the noble Lord, Lord Callanan, to be introducing a Bill which he can be confident will go through.
What then is the duty of your Lordships’ House? On this Bill, and on the flood of further legislation necessary to implement Brexit and which was held up in the last Parliament, we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment. But we also need to be realistic. We do not have the power to be destructive. It would be impolitic to be obstructive. So let us be constructive.
As has been made clear, the opposition political parties in this House are likely to move amendments that reflect their long-expressed political positions. However, if such amendments pass this House, it is as certain as anything can be that they will be defeated in another place. Therefore, I hope that the House will not spend too much time and credit in beating the air.
The changes in this Bill in comparison with the pre-election departure Bill seem understandable, though not necessarily welcome. It is understandable that the Bill does not contain those concessions the Government unwillingly made in the hope of securing support from at least some members of the Opposition. It is regrettable that the Bill removes the provision championed by the noble Lord, Lord Dubs, but we must acknowledge that it did not strictly belong to a departure Bill, and the assurances given by the Minister today are welcome.
I take an optimistic view of the future. I also understand the Prime Minister’s desire to remove the ability to seek an extension to the implementation period. He is fresh from the experience that the imminence of a deadline caused the EU to do what it had said was impossible: namely, to reopen the departure agreement made with Mrs May. He may well believe that the imminence of a deadline will similarly make the EU do what it currently says it is impossible to do within 12 months: namely, to reach a comprehensive free trade agreement. We have to hope that he is right.
I conclude with one note of regret not directly arising from the Bill. It is reported that, having melted down two previous versions, the Government plan to issue a commemorative coin on 31 January to mark our departure from the EU. That will indeed be an important day in our national history. It is a day that a large proportion of the population—perhaps the majority—will understandably celebrate. But we have to remember that nearly half will not. The issuing of a commemorative coin will commemorate division, not unity, and it will not promote reconciliation or commend us to our neighbours in the EU. It would be welcome if, even at the cost of melting down yet another version, the Government were to think again.
Baroness Buscombe (Con)
On 1 February 2016, a cross-party meeting was held in Committee Room 9 in the Commons for any Peers and MPs interested in supporting a campaign to leave the EU. There was a reasonable turnout from both Houses. Part-way through the meeting, an MP rose and said, “If anyone thinks there’s any point in campaigning to leave in the north-east—and probably the north-west—of England, forget it. There is no point; they’re all going to vote out”. On 12 December 2019, the voices of those people were finally heard.
At last I can say, without the constraints of a ministerial role, how pleased I am that those of us who have believed in all the good reasons for leaving the EU have been vindicated by such overwhelming support from the electorate. If ever I had a moment of doubt about our purpose over the past three years, I would recall two private events that I attended in support of the leave campaign. Almost all invited were highly intelligent, intellectually curious and successful men and women, mostly self-made wealth creators, major employers and believers in our nation and our ability to punch above our weight as global Britain.
I also kept thinking, “How come so many parliamentarians are suddenly so pro the EU?” Until 2016, many Members of the House of Commons, regardless of party, hardly gave visiting Members of the European Parliament houseroom at Westminster, and showed little interest in scrutinising EU legislation. For 40 years, our nation’s own broadcaster, the BBC, never made the case for the EU beyond the odd “From Our Own Correspondent”. It failed in its duty to educate and inform as to the EU’s remit and purpose and our role within it. Little wonder that people did not feel in any way connected to our EU partners.
Turning swiftly to the Bill, I will touch on just a few areas that were a focus of debate in another place. It is surely time to, yes, debate its clauses, express our opinions and scrutinise—and then support the elected Chamber. As a lawyer, I firmly believe that less is more; in other words, I urge noble Lords, do not shackle our Government’s ability to do the right thing. We must take care to avoid unintended consequences and thereby narrow our options, and, from all accounts of our negotiations with the EU to date, our Government must be free to be tough. We surely celebrate the fact that we are once again able to make our own laws and regulations—to decide our destiny and not have it decided by others.
Of course there are clear areas where regulatory alignment makes sense, and many of those have already been debated ad nauseam in your Lordships’ House. Through those debates, it has become clear that in some key areas, such as regulations relating to our Health and Safety Executive, alignment makes complete sense, and in others—for example, animal welfare—our standards are often higher and we want to be even better still than our EU neighbours.
Technology is an area where regulatory alignment does not make sense. We must be careful what we wish for. We need to be free to embrace and champion innovation and new ideas. We can be the tech hub of Europe. In contrast with the EU, we must not shackle businesses with, for example, draconian privacy rules and punitive fines, and thereby lose out on our opportunity—and right—to be the best. Let France, for example, continue with its protectionist approach whereby it does not allow the streaming of new films on channels such as Netflix in a bid to protect its film industry from disruptive competition. Let the EU, with its focus upon protectionism, be the slowest ship in the tech convoy.
With regard to rights related to residence, the EU settlement scheme is already up and running, working, and far more generous than those offered by many countries in Europe to UK citizens. What do we really mean by reciprocity of citizens’ rights? For our welfare system to be affordable, given that this year alone we are already spending over £220 billion in the Department for Work and Pensions, and with current calls to end the benefit freeze, the Government must now do more to compare our system with others across Europe, given that others do not, for example, shy away from much tougher conditions for those fit and able to work. It is notable that the EU has never had the courage to tackle fundamental and, in many cases, grossly unfair differences in welfare support across the EU.
There is a great deal to do; let us support the Bill and get on with it.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I do not intend to go into detail on this potentially disastrous Bill—I leave that to my noble friends Lord McNicol and Lady Hayter on the Front Bench. I take this opportunity to pay tribute to our colleagues on the Front Bench, who labour day and night without any extra financial remuneration, doing a great job for our party and this House.
I want to go back, as did the noble Lord, Lord Howell, to the 1960s. It may be of interest to the noble Lord, Lord Forsyth, if not to anyone else. At that time, our party was against the European Union and we were led by people who were totally against it—as some people here know only too well. Some of us who were in favour, as I was, suffered. I remember that Robin Cook beat me in a selection conference—mind you, he went on to be in favour of Europe after that, but that is another thing. We laboured day and night. My noble friends Lord Radice, who is here, and Lady Crawley and Lord Robertson and so many others will remember well the Labour Movement for Europe meetings in Blackpool and Brighton and throughout the country, where we worked together to try to get our party to espouse the European cause. We won—we succeeded—and in 1975 we had that referendum, in which we had a majority in favour of remaining in the European Union of two-thirds, not scraping through as the Cameron referendum did. As a result, we had more than 40 years of what I and many other people think is the most successful economic and political union that has ever existed in the world, and we have succeeded as a result.
However, it was then all thrown aside because David Cameron needed a referendum to try to sort out the problems in the Conservative Party. That referendum was flawed in many ways, and many people voted to leave not because they really wanted to leave but because they wanted to give David Cameron a slap in the face. They did not agree with what the Government were doing on so many other things. However, I warn the noble Lord, Lord Forsyth, and other noble Lords, of some of the consequences. Exactly the same arguments that were put forward by the British nationalists for leaving the European Union are being put forward by the Scottish nationalists for leaving the United Kingdom. The same words that were used by the noble Lord, Lord Forsyth, and others are being used by Sturgeon. So some people will rue the consequences of the arguments they put forward then.
I will be relatively brief and please the Whips for once. I finish with a resolution and, in some cases, a warning. Just as we fought and changed the Labour Party’s view in the 1960s, we will regroup and redouble our efforts, starting immediately. I am grateful to Michael Clancy of the Law Society of Scotland for reminding me that Article 50 of the treaty provides arrangements for rejoining the European Union. So, in agreeing that treaty, both sides—Europe and Britain—recognised that it is a possibility. I will fight, and I know that many of my colleagues will fight, to make sure that that possibility becomes a reality. I only hope that I live to see that day.
Baroness Hamwee (LD)
My Lords, one often hears in this building, in answer to the question, “How’s it going?”, “Well, it has all been said but not everybody has yet said it.” In this case, it is appropriate that we demonstrate the strength of feeling and the depth of our concerns through quite a lot of repetition. “Get it done” suggests that Brexit is a single act or event; we know that it is not. The withdrawal agreement is almost too heavy to lift; the political declaration is a slip of a thing, with much-expressed and rather imprecise terms about considering, aiming to and exploring options.
We do have to explore the options. This is not about the House seeking to frustrate the Commons, or to deny the Government’s manifesto or to try to replay 2016. It is about moving from slogans to nuance, from headlines to detail, to make the Bill and the withdrawal workable and to prevent no deal either overall or in respect of a raft of issues. No deal will not mean nothing being in place; it will mean something but not something that would be to our advantage. The Minister said that we would have plenty of time for the scrutiny of secondary legislation. What he did not say, but what I heard, was “until the House realises that the Government have it right and noble Lords stop being over-fussy”.
I have put my name to amendments relating to the rights of both EU citizens in the UK and UK citizens in the EU where, in part, sensible dealings with other countries are needed. However, we can give protection unilaterally, and we will pursue that. The Government seek to reassure us about both the objectives and process of the settled status scheme. I am not normally a Cassandra, but I am not reassured about the rights that those with status will be able to exercise. To mention one, onward movement is important in the services sector, but services seem to have been a poor relation in our discussions.
I also put my name to the objection to losing the 2018 Act provisions for family unity—the so-called Dubs amendment. To say that this is because negotiations have started is unpersuasive. The 2018 Act does not require us to join in those negotiations; it requires us to negotiate. The Minister may tell us that the current clause has the same objectives. If so, why remove the modest obligation to seek to negotiate? We are sending a message that the Government’s heart is not in achieving this objective and that they have already given up on seeking to protect unaccompanied asylum-seeking children and the reunification of families. Is this really the global Britain that we want to be a part of? Noble Lords may be aware that a report by Amnesty, the Refugee Council and Save the Children was published at the weekend. It reported that the child refugees
“were asked what messages they would like the UK Government to hear about the impact of the Immigration Rules on their lives. Without exception, they all invited the Government to imagine themselves or their families in a similar situation to their own”.
I will also pursue this issue through my Private Member’s Bill.
The course that the Government are set on is beyond me. We have the dog whistle of legislation by a Government prohibiting themselves from extending the implementation period. I am puzzled by this. The decision on whether to extend is in their own hands. They could always amend the legislation come June. Are they so apprehensive about how little can be achieved by December that they want to assure everyone that they will be forced to resist that temptation? Does this not hand a huge negotiating advantage to the other side?
We may not be members of the EU after the end of this month, but we will still be Europeans with a past and a future interwoven with that of our European neighbours, who I hope will also be our partners.
Lord Cope of Berkeley (Con)
My Lords, I support the Bill although I was pro-European for a long time. Following the referendum and all that has happened since, I am now convinced that withdrawal is not only inevitable but in our country’s best interests—and the sooner the better, so that business and the rest of us can adjust our lives and plans to the new situation.
As my time in Parliament draws near its end, I reflect more on how one’s perspective changes. I had three Minister of State jobs several decades ago, which involved negotiating with the EU. The first was on health and safety and all that. The next was on regional matters from Northern Ireland. Then, when I was Paymaster-General, I had detailed responsibility for, among other things, negotiating the annual EU budget, including a spell as president of the EU budget council. I came to appreciate the expertise of the UK representative and the importance of the Committee of Permanent Representatives, as well as similar things.
Throughout that time, some in Europe worked continually towards a united states of Europe in various ways, which we were always against. During my time as a Minister, there were 12 member states but it turned out that widening, which we often discussed, did not rule out deepening, as we hoped at one point. The EU is all about such negotiations happening every day. It is important to realise that the various councils are representative of diverse nations. Some are large like us, but Luxembourg, for example, is smaller than Leeds, as we heard today in a couple of good speeches.
The EU is not a team with a leader as our Cabinet is at least supposed to be and has been, at least for most of the time in history. It is therefore inclined to make continual, complex compromises reflecting national stresses and strains and special interests. Those compromises then become fixed in stone. Of course, at any given time, several member states have elections pending, reshuffles looming and so on, which affects all these negotiations. Everyone round those tables must be able to go home and say how hard they pressed their national case. That is why the last-minute culture is so strong in these areas. It is also why it is right to fix the deadline in law, as the Bill does, because it focuses minds.
Of course, the coming negotiations will be hard pounding, with many simultaneous strands. Ministers and officials will need 20:20 vision and to be dedicated, disciplined and decisive. Fortunately, the political background here now makes that possible. Our negotiating team can expect to take no holidays this year. I should imagine that August will be a time of working flat out under maximum pressure, while no doubt compromises and interim arrangements will be agreed. But let them get on with the process.
On the detailed provisions of the Bill, I commend the excellent speech of my noble friend Lord Bridges of Headley, with whom I agree entirely. For that matter, I also commend the speech of the noble Lord, Lord Butler of Brockwell, which was full of common sense from his long experience in government.
Baroness Blackstone (Ind Lab)
My Lords, the Prime Minister has promised former Labour voters in the north and the Midlands who voted Conservative for the first time that he will look after their needs and that he will increase their prosperity. To keep to his promise, he must negotiate a deal with the EU that retains as much as possible of the UK’s trade with EU countries on the best possible terms and which commits us to EU standards on the rights of workers and on the environment. He must also ensure that our economy produces sufficient revenue to improve the public services on which these voters depend and indeed hope desperately will meet their needs.
This Bill falls short in many respects of what is required to achieve all that, including proper scrutiny by Parliament. In a parliamentary democracy, taking back control, which many of these voters saw as an outcome of Brexit, means, as many speakers have emphasised, that Parliament, which represents the people, must be able to scrutinise the process of implementing Brexit and to hold the Government to account. Brexit will not be done, as Mr Johnson would have us believe, when this Bill becomes law on or around 31 January. There will be many months of complex negotiations before it is implemented and therefore done.
Like other speakers, I ask why on earth we are setting an unrealistic target of 31 December of this year to complete the negotiations when both Michel Barnier and Ursula von der Leyen in Europe have made it clear that it will not possible, as have many experts on trade negotiations in this country. The work entailed requires patience, pragmatism and attention to detail, not silly and unrealistic deadlines. Allowing only 11 months to negotiate a deal on both trade and security makes no sense and once again we risk crashing out because that artificial deadline, written into legislation, will not be achieved. By all means have a target date, but do not legislate for one.
Will the Minister tell us a little more about the content of the negotiations? Does he accept that they must cover not just tariffs, quotas and rules of origin, but our enormously important service sector on which so much of our economy depends? That includes access to databases, in particular those relating to terrorism, international crime and other security issues, as well as aviation, the safety of drugs vital for the NHS, co-operation on consumer rights and climate change, to name but a few.
I turn now to climate change. I hope that the Minister will agree that there should be no lowering of environmental standards or protection. We must protect both current and future standards so that future generations will benefit not from any kind of weakening but, indeed, strengthening. In that way we will meet the aspirations of young people. To prevent any regression through, for example, second legislation at a later date, there needs to be a non-regression statement set out in primary legislation.
There are two other areas where this Bill is far less acceptable than the original. The first is the dropping of strong protections for workers’ rights which were in the internationally legally binding part of the deal agreed by Mrs May. Can the Minister say why these have been dropped? We would be naive to accept an assurance that they will be restored in a future trade Bill because they should be in this Bill. The second area is the weakening of protection for child refugees, for whom my noble friend Lord Dubs has fought so hard. If the Minister claims that the Government are still committed to them, why not leave those provisions in the Bill?
I ask the Government to come up with a meaningful role for Parliament along the lines of the amendments passed in this House on the previous trade Bill. There needs to be a framework for post-Brexit trade negotiations. This should apply not only to UK/EU agreements, but to other post-Brexit deals, notably any reached between the UK and the US, about which there is considerable public concern. If the Government reject proper scrutiny through such a framework, it will mean nothing less than contempt for the parliamentary sovereignty that most of us hold so dear.
Lord Beith (LD)
My Lords, I agree with much of what the noble Baroness said, and I also want to emphasise how much I agree with my noble friend who leads for us and who spoke at the beginning—my noble friend Lord Newby. He set out the broader issues very well, which enables me to concentrate on some of those that are of interest to the Constitution Committee. Noble Lords will have to wait until tomorrow to find out whether my views correspond precisely to those of the committee as a whole, when the report referred to by the noble Baroness, Lady Taylor, will come out in time for Committee.
I want to start with the claim about getting Brexit done, which is manifestly absurd. It is almost as if Moses had said to the Israelites, “Stick with me and I will get Exodus done by the end of the month.” He did not get it done by the end of the month; it took 40 years and he was not actually there at the finish. That ought to be a warning. I sometimes wonder whether Brexiteers have read the Bill. Although it repeals the European Communities Act, it simply reinstates and reapplies its provisions, for the rest of this year at least and, in many cases, for longer than that. We will transfer from being a member state with a vote and a veto to colonial status—accepting rules but having no say in them.
There are reasons for this carryover of time. Extricating ourselves from 40 years of working together is difficult, and in many cases against our economic interests. It means, for example, that decisions of the European Court of Justice handed down after the end of the implementation period will continue to have effect under Clause 5. And, of course, we are only at the beginning of a negotiating process that will not be completed by the end of 2020, even if a limited agreement is reached. As the noble Baroness, Lady Blackstone, and others pointed out, this Bill drops all provisions for parliamentary scrutiny of the negotiating process.
It makes me wonder what these new MPs for the old industrial areas of the Midlands and the north are going to do when the interests of their communities start to be traded for the interests of other communities, as the sorts of decisions that have to happen in these negotiations begin to be made. They will probably discover them via the European press, then see them reported in this country, because it will all emerge in the European Parliament while nobody here is being told anything about it. This is a process that requires a sensible method of parliamentary scrutiny.
The Bill has too many Henry VIII and other ministerial powers, and in a number of cases lacks the sifting or sunset provisions that could provide some safeguards. In Clause 26, Ministers are given inappropriate power over the courts, in a proposal that opens the door to legal confusion and multiple layers of litigation. It will allow Ministers to set up a scheme allowing any court, rather than just the Supreme Court and the High Court of Justiciary in Scotland, to depart from ECJ case law. If the Government have arguments to support the creation of such a scheme, the scheme should be on the face of the Bill—but I wonder how persuaded much of the Government is about whether this is really desirable at all. I suspect that a write-around of departments that included not only the Ministry of Justice and the Home Office but also Her Majesty’s Revenue and Customs, along with the various other departments that get involved in legislation, would show that they are not particularly enthusiastic about it. It is a dangerous course to embark on, and one that will cause considerable confusion, with the only beneficiaries being the lawyers who take cases under it—at almost any level, right down to employment tribunals, if the Government use these powers to the full.
In Northern Ireland the Bill reverses the principle that major change should have cross-community support by allowing decisions on the customs borders in the protocol to be by simple majority. The Government have not really advanced any clear reason for that, at a time when cross-community working is, thankfully, re-emerging in Northern Ireland.
The Bill contains an otiose assertion of the sovereignty of Parliament. The sovereignty of Parliament is a fundamental principle of the constitution. It gains nothing from inclusion in this or any other Bill, and its inclusion has no legal effect at all. Among other things, of course, it means that if it becomes necessary to extend the implementation period, which the Bill claims in Clause 33 to prohibit, Parliament—if the Government so chose—could readily pass new legislation to extend the implementation period or to achieve the same effect by different words—which is the whole basis on which the Bill is constructed. The Bill is constructed on the basis that we repeal the European Communities Act but give effect to its provisions as if it still existed. The Government can do exactly the same with the supposed restriction on extending the transition period, and they might well have to do so. Those who now wish to legislate sovereignty into existence, which seems bizarre to me, seem to forget that it is already there; it was there before they were born, and they too are subject to it.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have enjoyed and even agreed with many of the speeches today. I am taking away phrases such as “Henry VIII on steroids”, which I particularly enjoyed. There have also been some terrible speeches that have been provocative and perhaps even gloating, which is entirely unnecessary.
Overall, I am sad but also furious about the content and context of this Bill. Although the last couple of years have been a terrible political mess, at times—in spite of the super-polarised atmosphere that has been here—we compromised and worked together, which is a beneficial part of the working here in this House. Now, of course, the first-past-the-post electoral system has done its magic and given Boris Johnson a large majority, despite fewer than half the people—not even 44%—actually voting Conservative. But it was a good result and we have to live with it.
Sadly, Boris’s empty slogan, “Get Brexit Done”, has united the majority in the other place so that, no matter how your Lordships’ House improves this Bill, it will be undone when it ping-pongs back to the Commons. So we might as well now just sit down, put our feet up and not do anything, because it would give the same result. Your Lordships’ House is almost made obsolete by the power grab by the Government that is happening.
Despite this futility, obviously we will fight on. We fight on to expose the Government’s backtracking on environmental protection and workers’ rights. We fight on to protect the rights of Europeans living in this country and British people who live elsewhere in Europe. We fight on to protect our role as parliamentarians to scrutinise this legislation, and all the future decisions on the long road ahead.
At the heart of “Get Brexit Done” is a sleight of hand whereby the very complex, difficult next stage of negotiations with the EU has disappeared like a rabbit down a burrow. This burrow of course will be an arduous process. It could easily end up with us coming out very much worse off, and without any way back to the status quo.
This new Government have gone beyond recklessness by legislating against any extension of the implementation period. Of course, we have seen many times how our Prime Minister can switch from “do or die” to doing the sensible thing, and it would take only a one-line Bill to allow for a very sensible extension. But we really should not have to wait for that, with all the anxiety and uncertainty that the no-deal threat creates. We need to change this Bill to protect the environment, protect people’s rights, limit this government power grab and remove the cliff-edge amendment.
Lord Maude of Horsham (Con)
My Lords, it is a pleasure to congratulate the two maiden speakers in this debate. I worked closely with my noble friend Lord Barwell when I was chairman of the Conservative Party some years ago. Both he and the noble Lord, Lord Mann, made powerful maiden speeches here today, and I am sure the House looks forward to hearing much more from them in the months ahead.
I draw attention to my interests in the register. In some of them I attempt from time to time to give advice about issues around Brexit and occasionally to try to predict what might happen. This has proved challenging, but I hope some certainty is beginning to emerge.
I was neutral in the referendum campaign three and a half years ago. I thought that the upside of leaving claimed by the leavers and the downside claimed by remainers were wildly exaggerated. I do not believe that the most important factor in Britain’s future economic success or influence in the world lies in whether Britain is a member of the European Union.
In my brief period as Minister for Trade, I found myself attending the WTO’s biennial meeting. We hear much about the top table that apparently we will not be at after we leave. I got to the meeting and found that I was not at the table at all. I was representing the Government of the fifth-largest economy in the world and I did not have a seat at the table.
What matters is what we ourselves do, how we configure our own domestic economic arrangements and how we play our role in the wider world, strengthening and using our unique combination of national assets.
There was a clear decision in the referendum. It had to be implemented and implemented briskly. The inability of the Government and the House of Commons over the last three and a half years to make that happen has inflicted short-term damage on the perception of this country around the world, at a time when it matters more than ever that our reputation for effective diplomacy and political stability is not just maintained but enhanced. So it is essential that the Bill is passed without delay.
I very much agree with what the noble Lord, Lord Butler of Brockwell, said. It is certain that any amendments passed by this House will be reversed by the House of Commons. As my noble friend Lord Cormack said powerfully, if this House is unwise enough to lock horns with the House of Commons, it will do itself possibly irreparable harm.
So far as the next stage after 31 January is concerned, much has been made of the constrained timescale for negotiation. Of course it looks challenging, but the outlines of a deal are already there, and it is notable that since the Brexit vote in 2016 the EU has started to show that it is, after all, capable of conducting trade negotiations rather more rapidly than at its previous glacial pace, piqued by the criticism made of it during the referendum campaign.
Of course, this negotiation does not have to be—indeed, it should not be—the last word that sets the relationship in stone for all of time. As my noble friend Lord Howell powerfully argued earlier, this is a dynamic world in which change happens increasingly swiftly and unpredictably. It would be a mistake for us to spend years seeking perfection in a protracted negotiation that is likely to be obsolete before the ink is dry on it.
I have one final point. This is not just a trade negotiation. It needs to cover the whole range of ways in which Britain collaborates and will collaborate in future with the EU. Of course, this must include the security, defence and intelligence relationships, on all of which Britain can continue to be an essential partner for our nearest neighbours. I hope that this time the Government will not be pressured into giving way on this at the outset. In the early stages of the Article 50 negotiations, the EU—having fulminated about how there could be no cherry picking—ruthlessly picked the cherry labelled “security and intelligence collaboration”, and the then Prime Minister permitted this. I hope this mistake will not be repeated.
Lord Howarth of Newport (Lab)
My Lords, three and a half years after the referendum, at long last the people’s decision that we should leave the EU will be honoured, as Parliament passes this withdrawal legislation. There are issues about Parliament’s role in the process provided for in the Bill, but the major constitutional crisis of Brexit, the clash between the people and Parliament, is over. We are at a historic turning point for our country. The withdrawal from the EU that this Bill will enact can be the prelude to the renewal of our democracy and our economy, and to healing the wounds in our society.
The Government are right to insist in Clause 33 that the negotiation of our new relationship with the EU must be accomplished by the end of this year. There can be no virtue in perpetuating the transitional limbo. The essential elements of the necessary agreements can be negotiated on this timescale. On trade, we start from a position of regulatory alignment and no tariffs or quotas. To the noble Lord, Lord Barwell, whose maiden speech I very much admired, I say that it is in neither side’s economic interest to erect barriers where there are none. Any difficulties are not technical but political, and their resolution must be a matter of political will. As a country responsible for our own laws, we must insist on the principle of regulatory equivalence, not replication.
The free trade agreement between the US and Australia was negotiated in a year, in 2005, despite opposition from the agricultural lobbies in both countries, because President Bush and Prime Minister Howard were both determined to deliver it. A will to deliver quickly on the part of the EU will be much encouraged if we pursue parallel negotiations on an FTA with the US. If European manufacturers and farmers see the prospect of American exports entering the UK market tariff-free, they will press European leaders and negotiators very hard not to disadvantage them through having to face new UK tariffs.
Brexit is straining the union of Great Britain and Northern Ireland. Welcome as the restoration of the Northern Ireland Executive and Stormont is, the fact remains that, whatever his protestations, to secure the withdrawal deal the Prime Minister cut Ulster adrift. His deal, providing for a new customs border in the Irish Sea, the subject of Clauses 21 to 24 of the Bill, gives a large shove towards a united Ireland.
I am more optimistic that Scotland can be retained within the UK. At the election, 54% of voters in Scotland voted for unionist parties; the situation is much more ambiguous than Nicola Sturgeon claims. I think that when Scots look down the barrel of the independence gun, they will flinch: they will balk at the economic sacrifice entailed by losing their subsidies from English taxpayers and will not want a hard border at Gretna Green.
Those former Labour voters in the red wall constituencies of England who were determined to have Brexit, despite all the advice from economists and remainers that it would make them poorer, demand a new politics. They are right to do so: they are the people who have been worst failed by neoliberalism. Market forces have been allowed to destroy communities and tradition, and have produced deep and persistent poverty, chasms of regional inequality, chronic financial crises and a climate emergency. Withdrawal from the EU will help us escape the havoc of neoliberalism, still dominant in a Brussels infested with the lobbyists of big business. Finance, inexorable as it is, is not the be-all and end-all, and nor is GDP.
The cruelties of austerity, such as the two-child limit for social security and the closing of Sure Start centres, have become intolerable—the Brexit vote told us this. The case for fiscal expansionism has now been accepted by the Government. We must reinvent the role of the state in rectifying injustice and using its power in humane intervention, so as to support the precariat and the people who are the casualties of technological change. Rules restricting public investment to the south-east must be rewritten. Support must be given, not just for big infrastructure projects but for local people creating productive local economies in post-industrial areas. Local culture and dignity must be respected. Whitehall must give away power and allow revived autonomy in communities across the UK.
This legislation opens the way to a rebuilding of national self-belief. We can end the ugly attitudes of nativism in a new era in our international dealings. Withdrawal from the EU entails radical remodelling of politics and policy, and so much the better.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I also congratulate the noble Lords, Lord Mann and Lord Barwell, on their maiden speeches. I feel certain that they will both make very welcome contributions to many of our debates in this Chamber.
The Minister has given us a thorough overview of the Bill and what we can and cannot expect from the Government. However, like many, it was clear to me when talking to people at the weekend that, although a majority voted to get on with Brexit and put it behind us, not all understood the amendments which the current Prime Minister made to the withdrawal agreement and how this would impact on people living in the UK. In particular, there was little understanding that unaccompanied refugee children would not be reunited with their parents already living in the UK. This appeared to them to be strange, bordering on the inhumane. Many of these people voted to see Brexit implemented. However, some may feel the implications are not something they wish to sign up to.
My main purpose today is to flag up my interest and concern that environmental principles will be secured after exit day and way into the future. It is of great importance to many in this Chamber, and certainly outside of it, that the Government do not compromise in this Bill on non-regression. The UK currently enjoys high standards in habitat protection and product safety. These standards have been developed with our European neighbours, so that we now benefit from cleaner beaches, safer food and the best chemicals regulation in the world. The political declaration agreed by the UK and the EU in October 2019 included positive aspirations for environmental standards, proposing that the UK and the EU should uphold “common high standards”. This declaration is only indicative and not legally binding, as others in the Chamber have referred to.
The Conservative Party manifesto committed to legislate to ensure high standards of environmental protection and not to compromise. Government Ministers have also stated that these standards will not be weakened, including proposing the introduction of a non-regression provision on environmental protection in legislation. The Minister responding at Committee stage in the other place confirmed that
“there will be no regression”,
but did not give any clarity on how this will be achieved. Will the Minister now say how non-regression will be achieved and ensure that this House understands exactly how Parliament’s oversight role during the future UK-EU relationship negotiations will be strengthened? Such a statement will ensure the delivery of the Prime Minister’s commitment to pursue
“the most ambitious environmental programme of any country on earth.”
Our relationship and new trade agreements with the EU have the potential to significantly affect people and the environment. Parliament and the devolved Administrations must have strengthened involvement in the development of these agreements. It is also crucial that environmental representatives can engage meaningfully in this process. I will return to this issue later in the week, when we continue through the Bill in Committee. For now, I look forward to the rest of the debate and the Minister’s response at the end of today’s proceedings.
The Duke of Somerset (CB)
My Lords, while acknowledging the considerable majority that the Conservatives obtained in the recent general election, largely fought over Brexit, it is worth reiterating the point made last Tuesday by the noble Lord, Lord Robertson of Port Ellen: only 29% of the electorate actually voted for that party. This means that everyone else has to go along with and accept that result, but they might expect that their ambitions and wishes will be respected and acknowledged. This is important, if there is to be any post-Brexit healing or consensus.
A large part of the “everyone else” cohort are the young hopefuls: the postgraduates and emerging entrepreneurs. To them, the various clauses in this EU withdrawal Bill mean a severe dashing of hopes and expectations, especially post the implementation period, because they face the prospect of an inability to work or live in Europe, the continuing uncertainty of our future trading position and a severance from any in-depth cultural interchange by virtue of extended stays abroad. Likewise, their EU colleagues and classmates who want to settle and work in the UK are disappointed.
The Government’s position on future citizens’ rights has changed and hardened a little. The Conservative Government have given some rights to EU citizens already settled here, but without any tangible paper proof. There is still talk of an ESTA-style visa being necessary for future travel to the EU; perhaps the Minister can deny or confirm that. The attitude of the Home Office has not recovered from the tough regime under Mrs May. The “fortress Britain” mentality, where artificial restrictions surface based on earning power and skill, continues irrespective of the requirements of British businesses.
I have seen no realistic acknowledgement of the future needs of our agriculture, hospitality or even NHS workers for non-British labour in the future, and the problem of onward movement for UK citizens within the EU has not been answered. Also, the popular opposition to free movement, or indeed any immigration to this country, from citizens of countries such as Poland has begun to recede, because they are aware of the Government and their officials not wanting them here. The weakness of the pound caused by the threat of a hard Brexit has deteriorated their earning power.
The Government have now written in the new timetable clause, allowing for an unrealistic few months to negotiate the future agreement after the transition period. While this may chime with the mantra of getting Brexit done, it will not make it easy to achieve a final result allowing fluid relationships with our closest trading partners, and so is an easy excuse for a no-deal crash-out that would hobble the prospects of Great Britain.
The noble Lord, Lord Campbell, talked about Erasmus. Even this harmless requirement to negotiate full membership of the EU’s Erasmus youth and education programme has been defeated in another place. How pointless is that?
We should not ignore our relationships with the greater world. I refer to the issue of visas. Last week, the noble Lord, Lord Risby, referred to this, and to the difficulties that obtaining them causes to all and sundry. I have been looking at the Government’s website for an Armenian friend who wants to visit the UK. These points apply to many third-country states. There is an extensive list of documents to be assembled and fully translated, and a not insubstantial fee of £95 to pay. Before travel, the applicant must visit a centre to have biometric details captured. Could this not be done on arrival? Do these visitors deserve such hostility, especially when we do not even need a visa to visit their country? We have substantial mechanisms to defeat those wishing to work and reside unlawfully.
It is shameful that these hurdles are, or will be, imposed on our abilities, EU or other, and that government declarations of “global Britain open for business” do not fit the actuality. Future generations see the door of opportunity being slammed in their faces by the narrow-minded thinking of this Government on immigration.
Viscount Ridley (Con)
My Lords, I think I have spotted an issue on which absolutely everybody in this House will agree, and that is that a can of WD-40 should be acquired to deal with that hinge which keeps making a noise like a wounded heifer from that end of the Chamber.
The noble Lords, Lord Forsyth, Lord Cormack, Lord Taylor and Lord Bridges, all made the point—as did the noble Lord, Lord Maude, I think—that this House must send this Bill back unamended, because otherwise we are in trouble as a House. Others disagree. I am not 100% sure that they are right, but it is worth reflecting on why the British people and, to some extent, the other place, distrust our motives and suspect that we are once again trying to prevent getting Brexit done if we amend this legislation.
In this House, we have heard three and a half years of excuses for not enacting the wishes of the British people. We heard that the economy would collapse if people voted to leave, but the British people said, “Get Brexit done.” We have heard that people did not understand what they were voting for, but the British people said, “Get Brexit done.” We have heard that there was a need for a meaningful vote in Parliament before any withdrawal agreement be passed, and the British people said, “Yes, okay, fine, but get Brexit done.” We have heard that the Northern Ireland border was insoluble, and people said, “Yes, fine, but get Brexit done.” We have heard that the EU would not let us diverge, and the British people said, “Please get Brexit done.” We have heard that there is not time to scrutinise all the secondary legislation necessary before leaving the European Union, and the British people said, “Get Brexit done.” And we have heard that people might have changed their minds since the vote in 2016, so in 2017 we had another general election, in which people voted overwhelmingly for parties that wanted to get Brexit done.
Lord Lea of Crondall (Lab)
I am most grateful, as it is not usual to intervene in such a debate. Surely the question is: is it meaningful, without all the negotiations which we all know must take place over the next two or three years, just to say “Get Brexit done”, as if it makes sense, and to worship the people for saying something which might be rubbish?
Viscount Ridley
I think the noble Lord has rather made the point for me.
We then heard that it would be better to have a second referendum, and the people said, “Fine, but first, let’s get Brexit done.” We have heard that we had to postpone the date of leaving, and people said, “Yeah, okay, but let’s get Brexit done.” Then we said, “Let’s ask the judges”, and people said “Okay, but please let’s get Brexit done.” Then we heard, “Let the Speaker run the Government, or Mr Benn or Mr Letwin, instead of the Prime Minister”, and the people said, “Get Brexit done.” With commendable and quiet patience, the British people kept saying this. Finally, we came to the 2019 general election, in which the people spake with a clear voice and said, “Get Brexit done.”
Baroness Crawley (Lab)
My Lords, I offer congratulations to our two powerful and fascinating maiden speakers, the noble Lords, Lord Barwell and Lord Mann.
The Government now have a working majority, but it must not be wielded the way Andy Capp’s wife used to wield that rolling pin. I would caution against them using their new majority to bypass parliamentary scrutiny in the difficult coming months. The stakes are too high, the issues too raw and the future of our judiciary, our citizens and our environment too precarious.
The Bill before us is a stripped-back version of the pre-election withdrawal agreement Bill. This tells us that the Government think that they can chop away through the old plan, chopping out the best bits. For example, as other noble Lords have said, the commitment on unaccompanied child refugees has been removed. Instead of the Government being obliged to negotiate an arrangement with the EU on family reunion, they are now obliged only to lay a statement on policy in this area before Parliament. Our own esteemed Member, the noble Lord, Lord Dubs, spearheaded a highly successful cross-party campaign on this, and it is shaming that it is no longer part of the Bill.
The Government have also used their new majority to swiftly remove Clause 34 and Schedule 4, as found in the pre-election Bill, which specified that a Minister introducing a Government Bill would be required to make a statement of,
“non-regression in relation to workers’ retained EU rights.”
Instead, the protection of workers’ rights will be shoved into another Bill, the main elements of which do not refer to the protection of workers’ retained EU rights. This new employment Bill will be coming to a committee room near you sometime soon, possibly.
So all that talk over the last four years of how the Government will not only keep up with the EU but also go above and beyond EU standards on employment rights was just that: talk. Given the opportunity to officially measure their progress with the EU in this Bill, the Government are ducking it. I would ask why, as did the noble Baroness, Lady Blackstone. In the pre-election Bill, the Government would also have been required to make regular Statements to Parliament on whether the EU had published any new workers’ rights, whether domestic law conferred similar rights and, if not, whether the Government intended to take steps to implement the new EU rights. None of this has survived into the Bill before us today. Call me Mystic Meg, but this looks like a clearing of the decks to bring about a workplace deregulation agenda. Our rights are being thoroughly chlorinated.
Do the Government think that British workers are doing so well that there is no need to heed international comparisons and progress officially? I suggest they look at the latest ONS figures for British women presently in the workplace. The ONS’s stark conclusion is that there are no areas of the modern British workplace, across all its nine economic groups, where a substantial pay gap does not exist in favour of men, full-time or part-time, be it among solicitors, factory workers or medical staff—with one exception, and that is full-time receptionists, where women are paid slightly more than men. Women at work in this country are not enjoying equal pay and conditions. Certainly, they need the opportunities and the active comparisons that our continuing closeness to our EU neighbours should present.
I want this country to prosper and to meet its many challenges, and I accept that the decision to leave the EU is behind us, however much of a mistake I still consider it. But we need the strongest possible relationship with the European Union in order to prosper. So a stripped-down, stripped-out withdrawal Bill, weakened protections, a Parliament sidelined, along with a highly unrealistic timetable for a transition period, could all add up to—far from getting Brexit done—getting Britain done for.
Lord Greaves (LD)
My Lords, there seems to be a body of opinion on the Conservative Benches that there is a great pressure group in this House seeking to wreck this Bill and to stop it happening so that the 31 January deadline cannot take place. That is complete rubbish, and it would be far better if Members on the Government Front Bench and Conservatives joined us in scrutinising the Bill properly, which is our function, and stop raising hares which do not exist.
We are already having an extraordinary procedure—six consecutive sitting days on the Bill—which I have never seen before. That is a huge concession made by the usual channels but, if we are not supposed to properly scrutinise and perhaps revise the Bill, why on earth are we going to spend six days discussing it? It is nonsense. There is a general consensus among everyone in this House that the Bill will pass at the end of next week, and we will do everything possible to assist in that happening. That does not mean that we do not have to do our job.
One or two speakers—I will not name them because I am about to attack them—have made the suggestion that the future of this House is in danger if we do our job properly on this Bill. That is bullying, and I do not react to bullying in a way that allows it to happen. There are two ways to deal with bullies: one is to bully them back, which we do not have the option to do here; and the other is to ignore them, which I suggest we do.
A long time ago, the noble Lord, Lord Cormack, said that it is the will of the people that we should leave, which has been repeated by various people, but the noble Duke, the Duke of Somerset, pointed out that less than 30% of people had voted for the Conservatives. In practice, in 2017 the Conservatives received 43% and had a minority of 10 seats, and in 2019 they received 1% more, 44%, and a majority of 80 seats. As a Liberal, I could spend a long time ranting about the iniquities of our rotten and corrupt electoral system, but it is probably not relevant now. The fact is that, whether or not some of us like it, the election was a landslide for the Conservatives as far as the House of Commons is concerned and in practical terms that is what matters.
The noble Lord, Lord Taylor of Holbeach, said that our revising responsibilities are important but that we should not undertake them this time. If this House has an important revising function, surely it is in difficult times that we should make sure that we do it properly and not lie down and be bullied.
On 9 January, in the House of Commons, I think during the Third Reading debate, the Minister, James Duddridge, said:
“just as we will be watching the House of Lords carefully next week, they have been watching us carefully during the Bill’s passage. They will have listened to the change in tone and seen the majorities by which votes were won”—
quite right—
“and I am sure that they will reflect on that in their deliberations, doing a proper job of scrutiny as part of the whole democratic process”.—[Official Report, Commons, 9/1/20; col. 652.]
That is the Minister in the Commons telling us to do a proper job of scrutiny, and I do not think we should resile from that in any way.
The noble Lord, Lord Cormack, said that there is euphoria in the Commons. I am sure there is in a majority of the Commons, but many MPs seem to be in a state of shock, not euphoria. However, out in the country there are still many angry people. It is not the will of the people that Brexit should be done, as the noble Viscount, Lord Ridley, said, but the will of half the people. The country is divided, and there are angry people on both sides. Many people who think we should stay in the European Union are shocked—they cannot understand what has happened and why it is happening—and are in a grieving process. To be euphoric, mint silly coins and organise triumphalist fiestas will not get anywhere. However, on the other side, many leavers are still angry because they do not understand why we are still debating it. They do not understand why that is happening and, given that there will be a huge amount of news about it for at least another year and perhaps beyond, it is time that the Government started telling people the truth about what is happening and why Brexit is not yet done.
Lord Hain (Lab)
My Lords, this Bill opens the way for a Singapore-upon-Thames race to the bottom by deliberately removing the level playing field provisions designed to prevent the UK undercutting the EU. It also fails to protect our communities from the dangers of future land grabs on the health service from United States drug companies. Rather than Parliament taking back control, the Bill aims to destroy Parliament’s ability to hold the Government to account as the negotiations proceed.
The EU will remain the biggest, richest single market in the world right on our doorstep, with 450 million people compared to the UK’s 66 million. The EU accounts for half of UK trade but the UK accounts for less than one-tenth of EU trade. The UK risks losing not only its membership of the EU single market but also around 70 highly advantageous EU deals with other countries worth another 11% of our overall trade. The Government have been trying to roll these over but Japan, for example, has refused, confident that it can extract better terms from London on its own than it has already with the much larger EU bloc.
The Bill also removes EU protections for the environment, consumers and workers’ rights. By deleting these and other level playing field provisions, which the EU has indicated are essential for a deal, and discarding the opportunity under the latest withdrawal agreement for the UK and the EU to agree an extension before 1 July 2020, the Bill also brings back the real threat of a catastrophic “no trade deal” at the end of the year. The hard-line Brexiteers support such an outcome, but let them bear in mind that no country in the world trades on WTO terms alone without additional agreements, especially with their nearest neighbours.
In just 11 months’ time, and in the absence of a trade deal, the UK could find itself at the mercy of the EU regarding the bilateral trading relationship. The refusal of the US to confirm the appointment of judges to the WTO appeals court means that from 11 December 2019 the WTO can no longer adjudicate on trade disputes. This puts the world at risk of a free trade free-for-all in which the largest blocs can use their economic weight to do as they wish. So, if the UK felt that the EU was imposing vexatious trade barriers, for example, there would be no legal redress for the British Government through the WTO.
A Canada-style free trade agreement favoured by No. 10 means little or nothing on services, which make up 80% of the UK economy and 45% of our exports. The EU, with which we have a trade surplus in services, would have no incentive to grant significant openings to the UK in a free trade agreement because, under the WTO’s rules, it could then be obliged to make similar offers to all third countries with which it already has bilateral free trade agreements.
As the former President of the European Commission, Donald Tusk, made clear in 2018,
“the EU cannot agree to grant the UK the rights of Norway with the obligations of Canada”,
which is exactly what the “cake and eat it” contingent surrounding the Prime Minister seem to expect.
If the UK wants to reach a deal, we have to recognise that it will need to be ratified by the Parliaments of 27 individual EU member states, and some regional bodies too. Trade is about trade-offs, and in fishing, for example, the UK will have to grant continued access to UK waters if our fishing communities wish to maintain their lucrative access to selling into the European Union market, which is critical for the UK’s fish-processing industry. If regulatory divergence begins to occur, EU access would cease. EU producers, meanwhile, would continue to have unfettered access to the UK market in goods, where the EU already has a huge surplus.
The Prime Minister insisted that for goods moving to and from Northern Ireland and Great Britain, there would be
“no forms, no checks, no barriers of any kind.”
I am reminded of Nye Bevan: if the Prime Minister
“is sincere in what he is saying, and he may be, then he is too stupid to be a Prime Minister”.
I fear it is far worse than that, for there will indeed be checks and controls across the Irish Sea, with all sorts of dangerous uncertainties for the island of Ireland if there is no comprehensive deal at the end of this year or no amendment to the Bill as proposed.
Baroness Parminter (LD)
My Lords, it is, as ever, a pleasure to follow the noble Lord, Lord Hain, who rightly referred to level playing fields. I shall touch on the one issue he did not include: the level playing field for animal welfare we currently enjoy as a member of the European Union. A non-regression clause on animal welfare is absent from the Bill, and I fear that not only puts our standards at risk but seems to run counter to the very welcome pledges in the recent Conservative manifesto. Given that the—albeit non-binding—political declaration did not explicitly mention animal welfare in the policy areas where a level playing field must be ensured in the future relationship between the UK and the EU, I, like others, worry that the pressure to secure new trade deals will result in lower standards.
I echo other noble Lords who found the maiden speech of the noble Lord, Lord Barwell, excellent. He said that choices in one area will affect choices in others. Of the four free trade agreements the Government are committed to negotiate in parallel with the EU FTA, three have lower standards than us: the USA, Australia and the trans-Pacific partnership. A non-regression clause in this Bill would signal that high standards would be the minimum for those negotiations.
This is a particular concern if a free trade deal with the EU is not agreed and we end up with a no-deal exit. In that scenario, increased deregulatory pressures could lead to a race to the bottom, with cheaper farm animal imports to lower standards. This is about not just millions of our farm animals; it will also affect animals used in research since, if we diverge from REACH, any product entering the UK will have to be tested twice: for the UK and then for EU authorisation.
The noble Lord, Lord Taylor of Holbeach, who is not in his place, urged restraint on this House and that we focus our attention on promised future legislation. I agree that it is important that we scrutinise such Bills, including those on trade and agriculture, but it is clear that without a non-regression clause on animal welfare in this pivotal Bill, our ability to deliver high animal welfare standards in future may already be fatally flawed.
Baroness Brown of Cambridge (CB)
My Lords, like other noble Lords, I rise to urge the Government to include a legal assurance in the European Union (Withdrawal Agreement) Bill that there will be no regression in relation to environmental standards as we withdraw from the EU and negotiate new trade agreements. I remind your Lordships of my interests as recorded in the register, in particular that I am the chair of the adaptation committee of the Committee on Climate Change. Other noble Lords have already spoken on this issue, so I shall be brief in adding my voice.
As the noble Baroness, Lady Parminter, reminded us, we are pleased to have heard many encouraging assurances: for example, the Conservative Party’s manifesto commitment to
“ensure high standards of … environmental protection”;
in the Queen’s Speech, the commitment
“to protect and improve the environment for future generations”;
through the Environment Bill, the intention
“to leave that environment in a better state than we found it”;
as set out in the 25-year environment plan, the intention in the new political declaration that
“the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of … environment”;
and in the Minister’s response to the debate on this issue in the other place on 8 January, the statement that
“there will be no regression.”—[Official Report, Commons, 08/01/20; col. 529.]
However, as the noble Baroness, Lady Bakewell, reminded us, there has been no indication of how this would be achieved.
The health of our environment is critical to our health and well-being, the productivity of our land, our resilience to the unavoidable impacts of climate change, our ability to reduce our emissions—for example, through all the tree planting we are planning to do—and the growth of energy crops. As Margaret Thatcher said in a speech to the Royal Society,
“the health of our economy and the health of our environment are totally dependent on each other.”
This is such an important issue for us and for future generations that I believe, as others do, that we need to go beyond encouraging assurances to legal certainty. I have put my name to an amendment to this Bill to provide that legal certainty, but I understand the desire to have no amendments, so I ask the Minister to assure us that the Government will provide such legal certainty, so that the amendment will be unnecessary.
Lord Jopling (Con)
My Lords, we are now at a point I hoped we would never get to, but we have. The electorate have endorsed the referendum in the past month, and therefore we have no option but to pass this Bill. I shall therefore vote for it, although I shall do so holding my nose and gritting my teeth, and I hope I do not do myself a mischief in doing so. Whether Brexit turns out to be the golden dawn we are told it is or not—I obviously hope it does, for the sake of the nation—depends largely on the results of the next 12 months of implemented negotiations. The noble Lord, Lord Campbell of Pittenweem, and my noble friend Lord Bridges referred to this matter.
For two and a half years, I have been asking questions on the Floor of the House about the arrangements consequent to the Government’s fatal early announcement that we would leave the single market and the customs union. I shall ask these questions again because I have not yet had a plausible answer. The Government repeatedly tell us that they are looking for free trade solutions, but that totally ignores the basic fact that the European Union’s trade arrangements are based on a common external tariff for a whole range of products from manufactures to agricultural products—I declare my interest in that field. In his notable maiden speech, my noble friend Lord Barwell made the point that the EU is not going to change that policy of external tariffs just to suit our convenience.
That dilemma opens the horror of a free trade policy in which our markets are flooded by cheap imports from the outside world, while at the same time our exports to Europe have to jump its import tariffs. If, as they profess, the Government seek a free trade agreement with the European Union, I fail to understand how we can have that without adopting its external tariff regime.
In the past, I have advocated a version of the Norway arrangements, which seem to solve most of the problems, as well as the Northern Ireland problem, almost at a stroke, albeit with the well-known drawback of being somewhat semi-detached from the rules creation of the European Union. However, recently I have heard senior Ministers speak of a version of the Canada arrangements, which is obviously a possible way of solving the tariff dilemma. I hope we can hear more about that in the wind-up speech.
Therefore, I ask the noble and learned Lord, in winding up, to give us an indication of how the dilemma of tariffs and free trade can be solved. I cannot say that on previous form I am hopeful of getting any sort of an answer but I am hoping for the best. I have considerable experience of negotiating within Europe and fully understand the argument that one must preserve one’s negotiating posture. However, in this case, it is a matter of basic principle, not of negotiating detail. Traders up and down the country, contrary to what we heard in the opening speech from the Front Bench, have serious uncertainties about the future, and those should not be allowed to drag on for another year. The Government must make it clear on what principles they are embarking in their trade policy over the next 12 months of negotiations.
Lord Davies of Stamford (Lab)
My Lords, to me and my family, 31 January will be a very sad—indeed, heartbreaking—day. For the last 50 years we have taken part in a project in which we have got rid of barriers, reduced the importance of frontiers and opened opportunities for travel, study and scientific collaboration. It has been a wonderful programme and I am not sure that anybody has come up with a better one for Europe since the Roman Empire. Now, we are getting off that programme altogether and leaving it to others to take it forward. Incidentally, I am sure that the continentals will make a success of it. My view is that they will move forward much more successfully and rapidly without us than they would have done if we had still been part of the European Union. That raises the question of how much influence we will have with them in that process.
When people said to me over the Christmas break in Lincolnshire, “What do we do now? Is remain really dead?”, I said, “Remain may not be dead for ever but the best policy would be to pretend that she was dead, at least for the next 10 years.” There is no point at all in raking up the arguments of the last three or four years. I accept the view expressed by many this evening that this issue falls within the ambit of the Salisbury/Addison convention. Any of us who sit in this House have to be faithful to the unwritten or understood aspects of the British constitution, on the basis of which we sit here, and we cannot just decide unilaterally and suddenly, without warning, to break those understandings, which are very important.
I never felt that there was much moral force in the referendum because of the terrible lies told by the leave campaign and because of the breach of the financial rules, which would have resulted in the disqualification of a candidate in a parliamentary election. However, the decision of the British people in the recent election was absolutely clear. It was a conscious and deliberate democratic decision. I regret it, of course, but there is no point in denying that fact, and it has been confirmed by the House of Commons, which voted on this Bill last week. Therefore, we have no choice in that matter.
However, it is very bizarre to think that that principle can protect matters not even mentioned in the Conservative Party manifesto. The issue of whether the Government would be allowed, if they wanted, to extend the period of negotiation for the new regime is not mentioned at all in the manifesto, so one cannot possibly say that that falls within the ambit of the Salisbury/Addison convention. On that, it seems that we should be more than entitled—in fact, we have a duty—to look at the reality and merits of that proposal, which I consider very bizarre.
Anybody who has ever engaged in important negotiations knows that the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys that can be useful in some negotiations. You cannot walk out for two or three weeks, which might be something that you want to do. You cannot try to halt proceedings while you undertake a study of a particular subject that has come up, although it might be very much in the national interest to do so. What the Government now propose does not make any practical or tactical sense whatever, but unfortunately it will create the worst possible suspicion about British good faith. The feeling will be, “Ah, Mr Johnson wants his hard Brexit after all and has created an excuse to produce it.” I do not know whether that is the truth, but it is unfortunate that those suspicions might arise.
We have to look forward and see what could happen in the far distant future. I really do not know what will happen but the idea that our membership of the European Union would be excluded for ever is quite absurd. We shall be living next door to our continental neighbours for the rest of time and most people would agree that we shall need to collaborate with them far more closely than ever—economically and environmentally, and on matters of law and order, terrorism, strategic threats and so forth. It would be absurd to exclude the possibility of recreating a European Union such as we now have—maybe a much more successful one. That is something that we have to think about over the next 10 years, although no doubt we will not do anything about it over that period. Of course, the future cannot be predetermined but it would be quite wrong to say that that possibility should be excluded ab initio, and it is very likely that we will come back to that solution.
One thing that has been said in the debate today that strikes me as very worrying is that the Government are very excited about the prospect of having regulations different from those of the continent, expressing our sovereignty and our new freedom and so on. I have to tell noble Lords opposite that that is a poisonous mushroom and they should not touch it. If that is brought in, it will destroy the British manufacturing industry. No one will ever invest in a manufacturing plant in this country designed to sell not merely in this market but in the rest of the single market if they do not know what the regulatory framework will be and if it could change arbitrarily and diverge between this country and the continent. You would do enormous damage to this country if you went down that route. That is a word of very sincere warning.
Lord Teverson (LD)
My Lords, I will make some short comments on a number of issues but, first, I must congratulate the noble Earl, Lord Kinnoull, and the staff of the EU Committee on having put together an extremely authoritative and objective report on the withdrawal agreement and the future relationship. I urge noble Lords who have not read it to do so.
One thing that came out of it really struck me. I have not been much involved in the Northern Ireland aspects of withdrawal, but it is quite clear that Northern Ireland will be separate from the rest of Great Britain. I hear the Minister say that the manifesto says, and the Prime Minister has assured us, that that is not the case—but he has already signed the deal and the division down the Irish Sea is there. I was there when the civil servants corrected the Secretary of State and said that paperwork would be necessary. No wonder the Northern Ireland parties are particularly upset about that. Having said that—I always try to be positive—I very much welcome the fact that there will continue to be a single energy market within the island of Ireland, which I understand is in the agreement.
What really surprises me about this agreement is something that we have debated a number of times—that we will put into legislation the fact that we will not extend the interim period. It is quite obvious that we are putting ourselves in exactly the same situation as we did when we invoked Article 50 without a plan. We immediately put the power into the other party, the European Union. At that time, they must have said, “Yippee, everything is on our side”—and that will be the case this time. We have given away our flexibility and set a deadline that can only work against us. I do not understand that. I was interested to hear the noble Lord, Lord Butler, praise the Prime Minister for having got a new deal when it was predicted that he would not get one so quickly. The reason was that he accepted a deal that was already on the table from the European Union some years before—with its preferences. So are we going to have another repeat of history?
One area that particularly concerns me is fisheries—an area that I have been involved in both through committee work and in relation to regulation when I was in the European Parliament. I come from the south-west; big promises have been made to the fishing industry. The noble Lord, Lord Hain, and others have mentioned this subject. Yet, to me, the fact that we are expected to conclude a fisheries agreement in July this year, with a deadline for overall agreement not long after, means that the two are absolutely and inevitably entwined. There will be either trade-off or submission. I suspect that my fisheries colleagues down in the south-west already expect to be sold out, as they have been in the past. How will the Government ensure that that will not happen to the industry this time?
I will say one thing quickly about the chemicals industry. My committee, the EU Environment and Energy Sub-Committee, looked at REACH and all of that side. Given the Minister’s bird’s-eye view of the silos that sometimes occur in Whitehall, will he make sure through Defra and BEIS, which both have responsibility for the industry—Defra in terms of regulations and the REACH chemical regulations—that that industry, the second-largest manufacturing industry in the United Kingdom, is treated very carefully in terms of regulation? There is still great concern in that area.
Lastly, I will refer to Part 3 of the withdrawal Bill, which is around citizens. But there is not one clause in there about UK citizens; it is all about EU 27 citizens. I welcome most of that, but one of the biggest failures of the Government is that UK citizens in the 27 do not have freedom of movement. That right is kept within individual member states, and to me that is a major failure of negotiation. I want to see UK citizens recognised in this Bill, and not sold out as they have been so far.
Baroness Pidding (Con)
My Lords, not too long ago, many Members in this House, myself included, spoke passionately on both sides of this very same debate. We, like the other place, were divided, and nothing got done—continuing the tradition of the past four years.
Before us today is a simple choice: fulfil the promise that Parliament made in 2016 to respect the democratic will of the British people, or once again frustrate the delivery of Brexit. We all know, from conversations we have had with colleagues and following the debates, that there is a broad range of views in this place on Brexit. However, I believe that we are all unified in our respect for British democracy and the shared desire to solve the many issues Britain faces as it moves into a new decade.
For this reason, I stand here today with genuine optimism for Britain’s future and the democracy we hold so dear. During the general election campaign, I travelled across the country campaigning, up to Bolton and Bury, down to St Ives in Cornwall and to many constituencies in between. The mood and message were the same—sheer exasperation and a desire to move the country forward.
The British people were tasked with sorting out the mess that Parliament had created over Brexit. So, on a cold December day, they came out and did just that. Today, the European Union (Withdrawal Agreement) Bill is brought before us by the Commons and presented by a Government with a resounding mandate given to them by the British people to deliver Brexit. Many like myself were surprised by the result of the recent general election; the past few years had dampened our optimism. But, whatever your views on Brexit or how you voted in the referendum back in June 2016, the British people’s democratic will is crystal clear. We must listen, vote in favour of the Bill and deliver Brexit.
In past debates, I called for this place to support this deal. Today my message is the same. It is a good deal for the country and marks out a way for us to move forward with Brexit, begin healing the divisions in the country and fix our divided Parliament. However, we must not ignore those who still passionately believe that we should not leave the European Union. We must take them along with us in the common purpose to ensure Britain succeeds—but, to do that, we must first deliver on the result of the referendum and listen to the will of the British people, who are tired of the merry-go-round that is Brexit. It is only then that we can begin to heal as a nation and mend our broken Parliament.
This Bill is the start of a new and exciting chapter for this country. Of course there remain hugely important negotiations ahead about the shape of the UK’s future relationship with the European Union, but we must now embrace this opportunity for Parliament to tackle, with fresh enthusiasm, Brexit and the other real issues facing many of our communities that have taken a back seat for the last four years: the NHS, policing, crime and security, education, housing, welfare and adult social care services, transport and infrastructure and rebalancing our economy. We must find solutions to these issues of real importance to the day-to-day lives of people living across the country. The passing of this Bill will empower us to move forward on these issues and not be distracted, as we have been since the referendum.
There are opportunities for Britain to reaffirm old friendships and forge new partnerships across the globe. We have a unique opportunity to redefine our role on the world stage. We should not only reaffirm our bond with our European neighbours, working to forge a new UK-European relationship, but reconnect with our cousins in the Commonwealth. These historic ties need to be renewed, and Britain needs to stand again alongside our friends on the world stage against the challenges that the 21st century and this new decade hold.
This debate has corroded our democracy and damaged faith in our institutions. It is time for us to get off the Brexit merry-go-round. This deal does just that. Let us unleash Britain’s potential and—I make no apology for saying it—“Let’s get Brexit done.”
Baroness Donaghy (Lab)
My Lords, I have no intention of trying to hold up this Bill, but I think it is a pig in a poke.
I want to talk about workers’ rights. Even the weakest possible assurances on workers’ rights, which were in the first draft of the Bill before the general election, have been taken out. During Second Reading in the Commons, one MP stated that
“they had their chance … but they decided to play party politics”—[Official Report, Commons, 20/12/19; col. 205.]
as an explanation for why workers’ rights were excised from this Bill. I am not naive enough to think that workers’ rights have not always been a political pawn. Some of us well remember waiting more than a decade for a single directive on workers’ rights to be enacted in the UK. When I was a member of the European TUC Executive, we dealt with a whole raft of rights including for part-time workers, maternity rights, and rights to bank holidays. Trade unionists in the UK then waited and waited until the election of a Labour Government, when Tony Blair fulfilled his promise to adopt all the delayed directives. I know they are used as a political tool but, for those of us who have spent their whole working lives defending workers, this is also about human rights, the dignity of work and adhering to the principles of the International Labour Organization. It is not just about playing party politics.
The Government have said that a separate employment Bill will be brought forward on a timetable yet to be announced, which will, among other things, protect and enhance workers’ rights as the UK leaves the EU. In answer to a question on 22 October last year, the Prime Minister said about workers’ rights:
“People will need reassurance…There can be no regression.”—[Official Report, Commons, 22/10/19; col. 828.]
That is great on the face of it, but both the Prime Minister and the Home Secretary have previously commented on the burden of EU employment and social legislation. In his introduction to Second Reading, the Prime Minister said:
“This will be with no alignment on EU rules”.—[Official Report, Commons, 20/12/19; col. 147.]
So the Government have suggested that it is all right to drop workers’ rights from the Bill because we can have higher standards than the EU members, but, as Ruth Cadbury MP pointed out, the EU sets minimum standards for workers’ rights. There is only one reason to remove minimum standards, and that is because you want to fall below them. As we know, a Labour amendment seeking to prevent the reduction of workers’ rights after the implementation period was defeated. I accept that this is the political reality but I am not at all reassured by the Government’s statements, sometimes contradictory and always vague. The proposals do not satisfy the TUC test of maintaining workers’ existing rights and establishing a level playing field so that British workers’ rights do not fall behind those of other European workers. I am also concerned, as is the TUC, that Clause 26 would allow lower courts to ignore previous rulings from the European Court of Justice that UK workers and trade unions had benefited from. I understand that this is subject to consultation with the judiciary, but I see it as a potential significant weakening of labour rights.
I referred earlier to this Bill as a pig in a poke. I thought I should check the phrase’s appropriateness with Brewer’s Dictionary of Phrase and Fable. The reference is to a common trick in days gone by of substituting a cat for a sucking pig and trying to palm it off on greenhorns. The French call it “to buy a cat in a pocket”. I am not a greenhorn, and this Bill is indeed a pig in a poke.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I must declare an interest as someone who lives and works in France a lot of the time. My aim today is to give a voice to the UK citizens in the EU, who have been totally ignored by the Bill.
The noble Lord, Lord Callanan, said in his introduction that the Bill protects the rights of citizens, but my noble friend Lord Teverson said quite correctly that it is disgraceful how little time has been spent on the debate about UK citizens in the EU. The Bill has diminished some rights and removed others—for example, the right to live and work anywhere in the EU—and many rights are now uncertain, such as pension upgrades. My noble friend Lady Hamwee and I have tabled an amendment to try to improve this situation.
I have heard some criticism that that should not be done in the Lords. I am sorry that the noble Lord, Lord Forsyth, is not in his place, because I could give him a good reason why it should be: nothing about UK citizens’ rights in the EU was even debated in the Commons last week. It was not even mentioned and the amendment was not allowed. If there has been no debate about their issues in the elected Chamber, we really have to do our duty and talk about them here.
Maybe the Government thought it was rich retirees who live in the EU, but the Office for National Statistics figures show that that is certainly not the case. Two-thirds of these people living in the EU are between 15 and 64; they are students and working people with normal jobs. The remaining third, who are retirees, are not particularly well off. Whether or not they get a pension upgrade will be a matter of severe concern to them, especially as many of them paid into their pension pots in this country for their entire lives, went abroad perhaps in 2010 and suddenly now find that the contract which they had with the Government about their pensions is not to be honoured.
I wonder if the Government have a current list of EU member states’ intentions to recognise qualifications on a reciprocal basis, because that again is extremely important to working people. Do the Government even have accurate numbers of exactly how many UK citizens there are in the EU? The UN seems to say that there are 1.22 million but the Office for National Statistics said that there were 784,900. However, a rather good article in the Independent newspaper on 7 May last year showed that the ONS statistics are actually a bit dubious. The fact is that maybe the Government have no idea what the numbers actually are.
My amendments to the Bill will focus on the pensions upgrade and health cover, which is a great concern. I will not go into those now because I will move the amendments in Committee. Of course reciprocal agreements, if they had been done on a bilateral basis much earlier by the Government, could have answered many of these issues. I understand the stand-off between the UK and the Commission at that point, but the Government could have pursued it and this would no longer be an issue. What we have are individuals who at the moment, at absolute best, can continue life but cannot progress. They cannot get a job, a promotion, a new mortgage or additional health cover because of all the uncertainties.
We have heard that the Government have a huge mandate. In my opinion, that should be secure enough for them to rise above the petty politics of not letting the Lords have any amendments and be able to admit that some of the Lords amendments are fair, just and a good idea.
Lord Robathan (Con)
My Lords, after three and a half long years, at last we have a withdrawal Bill that has passed through the Commons, and we have it before us now. I am going to speak, briefly of course, about how we came to this position with this huge delay. I will sum it up with one word, although it gives me no pleasure: “disdain”.
I think referendums are a shocking idea. I am broadly opposed to them. But Parliament—this House as well as the other one—voted for one. The matter of Brexit has consumed this place, and indeed Parliament, ever since I was introduced here just over four years ago. First, before the referendum, those who supported leave were laughed at by the majority in this House. I was told that no one heckled in the House of Lords but I was heckled for being so presumptuous as to speak up for leaving.
Then we had the referendum, and there were shocked faces here because the stupid public had not listened to the wise words of people in this House and indeed elsewhere. Then after the 2017 general election, with a Government who were floundering, Parliament looked down its collective nose at the silly people. They were told why they had voted to leave and told how wrong and how stupid they were. But none of us can see inside another individual and determine why that individual voted in a particular way, so please let us not patronise people and tell them what they think.
In my opinion, the last House of Commons behaved in a disgraceful manner. People who I respected, such as Oliver Letwin, and indeed counted as friends reneged on manifesto commitments and set out to thwart the process of leaving the EU, passing, among other things, that dreadful Benn amendment. Parliament showed disdain for the people’s vote and contempt for the people of this country. Members of this House—unelected and unaccountable, where self-awareness is in astonishingly short supply—overwhelmingly opposed the outcome of the referendum, some of your Lordships openly saying that they wanted to stop the process, disdaining the foolish little people. Well, the little people too can show disdain: disdain for a Marxist-led party with no real policy on Brexit. I do not know why the noble Baroness, Lady Hayter, is smiling; that is what she had and that is the party to which she belongs.
The election was of course about more than one issue but the people of Sedgefield, Workington and the north showed what they thought: disdain for the party that—and I wish this were my original joke—should be prosecuted under the Trade Descriptions Act but who sit here pontificating, with eight times more Peers than they have Members in the House of Commons, and still want to tell the country what to do. However, there was a general election. I am reminded a little of the Japanese soldiers who emerged from the jungle 20 years after the end of the Second World War believing that the fight was still on. Then there were those who fought for different parties or who fought as independents, some of whom I again respected and liked. Chuka Umunna fought in Westminster and I very much hope there will be an explanation of quite how much the literature that came tumbling through my door cost, because—I tell you what—it was a lot more than most people can afford on £15,000 or whatever.
The disdain the British people showed has led to something much worse: disdain of the people for Parliament and contempt for the democratic process. We need to win back or earn some respect. Noble Lords should know that both in the Commons and in the country we will earn yet further disdain if this House tries to obstruct the will of the people in any way. It is not just Rebecca Long Bailey who is calling for the abolition of the House of Lords but some Conservatives as well. I would oppose that, not just for personal interest but because I think this House has a valuable revising purpose. Those who are still opposed to this process of leaving the EU should accept it with a good grace and let us all work together to restore the reputation of this House, of Parliament as a whole and of our parliamentary democracy.
Baroness Jones of Whitchurch (Lab)
My Lords, I am sorry that I have to follow the noble Lord, because I feel he has lowered the tone of the debate in a Chamber that, up until now, has been doing a proper scrutiny role. That is what we are here for; it is what we are renowned for and we are confident that we can do it well. As I say, I am sorry that he has lowered the tone.
As other noble Lords have done, I will speak primarily to raise our concerns about the exclusion of the environmental clauses which we spent many happy hours crafting and agreeing in the 2018 withdrawal agreement. I very much regret that I have to raise these concerns again, as they received considerable cross-party support around the House at the time as well as the eventual approval of Ministers. Why are they no longer in this legislation and why have the Government now backtracked on that deal?
Of course, I accept that the Conservative manifesto contains promises to legislate to ensure high standards of environmental protection. Indeed, this was repeated in the Commons debate on this Bill when the Minister, James Duddridge, stated:
“We will maintain and uphold high standards for workers, consumers and the environment.”
However, he went on to say:
“We do not have to follow EU rules to achieve that; we can do it on our own.”—[Official Report, Commons, 8/1/20; col. 529.]
Our history shows that we have not been very good at doing it on our own. This is why, over the years, we have had to rely on EU directives to clean up our water, our waste, our air and our soil, and it is why we have had to rely on the 527 EU regulations to set strong standards for the environment. This is why something like 80% of UK environmental legislation is derived from the EU. Doing it on our own remains a big challenge.
Of course, while there is a cautious welcome for the Government’s commitments on the environment, there remains considerable concern among environmental and animal charities about what the future holds. This has been fuelled by the Government’s decision to remove the environmental clauses from this Bill. This is why we are tabling an amendment which will insert the principle of non-regression of environmental standards into the Bill. This will be a legally binding commitment to non-regression to protect current and future generations against weakening environmental standards. It will ensure that the Government do not take their eye off the ball and let standards fall behind through neglect or default.
As we have heard, when this was debated last week in the Commons, the Minister said that
“the underlying point is that there will be no regression.”—[Official Report, Commons, 8/1/20; col. 529.]
However, if this is the case, why are the Government so reluctant to have this clause in the Bill? If it is their intention to legislate separately on environmental standards in the Environment Bill, can the Minister confirm that a specific non-regression clause will be included in that Bill? What mechanism does the Minister envisage for regularly updating that environmental legislation in future years to ensure that it remains relevant and becomes the world leader to which the Government aspire?
There are also other consequences to diverging from established EU environmental rules. The European Commission president, Ursula von der Leyen, warned last week that any new trade deal giving tariff and quota-free access to the single market would come with strings attached. She specified that Britain would have to agree a level playing field on workers’ rights and the environment. If we are serious about a comprehensive new trade deal with the EU, we may well find that we need to match their environmental standards. Clearly, UK businesses will not welcome two sets of rules, one for the UK market and another for the EU export market.
In his response, can the Minister confirm that we accept the need to follow EU environmental standards and that any other provision in the Environment Bill will be at least as good as those provided for by the EU? Can he confirm that the Government do indeed intend to take forward their commitment on non-regression of environmental standards in that Bill? I look forward to his response.
Lord Kirkhope of Harrogate (Con)
My Lords, my contribution this evening will be more about what is not in the Bill than what is in it. With so many speeches, I am bound to repeat what someone has said or will say. I also make it clear that I will be supporting the Second Reading of this Bill, respecting as I and many others do the Salisbury convention and the large majority in the elected Chamber. However, I have a track record as one of those involved in the preparation of what became Article 50 of the treaty of Lisbon. I remember moving an amendment in 2002 to oblige the EU to enter into a contemporaneous future trade agreement with a departing state. Had it passed, some of our present uncertainty regarding relations with our EU neighbours might be alleviated, but that is history. Although trade is important, what now concerns me most is the field of security and law enforcement; it is on this that I have the greatest fears.
I spent much of my 17 years in the European Parliament as spokesman for the Conservatives on this subject and was involved directly or indirectly in all the agreements resulting in the European arrest warrant, the Schengen Information System, the European criminal records agency, anti-money laundering measures, joint investigation teams and passenger name records, as well as the data protection regulation and Europol. I was the rapporteur for the PNR measure, which took no less than eight years to agree. All these areas of EU agreements and involvement are vital to our ongoing security and some of the most important are workable for us only if data can be exchanged in real time. They are all currently subject to the ultimate involvement of the ECJ, the European data protection supervisor and the Charter of Fundamental Rights which, as I understand it, we are declared to be leaving.
Our Ministers say they are looking to negotiate a comprehensive new security agreement with the EU in the transition period, but we and they cannot escape the simple fact that we will be a third country and of a status that will not permit us to benefit as of now, especially in the real-time exchange of data, even if there is a co-operative approach. We have evidence that the position enjoyed now with PNR for example has prevented a large number of terrorist and criminal attacks on this country already. Negotiating a continuation will be virtually impossible. Other countries have tried this. Switzerland and Norway have to make individual applications for database access; it certainly does not happen automatically or in real time. The United States of America does not have access to EU databases and each association agreement to be part of crime detection takes years to secure. Also, Switzerland, Norway and Liechtenstein get only a certain amount of co-operation but are of course members of either Schengen or the single market, or are prepared to accept the provisions and regulations of the EU’s data protection regulation.
I do hope that our Ministers and those appointed as negotiators with the EU also adopt a pragmatic, friendly, understanding and positive approach. I fear that that has perhaps still to be demonstrated following the recent altercations and polarisation of politics in this country. Bullying neighbours would of course be a disastrous approach and deny us the chance to maintain those arrangements without any gaps or diminution of security, which is so vital to our interests.
As I consider our present situation I have to add that perhaps our greatest failure, especially by those of us who have believed in Europe and our membership of the EU, is that we have failed over a long period to underline and pronounce what has been the ever-increasing and leading role of our country in EU institutions. This was especially true after the velvet revolutions and the arrival in the EU of the former Soviet satellite states, which prized their newly restored independence as much as we have always done, and looked to Britain as it enhanced its reputation by supporting them and their new democracies. Now that we are withdrawing from the EU, let us at least ensure that we retain as many benefits of our historic membership and relationships as we can, while appreciating that things can never be the same again.
Lord Lea of Crondall
My Lords, I very much echo the basic thrust of what the noble Lord, Lord Kirkhope of Harrogate, has just said. If it is true that on the doorsteps of Widnes and Wakefield, the election reflected a frustration which only Mr Dominic Cummings was able to put his finger on with the second of his brilliant pieces of mendacity—“Get Brexit Done”—that may itself turn out to be a false prospectus. If it does, what will be the position in a year’s time when the same people, on the same doorsteps of Widnes and Wakefield, see that it was a second misleading slogan? “Get Brexit Done”, implying a magic solution almost overnight, was an even bigger fib than “Take Back Control”—as if we are going to take back control in Widnes of a multinational corporation such as Google, or as if our workers could get some countervailing power with the world of China, the United States and so on.
I am also rather doubtful whether the citizens of Widnes and Wakefield would agree if it was put to them that “You’d much rather transform Britain into ‘the Singapore of Europe’, would you not?”. I think they would all say, “What’s all that about?”. I might say, “Well, let me tell you a little about Singapore works”—but of course it is a slogan. The trouble is that life in this country is now—social media comes into this—getting into a bigger remove from what we have slaved to do in the trade union movement. We had weekend schools trying to talk about how world market share depends on having a better value-added performance, along the lines of what they do in Sweden and so on. We had a lot of those things successfully transformed in the Labour Party and the TUC in 1988 by the famous occasions of Jacques Delors. It is very difficult, as time goes by, to counter the new right’s slogans when it is easy for people to think that this sort of quasi proto-nationalism is what chimes with them, just like support for their local football club. So we have a major problem in how we are going to avoid further disillusionment.
Only last week, we saw the beginnings of the unravelling of the idea that all this can be sorted out this year. I do not know whether the Minister can confirm this, but it was said by one well-informed journalist on the Spectator—his name is Mr James Forsyth—that a week ago, there was a Cabinet committee that decided that we would not in fact be able to sort all this out this year and therefore that we would have the gloss on this commitment, that it needed to be selective and the deal would be far more focused on goods than services. The punchline in the Spectator article was:
“The tight Brexit deadline will be met but, crucially, not all of the Brexit deal needs to be agreed by then. ‘We can do this in stages,’ says one cabinet source. ‘That will kill any talk of a cliff edge.’”
But that is not what the president of the Commission has agreed to. What we are saying is make-believe; my noble friend Lady Donaghy called it a pig in a poke. This is becoming absolutely undeniable. George Orwell would have been proud of the doublethink.
Finally, we are told that we have got to fly the union jack at the end of this month. The union jack is a flag that is being torn up by Boris Johnson. The scenario that is increasingly plausible about what could happen in Scotland, which my noble friend Lord Darling touched on, would mean that the St Andrew’s flag would go and we would break up the United Kingdom. This is what happens when you play the nationalist card and start talking about the flying of the union jack.
Baroness Altmann (Con)
It is a pleasure to follow the noble Lord, Lord Lea. I add my congratulations to the noble Lord, Lord Mann, and my noble friend Lord Barwell on their brilliant maiden speeches.
In the words of Charles Darwin, it is not the strongest of the species that survive, nor the most intelligent, but the ones most responsive to change. The easy passage of this Bill through the other place clearly signals a changed parliamentary reality, as the British people supported the offer to “Get Brexit Done”, so we in this House must change our approach. We are leaving the EU on 31 January and this legislation is required to ensure a period of time to adjust, at least until the end of 2020. In line with the Salisbury convention and election promises, we must not frustrate the timetable. It seems that we must give the Government the benefit of the doubt, and I will be willing us to succeed.
As the House knows, I deeply regret that we have lost the argument on our future relationship. I will not be celebrating on 31 January, but I accept it, in line with Martin Luther King’s wise observation:
“We must accept finite disappointment but never lose infinite hope.”
So my participation in this debate is in the spirit of hope. During Committee, I will point out where I consider that the legislation ideally needs amending, as that is the normal scrutiny role we are here to perform. But if Ministers reject the amendments, this House will not prevail, so in that event I must hope that EU withdrawal can move forwards successfully without the changes.
What else do I hope for? I hope that the Brexit ushered in by this Bill will not disappoint those who voted for it, and that the application processes for settled status will not cause distress to EU citizens living and working in the UK. I also hope that Brexit will not undermine UK manufacturing success or jeopardise jobs that depend on our integrated supply chains. I hope, in line with so many pre-election assurances, that it will not mean a border down the Irish Sea or threaten the unity of our United Kingdom., I hope, too, that this legislation will not lead to the sidelining of Parliamentary scrutiny—as the right reverend Prelate the Bishop of Leeds and other noble Lords so powerfully expressed—with the Joint Committee and Ministers overriding Parliament, nor to a no-deal Brexit at the end of 2020 for want of allowing time to conclude the complex negotiations on our future relationship.
I sincerely hope that leaving the EU will bring a better future for the UK and greater freedom of trade and global interaction—but I must confess to being completely unable to see how all this will be achieved. So I must also hope that I am wrong and that the Brexit supporters are right.
The Prime Minister says that he wants us to remain close friends and partners, and I wholeheartedly agree. Let us hope that we can continue to live in peace on our continent, as we have done for so long since last century’s devastating wars and troubles.
The result of the election was decisive, but I hope that it will not be divisive. I implore the Government to reach out to those who are devastated or fearful of leaving the EU, to reach out across our country and across the regional, political, social and generational divides. The Government intend to get on with improving life outside the south-east and our prosperous cities, especially for the north, and want to create opportunities and improved living standards for all citizens of one-nation Britain. I hope that the Government will bring us together—all our four countries. We are a wonderful nation. Together, we have achieved so much. As we pass this Bill and leave the EU, I hope that we will continue to succeed together, long into the future.
Lord Judd (Lab)
My Lords, my noble friend Lady Donaghy was absolutely right: we are in a classic pig-in-a-poke situation. Another analogy might be Alice in Wonderland. It is unbelievable that we are having to seal our departure from the European Union before we know what we are going to put in its place. It is the height of political irresponsibility. It underlines the gravity of the responsibilities that fall on this House: it is vital to refuse to be stampeded into a rubber-stamping exercise and to ensure that proper scrutiny takes place.
I want to illustrate just how extensive the list of work will be. What are we going to do about trade and finance? On Northern Ireland, we no longer have the European charter nor that underlining of equivalence in the relationship between the two communities. How will we ensure the well-being and security of the Irish people as a whole? We have heard already about workers’ rights and trade unions. Are we really going to enhance workers’ rights and not just maintain them? What specific arrangements will we have in place? What will be the implications for higher education, not only for the exchange of students but for the quality of our education? The quality of our higher education is related to the international community which makes that higher education. I am sure my noble friend Lord Dubs will have more to say about this in a moment, but what about refugees? What specific arrangements will be made? How will we guarantee the well-being of those vulnerable children who are before our eyes every day of the year? Family reunions are a vital part of their well-being. What specific arrangements will be made to ensure that we at least maintain European standards but also build on them in fulfilling our role in respect of the environment and climate change?
I was fascinated to hear the remarks on security of the noble Lord, Lord Kirkhope, with all his experience. It is quite frightening that we do not have specific arrangements in place. What are these to be? What about the European arrest warrant?
The overriding issue, which is deeply troubling for many people, is the future rights of European citizens in Britain and those of British people who went to work and live in the European Union in the confidence of being European citizens. What will happen to ensure their well-being? We hear all the generalisations and promises about how these things will be put in hand, but what are the specific arrangements to be?
The workload and the challenge facing this House, if we are to have any meaning as an institution, cannot be overemphasised. We have a terrific task ahead of us and, as I said, we have to avoid being stampeded into a superficial rubber-stamping exercise.
Baroness Noakes (Con)
My Lords, as noble Lords consider the Bill over the next week or so, I hope that the spirit that guides them will be respect for the will of the people. We have now heard their voice three times: first in the referendum, secondly in the 2017 general election and now, most emphatically, in last month’s general election. As my noble friend Lord Ridley reminded us, the people of this country want us to get Brexit done.
I have said before in your Lordships’ House that there is much about the withdrawal agreement that I dislike, but the Bill has my complete support because it does one thing really well: it achieves our departure from the EU. I shall make just three brief points.
First, I unequivocally support Clause 33, which prohibits an extension of the implementation period beyond 31 December this year. We most certainly want an agreement with the EU but we must not take for ever over it. A time limit, with an implicit no-deal outcome if the deadline is not met, should concentrate minds. The most damaging part of last year’s parliamentary manoeuvres was the removal of the option of no deal. We ceded control of the agenda to the EU. Fortunately, the other place came to its senses and allowed the general election to proceed, and that has now empowered the Government to leave the EU in the way they think fit, including with no deal in the mix. As an aside, I absolutely love Clause 36, which removes both the Benn Act and the Cooper-Letwin Act from the statute book. They were stains on the history of Parliament and are best erased.
Secondly, it is right that this withdrawal agreement Bill does not include the unnecessary appendages inserted in the previous version in the vain hope of getting the Bill through Parliament. I particularly support the removal of parliamentary engagement in the details of the long-term arrangement with the EU. The Government’s majority in the other place means that those in Parliament who do not like the negotiations will have little effective power in any event. The important thing is that unnecessary parliamentary processes would drain the energy and resources of the Ministers and civil servants involved. We need them to work flat out to deliver the long-term agreement and not be distracted en route. Of course, Parliament can continue to hold the Government to account in the usual way, but I hope that Select Committees in both Houses—including your Lordships’ EU Select Committee—will be proportionate in their demands on Ministers for reports on progress.
My last point concerns how your Lordships’ House handles the Bill. I will always defend the role of your Lordships in scrutiny of legislation. That has become more important over the last 20 years as the procedures in the other place have diminished its ability to scrutinise effectively. However, the next two weeks should not be used to replay the battles that have already been fought and lost, including when the Bill was scrutinised in the other place last week. Over the last couple of years, this House has been an uncompromising supporter of remain and has thereby demonstrated how completely unrepresentative of opinion in Britain as a whole it has become. Noble Lords have a choice. They can be a last stand for remain and produce large majorities for amendments which they know will be rejected in the other place. Or they can revert to their traditional, more modest role of improving the effectiveness of legislation.
Constitutional reform was included in the Government’s manifesto. The shape and intent of that reform could well be determined by how this House handles the Bill. I wish the Bill a safe and speedy passage to Royal Assent, and I look forward to 11 pm on 31 January when this wonderful country can regain its freedom from the EU.
Lord Liddle (Lab)
My Lords, I assure my good friend the noble Baroness, Lady Noakes, that, as far as I am concerned, the argument about trying to stop Brexit is over and done with as a result of the general election. However, before she gets carried away with her arrogance on this subject, I gently remind her that the Conservative share of the vote in that election went up by 1.3%. They got a majority of 80 because of the way our electoral system works. This makes the case again for a consideration of electoral reform, which I have supported for the last 40 years. I also agree with the noble Lord, Lord Kerr, that we should not try to put forward amendments that in any way threaten the deadline of 31 January, but we should exercise our proper role of scrutiny on this Bill.
What has happened is heartbreaking for me, but there is also a certain sense of relief about it; I agree with the noble Lord, Lord Bridges, about that. My main concern now is that there is—and has been—hardly any debate on the post-Brexit future for Britain in Europe and the world. This debate has hardly begun. The date 31 January 2020 marks the end of an epoch that began on 31 July 1961 when Harold Macmillan announced that the Government had decided to apply for membership of the EEC. Over Christmas I read The Winds of Change, the wonderful book by the noble Lord, Lord Hennessy. I was struck by how much thought and analysis went into Macmillan’s decision. Where is the grand design for Britain’s future that he personally wrote, as Prime Minister, now that we are facing the future of Brexit? I do not see it and I think the Government are simply going to stumble along.
We face the prospect, at best, of a bare-bones trade deal this autumn, and let us be clear now that a bare-bones deal is a hell of a bad deal for Britain. It is bad for manufacturing because it does not ensure frictionless trade. Getting rid of quotas and tariffs does not guarantee frictionless trade, when you have problems such as regulatory standards and rules of origin. It is bad because of the false promises that have been made to the fishing industry: the EU is going to demand access to our waters in return for our selling our fish on the continent. It is bad for UK services, whose voice will struggle to be heard in the mad rush to agree something by December 2020. It is rather like 1914: we will be the victim of an artificial timetable and it will end with us in a very bad place.
Where does this leave pro-Europeans such as me? Nothing will make me abandon my belief in a united Europe in which Britain plays its full part, absolutely nothing. This may now be a matter for future generations, but let us be clear: internationalism and European unity are as relevant to today’s world, in the 2020s and beyond, as they were in the 1950s.
The Conservatives are making themselves very clearly the party of English nationalism. They are losing in Scotland, they have abandoned Northern Ireland and they are left with populist English nationalism. On our side of the House, having suffered a devastating defeat in the election we have to remake and rebuild our party in a completely new and different way, but let us be certain that we must remake ourselves as the party of Europe, confident in our view that the only route to economic and social progress at home is by working in partnership with our European friends to tackle the multiple challenges that the world now faces.
Lord Bowness (Con)
My Lords, like the noble Lord, Lord Liddle, I believe that this Bill must pass, if for no better reason than that we must not reach 31 January without it, thereby putting at risk the transition period. Most slogans are either a simplification of an issue or misleading, and “Get Brexit Done” is, I fear I must say to many of my noble friends, no exception. In many ways, the 31 January date, with its hype and commemorative coins, is the easy part of Brexit.
I was, and remain, a remainer. After the election I am reconciled, as indeed I was after the referendum, to our exit from the European Union, but neither the referendum nor the election determined the nature of the United Kingdom’s future relationship with the European Union. The Conservative manifesto’s reference to a free trade agreement leaves as many questions unanswered as it answers. There is, I submit, no contradiction in accepting the inevitability of leaving and at the same time wishing to retain as many benefits of EU membership as possible for individuals and businesses. Those of us who are concerned about the future relationship and do not want to lose the benefits accrued over 40 years should not be dismissed by triumphalist Brexiteers and wrongly portrayed as Brexit deniers. Many issues have to be considered and although they may be small in comparison with overall trade arrangements, they are of concern to citizens. I shall refer to a few, and it may be that the Minister can help us.
Can he tell the House whether the Government propose to legislate to compel mobile phone networks to operate the EU’s roaming regime for the benefit of UK subscribers? Are the European health insurance card and the recognition of driving licences and blue badges—I declare an interest, in that my wife has one—going to be part of this comprehensive free trade agreement? What priority is going to be given to preserving the provisions for cross-border disputes? My noble friend Lord Kirkhope referred to the legal situation, but cross-border disputes may be between families or between consumers and suppliers. There are many things in place.
Nor should this House be deterred from discussing and, if necessary, pressing amendments which will deal with some of the serious legal and constitutional points, especially the need for Parliament—particularly the House of Commons—to be closely involved in the progress of those negotiations. I think it would be surprised if it were told that it was there merely to rubber-stamp the actions of the Executive. However, if we press amendments in this House and the House of Commons rejects them, we must immediately accept that point of view. Is that a justification for threatening the House, for doing what generations in the House of Commons have perceived to be our role?
If Brexiteers wish to march over the battlefield, metaphorically putting remainers to the sword, so be it. But the Prime Minister has called not only for Brexit to be done but for the nation to be healed and come together. He, I understand, admires Sir Winston Churchill, so I hope that he will remember two quotations of his, one of which I espouse:
“Success is the ability to go from one failure to another with no loss of enthusiasm”;
and one which I hope he will espouse:
“In War: Resolution, In Defeat: Defiance, In Victory: Magnanimity, In Peace: Goodwill.”
Baroness Bennett of Manor Castle (GP)
My Lords, I begin by thanking the noble Lord, Lord Callanan, who on Sunday night responded to my tweeted link to a preview of this debate—a rebuttal for those who would question the work ethic of this place. However, I strongly disagree with his claims that workers’ and environmental rights are completely unaffected by this Bill and that it guarantees EU citizens’ rights. I think many impartial observers agree with me loudly and clearly, but I thank him for engaging in this forum with a much younger audience than I would guess BBC Parliament has tonight.
Indeed, it is the impact of this Bill on younger people that I will address in my brief remarks. As I said last week in the Queen’s Speech debate, your Lordships’ House will have to be in the coming days, weeks and months the representative of the younger people who are not represented in the other place. Of course, the majority of the country is not represented by the Government who are making decisions in the other place. As the noble Lord, Lord Liddle, said, that is a product of the electoral system.
However, if we look at the fact that 44% of people voted Tory and 2% voted for the Brexit Party, I would be very tempted to say to the many noble Lords saying tonight, “The people voted to get Brexit done”: “Oh no they didn’t”. Some 54% of people voted very clearly for parties that wanted exactly the opposite. Looking at the age division, of 18 to 24 year-olds, 21% voted Tory; of 25 to 29 year-olds, 23% voted Tory. We have known since the referendum in 2016 that Brexit is an older people’s project. They are the ones who voted for Brexit. This is a Bill for an elders’ Brexit. It is a Bill that addresses the concerns and attitudes of older people and actively attacks the interests and concerns of the young.
I have time to focus on only three points. In the other place, we saw an amendment on party lines to defend the Erasmus+ scheme. The Government are saying, as on so many other issues, “Leaving this out does not mean we are going to abandon Erasmus+”; but at the same time they are briefing, in very uncertain terms, that, “It will continue if it’s in our interest to do so.” Indeed, in an article in the Times on 11 January, a government source suggested that it “only really benefits middle-class students”. I say to your Lordships that Erasmus+ is crucial to many people from disadvantaged backgrounds, students and apprentices. The wealthy will always be able to travel to study or work; the disadvantaged do not have that privilege. If there are ways in which the scheme could be improved to better target the disadvantaged, that would be great, but that is not a reason to throw the whole thing out.
Secondly, many noble Lords have referred to the non-regression clauses on the climate and workers’ rights that we want to see in the Bill. Of course, as I said last week, addressing the climate emergency and the collapse of nature is of particular concern to young people, who are having to grow up in the world that our generation has created. But also, as employees, young people are most vulnerable in the workplace, and are most likely to suffer from the loss of protection of workers’ rights.
It is obvious from this debate that the question of what we as a House should be doing is in the minds of many noble Lords. I quote the powerful sentence from the right reverend Prelate the Bishop of Leeds: “Countries where Parliament simply nods to the Executive are not generally respected as paragons of democratic virtue or freedom”. I do not call on your Lordships to be paragons but ask you to do the job that this House is here to do. Your Lordships’ House is often compared to the National People’s Congress of China because of the size of our membership. I say to your Lordships, let us not act like its Members.
The Duke of Montrose (Con)
My Lords, to follow on from that speech, I have to say, much to my surprise, that I regard myself as being accused of being thoroughly responsible for the Bill.
It has been obvious to anybody listening to this debate that the process required by Brexit is liable to be highly disruptive to the entity that is the United Kingdom, and this is not just a question of an Irish border or troubles with devolved Administrations, as several noble Lords mentioned. In the past 40 years, we have had legislation coming from Brussels which ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing and rural affairs in Scotland and all the devolved Administrations. This is an area where I have always had a major interest, both because I have a farm and because I have taken an interest in the sheep industry, as stated in the register. I thank the Law Society of Scotland for briefing me on the difficulties that appear from the Scottish perspective.
Inevitably, this has been occupying a great deal of time of the Joint Ministerial Council, where no doubt worthy people have been working away—but to most of us it is a shadowy body which, if some recently published minutes of its meetings which I have just seen are anything to go by, it is quite happy to remain. However, it is good to note that in October 2017, it recognised that there would be a need for common frameworks to be in place which should recognise all devolution settlements. Later on that year, the Cabinet Office published a list of 110 points where EU law intersects with devolved matters. Perhaps fortunately, for everyone’s relief, it has now published a revised analysis saying that the Cabinet Office identifies that there are only 21 policy areas affected where more detailed discussion around whether legislative common framework arrangements might be needed. For agriculture, regulation currently involves at least 12 separate pieces of EU legislation, so a number of frameworks may be required there. Can the Minister tell the House how many of these framework proposals are now accepted by the devolved Administrations as necessary and what further discussions are planned?
The Scottish Parliament is very concerned about this area. It is currently considering the Agriculture (Retained EU Law and Data) (Scotland) Bill, through which the Scottish Government seek powers both to simplify and improve CAP legislation and to trigger market intervention measures. It also includes regulations to facilitate the continuity of agricultural payments following the UK’s withdrawal from the EU and to make new provisions about marketing standards and the classification of carcasses. In this, they appear to have realised, almost before the Government woke up to it, that on 31 January the withdrawal Bill will disapply legislation enabling the Government to make the payments as required under the CAP, in particular the 2020 single farm payment.
However, the Government have woken up to this situation. Perhaps noble Lords noticed last Thursday the First Reading in the other place of the Direct Payments to Farmers (Legislative Continuity) Bill on exactly that subject. I do not know how many of the single farm payments to farmers for 2019 are still outstanding and whether they will be affected on 31 January. Do the Government intend to have this piece of legislation in force before then? If not, what action do they propose, or will we have a hiatus where all moneys will be stopped?
Lord Thomas of Cwmgiedd (CB)
If I may, I will follow on from the points made by the noble Duke about the aspects of the Bill that deal with relations between the constituent parts of the union.
It seems to me that it is inevitable that, as the Bill proceeds and as devolution has to be reconsidered, significant changes may be required to the schemes of devolution as envisaged in the original Bill. Therefore, it is important that, in this Bill, we have regard to two issues. The first is that a terrible precedent would be set if we altered the devolution legislation other than by primary legislation of this House. It is important to recall that the devolution statutes now form part of our constitution; if they are to be amended, they should be amended by primary legislation.
Secondly, going forward, although there may be reasons why parliamentary supervision, and parliamentary time, in relation to the conduct of the negotiations might not be a good idea—I say nothing about that—it is equally important that we have regard to the fact that the devolved Governments have a vital interest in all the negotiations. If we are to go forward with a stronger union and make new arrangements for devolution, it is important that we start as we mean to continue—that is, with the devolved Governments being closely involved in the negotiations and consulted widely as to where we are going, because that is essential for the future of the union, and, secondly, ensuring that any changes made to the devolution statutes are not made using the powers that this Bill intends to confer.
I hope that the House will consider these two points very carefully because, when we enter a future outside the European Union—and I am looking solely to the future, not the past—I hope that we have a union that is stronger. But that strength will not be achieved if we do not start as we mean to continue, and that is by not altering the devolution settlement schemes by way of delegated powers and again leaving out of the way in which the negotiations are conducted obtaining views from and consulting widely with the devolved Governments.
Viscount Trenchard (Con)
My Lords, I thank my noble friend Lord Callanan for his optimistic and confident introduction and congratulate my noble friend Lord Barwell and the noble Lord, Lord Mann, on their inspiring maiden speeches. I am enormously excited and heartened by the ringing mandate given to the Prime Minister in the general election last month. As he said:
“Now is the time to act together as one reinvigorated nation, one United Kingdom, filled with renewed confidence in our national destiny and determined, at last, to take advantage of the opportunities that now lie before us.”—[Official Report, Commons, 20/12/19; col. 146.]
During the years that I worked in Tokyo, and later when I worked in Brussels, I too believed that the UK should remain a member of the EU. However, with the passage of the Maastricht and Lisbon treaties, it has become increasingly clear that the EU is different from the body we joined. We had become increasingly uncomfortable passengers on the European train because we knew or suspected that its intended destination was different from where we wanted to go.
The Government have rightly recognised that there is nothing to be gained from providing for the possibility of an extension to the implementation period beyond the end of this year. Anyone who has experience of negotiations knows well that parties are willing to make their most significant concessions only when it has finally become clear that their interests depend on reaching agreement within a certain timescale. As long as the EU could hold out the hope that we would ultimately decide not to leave—or anyway not leave the customs union or the single market—it would continue to try to prolong the negotiations. As my right honourable friend Dr Liam Fox said at Second Reading in another place:
“We will face a political issue rather than a technical issue,”—[Official Report, Commons, 20/20/19; col. 154.]
if the EU were to prevent our reaching a satisfactory trade deal before the end of this year. The debate will not be about tariffs, fees and quotas, but about regulatory alignment.
There are two diametrically opposed systems for conducting global trade. One is to require your trade partners to harmonise their regulations with yours, as the EU is increasingly demanding. The only other major economy seeking to do this is China. The other system is to work towards outcomes-based equivalence, leaving each country free to determine its own rules and standards and to achieve that in a way which best reflects its legal system and its business practices. This way is consistent with parliamentary democracy, but the EU’s way is not. It is very important that our negotiators make it clear that we cannot accept any concept of dynamic alignment with EU rules. Mark Carney, who is not one of the strongest advocates of the merits of Brexit, has warned that the City must not be forced to accept EU financial regulations after we have left.
There has been much talk of the risk of damage to the City if it is denied access to European markets. However, surely a bigger risk is that faced by continental users of the London markets. For example, what damage would German car makers suffer in the event that EU regulators were to prevent them raising funds in the liquid international capital markets based in London? Their cost of funds would rise significantly. It is in our discretion to allow European financial institutions to continue to operate here, and I cannot believe that their regulators will really wish to circumscribe their activities here.
Finally, I shall say a word on the union. I believe that leaving the structures of the EU will of itself immediately start to reduce the support for independence for the constituent nations of the United Kingdom. EU membership, as the EU elite in Brussels perhaps knows better than we do, of itself diminishes the significance of being British and a part of the United Kingdom. Remove the European umbrella and the Scots will suddenly come to appreciate the British umbrella—especially the Barnett-lined umbrella—much more than they did. That is why I believe that the threat to the unity of the United Kingdom will be diminished, not enhanced, by Brexit.
Lord Dubs (Lab)
My Lords, before I come to my main points, I will differ very much from the noble Viscount’s comments. I believe that where we are is a threat to our union. I believe it threatens England being separated from Scotland and what is going to happen in Ireland. I would not be as relaxed as the noble Viscount has been.
As somebody who very much supported the remain side of the argument, I am of course disappointed that we are where we are, but we must accept the result of the election. Having spent a lot of the election in London constituencies, however, I am bound to say that it was quite surprising—but then, I suppose London is a bubble and we got a different view of what was happening from that of what was happening elsewhere, judging from my brief forays outside the M25. We have to accept that, but the noble Lord, Lord Robathan, made a comment about people saying the electorate were silly. I would never say the voters were silly. If they came to a conclusion that I do not agree with, it is my fault and that of other politicians that we did not put the case as well as we should have. I would never say the voters were silly, although it is interesting that the voters of London differed somewhat from the voters of other parts of the country.
I will make only two points. I still believe emphatically that we are European, and it is important for us in all sorts of ways that we maintain our international connections even if we have left the formal structures of the European Union. I therefore hope that international structures such as the Council of Europe, the Organization for Security and Co-operation in Europe—the parliamentary assembly of which I serve on—the all-party groups and the British-Irish Parliamentary Assembly will be given more support by the Government to continue to achieve good international links with the countries that are our former European partners. I believe we are still an international country in outlook. I still believe in the idea of international solidarity and do not want to lose that, even though we will have lost our formal membership of the European Union. The Government can encourage all this, and it is important that they should.
My second and only other point concerns the Salisbury convention and the amendment on child refugees. There will be plenty of chances to debate this amendment later this week in Committee and, I believe, on Report next week. However, I have looked at the Salisbury convention and the very interesting Library note on it and have tried to understand what it is all about. There are different views, but one thing is clear: where there is government legislation based on a clear and unambiguous manifesto commitment, we as an unelected House do not have the right to challenge the principle of that legislation, nor to obstruct or delay it. I think that is clear, whatever other nuances there are about how the Salisbury convention might work. I think we are all agreed on that.
I come now, obviously, to the point about child refugees. I have found nothing in the Government’s election manifesto that suggests they were going to reverse the existing policy on family reunion for child refugees. I shall not argue the details of that, but merely say that we are fully entitled as a House to amend that clause, and maybe one or two others, where there is no manifesto commitment. The idea of a manifesto commitment is a healthy one in a democracy. If the electors of this country have supported a party that won the election on the basis of specific policies, we should respect that. But where the Government simply decide, quite arbitrarily, to impose something, in this or any other Bill, that has nothing to do with the manifesto commitments, I think we are entitled—indeed, I would go so far as to say we have an obligation —to challenge it and vote accordingly, if we so wish. That is fairly clear, and we can argue about the merits or demerits of the Government’s attitude to child refugees in later stages of the Bill.
Lord Wigley (PC)
My Lords, I salute the stalwart work undertaken by the noble Lord, Lord Dubs: more power to his elbow. I add my congratulations on the two memorable maiden speeches we heard earlier.
I am less than happy to be speaking on this Bill. I wish that the whole wretched Brexit business had never arisen—but we are where we are. We cannot ignore public opinion, but whether this Bill reflects that opinion is quite another matter. That is something we should test, to the limited extent possible in the allocated timeframe, as we determine whether the Bill delivers what we want, or even what the Government themselves want.
The general election was a learning experience. I was out canvassing in Wales on 26 occasions, talking with and listening to voters. It taught me many lessons, one of which is this. While a majority in my home county of Gwynedd voted to remain, a significant number of remain voters felt that the outcome of the referendum had to be respected. So I accept, regrettably, that Brexit is going to happen. What I do not accept is that the electorate, while endorsing Brexit in general terms, have given their backing to all the specific proposals in this Bill, because they still do not know what the outcome of negotiations will be. We may possibly know the outcome by December—perhaps. At that stage, the people will either accept it, or there will be an unholy outcry that it is not the Brexit they were told they would get. That outcry may well come from disillusioned leavers as much as from remainers.
So the Government are on borrowed time. I do not deny that they have a mandate to “get Brexit done”, but aspects of this Bill are open to scrutiny from two perspectives: first, from a UK viewpoint, particularly around the impact of a possible no-deal Brexit on manufacturing exports, trade between Britain and Ireland, and on the working of the courts. Secondly, and of most concern to me, this Bill gives the UK Government power to amend the Government of Wales Act without the consent of Wales’s Senedd. That ties into the uncertainty about how the withdrawal agreement will impact on Wales. There is unease that control over the UK single market will be exercised solely from Westminster, and there is a question of resources. What are the long-term plans for replacing European strategic funds, from which Wales has benefitted greatly? Will this be known by December? It is astounding that such a far-reaching Bill can come to us without an economic impact assessment for Wales or Scotland—or indeed for Britain as a whole.
Reservations have been voiced by the Welsh Government, and there is little willingness among Assembly Members to accept the Bill in its current form. The issues they raise include the use of Henry VIII powers. They seek undertakings that the UK Government will not use powers to amend the Government of Wales Act without the National Assembly’s consent. They are also concerned about the December deadline for transition arrangements. They fear that, in missing the deadline, tariffs will be imposed on Welsh advanced manufacturing and agri-food exports, on which Wales depends to a greater extent than England.
The Welsh Government seek changes to the Bill to ensure transparency and scrutiny by both Parliament and the devolved legislatures as the negotiations proceed, and that agreement of the devolved Governments is obtained prior to ratification. There must be prior consultation on matters such as the state aid regime, reciprocal healthcare, access to Erasmus programmes and EU research funds, issues relating to Wales’s territorial waters, and the ability of business to exchange key workers with EU-based employees of the same company, all of which impact on devolved responsibilities.
Wales’s Government also urge that the one non-executive member of the proposed independent monitoring authority
“who knows about conditions in Wales”—
to use the words in the Bill—should be appointed on the advice of the National Assembly. That was not the point made by the Minister at the start of this debate.
Also, the UK Government need to ensure that their post-EU policies are acceptable to the elected Governments of Wales and Scotland. If Mr Johnson thinks that he can ride roughshod over the two Governments, I am afraid that he is in for a shock. Both Governments are refusing to accede to legislative consent orders without cast-iron assurances that their priorities will be heard. Noble Lords may assure themselves that ultimate power currently remains at Westminster: after all, power devolved is power retained. Ultimately, the UK Government can impose the policies it wishes on Wales and Scotland for however long they remain in this increasingly disunited kingdom. However, such an approach may well ignite the tinder-box, fragmenting the United Kingdom. Yes, Wales and Scotland can be overruled, but that would blow to the United Kingdom to smithereens. If that is the path this House wishes to follow, so be it—but please let it not say that it was never warned.
Viscount Eccles (Con)
My Lords, arguing that there are defects in a Bill to which the Government should pay attention is not the same as voting for an amendment and sending that amendment to the House of Commons. I hope that we will remember that.
I voted remain for two reasons. Our long membership, as one of the leading members of Europe as it expanded, seemed to me to warrant very careful consideration if we were to decide to leave, and there had been no preparations for us to leave, either by the European Union or ourselves. The Prime Minister at the time went to Europe, got nothing, had some dinners and was not really taken very seriously. Since we had always been an uncomfortable member of the Union, it was quite remiss of us and the Union not to have made any preparations.
But I was not a fan of the European Union. I had in my mind all the time an alleged quote from Valéry Giscard d’Estaing:
“If we had told them what we were doing, we would never have got as far as we have.”
Also, the mantra of ever-closer union worried me. My response was, “Yes, yes, but where to, and why?” No satisfactory answers were given, which took me back to the quote. These doubts redoubled during the long and abortive negotiations, because of the negative approach of the Union—a sort of, “What we have, we hold on to—in spades.”
It was not easy to believe any of the things that the Commission was saying in its political rhetoric about the future and where we were going. Yet the original purpose, which was to make sure that Europe did not start another great war, had in effect been achieved, so what was being put in its place, now that the centre of power in the world had shifted away from Europe to the Pacific? Was it a vague and grand project to build a unified bloc to rival the United States? If it was, that is not and never has been a good idea, and it is impractical. With 27 countries, each with a different history and culture, it is unbelievable that you could ever create an effective United States-type federal state. To me, individual states among the 193 are more important to the future of the world and are to be preferred over attempts to build yet another power bloc.
So my mind was made up for me, and I support this Bill. But in essentials it is an enabling Bill. This House can and will make its points and criticisms about what is and what is not in it, but we should let the House of Commons have its way.
Lord Willoughby de Broke (Non-Afl)
My Lords, after three years of damaging delay we are finally going to implement the referendum result that 17.5 million people voted for.
I remind noble Lords and the Government that we are here tonight largely because of the bravery and courage of Nigel Farage and his leadership of UKIP. Without that, David Cameron would never have had any intention of granting a referendum—that was the effect of UKIP. When we won the leave vote, we were all confident that David Cameron would carry out his promise of implementing the result of the referendum. However, that did not happen and he had to resign. We then had an inept Government and a recalcitrant bunch of MPs who thought they could take over the Executive position.
Following that, the Prime Minister was eventually forced to crawl to Brussels to ask for an extension to the often-repeated leave date—I cannot remember how many times she said it; perhaps 108—of 29 March. That was humiliating but it had its upside. We then had to contest the 2019 EU elections. Enter Nigel Farage again. He had formed the Brexit Party only four months before those elections, but it swept the board.
Lord Willoughby de Broke
No. I have only got five minutes. Sit down. Sit down.
The Brexit Party swept the board and got more votes than the Labour Party and the Conservative Party combined. After that election, Nigel Farage pointed out that the Conservative Party had lost two pro-EU leavers and that it needed to learn that lesson or die. I congratulate the Conservative Party on learning that lesson.
I also congratulate it on its crushing victory in the election. I hope it will mean that the public trust that was lost by the Government during the election—and particularly by Parliament and the Commons—as the noble Lord, Lord Forsyth, pointed out, will now be regained. It also meant that the motley crew of MPs who tried to thwart the result of Brexit were swept away like chaff behind a combine—gone—and will not even merit a footnote in history.
I welcome the withdrawal Bill, particularly Clause 33, which makes it clear that the implementation period will end on 31 December this year. Noble Lords have complained about that but, again, the noble Lord, Lord Forsyth, is quite right that the time for parliamentary games is over. We are leaving the EU in 18 days’ time so put out more flags—as long as they are not EU flags.
Lord Leigh of Hurley (Con)
My Lords, I welcome this Bill. Having spoken on a number of other Bills that dealt with our departure from the EU, particularly those relating to our leaving with no deal—at one time a real possibility—I congratulate our Prime Minister on this result.
Of course, we are only here because so many people in this House and the other place were so opposed to Mrs May’s deal that it has been replaced by this more satisfactory outcome. I wrote in the national press trying to persuade people to accept the previous Bill, but, not unusually for me, I was unsuccessful, and the reason we are here in a much stronger position is in no small part down to those who rejected the earlier Bill.
I want to talk about citizens’ rights. When no deal was looming, I was invited to join the British parliamentary emergency taskforce on citizens’ rights, which was all-Party, from both Houses and led by the very able MP Alberto Costa. A meeting was set up in July in Brussels with Michel Barnier and a very impressive parliamentary delegation, including Members who are in their place, Dimitri Scarlato of the3million and Fiona Godfrey of British in Europe. Ms Godfrey, in particular, gave an impassioned speech about how she was, in effect, a model EU citizen who had changed her life to reflect an EU lifestyle. She and, of course, we were anxious to get reassurance that if there was no deal the EU would ensure that no damage to her life would occur, or that it would at least be minimised, and that steps would be taken to accommodate her in a similar fashion to our settled status programme. It was a very moving speech. She was far more eloquent than me, so I can only apologise for not doing her the full justice she deserves. However, M Barnier was implacable. To him the integrity of the EU and getting us to sign up to the offer then on the table was far more important than the humanity of offering 1.5 million EU citizens the comfort that all would be okay for them. I was shocked.
So although we have now, thankfully, moved away from no deal, I have been keen to ensure that UK citizens’ rights are properly protected from M Barnier’s previous attitude. This Bill achieves that and it also brings EU citizens’ rights into UK law under our dualist system, with a better offer than that which the EU has been able to offer so far to UK citizens.
The EUSS is performing well. Applicants in the UK can apply for free and have until June 2021 to apply, or later in genuine cases; there have been huge grants—some £9 million, I believe—to ensure all are reached. A member of the delegation has commented in the press today that there is a lack of clarity on EU citizen’s rights, but I do not think that is right. I am aware that some wanted a declaratory system rather than a constitutive system, but the Bill confers rights on EU citizens. Some argue that too much control is given to Ministers as the settled status scheme is not yet underpinned by legislation, but the agreement is in international law so there is no practical risk. On the wider point, frankly, I think the British public is fed up with Parliament trying to micromanage this process, and they have now elected a strong majority Government to get on with the job.
The independent monitoring authority will hold the Government to account and is to be welcomed. Perhaps the Minister can offer some further guidance on some of its detailed working. I see that civil servants are barred from holding office at the IMA. I have no quibble with that—perhaps Mr Cummings suggested it—but is it normal for such organisations to have the chairman and all the non-executives appointed, and possibly removed, by the Secretary of State at will?
I welcome the rights we have offered EU citizens who live here, which was always the intention, both for settled and pre-settled status. Despite the concerns many have had—some, no doubt, genuine but others frankly designed to cause unnecessary anxiety—we have shown that we can reach a fair agreement with the EU for our withdrawal. I am convinced we will also be able to do so for our future trading relationship, which will be to this country’s enormous advantage.
Baroness Thornton (Lab)
My Lords, rather like my noble friend Lady Jones, I rise with a heavy heart to make a speech which to some may sound familiar because it is. It is about the effect this Bill will have on health and medicine in the transition period and after 2021.
At every stage over the past two years, I have sought reassurance from the Government over matters of reciprocal healthcare, the free movement of medical and nursing staff, the regulation and supply of medicines, clinical trials and research, the conduct and regulation of which is so important in the UK. Indeed, access to the research portal is vital to patients across the UK and Europe. I thank the BMA, Cancer Research UK, the Royal College of Nursing and the King’s Fund for their excellent briefings on these matters. If the Minister cannot give me give me a comprehensive response to my questions, I anticipate a comprehensive written response that can be made available in the Library.
There remains some uncertainty about the status of current EU reciprocal healthcare arrangements in the event of the UK leaving the European Union without a negotiated deal. Will we have that deal by December and, if we do not, what will happen? At the moment, the National Health Service website says the following about reciprocal healthcare:
“If you’re using an EHIC issued by the UK, this will still be valid until”
the UK leaves the EU—is that at the end of this month or the beginning of next year? Can the Minister please tell me?—
“or if your treatment started before exit day.”
So perhaps you need to get a wiggle on if you want to have treatment. The website also says:
“You should prepare for possible changes to your access to healthcare”
if there’s a no-deal Brexit and
“if you’re a UK national travelling to the EU, Norway, Iceland, Liechtenstein or Switzerland … The … EHIC may not be valid if there’s a no-deal Brexit. This will depend on arrangements with individual countries and might mean you need to pay for treatment in full.”
Does the Minister think that that is satisfactory and that it will serve the citizens who might be affected by it? Perhaps he can give the House an update.
Following on from that is an issue concerning Ireland and Northern Ireland. Access to healthcare services through the common travel area differs for European reciprocal arrangements. The future of the border could have a significant impact on those areas, so I would like some clarification on that too.
In terms of staffing, nursing and other staff from the European Union not only care for our NHS patients but are active members of their local communities. However, the NHS continues to haemorrhage doctors, nurses, midwives, care staff and medical staff. The free movement of nursing staff and other healthcare professionals across the globe continues to make the UK a world leader in innovations in health treatments and care delivery. What comfort can the Minister give in that regard?
What arrangements for medical supplies are envisaged by this legislation? I failed to find them, so perhaps the Minister can help me out here. The Royal Pharmaceutical Society and many other bodies have warned that pharmacists are already struggling to obtain common medicines. Perhaps he would care to update the House on exactly what will happen in the next year and what might happen if we do not complete the transition by December?
I turn to the subject of the EMA and clinical trials. A close UK-EU relationship on medical research and the licensing of new medicines works for patients and researchers across the continent, and the medical research sector has been clear that continued close co-operation should be a priority in the negotiations. However, there is concern that recent government statements ruling out alignment with EU regulations could negatively impact UK-EU co-operation on medical research and medicines licensing, and put at risk the progress made by such collaboration. The UK’s membership of the EMA is a major advantage for UK patients, as companies generally prioritise launching new products in the European pharmaceutical market as opposed to other countries. I would like clarification from the Minister on how the Government intend to deal with this matter in the event of delays.
Finally, I turn to the subject of clinical trials. The UK’s world-leading clinical research environment is built on collaboration with European partners. This collaboration benefits all medical research and is particularly crucial for rare and childhood cancers where populations are often too small to run trials in individual countries. Likewise, as the most innovative research increasingly groups patients according to the genetic profile of their cancer, for example, the pool of eligible patients for some trials becomes smaller and one country alone may not have enough patients to make the evidence from the research meaningful.
If the UK falls outside the EU’s regulatory system for clinical trials, UK-led trials will be more burdensome and will be likely to be significantly more costly. There is already evidence that doubts about whether the UK will be part of the EU’s harmonised research system are affecting collaboration. A 2019 report found that UCL and eight other Russell group universities were running about 50 big European research collaborations in 2016 but that is now down to 20. Therefore, the key question for the Minister is whether the commitment to maintain regulations for clinical research trials in the UK still stands.
Lord Dobbs (Con)
My Lords, some years ago, I sponsored a Private Member’s Bill for a referendum on our membership of the European Union. Little did I know.
This has been an excellent debate. We have had many excellent contributions including two superb maiden speeches. I suspect that, when we get to dealing with some of the other issues, we will find more excellent speeches on the Dubs amendment.
It seems that I am almost the last man standing between so many barons and their beds. I understand that that is a dangerous position to be in so I shall try to be brief. I shall first talk about the settlement of EU citizens here. There have been genuine concerns, as everybody knows. Anybody who has gone into the Peers’ Dining Room over the last three years for a cup of tea will know how many of our friends and colleagues have had genuine concerns. I believe that the Theresa May Government got it wrong. We could, right from the start, have given a guarantee to those EU citizens and dealt with their concerns. We could have taken the moral high ground but we decided on an alternative way. I believe that we are now putting right a wrong and doing so most successfully. It is estimated that there are some 3 million EU citizens in this country. There have already been 2.5 million applications for settled status; 2.3 million people have already been given that settled status and only five have been rejected. This is an example of the Government getting it right.
Secondly, I will deal with the timetable for our trade deal. There are, of course, those who claim that it will be impossible in the available time. They rather remind me of those people who get up in the morning, throw open the curtains and complain about the birdsong. The Irish Foreign Minister Simon Coveney said at the weekend that the timetable is ambitious. Yes, it is ambitious. We are ambitious—for our country, for Brexit and for the future. I make no apology for that. We are ambitious with good reason, because these details of a trade deal will not be simply grabbed out of thin air. There are templates; the EU has already done trade deals with Japan and with Canada. There will of course be differences, but the EU has form in this area as it does in many areas. It is a past master at reaching agreements up against deadlines, right up against the clock—at times even when the clock has stopped ticking. The way the EU negotiates is not always a pretty sight but, with good will, it can be done by that deadline.
Our clock has not stopped ticking, so I must finish. Some pretend that Brexit is a disease. It is not—it is a healing process. Some pretend that Brexit is a preordained disaster. They have been predicting disaster ever since the day of the referendum, yet we are here. This is a time not of disaster but of optimism and opportunity, and a time for democracy rather than just elites. Some people do not like to hear it. This unelected House of Lords may try to stuff its ears but the people will be heard. The noble Lord, Lord Mann, talked in his wonderful speech about the innate British sense of decency. Brexit will allow that to come to the fore once again. This is the people’s will; that is what makes Brexit a moral issue, a moral cause, as well as a political one. This Government have a duty to deliver it. It is going to happen and it is time for us to move on.
Lord Inglewood (Non-Afl)
My Lords, Brexit is the end of an epoch. I sense a certain sense of solemnity hanging over the House this evening which I do not find here all that often. Tonight is of course a crucial part of the process of our going, and this debate sees the nation splashing across the Rubicon as we go. Once the Bill that we are discussing becomes law, there is no turning back.
It seems to me that you cannot possibly see Brexit as an end in itself; it is merely a staging point on the journey to somewhere. We are now at the point where the options in front of us begin to open up, and the negotiations are going to become much more complicated. The one thing that we can be sure of is that things will never be the same again, and we will not unilaterally be able to cherry-pick what we want.
Politics is the art of the possible. We all have to be clear about that in looking at this subject, and I include the Government in that. I was slightly surprised that in the revised version of this Bill after the election there were some rather macho inclusions about the manner in which the negotiations are going to be carried out. They know that they can amend the Bill, and amend the legislation with another Bill if they want to. I am still not clear whether what they did was a sign of strength or of weakness.
I have to confess that I have a sense of foreboding. I myself believe in the validity of the fundamentals that led this country to join the EEC and then to play such an important part in establishing the single market. Free trade does not entail frictionless trade and commerce. To support that, you need to have cheap, sensible, easy, user-friendly systems to stop cheating, and we all know that one of the mantras of the British is, “All foreigners cheat.” Secondly, the manner in which the negotiation is being conducted from this end—a point that a number of noble Lords have made—makes me fear for the future of the United Kingdom and of Great Britain. Particularly the Scots but also the Northern Irish feel that their interests have been sidelined and that they have been cold-shouldered. I also think we ought to pay serious heed to what I might in shorthand call “the Lord Pannick point”. Legal certainty does matter in the real world to the people who are doing commerce and business.
Lastly, we have seen in the revised Bill that the role of Parliament has been substantially reduced. I believe it is a completely false antithesis to set up Parliament against the people. I fear that the Government are falling into the trap of behaving in exactly the way that they criticised Brussels for in running things through a bureaucracy, because bureaucrats are servants of Ministers and they are all part of the Administration. A Government who are confident of their way forward—and this Government are confident, with their big majority—should look positively at criticisms that may be levelled against them, and, if the criticisms turn out to be justified, it is a sign of strength to amend your position to accommodate them.
I never wanted to leave the European Union and I still do not, but in life sometimes you just have to accept second best. We are now and will continue to be, because we cannot avoid it, Europeans. We should remember the words of the poet Robert Frost:
“Good fences make good neighbors.”
I shall conclude in a way that I do not suppose I shall ever conclude a speech again: I hope I have been wrong in an awful lot of what I have said.
Lord Blencathra (Con)
My Lords, it is a great pleasure to follow my noble friend Lord Inglewood, a fellow Cumbrian, although his connections to Cumbria go back an impressive 400 years longer than mine.
Since January 2018 I have spoken just twice on Brexit-related legislation, and one of those occasions was to explain some technicalities in the report of the Delegated Powers Committee, which I chair. But tonight I am speaking in a personal capacity.
I warmly welcome the Bill, which marks the first and most vital phase of “getting Brexit done”. I welcome it in its current form because it means that at long last we have a Commons that is in accord with the people of this country, who over the last three years have seen their vote in the referendum sabotaged every inch of the way by some Members of Parliament who put their own arrogant, selfish view before the decision of the electorate.
Over Christmas I met quite a few of my former constituents—you know, the little people up north accused by remainders of not knowing what they voted for. We had no view on defeated MPs from other parties, but they shared my relief—and indeed pleasure—that the electorate had got rid of Tory MPs such as Grieve, Soubry, Gauke, Allen and others. They hoped that we would hear no more from them. To that, I would add former Prime Ministers and Deputy Prime Ministers, who will no longer need to travel to Brussels to assure Monsieur Barnier that Brexit will be stopped.
Could we also hear less from those who voted remain telling us what the leavers did and did not vote for? I had the opportunity to study the polling data about leavers. The majority expected to take an economic hit and were willing to accept that, provided we got back control of our laws and Parliament. The last Chancellor of the Exchequer kept repeating the shibboleth that people did not vote to be poorer—wrong again, Chancellor. They expected to be poorer because the Chancellor and all his dodgy Treasury documents told them that repeatedly.
So now we have the Bill before us today. It is right that ongoing parliamentary scrutiny of trade negotiations has gone. We saw in the last Parliament how even those remainers who agreed on what they disliked could not agree on anything that they liked. The main point I want to make to my noble friend is that EU negotiators will play even harder and dirtier now in the negotiations. They take the view that the United Kingdom has to be punished for daring to break away from them and to stop other countries leaving. First, they will demand sequencing of talks—the trap Theresa May fell into. That is, they will not discuss trade in goods until we surrender our fishing grounds and sell out our fishermen. And if we do that, then they will not discuss financial services until we sell out on trade in goods. And even if we extend the period by another 20 years, I do not see that they will do a deal on financial services unless we surrender every national interest.
So let us be ready for it. Of course, when we sell cars to the EU we must comply with their design regulations, just as we have to comply with different regulations when we sell to Hong Kong or California. However, there can be no question of complying with the EU demand that we can sell them goods only if, for example, our workers do not volunteer to do overtime above 60 hours a week, or we agree a corporation tax rate which the EU approves of or that we cannot give any state aid in any circumstances. We must not be tied to EU regulations when we leave but have maximum freedom for divergence if we wish to create our own laws and do things better.
We need the freedom to do gene editing, set higher environmental standards and approve medicines a lot faster. Are we willing to accept the cruelty of live animals being transported on excessively long journeys without proper food and water? Are we willing to let any more diseased plants and trees into this country and not be able to step up phytosanitary controls? There are hundreds of areas where we can do better, provided we do not sign up to accepting EU diktats on keeping all aspects of the single market and customs union.
And by the way, the people voted to leave the single market and customs union, too. We were repeatedly told by the Government and remainers that if we were foolish enough to vote leave, we would be thrown out of the single market and customs union. We the leavers knew that, and 17.4 million people voted to do just that. So, in conclusion, I say to my noble friend that the Government are delivering on leaving the political union on 31 January. We must be out of the customs union on 31 December of this year as well.
Viscount Waverley (CB)
My Lords, this debate has been conducted predictably, with political and ideological arguments articulated by each political faction. The people have spoken twice. The UK will not be moving on from Brexit but will move forward. Many of the existential issues that have driven this period of prolonged introversion that has hampered the UK’s international reputation have now been laid to rest. Translating a simple leave/remain referendum into a concrete plan to extricate one of the world’s largest economies from the world’s largest economic bloc was always going to be a tortuous affair. However, we cannot be dismissive of 45 years’ shared partnership. We need the EU 27 by our side, particularly as and when they improve their lot, which may come more quickly as a result of the Brexit process.
The time is shortly upon us to weigh anchor. What, however, will this new era mean for Britain’s place in the world and British politics? Will this moment prove to be the cathartic release that voters hoped for, with Britain finally able to move forward? Talk about the need for mid-year transition extension talks concerns me, as they could become a red line. Any speculation about having no deal back on the table would not be helpful. Moving on, has the Irish border issue been fully managed? Will the City of London potentially find its access to EU markets undermined? There are also questions relating to our courts, together with matters of social consequences.
Our bête noire of interference over democratic scrutiny, with the threats that any form of amending becomes a constitutional crisis, is in itself unconstitutional, notwithstanding the powerful argument to get the job done. I fear that there will be need for flexibility when this Bill passes, with elements of repenting at leisure needing to be carefully managed. Nevertheless, government strategists have done well to have gotten this agreement to the line. However, the Government should recognise that the United Kingdom’s future for generations to come is at stake.
Leaving under this agreement is the best of the various scenarios, offering the strongest guarantees, for example, of future rights for UK and EU citizens. The opening of the toll bridge will be being readied, with a symbolic tolling of 16 bells to ring out on 31 January—eight for the old and eight for the passing to the new era, albeit into a precarious world of untested relationships. Trade agreements, around which much of Brexit is centred, will need to be translated amid politics and policy on trade. These are likely to collide in the years to come. These are the most consequential stages for business and the UK’s global trade relations. Enough uncertainty remains that it could still hamper business and investment decisions.
But innovation can come to the fore. I will take two examples; one is preferential access via the mechanism of GSP+. Government might wish to consider a UK system as we, as an independent country, would be enabled to widen this scheme to developing countries in the Commonwealth which might currently not be covered. Additionally, businesses should be encouraged to ride tandem with aid programmes, which would bring four-fold benefits—increased trade; a decrease in aid budgets; compliance with delivering on corporate social responsibility; and sending a message to Commonwealth countries that we are back—in a package of real consequence.
Conducive policies, initiatives and incentives will prevail; indeed they must. Change and innovation presents opportunity and will allow us to stand tall. The United Kingdom’s strength is its diversity; this alone will enable us to advance on the world stage with confidence. It should not detract, however, from the need for government to address the many fundamental challenges of uniting the country after this divisive experience and to tackle the many internal divisions and social discords that have been allowed to accumulate. Looking externally will help to heal those ails. The challenge is to square this circle of balancing those with an insular outlook on one hand and, while firmly upholding our standards, being truly internationalist in temperament on the other.
Baroness Finlay of Llandaff (CB)
My Lords, thank you for allowing me to speak in the gap.
Wales voted to leave. In respecting that, we must maintain the coherence and cohesion of the union and avoid unintended consequences as negotiations progress and in the future. The devolution settlements are in primary legislation, and Wales, having supported Brexit, must not feel that the Government of Wales Act is threatened.
Negotiations which will have a huge impact on devolved policies and functions cannot be conducted without some meaningful involvement of the Senedd and the Welsh Government. It is not about vetoes; it is about real consultation. The Minister kindly met me recently, yet without reassurances to the Welsh Government on these key issues, there is a serious risk of a constitutional crisis if the legislative consent Motion is declined.
The maiden speeches that we heard today were both memorable. We ignore our populations and their devolved Governments at our peril.
Baroness Ludford (LD)
My Lords, the noble Lord, Lord Jopling, said that he was gritting his teeth and holding his nose. I sympathise with his feelings on Brexit, though I shall not be copying his physical reaction.
I thank all noble Lords who have spoken, not least the 12 from the Liberal Democrat Benches. I congratulate the two maiden speakers, the noble Lords, Lord Barwell and Lord Mann. I also appreciated the speech of the right reverend Prelate the Bishop of Leeds. I welcome the reports of the EU Committee and the Delegated Powers Committee and look forward to that from the Constitution Committee due out tomorrow, as the noble Baroness, Lady Taylor of Bolton, confirmed.
In the case of this Bill, we have the benefit and insight of seeing the pre-election and post-election versions, with the latter displaying the confidence, or arrogance, of a comfortable Commons majority. It might have been a more statesmanlike move to keep the more conciliatory version, which included matters such as parliamentary scrutiny, child refugees and workers’ rights, all of which have been highlighted today. However, that route was not chosen, and we have heard about the many issues in the Bill that concern Members of this House and will be pursued in amendments in days to come.
I was interested to hear the comments of the noble Lord, Lord Barwell, which were not very complimentary about the new version of the Bill and, I think, encouraged us to try to secure some changes, contrary to the advice of the noble Lords, Lord Cormack, Lord Taylor of Holbeach and Lord Forsyth, but in line with the intentions of my noble friend Lord Wallace of Saltaire. I agree with the noble Lord, Lord Kerr, who said that we should do our job, and the noble Lord, Lord Butler, who said that we should not be intimidated.
Unlike the noble Baroness, Lady Noakes, I do not think parliamentary scrutiny is an unnecessary process that drains the energy of Ministers and civil servants; they should be a little more robust than that. The deletion of Clause 31 of the previous Bill, asserting Parliament’s role in continuing scrutiny of the negotiations, alongside the addition of Clause 38, asserting the absolute nature of parliamentary sovereignty—which, as my noble friend Lord Beith said, is of no legal effect anyway—is a somewhat delicious but absurd irony or, one could say, hypocrisy. The Government are advancing a populist thesis, but, as the noble Lord, Lord Boswell, said, Ministers have to realise that parliamentary scrutiny is not an optional extra.
The Delegated Powers Committee under the chairmanship of the noble Lord, Lord Blencathra, has produced a most helpful report, warning about “potent” Henry VIII powers or, as the noble Lord, Lord Anderson of Ipswich, put it, “Henry VIII on steroids”. The noble and learned Lord, Lord Thomas, wisely warned against the devolution Acts being changed through delegated powers under this Bill. We will explore all these matters in Committee.
The Government’s plan under Clause 26 to give lower courts the power to overturn CJEU rulings rightly raises great concern. My noble friend Lord Beith doubted the enthusiasm for this in Whitehall. One imagines that HMRC is not thrilled at the thought of lots of taxpayers trying their luck in the tax tribunal at overturning European court rulings on, for example, VAT. The noble Lord, Lord Pannick, has a powerful article in the Times today warning that
“a flood of litigation would hit companies and individuals”.
Obviously, we hope that this is not some kind of revenge on the Supreme Court for its decisions against the Government in Miller and on Prorogation, otherwise we might have to organise some kind of march with judges from other EU countries similar to that held the other day in Warsaw in the face of the Polish Government’s repressive measures against the judiciary and cited by my noble friend Lord Campbell.
On citizens’ rights, the noble Lord, Lord Callanan, said that the independent monitoring authority would be “fully independent of government”, but under Schedule 2, the Government could abolish it through regulations, so that will hang over it as a threat. My noble friend Lord Oates made the point that guarantees given at the time of the referendum about automatic recognition and keeping the same rights have not been respected. I look forward to the debate on the amendments which he, my noble friend Lord Greaves, and others are proposing on appeal rights and a physical document.
My noble friends Lady Hamwee, Lord Teverson and Lady Miller raised the problem of US citizens losing onward free movement rights and the ability to work across borders. I have co-signed an amendment on that. I hope that, in the days to come, we will get clarity regarding Northern Irish trade with Great Britain, but I fear that the Government’s attempt to sow misinformation about checks and red tape on that trade will end in tears, or in the courts, possibly with infringement proceedings by the European Commission. Many Peers have rightly spoken up in favour of the Dubs amendment on child refugees. I suspect that that may well be a subject on which this House will decline to follow the advice that we should abstain from seeking changes to the Bill.
Regarding the level playing field, the noble Lord, Lord Hannay, advised that there will be “hard choices” to be made on the extent to which the UK aligns with EU standards. One could add that there may well be hard consequences if we do not. My noble friend Lady Bakewell spoke of the key importance of upholding high environmental standards. One might cite air pollution, where the UK has been in breach of EU targets on nitrogen dioxide for a decade. Does anyone honestly think that Brexit will improve this situation? Last night, I heard a new Conservative MP, Alicia Kearns, on the BBC’s “Westminster Hour” saying that the EU is not what keeps us safe. My noble friend Lord Paddick cited the National Crime Agency’s support for EU mechanisms—for example, the European arrest warrant, or the Schengen Information System—and its warning that the UK would be less safe if we left or were less than full members of Europol. This will also be discussed in Committee, as will the crucial issue of a data adequacy decision.
The Government need to come clean on what UK citizens will potentially lose and what can be saved. They are losing the free movement to live, work or retire in another EEA country, which their parents and grandparents had, possibly Erasmus, research grants, data roaming caps, the EHIC and pet passports. They are losing visa-free travel, with the need for a visa-lite or ESTA, as the noble Duke, the Duke of Somerset, mentioned. The noble Lord, Lord Bowness, mentioned recognition of UK driving licences and blue cards. We would like to hear from the Government exactly which facilities that British citizens have come to take for granted are to be lost. Leavers, as well as remainers, would be shocked to lose some of these.
Finally, instead of unleashing potential, new GDP figures show that the UK has had the lowest 12-month growth for seven years. The Prime Minister’s insistence on a hard Brexit, and his willingness to keep a no-deal Brexit as a threat hanging over negotiations, is a major cause of this shockingly poor economic performance. There will be major hits to our economy from being outside the single market and from the exclusion of services—80% of our economy—from the Government’s intended free trade agreement, as well as the imposition on manufacturing businesses such as car and aerospace of rules of origin through being outside the customs union: an economic hit is sadly unavoidable. Some £130 billion has already been lost to Brexit: £8 billion on no-deal preparations, £100 million on Brexit ads and £11 million on a Brexit 50p piece, which had to be melted down. Now £120 million is to be spent on a festival of Brexit. How unifying is that?
I strongly agree with the noble Baroness, Lady Buscombe, that in 40 years this Parliament failed to properly engage with EU laws, or the European Parliament, and the BBC failed to inform and educate the British public on the EU. I suspect that, during this year, knowledge levels of what we are losing will increase.
Lord McNicol of West Kilbride (Lab)
My Lords, I am pleased to close this Second Reading debate on behalf of the Labour Benches. It has been quite a day, with this contribution edging the total number of speakers to 74 with only the Minister to come. This is only the start of a very intense process. Consideration of this Bill will fill up six consecutive sitting days, with the potential for a seventh if your Lordships pass any amendments.
I will touch on some of today’s thoughtful contributions during my remarks, but as something of a debutant myself, I want to congratulate the noble Lords, Lord Barwell and Lord Mann, on their maiden speeches. They were both interesting and powerful in different way. Although the noble Lord, Lord Barwell, and I have been on opposing sides of many political battles over the years, I recognise that his time serving the last Prime Minister gives him a unique insight into the Brexit process. I welcome him, and I am sure he will put his knowledge and experience to good use in your Lordships’ House. As a member of our Whips team, I also note the contribution of the former Chief Whip, the noble Lord, Lord Taylor of Holbeach. We may hear his dulcet tones a little less these days, but it is always a pleasure when we do.
Unfortunately, it is hard to be quite so positive when looking at the Bill before us. While it may be the first time that your Lordships’ House has debated the legislation, it is certainly not the first time that noble Lords have read it and likely felt both surprise and concern: surprise that the Government are being quite so bold in the powers they are reserving for themselves and so brazen in forcing such complex legislation through in so short a time; concern that such an approach will become the norm. Many noble Lords have touched on the fact that this version of the Bill is very different to that presented last year. That Bill comfortably passed its Commons Second Reading and could have cleared its remaining Commons stages had the Prime Minister agreed to Labour’s fair request that sufficient time be given for scrutiny.
Following the outcome of December’s election, the Government will indeed get their Bill through. However, despite the usual sabre-rattling about the future of this House, we will not be deterred from fulfilling our duty as a responsible revising upper Chamber. I think my noble friend Lord Judd put it best: this House will not be stampeded into a rubber-stamping exercise. We hope that Ministers will be willing to work with us and to take on board our concerns, but if that is not the case, we reserve our constitutional right to pass amendments and give MPs the opportunity to think again. Our concerns are no secret, not least because amendment papers have been available since Friday evening. Nevertheless, I want to draw on some of the contributions to today’s debate to summarise our priorities.
The noble Lord, Lord Oates, spoke of how the Bill’s provisions on citizens’ rights fail to address the ongoing concerns of those who face new administrative processes to remain in a country they have become accustomed to calling home. I look forward to dealing with this issue in the coming days—tomorrow, I think—and I hope Ministers have been considering how the well-known shortcomings of the settled status scheme can be addressed.
We have heard the concerns of different sectors and professions about the future relationship. My noble friend Lady Thornton talked about health and medicines regulation, and the noble Lord, Lord Paddick, discussed security matters. My noble friend Lord Davies of Stamford and others expressed concern over the removal of protections for workers that were present in the October Bill. My noble friend Lady Jones of Whitchurch and others expressed their dismay with the lack of assurances over non-regression in relation to environmental protections. We do not know when the environment Bill will come or when its new enforcement body will be active. This raises the prospect of governance gaps at a time when the Government urgently need to tackle climate change.
My noble friend Lord Hain outlined the challenges in relation to Northern Ireland, while the noble Lord, Lord Wigley, reminded us of the Government’s ongoing reluctance to properly engage with or formally involve the devolved nations in formulating their approach to the Brexit process. All parts of the United Kingdom will be affected and should have a greater say than has been proposed.
The distinguished chairs of three of your Lordships’ House’s committees—the noble Lord, Lord Blencathra, the noble Earl, Lord Kinnoull, and my noble friend Lady Taylor of Bolton—as well as the noble Lord, Lord Anderson of Ipswich, addressed some of the legal and constitutional issues arising from this legislation: unprecedented delegated powers, Parliament stripped of its scrutiny role and the potential for a major row with the judiciary.
We also heard from my noble friend Lord Dubs and many others on the issue of child refugees seeking reunification with family members in the UK, a matter that was settled in 2018. I hope that the Minister will confirm that the amendment deleting Clause 37 will be accepted in Committee.
I have always been, and will remain, a proud European. Some of the most rewarding work during my time as general secretary of the Labour Party was the collaborative work undertaken with our sister parties across the continent. But as I learned during my previous role, and sadly continue to learn as an AFC Wimbledon season ticket holder, it is important to be magnanimous in defeat. As I said previously, and as my noble friend Lady Hayter stressed in her opening remarks, the Government will pass their Bill and we will leave the EU on 31 January.
However, as we go forward, regardless of which side each of us was on in 2016, there is important work to do. Contrary to what we will hear from the Prime Minister, Brexit is not done. Our country’s future is not yet settled. Despite the inclusion of Clause 33, the future UK-EU relationship is unlikely to be agreed by the end of this year.
We will not oppose the progression of this Bill, and while the coming days will be intense, we will argue for a more appropriate balance of power between the Executive and Parliament, seek reassurances on EU citizens and their children, ask for more detail on the future status of Northern Ireland and support my noble friend Lord Dubs, the very noblest of colleagues, in challenging the inclusion of Clause 37. I urge all the ministerial team working on this Bill to heed the words of the noble Lord, Lord Forsyth of Drumlean: to pull together, work together and—in my words—engage with us and others on the issues to improve what is a flawed Bill.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin by acknowledging the powerful maiden speeches delivered by my noble friend Lord Barwell and the noble Lord, Lord Mann, in whose speech there was nothing with which I could have possibly disagreed. I believe that every Member of this House would embrace both the content and sentiment that he expressed.
This Bill is of the highest importance and consequence for the country and is vital in delivering our withdrawal from the European Union at the end of this month. In opening, the noble Lord, Lord Newby, was candid and—I would venture—generous in acknowledging the position in which we stand since the general election. This Bill is not about whether or not we will leave the European Union; it is not about determining the terms of our departure from the European Union; it is not about the future relationship. The Bill ensures that the withdrawal agreement and the associated agreements under the EEA, EFTA and Swiss separation agreements are implemented in domestic law in order that they can be given full effect and thereby allow the Government to fulfil their obligations under international law.
I echo the sentiment of my noble friend Lord Callanan in acknowledging the work of all our Select Committees, including that of the Constitution Committee; the noble Baroness, Lady Taylor, indicated that it would deliver its report tomorrow, and we appreciate the speed with which it has addressed these matters. I also thank all noble Lords who contributed to today’s debate and discussion, although it will clearly not be possible for me in the time available between now and midnight to respond to each and every point that has been made.
The noble Earl, Lord Kinnoull, the noble Baroness, Lady Hamwee, my noble friend Lord Cope and other noble Lords raised the question of the prohibition the Bill places on the extension of the implementation period. The general election has clearly shown that the public want no further delay in our exit from the European Union, let alone potentially the 40 years’ delay of Exodus, as cited by the noble Lord, Lord Beith. The prohibition in this statute binds the Government to their manifesto commitment not to extend the implementation period beyond December 2020.
However, I reassure noble Lords that all parties have committed to using good faith to secure agreement on our future relationship by the end of 2020, and we will work with great energy to achieve this. Indeed, article 184 of the withdrawal agreement refers in particular to the obligations on all parties and, in turn, refers to point 135 in part five of the political declaration, where the parties themselves express the intention to have the agreement in force by the end of 2020.
The matter of citizens’ rights has been raised by a number of noble Lords, in particular by the noble Lords, Lord Newby and Lord Oates, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Teverson—I will come on to the particular point he raised in a moment. EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here. We have already provided certainty to over 2.5 million people who have been granted status through the EU settlement scheme. The scheme is free, there is plenty of support for applicants, and they have until at least 30 June 2021 to apply to it.
I understand that the issue of presettled versus settled status has generated concern in some quarters. I make it clear that presettled status is a pathway to settled status, because those with presettled status can move straight to settled status by making an application once they reach five years’ continuous residence in the United Kingdom. I hope that puts some minds at rest. Indeed, we are taking a very pragmatic approach in trying to deal with applications, both of presettled and settled status. If an applicant needs to use the full five years of their presettled status, they will also receive an automatic reminder to apply for settled status before their leave expires. There is therefore no question of people being overlooked in this context. To that end, I understand that the Home Office’s automatic status checker uses the government database to help applicants secure the right form of status in a smooth and effective manner.
Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is of course not a matter of domestic law and is therefore not a matter for the Bill, which is intended to implement the international legal obligations which we have undertaken pursuant to the withdrawal agreement. Therefore, the status of UK citizens in the EU will be the subject of the future relationship negotiations.
Questions were asked, particularly by my noble friend Lord Leigh of Hurley and the noble Baroness, Lady Ludford, about the status of the IMA. I assure noble Lords that the Bill guarantees that the IMA will be fully independent of government. As the Bill sets out, the IMA will be run by an independent board and contain the appropriate expertise on citizens’ rights, and the Government will have no role in its day-to-day running or in its decisions. The noble Baroness, Lady Ludford, suggested that, pursuant to the provisions in Schedule 2 to the Bill, the IMA could be abolished. That is simply not the case. There can be a transfer of the IMA’s functions at some point, but those functions must be continued and carried on. After a period of eight years, it will be possible for the UK to negotiate with the EU on the matter of whether the IMA is still required, but the obligation to maintain it is one that we have undertaken in international law, pursuant to the withdrawal agreement, and one to which we as a Government will adhere. So, there is no question of the unilateral abolition of the IMA.
I listened to the concerns expressed across the House, particularly by the noble Lord, Lord Newby, in relation to the delegated powers in the Bill. The original sifting mechanism introduced in the EU withdrawal Act was a response to the exceptional circumstances we then found ourselves in. The situation now is quite different and it would not be appropriate to include a sifting mechanism in the Bill in this instance.
I listened also to the concerns expressed in relation to the power contained in Clause 21 to implement the protocol on Ireland and Northern Ireland. I also took note of the comments of noble and learned Lords on the DPRRC in this regard. But we in this space must be aware of what occurred in the other place and have regard to the response from the Government Benches to the concerns raised there. The Government have stated that providing certainty and reassurance to people and businesses in Northern Ireland is of paramount importance to them. The power contained in the Bill to implement the protocol provides that reassurance.
Furthermore, as my noble friend Lord Callanan pointed out at the beginning of the debate, the Bill’s approach to implementing the protocol is the best way to ensure that the United Kingdom can fulfil its international obligations and make the necessary arrangements to implement the protocol in the time available. Any other approach would risk jeopardising the Government’s ability to fully implement the protocol and would inevitably send a negative signal to both businesses and individuals in Northern Ireland. I hope that the House will agree that the fulfilment of these two aims—namely, ensuring that the Government can fully implement the protocol and reassuring businesses and individuals in Northern Ireland—should not be undermined.
Noble Lords asked about Parliament’s oversight of the future relationship negotiations. It was interesting to observe the different views that came from different sides of the House. For a while, many noble Lords expressed concern about the removal of parliamentary oversight. I believe that I noted both my noble friend Lord Bridges of Headley and the noble Lord, Lord Darling, expressing the view that, at the end of the day, negotiation of such matters as international relations had to be a matter for the Executive, essentially, and not one for Parliament to be directly involved in—albeit that, at the end of the day, myriad pieces of legislation will require to be approved by Parliament and put in place in order that the future relationship can be established and maintained.
The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis. As the Prime Minister said in the debate on Second Reading in the other place, Parliament will be kept fully informed on the progress of these negotiations. Both Houses will have access to all their usual scrutiny tools, including Select Committees and the questioning of Ministers, and I have no doubt that the House will take full advantage of them. So, in these circumstances, we do not consider that there is a requirement for any additional statutory role. Furthermore, we are giving the EU Committee the ability to trigger debates on new pieces of law proposed by the EU that raise matters of national interest during the implementation period.
I turn now to the matter of unaccompanied asylum-seeking children, which was touched on by the noble Lord, Lord Dubs, and mentioned by a number of other noble Lords. Of course, concerns have been raised over family reunion for unaccompanied asylum-seeking children. I wish to make clear that the Government are fully committed both to the principle of family reunion and to helping and supporting the most vulnerable children. The Government, as my noble friend Lord Callanan observed, have a record of providing protection for vulnerable children, receiving 15% of all asylum claims from unaccompanied children in the EU.
Clause 37 does not represent a change to that existing government policy. It removes the statutory requirement to negotiate. This is appropriate as the Government have demonstrated their intentions by already writing to the European Commission to commence negotiations on this issue. It is vital that the Government are not legally constrained in those discussions. We are restoring the traditional division of competence between Parliament and the Executive when it comes to international negotiations. This clause fulfils the essential function of allowing us to continue negotiating a comprehensive agreement and rightly ensuring that Parliament is informed of the Government’s policy intentions in respect of our future arrangements.
I shall move on to deal with the question of the case law of the CJEU. I have noted the concerns that have been expressed here. While clearly EU case law is a defined body of law, it is important that our courts are not eternally bound by historic decisions of the EU Court of Justice after the implementation period has expired. Let me provide some important points of reassurance. First, the approach that we have taken is consistent with our international obligations. Clause 26 already provides for how the separation agreements must be interpreted and nothing that we do here will cut across that. Secondly, we want to approach this matter in a sensible way.
Let me be clear that there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom. We must consult with the senior judiciary before making any regulations, and the clause provides for the Minister to consult with others as is appropriate. What we intend is that the power will be used to ensure that retained EU case law is a living law rather than one preserved in aspic. There will be legal clarity at the point when any case concerning this body of law is heard. The power can be used only until the end of the implementation period, and the courts will be interpreting retained EU law only after that period. So we have the period of the implementation time in which to address this issue and it will then apply from the expiry of the implementation period. But I repeat that there is no intention on the part of the Government to extend the power to every court and tribunal in the land. We recognise the uncertainty that would be a consequence of such a move.
I turn to matters pertaining to devolution, which arose in a number of different contexts. First of all, the noble Duke, the Duke of Montrose, raised questions about the CAP and an agriculture Bill. I assure noble Lords that the CAP will continue to the end of the implementation period, by which time we will have taken forward the agriculture Bill. The noble Duke also referred to the frameworks, and perhaps I may remind noble Lords of the importance of these frameworks in the context of our relations with the devolved Administrations. Between October 2017 and March 2018, we published what was termed a common frameworks analysis, which set out about 153 areas in which EU law intersected with devolved competence. After discussion we have reduced that number, but have carried on an analysis of these areas with the devolved Administrations and continue to work closely with them on these issues.
One example of that is fisheries, which have already been mentioned in this debate, where we proposed a new UK framework to ensure access for UK fishing fleets throughout UK waters. That has been taken forward through discussion with the devolved Administrations and has been governed by principles agreed at the joint ministerial conferences. I give the detail of that just to underline the extent to which we are engaged with the devolved Administrations in this context.
As was suggested early on, the engagement between the UK Government and the devolved Administrations over the Bill has been rather unusual, because the recommendations coming back from the devolved Administrations have been principally concerned with reserved matters. The devolution settlement involved the reservation of specific matters to the United Kingdom Parliament. It was never intended that in the conduct of such reserved matters—for example, international affairs—the United Kingdom Parliament could be inhibited or frustrated by the devolved Administrations. That would not be normal under our devolution settlement, and that is reflected in the terms of the Sewel convention. For our part, the Government have followed the spirit and letter of the devolution settlement throughout the process pertaining to this Bill. The engagement of the devolved Administrations—
Baroness Hayter of Kentish Town
Does the Minister accept that while the negotiations may indeed be for reserved matters, in many cases the implementation is not reserved? That is why they are particularly worried about the lack of consultation.
Lord Keen of Elie
There are clearly circumstances in which the implementation of the withdrawal agreement will impact on the scope of executive competence of the devolved Administrations, and they are well aware of that, but those are not the issues they have sought to address with the UK Government in this context. They have sought to address matters that are reserved. As I say, the fundamentals of the devolved settlement, going back to 1998, never intended that where the UK Government were exercising a reserved function they should be inhibited or prevented from doing so by the devolved Administrations. It is important to bear that in mind.
As I say, we consider that we are taking appropriate steps to engage with the devolved Administrations, and we will continue to do so. Indeed, we continue to hope that the Welsh Government in particular will reflect on this and revise their recommendations to the National Assembly on legislative consent. At the end of the day, what we are doing here is implementing an international treaty obligation; that is the role of the United Kingdom Parliament.
I will now touch on one or two additional points in the limited time remaining. The noble Baroness, Lady Thornton, raised a number of issues with regard to health. Clearly, nothing is going to change before the end of the implementation period, and thereafter it will be a matter for the negotiation on the future relationship. It is not a matter for this Bill, which is intended to implement the present withdrawal agreement. She also made reference to the clinical trials directive. I should observe that the new EU clinical trials directive has not yet been adopted, so we do not even know where the EU will be with regard to that. Of course, once we do know, it may form the subject of negotiations on the future relationship.
The noble Baroness, Lady Crawley, made a powerful point that, after 46 years of being subject to EU law, women have still not secured equal pay. I certainly hope that we will do better after we leave the EU.
The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.
The noble Baroness, Lady Donaghy, referred to UK worker rights. I notice that, in many respects, UK worker rights are much higher than the norm within the other EU 27 states. One has only got to consider such issues as paternity and maternity leave, and other related issues, to appreciate that what we may hope for after exit is that the EU is able to catch up with us.
I look forward to tomorrow’s Committee stage, where we can enter into more detailed scrutiny and debate on the issues that have been raised today. This Bill ensures that we honour the result of the 2016 referendum and leave the EU on 31 January, on the terms of the withdrawal agreement. It ensures that the agreements have full effect in domestic law and that, accordingly, the Government can discharge their obligations in international law.
Once the Bill is passed and the withdrawal agreement ratified, we will proceed to the completion of a free trade agreement with the EU by the end of December 2020. We can then go on to focus on other national priorities, such as the National Health Service, education and skills, and ensuring that we make our country safe. I commend the Bill to the House.
European Union (Withdrawal Agreement) Bill
Tuesday 14th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-II Second marshalled list for Committee - (14 Jan 2020)
Lord Greaves
“Rights of European citizens resident in the United Kingdom
(1) This section applies to citizens of the EU, EEA and EFTA nationals and Swiss citizens who are ordinarily resident in the United Kingdom on exit day.(2) Except as provided for in this Act, following exit day all persons mentioned in subsection (1) have the rights, status and obligations which applied to them before that day.(3) The provisions in this section apply to the children and other dependent relatives of such persons whether or not they were ordinarily resident in the United Kingdom on exit day.(4) The rights referred to in subsection (2) may not be amended or removed except by primary legislation.”
Lord Greaves (LD)
My Lords, it seems slightly odd that we launch into Committee at Clause 7 but that is the way it is. It comes at the beginning of Part 3 of the Bill, which is the extremely important part referring to the European citizens who now live and work among us and the question of what will happen to them when we leave the European Union. It is about settled status and the future of a very important part of our community.
This is the first time that the details and principles behind the settlement scheme have really come to Parliament. Before now, the matter has been dealt with through orders and regulations under the Immigration Act and by ministerial diktat. It is interesting that today the Law Commission is saying that the Immigration Rules are not fit for purpose and proposing that they have a thorough rewrite. Can the Minister tell us when the Government will respond to that and whether it is likely to happen? It would be very welcome indeed.
This is not a carefully honed amendment that can be fitted into the Bill; that will come in Amendments 2 and 3 tabled by my noble friend Lord Oates. It is a declamatory amendment; it states a principle and a promise made, which very large numbers of the people it affects—European citizens living here—believe has not been, and is not being, carried out in full.
Before the referendum, back in 2016, Boris Johnson, Michael Gove and Priti Patel issued a statement. It was not a government Statement, but they are now the Prime Minister, the Chancellor of the Duchy of Lancaster—who has been tasked with getting Brexit done—and the Home Secretary, so they are pretty important people in the present Government. The statement said:
“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”
The words “automatically” and “no less favourably” are now in considerable doubt.
On television this morning, the Prime Minister, Boris Johnson, was talking about really important things in relation to the Elizabeth Tower and Big Ben. He explained that
“we need to restore the clapper in order to bong Big Ben on Brexit night, and that is expensive. The bongs cost £500,000 … but we are working up a plan so that people can bung a bob for a Big Ben bong.”
I had to read this carefully—and listen to it carefully on the BBC this lunchtime—to be quite sure of the last word. I am assured that it did end in a “g” and was not some other word which might have meant something different, and which I might have had difficulty saying in your Lordships’ House. Having said that
“we need to restore the clapper in order to bong Big Ben on Brexit night”
the Prime Minister continued that they
“have not quite worked out how to do it.”
Yesterday at Second Reading, I said that people who have won the Brexit debate should not be triumphalist. People may be euphoric and have the kind of “paroxysms of joy” that the Prime Minister has described in the Sunday Times—the suggestion was that there would be a baby boom as a result of these paroxysms, which is why I wondered whether the word “bong” was right—but that will not do any good in bringing this country together and healing the serious wounds that have been, and continue to be, caused by the whole Brexit debate. Many people in this country, far from being full of paroxysms of joy, sexual or otherwise, are full of dismay and distress—
Lord Greaves
Noble Lords can moan. People are crying when they go to sleep at night and when they wake up in the morning, and all they get from the unfeeling, hard-headed Tories is moans. People are feeling a sense of loss, which is akin to bereavement and a grieving process has only just begun. In these circumstances, triumphalist behaviour, festivals of Brexit and all the rest will simply make things worse. The people who feel it the most are the many citizens of the EU who live, work and take part in our communities in every way. There are said to be 3.6 million of them—that was the guess of the Office for National Statistics, although a lot of people think it is rather more. In addition to the EU citizens there are families, UK citizens, spouses, partners, relatives and friends. Families and marriages have already broken up as a result.
Lord Grocott (Lab)
The noble Lord just made a comparison—I am slightly reeling from it—between Britain on 1 February of this year and Nazi Germany in 1933. Could he elaborate on that a little, because that seems to me to be stretching the point a bit?
Lord Greaves
We will see. What we know is that the day after the referendum, people’s windows were put in, people were abused in the street and paint was daubed on people’s houses. That is the kind of thing I am talking about. From talking to European citizens here, I know of people who are now reluctant to go into shops if they are not known in them, because of their accent and the attitude people might have towards them. This is quite widespread; I am not saying it is very frequent, but it is going on. I know plenty of instances of people being abused in the street and shouted at, and even more instances when people have, quite kindly, said to people, “I suppose you’ll be going home now.” That is happening all the time. It happened immediately after the referendum and I am very worried that on 1 and 2 February there will be a wave of this kind of thing. Police statistics show that the number of racially motivated offences has increased significantly since June 2016. I am not making it up; it is happening. Noble Lords who perhaps live a sheltered life might get out there a bit more and find out what is going on.
I believe that the Government are not fulfilling their promises—or promises that three leading members of the Government made—and the least they ought to do is explain why and apologise for it. I do not imagine that they will do that, but they ought to. The least we ought to do is make appropriate amendments to the Bill—some of those coming through—to improve it. If the House of Commons throws it out, so be it. That is our duty as unelected people on behalf of people who did not have votes. I beg to move.
Lord McNicol of West Kilbride (Lab)
My Lords, the amendment moved by the noble Lord, Lord Greaves, would grant an automatic continuation of pre-exit-day rights and immigration status for EU citizens resident in the United Kingdom. This is a position that the Labour Party has consistently supported. Indeed, the party put forward amendments to that effect when the original Article 50 Bill was considered. However, the then Prime Minister resisted any amendments to that Bill on this issue.
The Government waited a long time to announce that they would unilaterally guarantee the rights of EU citizens resident in the UK, even in the event of a no-deal exit. However, regarding this amendment, the reality is that the settled status scheme has now been operational for some time and the withdrawal agreement was negotiated on the existence of such a scheme. As such, while we sympathise with the thrust behind the amendment of the noble Lord, Lord Greaves, we believe that a better approach is to reform the current system, as the next group of amendments aims to do.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lords, Lord Greaves and Lord McNicol, for their comments. The initial points made by the noble Lord, Lord Greaves, were about Immigration Rules. There will be an update in March. He made some points about Big Ben; I was not sure what they were. He also talked about gloating, but I do not observe any member of your Lordships’ House gloating over the Bill and I concur with the noble Lord, Lord Grocott, that comparing the UK on 31 January to Nazi Germany is a step too far.
To get to the point of what the noble Lord eventually said, we reject the proposed new clause in Amendment 1. It is well intentioned but unnecessary; it conflicts with our general implementation of the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement. For brevity, I will refer to these as the agreements. My references to EU citizens should likewise be taken to include these EEA/EFTA and Swiss nationals, and their family members.
Citizens’ rights have been a priority in negotiations and the Government have delivered on that commitment, reaching agreements that provide certainty to EU citizens in the UK and to UK nationals in the EU that they can continue to live, work, study and access benefits and services broadly as now. Clauses 5 and 6 create a conduit pipe, which makes the rights and obligations contained in the agreements available in UK law. This is intended to replicate the way that EU law applied in the UK while the UK was a member state, and these clauses ensure that the rights contained in the agreements are available to EU citizens in the UK. The agreements provide certainty and protect the rights of EU citizens lawfully resident in the UK before the end of the implementation period. Existing close family members, including children of those covered in the agreements, will also have a lifelong right to family reunion. The as-yet unborn children of EU citizens will also be protected. This protection applies equally to UK nationals in their member state of residence and is guaranteed by the withdrawal agreement.
The UK has already introduced the EU settlement scheme, which is the means for EU citizens to obtain the status that confers rights under the agreements. The scheme provides a quick and easy way to do this, and it is a success. According to the latest internal figures, over 2.8 million applications have been received and 2.5 million grants of status made. The Home Office is processing up to 20,000 applications a day. We are working tirelessly with communities up and down the country to raise awareness and keep up this momentum. The scheme already allows EU citizens protected by the agreements to obtain UK immigration status, which enables them to remain here permanently after exit. The proposed new clause is therefore unnecessary, as it conflicts with the purpose and operation of the scheme.
Finally, the proposed new clause makes reference to those resident in the UK on exit day, at the end of this month. As the noble Lord should know, rights under the agreements are conferred on those resident in the UK at the end of the implementation period, which is at the end of this year. The proposed new clause therefore does not align with our obligations under the agreements. I hope that has reassured the noble Lord on the concerns expressed through this new clause and I ask him to withdraw his amendment.
Lord Greaves
My Lords, I will certainly withdraw the amendment and I am glad that the Minister discovered the error that I had made when it was too late to correct it. I thank her for that but, as I said, it is not a carefully honed amendment; it is an amendment to declare a principle. The Minister says that it declares the principle behind what the Government are doing. That is clearly not the case. It is the case in many areas, but not in all. As for the settled status scheme, it is certainly the most efficient Home Office scheme that I have come across in recent years—although that does not say very much—because of the effort that has been put into it. I thank her for that. The Minister said, and the Government keep saying, that the rights of European citizens will be broadly as now. It is “broadly” that is a weasel word.
Finally, I did not compare this country to Nazi Germany and obviously I would not do so; that would be ridiculous. What I am saying is that some of the conditions that exist in this country are similar to those that existed in Germany between the wars before the Nazis came to power. You can think that that is right or that it is wrong, but I believe it is the case. Look at the amount of racist abuse there is on social media, while if you listen to pub conversations, you can hear people saying things that perhaps three, four or five years ago they would have kept to themselves. There is an amount of abuse by a small minority of people that is not being stopped by the social controls that previously existed. That, I am afraid, is the position.
Lord Oates
“Rights related to residence
(1) This section applies to—(a) persons within the personal scope of the withdrawal agreement (defined in Article 10) having the right to reside in the United Kingdom;(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).(2) The Secretary of State may by regulations make provision to extend the scope of persons eligible for indefinite leave to enter or remain or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).(3) A person has settled status in the United Kingdom if that person meets the criteria set out in ‘Eligibility for indefinite leave to enter or remain’ in Immigration Rules Appendix EU, or any amendment of these rules according to subsection (2).(4) A person with settled status holds indefinite leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance. (5) A person has pre-settled status in the United Kingdom if that person meets the eligibility requirements set out in ‘Eligibility for limited leave to enter or remain’ in residence scheme immigration rules (see section 17), or any amendment of these rules according to subsection (2).(6) A person who has pre-settled status has leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the withdrawal agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance, except for the right to reside indefinitely in the United Kingdom and subject to the limitations set out in Article 23(2) of the withdrawal agreement.(7) The Secretary of State must by regulations made by statutory instrument make provision—(a) implementing Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;(b) implementing Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;(c) implementing Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence.(8) The regulations adopted under subsection (11) must apply to those defined in subsections (1)(a) and (1)(b).(9) A person holding pre-settled or settled status does not lose the right to reside for not having registered that settled or pre-settled status.(10) A person who has settled or pre-settled status who has not registered their settled or pre-settled status by 30 June 2021 or any later date decided by the Secretary of State may register at any time after that date under the same conditions as those registering prior to that date.(11) After 30 June 2021 or any later date decided by the Secretary of State, a person or their agent may require proof of registration of settled or pre-settled status under conditions prescribed by the Secretary of State in regulations made by statutory instrument, subject to subsections (12) to (14).(12) Any person or their agent who is allowed under subsection (11) to require proof of registration has discretion to establish by way of other means than proof of registration that the eligibility requirements for pre-settled or settled status under the provisions of this Act have been met.(13) When a person within the scope of this section is requested to provide proof of registration of settled or pre-settled status as a condition to retain social security benefits, housing assistance, access to public services or entitlements under a private contract, that person shall be given a reasonable period of at least three months to initiate the registration procedure set out in this section if that person has not already registered.(14) During the reasonable period under subsection (13), and subsequently on the provision of proof of commencement of the registration procedure and until a final decision on registration on which no further administrative or judicial recourse is possible, a person cannot be deprived of existing social security benefits, housing assistance, access to public services or private contract entitlements on the grounds of not having proof of registration.(15) A statutory instrument containing regulations under this section may not be made unless a draft instrument has been laid before and approved by a resolution of each House of Parliament.” Member’s explanatory statement
This amendment creates a declaratory registration that provides incentives for registration while at the same avoiding EU citizens becoming illegally resident if not registering by the deadline. It ensures EU citizens receive physical proof of registration. It consolidates both the current eligibility criteria of the EU Settlement Scheme immigration rules, and the rights of those eligible under the Scheme, into primary legislation.
Lord Oates (LD)
My Lords, in moving Amendment 2 I shall speak also to Amendment 3, in my name and those of the noble Lords, Lord Kerslake and Lord McNicol of West Kilbride, The noble Lord, Lord Kerslake, gives his apologies that he cannot be in the Chamber because he has been called away to another meeting.
Amendment 2 seeks to create a declaratory registration system to replace the existing application-based system. Its intention is, first, to continue to provide incentives for registration but to avoid making EU citizens who do not register by the deadline immediately and by definition illegal. Secondly, it seeks to ensure that EU citizens can receive physical proof of registration, which is a concern that I know has been expressed to many Members of your Lordships’ House, and indeed has been the subject of representations made by EU sub-committees.
Thirdly, it would consolidate in primary legislation both the current eligibility criteria of the EU settlement scheme Immigration Rules and the rights of those who are eligible under the scheme. Amendment 3 tries to do similar things: that is, it would establish the declaratory principle and make provision for physical proof, but it would not seek to put into primary legislation the rules and rights under the scheme.
The aim of Amendment 2—that of seeking to put these issues into primary legislation—is to be helpful to the Government by ensuring the categorical commitment made to EU citizens, referred to by my noble friend Lord Greaves, during the referendum campaign by the current Prime Minister, the current Home Secretary and the current Chancellor of the Duchy of Lancaster, to guarantee that those rights would be automatic and that EU citizens would be treated no less favourably than they are at present. The current scheme does not honour that commitment. The settled status scheme is not the automatic route to indefinite leave to remain that was promised by the leave campaigners. It is an application-based system with a finite cut-off of 30 June 2021. In fact, the only thing that is automatic about the scheme is that, after midnight on that date, any person who has not applied will be criminalised. They will be deemed to be unlawfully in the United Kingdom whether or not they are otherwise eligible for permanent residence under the scheme, and they will therefore be subject to deportation.
I echo the comments of my noble friend and others: the Home Office is clearly making strenuous efforts in this regard. But we know that, inevitably and despite its best efforts, it will not be able to reach and grant settled status to every one of the 3.6 million—we do not know the exact number—EU, EEA and Swiss citizens. Tens or even hundreds of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.
The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted by the Home Office in the Windrush scandal. But it will do nothing of the sort. It will just criminalise the latter-day Windrush people. The solution of the Home Office to the problem of Windrush seems to be simply to ensure that it will not be acting unlawfully by removing eligible people, as it was found to be in the case of the Windrush victims. It is a bizarre form of protection.
Another issue with the settled status scheme is that, unlike the indefinite leave to remain scheme, where you have a stamp in your passport, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office, which has to be entered into the relevant website by whoever requires proof of their immigration status. the3million, which represents EU citizens in the UK, has highlighted the many difficulties and concerns that this inevitably will cause for EU citizens. Interactions with landlords, airline staff and other officials obliged to check immigration status will become fraught with anxiety and will be dependent on the fragility of an internet connection or the resilience of a government IT system.
Finally, and most fundamentally, the current settled status scheme rests on immigration regulations, which can be changed virtually at the stroke of a ministerial pen, and on the undertakings of Ministers. But, as we know, Ministers come and go. We know already that the commitments—categorical, without any room for confusion or misunderstanding—that were issued by the Home Secretary and the Prime Minister have not been honoured. So why should EU citizens in this country have faith that this system will not be changed at a later date?
Beyond the principles of the settled status scheme, there are also lots of concerns about how it is applied: who is actually getting settled status and who is instead getting presettled status. In summing up at Second Reading last night, the Minister, the noble and learned Lord, Lord Keen, said that
“presettled status is a pathway to settled status,”—[Official Report, 13/1/20; col. 552.]
as if it did not matter which you got—but it does. It matters very much because the rights under each are different.
We are not seeking to change anything about the rights of citizens under the EU settled status scheme, or about eligibility. We are asking, first, that the rights are placed in primary legislation to give the reassurance that EU citizens need and want, so that they can feel secure and settled in their status in this country. Secondly, we ask that their request for a means of having physical proof is answered. It may be that not everybody wants that, but there should be an option for EU citizens to have it. Lastly, we ask for a shift to a declaratory system in which eligibility is the basis on which one has rights, not the application system. As the amendment sets out, it is perfectly possible to continue to give incentives to registration while establishing a declaratory system that will ensure that a whole load of vulnerable people are not criminalised when the registration date passes in 2021. I beg to move.
Lord Hamilton of Epsom (Con)
My Lords, the Government have done an amazing amount to look after EU citizens in this country. I cast my mind back to the early days of the May Government when there was great pressure to unilaterally make steps to ensure the position of EU citizens living in this country. At that stage, the Government resisted the pressure because they said that this should be part of the negotiations. It should be reciprocated by the EU: it should do the same for our citizens in the EU. As far as I can make out, that has not happened. We have made a generous, unilateral gesture towards EU citizens in this country and there has not been reciprocation from the EU. Does that not mean that the Government have been rather mistaken to make this generous offer? Surely we have an obligation to our citizens in the EU and we should look to it to reciprocate anything that we do in this country. Will my noble friend address this problem when she sums up? As I understand it, British citizens in the EU do not, at the moment, have any freedom of movement between one EU country and another and there are certain problems with EU citizens in this country travelling to and from their country of origin in Europe. This has not been a very satisfactory outcome in the negotiations. Perhaps we would have been better not to have made this extremely generous, unilateral offer.
Lord Warner (CB)
My Lords, I support these two amendments. I do so as the roommate of my noble friend Lord Kerslake, who sends his apologies for not being here but has strengthened my arguments for supporting the amendments. I speak as someone who, after the 1997 election—oh glorious days—spent two years in the Home Office and saw every submission of any significance that was made to the then Home Secretary. I always shuddered a little when we got submissions from the immigration part of the department. They sent a quiver through my soul, because of reliability. I remember a former Conservative Home Secretary briefed us shortly after that election. He said to the then Home Secretary: “You have to remember that there are always 500 people in the Home Office who can ruin your political career. The really scary thing is that none of them actually realises that they can do it.” The Windrush exercise demonstrated rather well the wisdom of those remarks.
The important thing about these two amendments is that they do not in any way disturb significantly what the Government want to do. They provide legal certainty, about which I think we will hear more later in Committee. They also provide some very practical stiffening of the arrangements around these new Immigration Rules. I went to one of the Home Office briefings for parliamentarians on the new scheme, at which everybody, MPs, Peers and members of MPs’ offices, made the point to the Home Office that in the real world a lot of people expect someone to produce hard-copy evidence, whether it is the landlord, the GP or whoever. I can speak from personal experience, having helped a number of people get permanent leave to remain here, and not that long ago either. These people had had experiences of having to produce some written documentation that they were entitled to live here.
Viscount Waverley (CB)
My Lords, I hope I may be permitted to elaborate on a point made by the noble Lord, Lord Hamilton. I do so as a long-term resident of Portugal, where there is a sense from officialdom on the continent that the rights of UK citizens in Portugal, and indeed elsewhere, are actually in a good place. The key word in all this is reciprocity. The Portuguese have made certain protections for UK citizens in their country, but there is this key word in Article 19 of the appropriate legislation that specifically— I will not translate it directly from the Portuguese—relates to reciprocity. The conditions are broadly the same; if you go and register, your rights are protected. In reality, that is what everyone should be doing anyway. If there is a single message that the Minister and others in this country might want to give, it is to encourage UK citizens to do the very easy and simple thing—go and register, and your rights are protected.
Baroness Hamwee (LD)
My Lords, important points have been made about UK citizens in other European countries, and my noble friend Lady Miller and I have an amendment on one aspect of that which I think will be taken on Thursday.
The noble Lord, Lord Warner, referred to permanent residence status. I understand that while the numbers of people applying for permanent residence have dropped a bit, as one would expect given the rollout of the settled status scheme, they are still significantly higher than they were before 2016. One can only speculate about the reasons for that—I do not think we can know what they are—but permanent residence provided documentary evidence, and the physical evidence available through that route may well have been a reason for the high number of applications.
Points have also been made this afternoon about immigration rules. I cannot let the occasion go by without saying how much I would welcome rules that are simpler and cannot be changed without going through full scrutiny and parliamentary process.
I will make a couple of points on these amendments, which I wholeheartedly support. One is the importance of ensuring that people who have some sort of status are not impeded in travelling. I have come across this in connection with independent leave to remain obtained by a refugee, only the latest of a number of examples I have heard of people who have had problems with travel documents. There is something about not fitting the boxes that officials are given and need to tick. We must make sure that those with settled status can properly exercise their rights and come in and out of this country freely.
My other point was mentioned by the noble and learned Lord, Lord Keen, last night in summing up the debate. He said that there will be an “automatic reminder” to those with pre-settled status to apply for settled status. I urge the Government to work with the embassies and the groups that have been so involved in this process and made such helpful interventions and comments to ensure that whatever very necessary arrangements they put in place to remind people both that they will have to apply for settled status and that pre-settled status is different will work as well and efficiently as possible—taking account of human frailty, if you like.
Baroness Bennett of Manor Castle (GP)
My Lords, I support both these amendments. I will begin with the words of the noble and learned Lord, Lord Keen, from the end of our very long day yesterday:
“EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here.”—[Official Report, 13/1/20; col. 552.]
I contrast that with a report from 10 October, when the Security Minister, Brandon Lewis, was quoted as saying that EU citizens who do not apply for settled status face deportation.
I ask your Lordships to put yourselves in the shoes of an affected citizen here in the UK, who may have come here quite recently or have been here for many decades, and think about which set of words you will have heard more clearly, which set of words will be affecting your sentiment and understanding of your place in the United Kingdom. I think everyone knows that what people will be hearing, worrying about and fearing are the words “threatened with deportation”. We are talking about up to 4 million people being affected. The latest figure I have seen is that 2.5 million people have applied for settled status. However, as the noble Viscount, Lord Waverley, said, there are also the 1.4 million UK citizens across Europe, for whom reciprocity means that they will be affected by how we treat their fellows here in the UK.
My arguments for these amendments fit into two groups. First, there are the practical arguments. As many noble Lords have said, to have a physical document will be immensely useful in dealing with landlords and immigration—just knowing that it is in your wallet or purse. There is also the fact that to have a declaratory scheme is far easier and far less daunting. That is a practical benefit. Those are the practical advantages. But there is also the question of sentiment—sending a message of welcome to our EU and other friends who are part of our communities. I urge noble Lords to back these two amendments, to back the message which the noble and learned Lord, Lord Keen, delivered last night and which the Government say they want to send to these citizens.
Baroness Ludford (LD)
My Lords, I too support these amendments, which were introduced by my noble friend Lord Oates and which are in his name and those of the noble Lords, Lord McNicol and Lord Kerslake.
I too was pleased to hear the noble and learned Lord, Lord Keen, say last night that those with pre-settled status would
“receive an automatic reminder to apply for settled status before their leave expires.”—[Official Report, 13/1/20; col. 552.]
I may have lost track of this issue, but is that new? I do not remember it. I remember that we on the EU Justice Sub-Committee asked repeatedly for that to happen, as well as for physical proof of status. Perhaps it is not new, but I do not recall when I was on that sub-committee that that system had been set up by the Government, and I am pleased that it now exists. Perhaps the Minister could explain whether it is new.
Some of us worry about 40% of people getting pre-settled status. Have the Government been able to do any surveys or analysis of how many people genuinely do not have the five years’ residence they need for settled status, or of those who give up because they have not managed to provide the evidence that is required for five years, some of which might be a little challenging to provide?
In a different context, I read in the papers about people who have had real problems convincing HMRC—regarding the years they need to clock up for a state pension—that its records are wrong about national insurance contributions. People have talked about how it has taken a year’s effort to persuade HMRC that they did indeed make national insurance contributions in a particular year. So the part of the supplying of evidence that relies on HMRC and DWP records may or may not be accurate. Some people might be struggling.
Can the Minister tell us whether there is any analysis of how many people genuinely do not have five years’ residence, and of those who are having difficulty providing the necessary evidence? A lot of us are very concerned about this. I agree that the Home Office appears to be putting good effort into it—some of my colleagues went to Liverpool; I did not manage to do that. None the less, the consequences come June of next year of people not having settled status are so severe that we cannot afford to overlook any possible problem—of course, I support the proposal that we pursued on the EU Justice Sub-Committee that applicants should get physical proof. We never managed to get, to my satisfaction at least, a good answer from the Home Office on why it refused to countenance that. I am sure the Minister will give us that answer.
That tracks into the fact that, as my noble friend said, there are people with permanent residence who believe, wrongly, that they do not need to apply for settled status. That adds to the concern about people who may find themselves bereft in 18 months’ time.
Lord Cromwell (CB)
I also add my support to this pair of amendments. Others have said so many of the right things about them so I will not detain the House by repeating them. I had the honour of serving on the EU Justice Sub-Committee with at least two of the previous speakers. Witness after witness raised with us the issues that others have already spoken about, but I promised not to repeat them so I will not.
When picking up this list of amendments, I was concerned about the extent to which we were going to encounter obstructive rather than good faith amendments. I have to say, this is an entirely good faith set of amendments and some version of it needs incorporating into the law. It does what the Government declare they want to achieve; it simply gives what the noble Lord, Lord Warner, eloquently called “practical stiffening” to achieve it. I am happy to support the amendments.
Lord Cashman (Non-Afl)
My Lords, I too support these two amendments. Initially, I did not intend to speak but I also served on the EU Justice Sub-Committee. I reinforce the point that was made time and again about the deep concern of those seeking settled status that they would not have physical evidence and that the only evidence would remain in a database. Databases can come under cyberattack and be wiped. I ask the Government seriously to think again on this issue, which I have raised with the Minister before. I hope that the Government will look kindly on and support these two important amendments, which go to the heart of the concerns of the 3 million-plus people wishing to remain here and continue their lives with their families in our country.
Lord Greaves
My Lords, I have a couple of questions for the Minister. The November statistics for pre-settled status have been published and show a reduced number of applications after the 31 October deadline that did not happen. The proportion with pre-settled status in November was 47%, compared with the 40% figure overall. Does the Minister have statistics for December or any time after the end of November?
Secondly, what will the Government do if they notify people—by whatever means—that they need to apply for settled status in good time, perhaps a year in advance, to convert their pre-settled status into settled status, but they get no response? Will efforts be made to trace these people? Some of them will be ordinary people who have lived here for not very long at the moment and have to wait, but some—perhaps quite a lot—have been given pre-settled status even though they have lived in this country for perhaps more than five years, because they simply have not been able to provide proof of five years’ continuous residence here. Many of these people might have the kind of jobs that require them to move about a bit or a lifestyle that means moving from house to house quite frequently. They, or at least their current address and whereabouts, can quite easily be lost from the Home Office’s database of those who have pre-settled status. What will happen to chase these people, to find out where they are and to make sure they know their rights?
Lord McNicol of West Kilbride
My Lords, the amendments that the noble Lords, Lord Oates and Lord Kerslake, and I have laid before us draw attention to, and look to move to and secure a shift to, a declaratory registration system—away from a constitutive application system to an automatic, declaratory system. These amendments demonstrate that there are different ways of going about this, with different levels of detail. However, the principle that such rights are written into primary rather than secondary legislation is critical.
Amendment 2 proposes that EU citizens should not lose their rights to reside if they are legally resident in the UK at the time of Brexit but have not registered for settled or pre-settled status. Labour has always been clear that citizens should not have been used as bargaining chips in the withdrawal negotiations and that the Government kept the question of citizens’ rights open for too long.
The noble Lord, Lord Hamilton, asked the Minister whether the Government were mistaken to offer pre-settled status before any reciprocity had been dealt with for British citizens living on the continent. I think the Government were right to do so. We are talking about 3.5 million to possibly 3.8 million people who live, work and play among us. Offering those people reassurances, security and, probably most important, the knowledge that our Government want them to stay in the United Kingdom, rather than be treated as pawns in a political negotiation, was absolutely the right thing to do.
Lord Hamilton of Epsom
Is the noble Lord saying that we have no responsibility for British citizens in the EU and that their position is something we just leave to the whims of individual countries in the EU? The noble Viscount, Lord Waverley, said that he regarded what he was benefiting from in Portugal as complete equivalence—but he is not allowed to move from one country to another within the EU, so you could say that British citizens in the EU have been seriously disadvantaged by not having a balanced agreement giving settled status to people on both sides of the English Channel.
Viscount Waverley
As a resident of Portugal, at this moment in time I am well able to go across to Ayamonte, Sevilla and elsewhere in Spain without any hindrance whatever. I am a little concerned about what happens after a certain date; I do not fully understand the issue. Does that opportunity prevail? Does this exclude people from just being able to work in those other member states? If someone could answer that, it would be helpful to me and others.
Lord Cashman
Before my noble friend replies, does he agree that, as a member of the EU, a citizen has freedom of movement within the EU? If a country removes itself from the EU, its citizens cannot have the right of freedom of movement within the EU.
Lord McNicol of West Kilbride
My noble friend Lord Cashman puts it very well. To the noble Lord, Lord Hamilton, I say that, on the contrary, the rights of British citizens across the European Union are of the utmost importance, and I believe that their position can be negotiated over the coming months. I was referring to people who have chosen to move to this country to work, live and bring up their children, who go to our schools, and who help in our hospitals. The Government of this country, and all of us, have a responsibility to look after and do right by these people, but not by way of punishing British citizens who have chosen to live abroad.
We will discuss appeals in the next group of amendments, but there are too many examples of the current settled status scheme falling short of expectations. As we have heard, those who get settled status receive it digitally, rather than in the form of a physical document. As the noble Lord, Lord Warner, said, a piece of paper, not a code, gives so much reassurance. It does not feel as though it is too much of a step to move to a physical document rather than something in the cloud or on a computer. While the Government more generally are trying to shift services online, there is evidence to suggest that the lack of physical documentation leads to an increased level of discrimination. As we heard from my noble friend Lord Cashman, there is also a risk of temporary outages of online systems and hacking, which could compromise the data of hundreds of thousands—or millions—of EU citizens. It is not too late for the Government to change their approach. This would provide reassurance to law-abiding EU citizens legally resident in the United Kingdom.
The motive for both these amendments is probably best summed up in a note from the3million. As the Government have stated, those who fail to successfully apply by the deadline can be deported. They become fully illegal immigrants overnight: by simply remaining in the country, they commit a criminal act. They have no right to reside, to keep their jobs or to access benefits or healthcare. In closing, I support Amendments 2 and 3.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have spoken in the debate on this group. I take note of the words of the noble Lord, Lord Warner, about the 500 civil servants who could end my career—I am surprised I have lasted so long, given that there are so many people out to get me.
I commend noble Lords for what they seek to achieve in their amendments, because they do not seek to achieve anything different from the Government: to reassure those highly valued EU citizens already resident here that they will have the right to remain after exit. However, the amendments take a slightly different approach to getting there, and we think they undermine the whole approach under the EU settlement scheme in the creation of a declaratory system.
Under the proposed new clause in Amendment 2, EU citizens would be able to apply for a document confirming their residence status if they wished, but would have to provide evidence of their rights if they wanted to access benefits and services. This is inconsistent with our international obligations under the withdrawal agreement. Alternatively, the proposed new clause in Amendment 3 would make provision for rights to be automatically conferred and enable EU citizens to register for a document confirming their residence status only if they wished to do so. This change in approach would cause confusion and uncertainty among the very EU citizens who we are trying to protect, including the over 2.8 million people who have already applied under the EU settlement scheme.
Lord Warner
I am sorry to interrupt the Minister’s flow, but how many people who have already registered have sought hard copy or physical evidence of their registration and status?
Baroness Williams of Trafford
If you apply and are successful for either pre-settled status or settled status, you will receive a letter. That is not in itself proof of your status, because your status is a digital one, but you will receive a letter to confirm the success of your application.
Lord Warner
I am sorry, but that is not my point. How many people have applied for a document saying that they have settled status, which they can show to a GP or a landlord?
Baroness Williams of Trafford
I do not have the numbers for how many people have applied for a document that confirms settled status, but I can find out. The fact that 2.5 million people have been successful should partly satisfy noble Lords that the system is working well. Also, there have been only five rejections on the system so far. I will come to the point made by the noble Baroness, Lady Ludford, later, but that is quite a decent statistic when you think about the—
The Lord Bishop of Leeds
I thank the Minister for giving way. Does she agree that many of the 2.5 million people who have registered have done so resentfully and unhappily, because the process that they have been made to go through is effectively applying for a status that many of them have for decades felt that they should have had automatically? Even though I accept that the system might be working successfully, and I applaud that, there are still some reassurances to be given—the soft power, if you like—to those, many of whom I know in my own diocese, who have applied with a great deal of resentment and unhappiness.
Baroness Williams of Trafford
My Lords, I have spoken to my noble friends beside me and I have not had any feedback on resentment. I have had feedback on the fact that we have made the scheme free, which was a noble thing for the previous Home Secretary and Prime Minister to do. The fact that so many people now have a status they can prove can be only a good thing.
We are processing 20,000 applications every day. We are working with communities—sometimes on a one-to-one basis because some people find the filling-in of any application process difficult.
Baroness Hamwee
I am not sure whether I am hearing this right, but I think the Minister is responding to the amendments as if the proposal was to replace digital with documentary evidence. In fact, it is proposed that the documentary evidence would be supplemental to the digital provision.
Baroness Williams of Trafford
My Lords, I would not agree with two systems because that really would confuse people. If I could get to the end of my comments, I would be grateful.
The scheme already allows EU citizens protected by the agreements to obtain UK immigration status to enable them to remain here permanently after exit. Both EU citizens with pre-settled status and those with settled status will be able to continue to live, work and access benefits and services in the UK after the end of the implementation period on the same basis as now. If individuals with pre-settled status go on to acquire settled status, they will then be able to access benefits and services on the same terms as comparable UK nationals. This is consistent with the approach taken under EU law, and we will assess individuals at the point they apply for benefits or when accessing services such as the NHS.
The proposed new clauses would interrupt the flow of a system which is already working well and achieving precisely what it was designed and implemented to do, providing certainty to those people who have made their lives here.
Under the future immigration system, EU citizens who are in the UK before the end of the implementation period will have different rights compared to those who arrive afterwards. It is essential, therefore, that EU citizens have the evidence they need to demonstrate their rights in the UK. This is also why many other member states are planning to take exactly the same approach and establish a constitutive system for UK nationals living in the EU. I shall come on to UK nationals in the EU shortly.
The EU settlement scheme means that those who have built their lives here do not find themselves struggling to evidence their rights in the UK or having to carry around multiple bits of paper and documents to evidence their previous UK residence. As I pointed out to the noble Lord, Lord Warner, we are legally required to issue all successful applicants under the scheme with formal correspondence setting out their immigration status, and this status can also be viewed online and shared with others. We do not want to go back to issuing physical documents when our vision for the future is a digital status and service for all migrants.
I should perhaps make a point about data protection, on which some noble Lords are very keen—certainly on the Liberal Democrat Benches. Under the digital system, employers, immigration control or whoever it might be will have access to the information on a need-to-know basis: not everything will be written down on a piece of paper, which is an important consideration. A continued declaratory system in the form suggested by noble Lords in Amendments 2 and 3 would force banks and other service providers either to wade through various documents, which they perhaps have no right to see, to establish for themselves whether the person is protected by the agreements or has been granted rights while they complete the registration process as envisaged in Amendment 2.
Additionally, Amendment 3 would grant EU citizens automatically conferred rights under the agreements, creating two groups of EU citizens: those with a registration document and those with no evidence at all of their status. There is therefore a high risk of inadvertent discrimination, particularly for those with no evidence at all in years to come.
Lord Greaves
There was controversy not very long ago about allegations that the settled status database would be shared with outside organisations, perhaps abroad. Is that completely untrue?
Baroness Williams of Trafford
The noble Lord outlines the point that I have just made about information being seen by people who are entitled to see it for the purposes for which it should be seen.
Lord Scriven (LD)
The Data Protection Act protects all data whether written or digital. Therefore the argument is nonsensical.
Baroness Ludford
I think my noble friend is forgetting that immigration data is not protected under the Data Protection Act put through last year or the year before. I think there is litigation going on about that.
Baroness Williams of Trafford
The point I am making is that if you have a physical document which outlines everything, people have access to everything. When people go into banks, they do not necessarily know which documents to bring. Under the digital status, employers and landlords are entitled to see only the data which they need to see.
Lord Warner
Before the Minister moves on, sticking with this issue, I am totally confused—more than usual. The Minister said earlier that, if I have been sent my letter from the Home Office describing my status, I can then apply for another document of some kind that I can produce to other people who want the other document. That seems to be an alternative to the code. Will the Minister explain what is the difference between the letter and the other document that I can apply for, which apparently I can use to satisfy someone that I am entitled to something?
Baroness Ludford
Before the Minister gets up, I do not think I heard her answer the question about whether the settled status database is going to be available outside the Home Office, within government and to third-parties outside government. Will she answer that very precise point?
Baroness Williams of Trafford
I shall start with the point made by the noble Lord, Lord Warner. The letter is confirmation that you have been successful. It is not evidence of your status, but it is there for anyone who wishes to have a physical document to say that they have been successful.
On the digital status—this comes to the point made by the noble Baroness, Lady Ludford—if you want to rent, it could be accessed by the landlord. There is access to the data for people who need to see it for the purposes for which they need to see it.
Lord Warner
Regarding the document that I apply for after my first letter—the Minister is saying that there is a second document—why would I apply for something that I already have?
Baroness Williams of Trafford
My Lords, you automatically get a letter confirming that you have been successful. There are not two documents. You have online status and you get a letter confirming that you have been successful. There are not two documents.
Lord Warner
This is rather a critical issue. Is the Minister saying that the document I have can be used? It apparently cannot be used to satisfy landlords and GPs, so what is the person going to do if the landlord, the GP and everybody else is not satisfied with the Home Office document?
Baroness Williams of Trafford
My Lords, the document that the noble Lord refers to is a letter confirming that a person has been successful. Anyone who is successful in obtaining the status could show that letter to a landlord and say, “There. Go and look online to confirm that I have the status”. However, it is not a proof; it is a confirmation. Does that help the noble Lord? I see that it does. Thank goodness.
Baroness Williams of Trafford
No. I am going to continue, and the noble Lord can speak when I have finished if he wishes.
I want to move on to the point that the noble Lord, Lord Oates, made about the criminalisation of people who do not apply by the deadline. That is a very important point—made also, I think, by the noble Lord, Lord McNicol. An EU citizen who fails to apply to the EU settlement scheme before the deadline will not be acting unlawfully in the same way as an illegal entrant or overstayer would be. They will not have knowingly entered the UK in breach of the Immigration Act or overstayed their leave. That is an important point to make. Once free movement has ended, they will need leave to remain in the UK—there is an important distinction there. We set up the EU settlement scheme to provide a quick and easy way to secure that leave, confirming their status in the UK.
We have been very clear that we will take a pragmatic approach, in line with the agreements, to provide those who have reasonable grounds for missing the deadline with a further opportunity to apply. I hope that that helps the noble Lord. He might want to intervene to ask what constitutes reasonable grounds for missing the deadline. We have deliberately not published a list of acceptable grounds for missing the deadline. As the noble Baroness, Lady Ludford, requested, we will send reminders to those with pre-settled status six months before their leave expires so that they can apply for settled status. In the first instance, we want to continue to encourage people to apply. We do not want to provide an exhaustive list as we want to give ourselves the maximum possible flexibility when this situation arises. Examples of people in such a situation might include a child whose parents or guardian failed to apply on their behalf, people in abusive or controlling relationships who are prevented from applying or from obtaining the documents they need, or those who, as I said before, lacked the physical or mental capacity to apply.
The noble Baroness, Lady Ludford, pressed me again on the automatic reminder. I have previously confirmed that there will be an automatic reminder. In fact, in the EU Settlement Scheme: Statement of Intent, published in June 2018—quite some time ago—we committed to reminding people ahead of the expiry of their pre-settled status and it remains our intention to do so. That is not in place yet, as it will not be needed until five years after the first granting of pre-settled status, if that makes sense, so it will be September 2023 at the latest. The noble Baroness is looking puzzled. That is because March 2019 was day one, so it will not be needed for another five years.
Baroness Ludford
If they had already had two years, they would not need another five years.
Baroness Williams of Trafford
The noble Baroness is absolutely right. I think that my last statement was wrong, but I shall confirm that to her in writing.
The noble Baroness talked about people struggling, and I think that I have outlined some of the ways in which we are trying to help people to make their application. She will have heard me say previously how we have put money into various centres around the country to help people.
The noble Baroness also asked whether we are still granting permanent residence. Yes, we are.
On the question of why settled status is better than permanent residence, you do not have to be exercising treaty rights to get settled status; there is a more generous right of return—so five years rather than two years permitted absence—and there is an automatic entitlement, as a UK national, to benefits for those with settled status. However, that does not stop people from applying for permanent residence, and they do.
Finally, my noble friend Lord Hamilton of Epsom and the noble Viscount, Lord Waverley, talked about UK nationals in the EU. I recall the discussion that we had about unilaterally guaranteeing the rights of EU citizens, but they asked about UK nationals in the EU. The withdrawal agreement that we have reached with the EU provides reciprocal protections and certainty on citizens’ rights. The agreement applies equally to EU citizens here and UK nationals in the EU, in their member state of residence, by the end of the implementation period. Ministers and officials have already engaged extensively with UK nationals across the EU and will continue to do so. I am very pleased to hear about the good experiences of the noble Viscount, Lord Waverley, in Portugal.
Lord Hamilton of Epsom
I am grateful to my noble friend for giving way. Does she agree with the noble Lord, Lord Cashman, however, that the EU will treat British citizens in the EU as foreigners who are unable to travel from one EU country to another? Surely, if we had balanced these negotiations, we might have been able to wring that concession out of the EU so that our citizens living there could travel from one country to another.
Baroness Williams of Trafford
I agree with my noble friend; of course, that will be a matter for future negotiations. In the meantime, I ask the noble Lord to withdraw his amendment.
Baroness Ludford
I should correct myself. The Minister was kind enough to say that she would have another look at that reminder system. After all, people could have four years and 300 or whatever days, just not five years. That system needs to come in a lot sooner; they might need a reminder in the next few months. Also, I do not quite understand—it may just be that I do not understand immigration—why the Home Office is twin-tracking settled status and permanent residence. I take the point that for settled status you do not have to be exercising treaty rights and perhaps simply have to meet a tougher standard for permanent residence. However, I do not see the value, either to the applicant or to the aim of simplicity and understanding of the immigration system, to have these two systems running coterminously.
Baroness Williams of Trafford
I ask the noble Baroness to understand that perhaps they might not be EU citizens.
Lord Greaves
My Lords, I did not get an answer to my question about the numbers. I have checked: there were 2.6 million at the end of November; there are now 2.8 million. Of the extra ones, does the Minister have a breakdown between settled and pre-settled? Should she not have the answer now, it would be helpful if she could let us know.
Secondly, something has occurred to me while listening to all this about documents. If I want to order a railway ticket in advance, I order it on my computer and print it off. Some might not, but I do. People do different things; they take their devices with them and even buy tickets. Regardless, I can print off a railway ticket. If I have settled status and I want to prove it, why can I not bring it up on my computer, take a screen shot and use that? What legal validity would that have?
Baroness Williams of Trafford
My Lords, by preference I do my tax online and get an email confirmation. If I book a train ticket, it is on my phone. In fact I rarely take my credit or debit card out any more; everything is on my phone. However, if the noble Lord is honestly suggesting screenshotting your settled-status proof online and then printing it off, I suggest that that might be forgeable.
Lord Oates
My Lords, I am grateful to all noble Lords who have taken part in this debate. This discussion, and even the confusion from the Dispatch Box about some of the rules, demonstrates the issues that are going to be faced by EU citizens if there is not even clarity in this House.
I want to pick up on a number of points. The noble Lord, Lord Hamilton, talked about reciprocity. As the Minister has explained, Part 2 of the withdrawal agreement, on citizens’ rights, applies equally to UK citizens in the European Union. I was a little astonished because I thought I heard the noble Lord arguing for free movement. He is notably not a pro-European so I am a little baffled by that. I can only guess that because, I understand, he has Liberal politicians in his ancestry, perhaps he has a genetic disposition to Europhilia that he cannot escape from.
A more serious point is this: the current Prime Minister and Home Secretary made a categorical, unequivocal commitment to European Union citizens. It was not based on whether the EU did this or that; it was a categorical statement. The noble Lord, who sits on the Conservative Benches, seems to be saying, “It’s absolutely fine—we should use EU citizens as bargaining chips”. I am glad that the Government have not done that; it is absolutely the wrong approach. All the bodies representing UK citizens in the EU that have been in contact with me and, I am sure, many other noble Lords in this House have always made the point throughout these negotiations that Britain should act early and unilaterally. I am glad that we did eventually but goodness me, it took a long time.
The Minister said that it was a very noble decision of the former Home Secretary to waive fees on this scheme. I find that an astonishing statement. EU citizens had rights in this country that they were going to lose as the result of a referendum in which they had no say whatever, and then we were planning to charge them for the privilege of retaining any rights. To call it “noble” to not charge them I find astonishing.
Physical proof has been discussed at length. The Minister said that two systems would confuse people. It is not two systems—it is one system that has a digital output and a physical one. That is pretty common and it is not confusing. While the Minister says we should not have these two systems because they are confusing, she then tells us that we do have two systems: the European Union settled status scheme and the permanent residence scheme. If we want to avoid confusion, perhaps we should address that point.
The noble Lord, Lord Warner, made the important point that we have to live in the real world of how these things work. I know this from experience because my partner is not a citizen of the UK—not a citizen of the EU, I should say—but a citizen of the United States. He has in his passport his permanent residence stamp that he can show to people. That is quite a simple thing and I am sure that we could apply such a system as well. Doubtless, it is also on an official computer system somewhere—I hope so.
“(1) A person may appeal against a citizens’ rights immigration decision to the First-tier Tribunal.”Member’s explanatory statement
This amendment would give a right of appeal against a citizens’ rights immigration decision.
Lord McNicol of West Kilbride
My Lords, I shall speak also to Amendments 8 and 9 in my name and Amendment 10 in the name of my noble friend Lady Hayter. These are relatively short amendments, but they cover a very important issue.
The settled status scheme does not currently provide a right of appeal, causing unnecessary confusion and frustration for applicants who do not receive the decision they were expecting, and in many cases were entitled to. Under the current scheme, if somebody’s application is unsuccessful, they may be able to apply for an administrative review at a cost of £80. The administrative review process applies for people whose applications were refused on eligibility grounds, or where they applied for full settled status but were awarded only pre-settled status. As we have recently heard, the percentages of those awarded pre-settled status is anywhere between 40% and 47%.
While the Bill’s current provisions allow for regulations to be made providing for appeals, this does not amount to a legal obligation, and neither does it guarantee equal treatment in all cases. There is a clear need for a formal appeals process, as we can see from the Government’s wish through making provision in the Bill to deal with this under regulation. A statutory right of appeal should be set out in primary legislation. These are important rights that should not be played with at the whim of individuals.
There have been several cases where EU residents have submitted documentation demonstrating residency for a period of more than five years, yet they have been granted only pre-settled status. The Home Office claims that the scheme is a success because only a small number of people have had their application rejected—we have heard that the number is five—largely due to the criminality of the individuals. As you would expect, we support those rejections. However, the figures discount those who may have wrongly received pre-settled status. My understanding is that the most recent statistics show that the figure for those being granted pre-settled status is, as was touched on earlier, as high as 40%. But this is a temporary form of leave lasting up to five years; it is not indefinite leave to remain. A number of NGOs have expressed concern that outstanding administrative reviews at the end of the implementation period could leave individuals in difficult and possibly hostile situations. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 4, to which I have attached my name, as well as Amendment 8 and others in this group. As currently drafted, the Bill does not match the Government’s previous assurances that EU citizens’ rights will be protected. It is impossible to deny that massive errors occur in the UK immigration system. People are wrongly deported, sometimes in tragic circumstances leading even to death. While many of these tragedies occur whether or not there has been an appeals process, it is certain that many more injustices will happen if an appeals process is not available. For that reason, the Bill must set out a clear right to an appeals process. It is not good enough to leave it to Ministers to decide on an appeals process in the future, because the Bill does not give a date by which an appeals process should be brought into force. This means that Ministers might never create an appeals system at all.
Also, no principles are set out, or basic rights which must be protected, or rules which must be obeyed. I do not want a situation where government inaction, for whatever reason, leads to injustice or, worse, citizens’ rights becoming another bargaining chip in the next stage of Brexit negotiations. I say this as someone who voted for Brexit—but I did not vote to be nasty or to make people feel vulnerable and at risk of being deported, and I did not vote to ruin people’s lives.
Surely the Minister understands that the Government are creating a quite complex new immigration status for EU nationals and that it is almost certain that administrative errors will happen, so a clear appeals process must be set out in this important legislation. I therefore make a plea to the Minister to take the amendment away and discuss it with his officials. We need something like this in the Bill so that errors can be put right and so that our EU friends and neighbours know that justice will be done.
Viscount Hailsham (Con)
My Lords, I rise briefly to speak to Amendment 10 in this group, to which I have put my name. From my point of view, the amendment is more by way of a probing amendment, because I appreciate that the regulation-making powers that are provided for in Clause 11 are subject to the affirmative resolution procedure, as set out in Schedule 4. However, my concern is that the regulations could strike down the ability to make an effective appeal review under judicial review, and I would like to know why this is.
Judicial review is a very important remedy so far as the citizen is concerned, because they can challenge the power of a public authority on the grounds that it is, for example, unlawful, unreasonable or ultra vires, or on a number of other grounds. I appreciate that the courts have sometimes gone a bit far in their interpretation of their powers, in that they have on occasion usurped the executive functions of Ministers—but that is by the way. What I would like to know in this case is why we are extending the power in the regulations to tackle judicial review, and in particular what kinds of changes the Minister has in mind when contemplating this power in the statute.
Baroness Hamwee
My Lords, I have put my name to Amendment 10. As the noble Viscount said, judicial review—the right to apply to the courts to review the decision of a public body—is hugely important. I do not share the view that the courts have acted inappropriately and entered the political arena when they should not have, but, as he says, that is not the point.
Viscount Hailsham
I was not trying to suggest that, for example, striking down the Prime Minister was in any way wrongful. I would have done so if I had been in the Supreme Court. What I am suggesting is that quite often courts do intervene on executive matters. I certainly do not include in that the decisions made by the Supreme Court at the back end of last year, which I profoundly supported.
Baroness Hamwee
I was not seeking to have a go at the noble Viscount. If judicial review has grown inappropriately, that is a separate matter. It is dangerous if the Executive are seeking through this provision to protect themselves from proper oversight by the courts.
In the Commons, a Member said on rights of redress for EU citizens that
“appeal rights and judicial review are enshrined”.—[Official Report, Commons, 7/1/20; col. 330.]
The Minister endorsed that, at col. 336. But Clause 11(3) seems to “deshrine”—if that is a word—judicial review. I too am concerned that at the least we understand what we are doing, but, if it is as I understand it, that we do not do it.
Lord Greaves
My Lords, I added my name to the amendments in the name of the noble Lord, Lord McNicol of West Kilbride, on behalf of the Liberal Democrat group. I have one or two other amendments in this group. One is on the judicial review point, and I am perfectly happy to leave the lawyers to argue the case on that, which they know far more about than I do.
Amendment 6 relates to Clause 11(1), on appeals against citizens’ rights immigration decisions, which says:
“A Minister of the Crown may”—
I would prefer “must” but I accept that “may” means it is probably going to happen—
“by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions of a kind described in the regulations.”
Clause 11(2) defines a “citizens’ rights immigration decision” for the purposes of the Bill and it talks about various kinds of entry clearance, decisions in connection with leave to enter or remain, a deportation order, and
“any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.
That all seems fairly comprehensive. What I do not understand, which is why I tabled Amendment 6 to probe this, is what is meant by
“of a kind described in the regulations.”
Does it mean that some of the things listed will not be covered by the regulations and the right to appeal? If so, what is the Government’s thinking about which ones they may be, or do they intend that they will all be covered, in which case why does the kind have to be described in the regulations since it is set out here in the Bill?
On the question raised by the noble Lord, Lord McNicol of West Kilbride, and other noble Lords, it is fairly clear that many people who have been given pre-settled status because they have not been living in the United Kingdom for five years or, in some cases, cannot prove that they have been doing so. There is also a significant number of people—I have no idea how many—who have been living here for five years but whose applications have been found difficult, for some reason or other. Rather than refusing them, the scheme is giving them pre-settled status because establishing the true facts would take a lot of time, energy and workload and, as the Minister said, millions of people are applying. It would be helpful to know what proportion of the people who have got pre-settled status have been, or say they have been, living here for more than five years—in some cases, they have been here pretty well all their lives—and have been given that status to give them something without prolonging the argument. In those cases, does the provision that they will automatically get settled status once they have been here for five years still apply?
Baroness Williams of Trafford
My Lords, I thank noble Lords who have spoken to these amendments. We cannot support them, and I will outline why. The Government will provide for a right of appeal against citizens’ rights immigration decisions. While I commend noble Lords for their commitment to citizens’ rights, these amendments create unnecessary changes to the wording of Clause 11 and, at worst, undermine our ability to provide for a right of appeal in all circumstances and ensure consistency for judicial review, and even create perverse incentives to appeal decisions to gain the benefits of indefinite leave to remain.
Amendments 4 and 9 are unnecessary. EU citizens who are appealing a decision on residence must be able to appeal if refused leave, or given what they believe is an incorrect status under the EU settlement scheme, under our international agreements. It is also damaging, as a power is required to implement the numerous situations requiring appeals.
Amendment 5 is at best unnecessary and, at worst, could prevent the provision for necessary appeals. This Government will provide for a right of appeal against citizens’ rights immigration decisions. This is an essential part of our commitment to protecting the rights of EU citizens, EEA EFTA and Swiss nationals under the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss citizens’ rights agreement.
On Amendment 6, the current wording of Clause 11(1) allows the Government to make sufficient regulations in relation to appeals against citizens’ rights immigration decisions. It fulfils our commitment in the agreements and provides certainty to EU citizens that they shall have a right to appeals. Moreover, the Delegated Powers and Regulatory Reform Committee has recently commended the powers in the Bill as,
“naturally constrained by the scope of the particular matter contained in the Agreements”.
As such, Amendment 6 is unnecessary.
As for Amendment 7, it is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the withdrawal agreements consistent with how similar reviews are treated now. This power enables us to do this, but Amendment 7 would remove that ability.
Amendment 8 would make it harder for EU citizens to challenge an exclusion direction, would prevent the Government being able to prevent removal unless the appeal is certified and would create a perverse incentive for individuals to launch appeals to gain access to the benefits of indefinite leave to remain.
Amendment 10 seeks to limit the power in Clause 11 in relation to judicial review. It is in the public interest to make reviews of exclusion directions made in respect of those protected by our implementation of the agreements consistent with how similar reviews are treated. This power enables us to do this, but the amendment would remove that ability.
Baroness Williams of Trafford
I will, but first I reiterate that appeals processes will be set out in the regulations to be made under the power in Clause 11. The regulations will be made in the last week of January, to answer the question asked by the noble Baroness, Lady Jones of Moulsecoomb. I may now be answering my noble friend’s question, because he asked whether we have a power to make changes to reviews, including judicial reviews. This limb of the power will be used to ensure that the legislation that interacts with new citizens’ appeal rights continues to function appropriately. It ensures that we can amend Section 2C of the Special Immigration Appeals Commission Act 1997 to provide that the Special Immigration Appeals Commission can hear reviews in respect of those protected by the agreements in the same way as they hear reviews in other cases, such as the most sensitive immigration cases. We will not be restricting the availability or scope of judicial review.
Viscount Hailsham
I would like just a little more clarity, although my noble friend has given quite a lot. Do I understand that what the Government are thinking of doing is procedural only, and they are not seeking in any way to curtail the substantive rights that presently arise under judicial review?
Lord McNicol of West Kilbride
My Lords, I thank all noble Lords for taking part in the debate on this group of amendments and the Minister for her response. Mistakes can be made in any process and, as the Minister said, the Government will be moving to provide the right of appeal. These amendments seek to put that right of appeal in the Bill and ensure that it is dealt with properly at this stage. With that, I beg leave to withdraw Amendment 4, but I will continue to push the points that have been made.
“( ) No regulations may be made under this section after the end of the period of two years beginning with IP completion day.”Member’s explanatory statement
This amendment introduces a two-year sunset on the delegated powers relating to the coordination of social security systems, ensuring any subsequent changes must be enacted through primary legislation.
Baroness Hayter of Kentish Town (Lab)
Amendment 11 concerns a sunset clause and deals with one of the most crucial aspects of the Bill as it affects EU and UK citizens: the implementation of the guarantee that all their health, pension and benefit rights will continue after exit. It is true that there is a fixed cohort of citizens, perhaps up to 5 million EU citizens here and UK citizens abroad, who will be covered by these provisions as at the end of December. However, some of the rules and regulations will have a very long tail, affecting the access those 5 million people and their dependents will have to a range of payments and services long into the future. Ministers may well say, “It’s a fixed cohort, but these rights, and therefore the regulations affecting them, will go on a long time; that’s why we need the powers to continue to make tweaks and adapt to changing circumstances”.
Viscount Hailsham
My Lords, I very gratefully support the points made by the noble Baroness, Lady Hayter. I entirely agree with her; I think it is necessary to have a sunset clause, and if it is not necessary it behoves the Minister to tell us why. One of the central problems arising all the time is whether secondary legislation, whether affirmative or negative—I acknowledge that in this case it is very largely affirmative; I am aware of that—is unamendable. Statutory instruments are often published very close to the time when they are to be considered by both Houses, with the consequence that you do not get proper consideration by members of the public or people who have an interest in what is proposed. I hope that the Government will give serious consideration to a sunset clause. If we are told that two years is too short a time, let us have an argument about that. I am sure we could come to a date that would be acceptable to all parties. Could we please have a reason why a sunset clause is unacceptable in principle to the Government?
Baroness Hamwee
My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to
“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]
That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.
Lord Howarth of Newport (Lab)
My Lords, Clause 13(5) contains a Henry VIII power; it is admittedly constrained by the specific subject matter and context of the Bill, but is none the less within those constraints a wide-ranging power:
“The power to make regulations … may … be exercised by modifying any provision made by or under an enactment.”
Henry VIII clauses are in principle objectionable, and in principle the Government ought always to explain to us why they think they are justified.
Lord Bethell (Con)
My Lords, I am enormously grateful for the opportunity to respond to the amendment of the noble Baroness, Lady Hayter of Kentish Town, and others. I thank all those who have contributed to this debate.
The noble Baroness put it very well; the importance of this measure should not be underestimated. As we leave the EU, protecting the rights of UK nationals in the EU and EU citizens in the UK, including EEA, EFTA and Swiss nationals remains a massive priority for this Government. It is a commitment that we have delivered very clearly in the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. For those noble Lords who have enjoyed the pleasure of reading those pages, it is a really hefty chunk of the withdrawal agreement. The detailed and complex nature of these commitments is testified to by the large number of pages taken up describing them. For brevity’s sake, I will not go through these pages and will refer to EU citizens and agreements thereafter.
The dynamic nature of the EU’s social security co-ordination rules means that, following the end of the implementation period, updates at the EU level to the EU social security co-ordination regulations will be reflected in the agreement and therefore apply to those citizens within the scope of the agreement. The current social security system is dizzyingly complex. These updates are also very complex; they include minute changes to things such as definitions, the templates in which organisations communicate with each other and the line by line minutiae of the regulations. They ensure the clarity and delivery of benefits for citizens and the operational viability of the overall system. This clause ensures that the appropriate authorities, including the devolved Administrations, have the power to make regulations to align the domestic statute book with the amendments made in these regulations.
A question was asked about Henry VIII powers. I reassure the House that these provisions are focused solely on the regulations described in Part Two, Title III of the withdrawal agreement relating to social security co-ordination, as well as to the supplement, and deal only with matters arising.
Lord Howarth of Newport
The Minister pointed out that the regulations are extraordinarily complex. Would he accept that, the greater the complexity, the greater the need for accountability?
Lord Bethell
No, that is a neat way of putting things, but it is not quite the point I was trying to make, which is that they are very closely defined in terms of breadth and that the detail of the regulations is so minute that it would waste the time of these Houses to go through them line by line. It is important for solidity and confidence in the system that they are expedited quickly and resolved without delay. Without wishing to give the game away regarding what I am about to say, the bottom line is that we simply do not have the legislative capacity in these Houses to go through all the complexity of the details as they arise at an EU level.
Viscount Hailsham
That is a serious statement to make. My noble friend is saying that Parliament cannot do its job. Does that not mean that these matters need to be considered by the commission on the constitution—and preferably a royal commission?
Lord Bethell
No; my noble friend puts it well, but I am alluding to the fact that there is a hierarchy of priority, and there are matters of significant policy and implementation that are of a sufficiently high level to warrant the attention of the House. However, this clause refers to matters of an operational nature, which are there to implement the agreed clauses of the withdrawal agreement.
There is no question of this clause being used to bring in new policy, new arrangements or the kinds of policy changes that, frankly, would warrant discussion in the Houses. That is the reassurance that I am trying to communicate to the House, that any changes in the actual policy and arrangements and the benefits of those in the 5 million, whom the noble Baroness, Lady Hayter, accurately referred to, are absolutely not part of either the intention or the way in which these clauses are written.
Lord Howarth of Newport
If there is no intention to change policy, why is Clause 13(5) in there?
Lord Bethell
All the arrangements within this part of the Bill are heavily constrained to Title III of Part Two of the withdrawal agreement. There is therefore no need to escalate to questions of policy; if there are questions of policy, they will be brought to the House but in a completely different way. The purpose of this clause is to make sure that there are no conflicts or inconsistencies in domestic law that refer to the current commitments within the withdrawal agreement, which could give unfair treatment and uncertainty about the rights and benefits of the 5 million in the group of people who benefit from these arrangements. It allows Ministers to protect the entitlements—
Baroness Hamwee
Can the Minister point us to where in the clause we can find reassurance that, if there is a change in policy, it will not be dealt with through regulations?
Lord Bethell
That reassurance is not in the clause; it just does not provide the necessary powers, and without those powers, the ability to change policy does not exist. I hope that noble Lords will agree that the way in which it is written is tightly refined around the specific arrangements of implementing the detailed clauses in the withdrawal agreement. That is its confined and determined nature. What it does, in a focused way, is to allow Ministers to protect the entitlements of those in the scope of the agreements, and only that. It includes both EU citizens living in the UK, as the noble Baroness, Lady Hayter, explained, and UK nationals who have chosen to work in or retire to EU member states before the end of the implementation period. Many of those people will have lifetime rights within that agreement which may last many decades, and the effect of the changes of EU regulations will continue to need to be tweaked during those decades.
This power is therefore essential to give the Government the flexibility that we need to provide legal certainty to individuals subject to these rules as the EU social security co-ordination regulations evolve over time. We have an important duty to protect the social security co-ordination rights of those in this scope, to give them that confidence, and for the lifetime of these agreements. This power enables us to protect those rights, and without prejudice to any future system that would apply to those not covered by these agreements.
Lord Kerr of Kinlochard (CB)
I understand the point the Minister is making and that the scope of action is limited to the areas covered in the withdrawal agreement—I understand all that. However, would it not be more reassuring to recipients if the sunset clause were there, and if changes could be made only after the expiry of the period by primary legislation? I understand the argument, but if the argument is reassurance, surely it is more reassuring to people that changes could be made only by primary legislation than that they could be made using these Henry VIII powers laid out in these provisions.
Lord Bethell
My Lords, the point is well made, and I understand the desire of the Houses to keep scrutiny on measures, which is entirely fair. However, in this case, confidence, solidity and a sense of commitment can be promised and delivered by the Government only if they do not have the fear that the pipeline of legislation going through the House might delay important technical changes and hold up the delivery of these benefits. It would put a huge pressure on these Houses of a kind that is not realistic or reasonable to have the entire legislative timetable of our proceedings held hostage to the microchanges and small needs of EU social security regulations and improvements, which may in decades to come affect only hundreds of thousands of people and require small administrative changes in regulations.
Lord Bethell
My noble friend puts it well; I am not trying to brush off hundreds of thousands. I am trying to communicate a sense of this long tail of microregulatory changes, which are technically incredibly important. However, the priority is to demonstrate commitment and security to those millions of people today who will look to the Government to make a commitment to deliver those in years to come. To put an expiration date on the power could therefore inadvertently prevent the UK ensuring that its statute book complies with its international obligations under the agreements, and put in jeopardy the Government’s unequivocal guarantee to protect citizens’ rights. I therefore urge the noble Baroness, Lady Hayter of Kentish Town, to withdraw this amendment.
Baroness Hayter of Kentish Town
I welcome the noble Lord, Lord Bethell, to the Bill; I assume that this is only the first of his outings on it. I thank my noble friend Lord Howarth, the noble Lord, Lord Kerr, the noble Baroness, Lady Hamwee, and the noble Viscount, Lord Hailsham. I urge the Government to listen to what they say.
Perhaps the Government are saying that there will be so many small technical changes—but we would need to know that. If there was a sunset clause—possibly for longer than two years, as the noble Viscount suggested —we could see whether we are talking about lots of changes, but the Minister has not answered the question of why this cannot be dealt with more properly in a detailed statutory scheme where we will have a greater handle, or a greater grip, on these sorts of amendments.
I am concerned about what is referred to as “complex” or “technical” or a “tweak”. Over the past 10 or 15 years, we have seen pension regulations change: as we brought in civil partnerships, the right to a pension or the age of dependants also changed. These are big issues. These are not small tweaks where you report to this pension authority rather than that one. As has been said, some big issues could be addressed here without giving people outside this House enough time to comment on them. Remember, we are talking about people in Spain and Luxembourg, for example; by the time they hear that a statutory instrument is coming, it will probably have been passed. We are talking about a group of people who are very disparate and yet could be seriously affected by what is said to be a tweak.
I am still slightly concerned that, by enabling this to be there for all time, changes may be made to people’s death benefits, pensions or health provision, for example, without a proper discussion here. It would be a good idea, after I withdraw the amendment, for the Government to look closely at our Select Committee’s recommendation on whether there is a better method of achieving what the Government want to achieve, perhaps through moving an amendment to put in a sunset clause. Perhaps it could be for five years; in that time, we really would be able to see whether it is working as envisaged. Just having an open-ended commitment for all time on issues that will possibly affect people’s pensions or benefit payments seems to be a wide-ranging Henry VIII power.
Viscount Hailsham
Might I make a suggestion to the Government through the noble Baroness? One way would be having an extended sunset clause—for five years, for example—with a power to extend it further through an affirmative resolution procedure if, as the noble Baroness suggested, it appears to be working all right.
Baroness Hayter of Kentish Town
I think that what we are urging is: can we look at this and can we not get hung up on “We don’t want any amendments to this Bill”? If it were a government amendment, it could get nodded through and we could pretend that it had not happened, if the Government want a clean Bill—we will not even tell anybody, just send the tweak through. But it is important to get this right rather than worry about one’s amour propre. For the moment, I beg leave to withdraw the amendment.
Lord Greaves
My Lords, Clause 15—and Schedule 2, to which it refers—is about setting up a new quango, if I can use that term, created as an independent monitoring agency on citizen’s rights, which is what its title will be. It occurred to me when I was in a hurry that a simple clause stand part debate would give the Government an opportunity to provide more explanation and information on how this new quango will work. Then, when I found myself with a bit of spare time this afternoon, I looked at Schedule 2 in detail and tabled amendments.
Together with the amendments, this clause stand part debate allows the Government to tell us how the IMA will work. I particularly want to probe them on the timetable. How quickly will they set it up? At what stage will the interim chief executive be appointed? At what stage is it expected that the body as a whole will be appointed? If it is to do a useful job it ought to be in place as quickly as possible so that it can monitor the transitional process as it takes place.
As ever, I looked in the Explanatory Notes. There tends to be two different varieties of Explanatory Notes: those that just rewrite the Bill in more understandable words and those that actually explain what is underneath it all. The notes state:
“Paragraph 1 sets out that the IMA is not to be a Crown body.”
Yes, okay. I looked at the Bill, where there is quite a bit more explanation of what that means than in the Explanatory Notes. I will therefore put the notes to one side because they do not tell you anything more than you can get from an intelligent reading of the Bill.
What can the Government say about the timetable? What can they say about the estimated cost? The published impact assessment suggests that the cost of the whole Bill will be about £167.1 million, but it says:
“The bulk of the costs are due to the setup”
of the IMA. What is the bulk? Is it £150 million, for example? How much money will we spend on this? I suppose that we can make assessments of the nature of the organisation from the amount of money.
Nevertheless, how many employees do the Government expect to take on? That is important. What will be the location of the IMA and, indeed, its employees? Will some of them work in different parts of the UK? On the main headquarters, we have heard a lot recently about the new Government wanting to decentralise the Civil Service and send some departments to places such as Doncaster, Grimsby and Workington—perhaps even Nelson and Colne. However, we have heard a lot of this in the past; after the 1960s, none of it ever really came to much. Is it expected that the headquarters will be used as part of the Government’s attempt to decentralise things from Westminster, Whitehall and London?
The amendment about the interim chief executive is important. It concerns paragraph 3 of Schedule 2, which suggests that the interim chief executive will be appointed before the IMA is set up; presumably, they will also take part in that set-up. Paragraph 3(1) states:
“The Secretary of State may appoint a person to be the IMA’s chief executive”.
Paragraph 3(2) states:
“A chief executive appointed by the Secretary of State may incur expenditure and do other things in the name and on behalf of the IMA”
until the IMA is set up. Paragraph 3(3) states:
“In exercising the power in sub-paragraph (2), a chief executive appointed by the Secretary of State must act in accordance with any directions given by the Secretary of State.”
In the brief discussion about the IMA at Second Reading yesterday noble Lords talked quite a lot about whether the IMA will be genuinely independent of the Government. That is my next major question.
In the first instance, my sub-question, as it were, is this: how can the IMA be independent of the Secretary of State if the interim chief executive is appointed by the Secretary of State and has to act, as paragraph 3(3) says,
“in accordance with any directions given by the Secretary of State”?
This seems important, and it would be interesting to hear what the Government have to say.
I have a small amendment to the mention of “gratuities”. It may well be that all government legislation talks about paying people gratuities as well as their salary and expenses, but I have not noticed it before. I looked in the dictionary, and it said what I thought it meant—things you give to waitresses and taxi drivers—but also payments to people when they leave. It seems to me that employees in a government-related agency ought to have a contract that tells them how much they are paid and what their conditions and expenses are, and that we ought not to be looking at lots of golden goodbyes. Perhaps I am unduly concerned about that, but I would like to know what the Government have to say.
Lord Wigley (PC)
My Lords, I believe I am right in saying that Amendment 59 is associated with this group.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
I should correct the noble Lord. Amendment 59 is part of this group, and therefore if he wishes to speak to it, he should do so.
Lord Thomas of Cwmgiedd (CB)
My Lords, I confess my inexperience in this court of Parliament in knowing whether it is the right opportunity to raise Amendment 59. I will do so. This may seem a very small point, but it goes to two points that underlie the amendments to which we will turn in due course. The first is the need to ensure that the Bill respects our constitution as regards devolution and that the devolution statutes that form part of our constitution are altered in a proper and constitutional manner. Secondly, going forward with our life outside the European Union, we achieve a stronger union by making sure that there is the closest possible working together of the devolved Governments, Assemblies and Parliaments with the Government at Westminster.
Although the amendment is addressed to deal with the position in Scotland, Northern Ireland and Wales together—logically it has to be—I approach this from the standpoint of Wales, for two reasons. First of all, my own experience of that devolution settlement is much clearer than my experience of the others. Secondly, I really think it of importance that in this House we try to do all we can to make sure that Wales, the Welsh Government and the Welsh Assembly understand that the union will work for the future as envisaged in the devolution statutes.
It may seem that devolution is not that important at this time in the context of this Bill, and I can well understand that view. But it is important to reflect for the future and to realise that much will need to be done to the way in which devolution operates when we are outside the European Union and with our own internal market. Those are the general points that underline my seeking to make this amendment.
The purpose of the amendment is to ensure that the principles agreed in respect of the IMA’s composition, as set out in the schedule, are carried forward in the event that a new body is created pursuant to the powers that have been added to the Bill. As regards the obligation to appoint the non-executive members of the IMA, provision is made in the Bill that the Secretary of State will appoint those with experience in relation to Scotland, in relation to Wales and in relation to Northern Ireland, who understand how the systems there work. This is plainly a proper and right provision as, over the past 20 years, as any examination of the detailed operation of devolution will show, things have changed. I find it sometimes regrettable that those who occupy the ministries in Whitehall do not realise the extent of that change. I therefore appreciate what the Government have done through this provision and the further discussions they have had of the role of the Welsh Administration and Welsh Ministers in the selection of the appropriate person. However, the provision is not carried forward if the functions of the IMA are transferred to a new body.
I accept that it is a small point, but small points can go a long way to ensure that the spirit of devolution and the constitution is respected. Of course the Government can say that there will be no change, no statement made and no clarification, but would that be wise? With the utmost respect, I suggest that it would not be wise because it would point out that even a small change that can capture the spirit of the way forward is something that the Government will not contemplate. On the other hand, if some assurance were given about any future transfer to a new body, is not that the first step in showing that the spirit of a post- devolution UK will be respected by this Government?
Lord Wigley
My Lords, I am delighted to support Amendment 59, standing in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, to which I added my name, although too late for it to appear on the Marshalled List today.
The IMA is intended to provide assurance to EU citizens who have already established their rights to live and work in the United Kingdom that, after we leave the EU, they will continue to enjoy the same rights as they do now, which flow from the principle of freedom of movement under which they first moved to the United Kingdom. The IMA will be able to investigate complaints by individual EU citizens and members of their families if it believes these complaints to have been compromised in any way.
Since such rights include access to public services, such complaints could be directed against one of the devolved Administrations. An example pointed out to me is of a Polish citizen who moved to Wales perhaps 10 years ago, and who might take up a question with the IMA if they believed that, in 2022, changes to administrative procedures in the Welsh NHS had made it impossible for them to access its services on the same basis as UK citizens. That is a matter that quite clearly has a direct relationship to the responsibilities of the National Assembly for Wales, and there will be parallels in Scotland and in Northern Ireland. It is therefore essential that the IMA has a good knowledge and understanding of the circumstances in each part of the United Kingdom. This applies to its non-executive members, as well as to its staff, who I understand are likely to be based in Wales—perhaps the Minister can confirm that.
Baroness Finlay of Llandaff (CB)
My Lords, the background to this amendment has been well explained by both my friends who have spoken. I would like to stress the importance of this as signalling to the Welsh Government a way forward and a real commitment to make sure that the devolution settlement is respected, now and into the future. Amendment 59 seeks to ensure that if the functions are transferred to another body—I stress “if”—the same obligations should apply as far as is possible in respect of the appointment of a member with a knowledge of Wales.
We now have legislation and regulations in Wales which are interpreted as providing a degree of divergence in some areas; health has already been cited and other areas include education, agriculture and local environment. Therefore, a very real difficulty could arise if the function is transferred to a body that has a mandate only for England, or to a body with governance that does not involve members from Wales who have a working knowledge of Wales and understand the detail of the regulation by which the Welsh Government have overseen services and their organisation and strategy.
If the Minister believes that such an amendment is unduly detailed for inclusion in the Bill, I hope that, at a minimum, he will make a commitment before the House that Ministers intend to act in accordance with the spirit of the provisions on the IMA if functions are at any time transferred to another body.
Baroness Humphreys (LD)
My Lords, my contribution to this debate on Amendment 59 will be very brief, because everyone has said what I want to say. I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling this amendment and giving me the opportunity to add my name to it. I am also grateful for the detailed analysis that he and the noble Lord, Lord Wigley, provided, and for the comments of the noble Baroness.
The independent monitoring authority for citizens' rights will, as noble Lords have outlined, be composed of an independent board of members with experience of matters covered by the citizens’ rights agreements, and—this is important—knowledge of the relevant laws and issues in Scotland, Wales, Northern Ireland, and, I believe, Gibraltar. As the noble Lord, Lord Wigley, pointed out, it is important to note that these qualifications for membership of the IMA are the result of many hours of negotiation between the Government and the devolved Administrations. The qualifications have been taken very seriously. The amendment seeks to ensure that if the functions of the IMA are transferred to another body, the same qualifications for membership of the new body should apply. This seems to be an eminently sensible, simple and straightforward request. I hope that the Minister can commit to it from the Dispatch Box tonight.
Lord Howarth of Newport
My Lords, I want to underscore the very important point that was very well made by the noble and learned Lord, Lord Thomas, about the need for courtesy and respect. The union is under considerable stress. The stress is perhaps less severe between Wales and England, because Wales voted to leave the European Union. None the less, we are dealing with very sensitive matters. It is surely elementary that the UK Government in London should consult and proceed with the maximum delicacy and sensitivity. There will be sensitive questions when it comes to the implementation of many of the arrangements that feature in our EU withdrawal. The right of Wales to diverge on the implementation of these regulations and other matters will obviously be important to respect.
At the same time, it will be very important that in Wales there is a recognition that divergence can be a fairly perilous course. Given this range of sensitivities, it would send a very helpful signal if the Government accepted Amendment 59. I cannot imagine why they would have any difficulty in doing so. It would signal their intent to continue in a fully conciliatory, fully constructive spirit of co-operation and respect for the rights of the devolved Administrations.
Lord McNicol of West Kilbride
My Lords, I rise to speak to Amendments 58 and 60. The noble Lord, Lord Greaves, has touched on many of his probing amendments, and there has been much debate about Amendment 59, so I do not need to cover that.
The establishment of the independent monitoring authority is an important step in implementing the UK’s obligations to EU citizens under the withdrawal agreement. However, the Government’s approach to the IMA leaves a number of important questions unanswered, hence the large number of probing amendments in this and other groups. There are concerns regarding the delegated powers, allowing Ministers to transfer the IMA’s functions—or even wind the organisation up—by statutory instrument, hence the amendment in my name.
At ministerial briefings, the Minister has explained that, later in the withdrawal process, it may make sense for the IMA’s functions to sit elsewhere. Can the Minister give an example of where those functions may be moved to, and why this would be preferable to maintaining an independent body? Can he also confirm that in the event of such transfers there will be no practical impact on citizens? Finally, can he provide assurances that, in the spirit of co-operation, the Joint Committee will be fully briefed regarding any changes to the IMA or the exercise of its functions? To touch very briefly on Amendment 59, in the name of the noble and learned Lord, Lord Thomas, again many important issues are raised regarding the transfer of functions, aiming to ensure that the new executors of such functions would need specific knowledge of UK nations and the regions.
Lord Keen of Elie
I am obliged to all noble Lords who have contributed. Like many noble Lords who have already spoken, I am conscious of the sensitivities that surround the devolved settlement that could impinge upon its success in the future.
Let us be clear: Clause 15 is essential to implement our international legal obligation under the withdrawal agreement and under the EEA-EFTA separation agreement, which requires that we establish an independent monitoring authority. I hope that it also demonstrates our commitment to protecting the rights of those citizens covered by the agreements. Therefore, it is necessary for Clause 15 to stand part of the Bill.
Of course, the IMA will offer an important layer of additional protection over and above the wide range of complaint and appeal routes that already exist for EU citizens in the United Kingdom. However, expanding the IMA scope through Amendment 57—as proposed by the noble Lord, Lord Greaves—would, I fear, divert the body’s resources from its important role monitoring citizens’ rights and obligations. Therefore, I would resist such an amendment. It also risks creating unhelpful duplication, with all the confusion and wasted resources that could accompany that, so I invite the noble Lord, Lord Greaves, to withdraw that amendment.
The withdrawal agreement requires that the IMA be established by the end of the implementation period; that is the goal. The appointment of an interim chief executive to the IMA—a point raised by the noble Lord, Lord Greaves—is considered vital to meeting that deadline, as it will be essential from the point of view of staffing and procurement decisions that will need to be taken in advance of that date. Indeed, there have been other examples of interim chief executives being appointed to such bodies in order that suitable preparation can be made for them to be up and running at the appropriate time. Removing that provision through Amendment 47 would jeopardise the timely establishment of the IMA, and risk putting us in breach of our international law obligations. I hope that I have explained the rationale for that approach.
In order to give full and proper effect to our obligations in international law, we have designed the IMA to be robust and independent, in line with the best practice for the establishment of new public bodies. While I understand the intention behind a number of the amendments in the name of the noble Lord, Lord Greaves, which he perceives as strengthening the independence and robustness of the IMA, I hope I can assure him that they are unnecessary. I appreciate that they are essentially probing amendments in order that we can explain the position.
Lord Kerr of Kinlochard
Perhaps I may probe a little further. The independence of this authority is important—important because we have agreed to introduce an independent authority and important to those whose affairs it will be keeping an eye on.
When I was a Permanent Secretary, I would have had no difficulty in coming to the conclusion that a number of non-departmental bodies could be abolished and their functions transferred elsewhere because it would be more efficient, effective and economical to do so. The test in paragraph 39(2) of Schedule 2 is not hard for the Executive to meet. Does the Minister think that the body is more likely to be independent, feel independent and be seen as independent if it is continually under the threat of the sentence of death in paragraph 39(1), which says that its powers can be transferred? I agree that it is a habit for quangos to survive long beyond their natural useful lives, but what is the rationale for this power transfer by regulation? Is the Minister convinced that the test of efficiency, effectiveness and economy does not slightly conflict with the requirement for independence?
Lord Keen of Elie
My Lords, the noble Lord perhaps anticipates what I shall come to in the course of my reply—how prescient he is in that regard.
The body is not under a sentence of death and the rationale for the ability to transfer was hinted at by the noble Lord when he talked about bodies that had long outlived their usefulness. I will elaborate on this point in a moment, but I certainly do not consider that the provisions of paragraph 39 impinge on the effective independence of the IMA. I would add—I will elaborate upon this—that we must have regard not only to the intentions of the Executive but to the joint committee and, therefore, to the interests of the other party to the international agreement that has given birth to the IMA.
Let me continue with the point I was about to raise on some of the further amendments spoken to by the noble Lord, Lord Greaves. First, on Amendments 52 and 53, which seek to remove certain standard provisions for remuneration in respect of public bodies, he alluded to the term “gratuity”. There are circumstances in which public servants are brought into a body but, for one reason or another, their position is terminated early or prematurely and consideration has to be given to the question of gratuities. Where public servants are already employed in a position where they can be remunerated and there is a provision for gratuities to attract suitable employees into bodies such as the IMA, one must generally have regard to equivalence of terms and conditions. Therefore, because that appears in the context of other public bodies, it is repeated in the context of this legislation.
Amendment 54 would remove provisions that provide a proportionate and sensible way of approaching potential conflicts of interest for IMA members. At all times those members will be expected to adhere to the Cabinet Office Code of Conduct for Board Members of Public Bodies, and the approach set out in this paragraph in its unamended form is consistent with the code. For example, an individual member may make a subjective decision that they should disclose a conflict of interest but the board may determine objectively that it is not a pertinent conflict of interest and that they can therefore continue. That is why the matter is expressed in those terms.
The Government also expect the IMA to follow best practice in relation to its own transparency. Therefore, we regard Amendments 55 and 56 as unnecessary. Indeed, amending the Bill in the way proposed by the noble Lord, Lord Greaves, would take decisions around its transparency away from the IMA and thus, essentially, undermine its status as an independent body. We regard the IMA as essentially an independent body but, while enjoying the status of an independent body, it must be able to discharge certain functions as it sees appropriate, albeit while having regard to the relevant codes.
There is also a reference to not charging for the body’s functions in Amendment 61. That is unnecessary because this body will not charge for its functions. They are essentially systemic—as the noble Lord, Lord Greaves, appreciated, it is not a case of individual applications and individual disposals—and there is no room for any form of charging. Again, we feel it is unnecessary to consider that amendment.
On the point raised by the noble Lord, Lord Kerr of Kinlochard, important though the IMA will be in providing additional assurances that citizens’ rights will be protected, we do not expect its functions to be required in perpetuity. Indeed, the withdrawal agreement recognises that reality. Years from now, it might be more appropriate and effective to protect these rights differently. It is for this reason that we have included two powers in Schedule 2: one to transfer the IMA’s functions to another body under paragraph 39 and the other to remove or abolish the IMA’s functions under paragraph 40, but only following a decision by the relevant joint committees to do so.
As noble Lords have appreciated, the first power is about future-proofing to make sure that citizens’ rights obligations are monitored as effectively and efficiently as possible in the future. Indeed, years from now, the type of oversight needed for the UK’s citizens’ rights obligations and the wider UK regulatory landscape may have changed materially from what it is today, and in such new circumstances it may be more appropriate and effective for another public body to perform the IMA’s role. Removing that power, as would be required by Amendment 58, spoken to by the noble Lord, Lord McNicol, would make us less capable of ensuring that we are in a position to provide an efficient and effective monitoring of citizens’ rights and obligations.
In any event, we would be sure to keep the EU and the EEA EFTA states appropriately informed of any decision to transfer the IMA’s functions. Again, that would be by way of the joint committee and would not involve some unilateral executive action by the UK Government. Indeed, if this power were ever used, we have ensured that it would not affect the independence and effectiveness of how citizens’ rights obligations are monitored. The Secretary of State must have regard to the need for the transferee to possess the necessary independence and resources to provide effective oversight of citizens’ rights obligations.
Let me reassure the House that the commitments we have made to the devolved Administrations about their role in the Independent Monitoring Authority will be upheld in the event that its functions are transferred to another public body. We have designed this power so that the Secretary of State can make any modifications that he considers appropriate to the constitutional arrangements of the transferee. This will ensure that an equivalent to the important role of the devolved Administrations in the IMA is replicated for the transferee. I hope that reassures the noble and learned Lord, Lord Thomas of Cwmgiedd—I apologise if I have mispronounced the Welsh—and other noble Lords that, in these circumstances, Amendment 59 is unnecessary.
As I indicated, we have included a second power to abolish the IMA, which can be exercised only following a decision by mutual consent through the relevant joint committees, comprising representatives of the UK on the one hand and the EU and EFTA states on the other. This power can do no more than give effect to a decision at the international level. It cannot be exercised following a unilateral decision by the Secretary of State or the Executive. We would give extremely serious consideration to any decision to agree to abolish the IMA and I am confident that the EU and EFTA states would do likewise.
Lord Wigley
Will the Minister also confirm that if we were to find ourselves wanting to propose such a change to our former European colleagues there would have been consultation with the devolved authorities before that stage?
Lord Keen of Elie
My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.
Baroness Finlay of Llandaff
I hope the Minister will forgive me interrupting. I was wondering whether I would wait until the end of his remarks, but this follows on from the question asked by the noble Lord, Lord Wigley. In the event of the transfer to another body and a view that the IMA could be slimmed down, can the Minister provide assurance that the required consultation of the devolved Administrations would happen—with the devolved Administrations having a say rather than it being tokenistic consulting; I am not asking for a veto—and that there would be no possibility of them then being charged in any way or being requested to provide financial support for having as a member somebody who had particular knowledge of their area, whether it is Wales, Scotland, Gibraltar or Northern Ireland?
Can the Minister explain to me—this is my ignorance —why paragraph 39(1)(b) of Schedule 2 is in italics and the other parts of the Bill are not? Is there some significance to it being in italics?
Lord Keen of Elie
My Lords, I am not immediately aware of the significance of the italics, but no doubt someone will pass me a piece of paper in a moment that explains them—or not, as the case may be.
We have not yet determined the cost—this also responds to a point made by the noble Lord, Lord Greaves—or budget requirements for the IMA. I therefore cannot comment further on that. The obligation to ensure that it is fully and properly funded lies on the Secretary of State and therefore on the UK Government. What further or future negotiation there might be about cost sharing is a matter beyond the terms of the Bill. I would imagine that if we start with an obligation that lies with the Secretary of State and the UK Government it will not easily be transferred in any form to the devolved Administrations. Perhaps one day we will have a reverse Barnett formula, but we do not have one at present.
In the circumstances I have set out I hope it will be appreciated by the noble Lord, Lord McNicol, that Amendments 58 and 60 are not required in this context. The approach that we take to exercising the powers with regard to the IMA will be proportionate and appropriate and it would therefore not be necessary or appropriate that the procedures in the Public Bodies Act 2011 should apply. The bodies to which that procedure usually applies are those established on the basis of domestic policy. It will be appreciated that this is a rather different body which is the product of an international agreement and therefore it has to comply with the obligations we have entered into at the level of international law and it should not be tied to domestic legislation.
On the noble Baroness’s observations about the italics that appear in the Bill, it may well be that she alighted upon an issue that may arise later in the day, but I am advised very clearly that it is a misprint. Apparently, the entire Bill should have been in italics.
I have sought to reassure noble Lords about the concerns that have been raised and which have motivated these amendments. We have sought to design the IMA to provide robust, effective and fully independent oversight of citizens’ rights and our commitment to citizens’ rights. It is necessary to bear in mind that we are implementing international law obligations that we have incurred by entering into the withdrawal agreement. The clause and the schedule in their present form meet those international obligations and the demand for robust, effective and fully independent oversight of citizens’ rights and obligations. I hope that noble Lords will not press their amendments.
Lord Greaves
My Lords, I am very grateful to the Minister for the time and effort he has taken to go through all the points raised and, I think, to give us a certain amount of new information or extra information about how the IMA will work and about the Government’s thinking on it. This debate has been valuable. I am grateful to everybody who has taken part, and particularly for the snapshot we have had of the devolutionary thinking among Welsh Members of the House. I found it very interesting and useful.
The only question the Minister did not answer was about whether the IMA is going to be based in the north of England. Perhaps that is beyond his pay grade —I think he agrees with that.
European Union (Withdrawal Agreement) Bill
Tuesday 14th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-II Second marshalled list for Committee - (14 Jan 2020)
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.
Baroness Hayter of Kentish Town (Lab)
I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.
Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including
“any provision that could be made by an Act of Parliament,”
including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,
“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”
an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.
First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.
Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.
Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,
“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]
Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.
Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.
Lord Tyler (LD)
My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.
I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.
That committee reiterated:
“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”
In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:
“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]
Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.
This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.
I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”
Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.
Baroness Finlay of Llandaff (CB)
My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.
I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.
Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.
I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.
But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.
The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.
As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.
Lord Howarth of Newport (Lab)
My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.
If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.
Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.
Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.
Lord Thomas of Cwmgiedd (CB)
I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.
This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.
The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)
My Lords, this has been an interesting discussion, which has focused on a broad range of issues affecting the wider devolution settlement.
Some things need to be set out very clearly at the outset. The first thing is that the purpose of the protocol, which was not mentioned a great deal in the discussion, is to ensure the delivery of clean access within the island of Ireland between Ireland and the UK. This is to ensure the integrity of the customs union of the United Kingdom but also that we have the powers available as we go forward in the calendar year ahead to make necessary amendments in real time to the various elements that will be required as we seek to deliver on the Northern Ireland protocol. The important thing to stress is that we are in a situation in which time is of the essence, but that can never be an excuse.
Secondly, a number of noble Lords have spoken of the repeal of the devolution settlements almost as a Domesday scenario. There was a reference to Henry VIII powers being used, in essence, to eliminate the devolution settlement with Wales or anywhere else. It is important to stress that this clause is in no way designed for, or seeks to achieve, that purpose. Where there are elements of primary legislation which are to be amended, this will be done through the affirmative procedure, which allows significant scrutiny to take place in both this House and the other place. It is important to recognise that we are not just talking about the letter of the law here, but the wider settlements which we have discussed more broadly with regard to Wales and Scotland. The very notion that we can, by some fiat, undo that which has been set in place through the devolution settlements is, frankly, borderline ludicrous. It is not going to happen.
Lord Howarth of Newport
Is the Minister therefore saying that the Delegated Powers and Regulatory Reform Committee is incorrect? Paragraph 9 of its report notes that Clause 41
“contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament … Such regulations are made pursuant to the negative procedure.”
Lord Duncan of Springbank
To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.
We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.
It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:
“Do you feel lucky, punk?”
and “Make my day.” I am not sure either one is particularly relevant.
In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.
On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.
Baroness Hayter of Kentish Town
I am afraid that that does not answer the points noble Lords have made. It is not so much that the powers are needed for Northern Ireland, but there should be restrictions on them. I am sorry, because the Minister is normally brilliant at the Dispatch Box and very well briefed. However, had he read Amendment 15 he would have seen what we were trying to write in by restricting those powers, such as not undermining the Government of Wales Act. He would have understood that we were not questioning that some of the powers will be needed for Northern Ireland—we will come to that in a different debate—but the way they have been set out in this clause. Unlike Clause 18, which I quoted, Clause 21 does not have the restrictions on those powers that exist in the other clauses in the Bill or, indeed, in the 2018 Act.
Our concern remains. It is good to have a northern voice. Most of us here are Welsh or from the West Country, where we feel this very strongly. The Minister is saying that these powers were not designed to undermine devolution and that the intention is not to use them that way, but that is not good enough. When something is put in an Act of Parliament, it is a power. No matter that it is not intended to be used that way, the power is there. As the noble Baroness, Lady Finlay, said, there is already another way. Although I cannot see that the Government of Wales Act would need to be altered for Northern Ireland, if it does there is a perfectly good way of doing it. Denying the restriction, whether it is new criminal offences or anything like that, which exist for all the other Henry VIII powers, is very hard to substantiate, simply because it is to do with Northern Ireland. Not accepting that the other devolution settlements should be in any way accessible to these powers is unsatisfactory. As other noble Lords have said, even the word “repeal” is like waving a red flag at the way these powers could be used.
Having heard from the noble Lord, Lord Tyler, my noble friend Lord Howarth, the noble Baroness, Lady Finlay, and the noble and learned Lord, Lord Thomas, I hope that the Minister might look again at the wording of these amendments and understand why we have real worries about them. Perhaps he would be willing to meet before Report. Otherwise, it will be necessary to try to circumvent these powers in a way that happens elsewhere, but not in relation to the Northern Ireland protocol. I leave the Minister with that thought and beg leave to withdraw the amendment.
Lord Hain (Lab)
My Lords, at the request of my noble friend Lady Ritchie of Downpatrick, who has to attend a funeral tomorrow, I wish to move Amendment 13 and speak to Amendments 14, 16, 17 and 20 appearing also in the names of the noble and right reverend Lord, Lord Eames, and the noble Lord, Lord Empey, and with the blessing, I know, of the DUP, Sinn Féin and the Alliance Party.
We all welcome the restoration of devolved Stormont government and wish the Assembly and Executive well in taking Northern Ireland forward to what we all hope will be a better and more stable future. I have always maintained that, where there is deadlock in the political process, as we have seen over the last three years so tragically, it can be resolved only when the British and Irish Governments work together in a focused and positive way. There are former Secretaries of State in this House who I think will not disagree with that. I particularly commend the way in which the current Secretary of State, Julian Smith, approached the outstanding issues, working closely with the Irish Foreign Minister, Simon Coveney, ably supported by the noble Lord, Lord Duncan, and the Minister in the Commons. The Secretary of State has brought energy and commitment to the negotiations that, sadly, his predecessors lacked, and he was doing so even before the political arithmetic changed with the election last month.
It is in the context of the restoration of the institutions in Northern Ireland and, more crucially, their prospects for long-term stability that I urge the Government to accept these amendments. After all, they achieve what the Government themselves profess to support: namely, no impediments to trade across the Irish Sea. The purpose of these amendments is to protect the Northern Ireland economy from the clear and inevitable damage that leaving the European Union in the hard Brexit way seemingly envisaged by the Government will otherwise cause. They are not delaying or wrecking amendments—nor are they the last frantic efforts of deluded remainers or remoaners to thwart the democratic process. They are essential damage-limitation measures, supported by all the political parties in Northern Ireland. Let us pause on that: all the political parties. How often do we see that? And joined by businesses and civic groups, too.
Amendments 13, 14, 16, 17 and 20 hang together as a package. Amendment 13 replaces “may” with “must” in Clause 22, Part 1C, and new Clause 8C in Clause 21 in order to stiffen the drafting of the regulations that will be made under these provisions of the Bill. Otherwise, the problem is that the protocol either places Northern Ireland in a good place or between two bad things, where it will have its largest internal sales market putting barriers up to it and it will not have genuinely unfettered access to the EU market. That will put businesses in Northern Ireland at serious risk of competitive disadvantage on all sides.
Amendment 14 ensures that, in accessing the market within Great Britain, businesses in Northern Ireland must continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market. Also, Northern Ireland businesses will enjoy these rights to free access regardless of whether they trade directly with Great Britain or via an Irish port or airport.
Amendment 16 would ensure that any relevant regulations for new requirements on goods traded to and from Northern Ireland to Great Britain cannot come into force without the consent of the Northern Ireland Assembly—and, furthermore, that there must be no additional charges or administrative costs for the businesses involved in this trade. The reason for Amendment 16 is that, in their own impact analysis, the UK Government note that exit summary declaration forms will be needed for goods moving from Northern Ireland into Great Britain for the purposes of security and safety, listing the type and weight of goods in order to keep track of what kind of imports or exports are crossing economic borders. The Government estimate the costs as ranging from £15 to £56 per declaration. This too will add costs and friction to the movement of goods. Businesses will need support to adjust to these new requirements. They will also need proper training to adapt to them, and of course any additional costs will inevitably be passed on to consumers, unless the Government ensure there are no such additional costs, which is precisely what this amendment does, and what the Bill does not do.
Amendment 20 requires the Government to develop mitigations to protect Northern Ireland businesses and consumers within the UK internal market. By mitigations we mean demonstrable steps to safeguard their position. But we are not being overprescriptive—I urge the Minister to note this point—as to how this is done. We are simply asking for effective mitigating steps to be delivered by the Government in the way they choose. What objection to that could there possibly be?
Lord Eames (CB)
My Lords, I have added my name to those proposing these amendments. There must be times when your Lordships’ House feels, “Northern Ireland comes again with a special pleading for special treatment”; were I to come from elsewhere in the United Kingdom, I would have great sympathy with that view. On this occasion I want simply to put two realities to this debate and appeal to the Minister, who has often, if not always, listened with sympathy to the voices from Northern Ireland.
The first reality is that the business community of Northern Ireland has been suffocated by the uncertainty over the Brexit debate, which has been the result as much of its geographical position as of political factors. That uncertainty is now manifested in the debate we had earlier today on the protocol. We are left wondering as a community what unseen consequences could come from the sort of debates that will take place on future trade agreements once we leave the European Union.
The second reality is what I call the reality of reassurance. That reassurance can come only when we listen on the one hand to the repeated assurances of the Prime Minister that we will leave Europe as a United Kingdom. If that is followed up, I beg to suggest that the reality we face from the uncertainty surrounding the business community in Northern Ireland is that, when we leave as a United Kingdom, there will definitely be problems unique to Northern Ireland. If he can assure those of us who support these amendments that the Government will at least listen and not just give us trite phrases or slogans to live with, and that very definite attention will be given to the particular sensitivities of doing business in Northern Ireland post Brexit, many of our fears will be answered.
Lord Empey (UUP)
My Lords, I will speak to this group of amendments, so forensically and comprehensively addressed by the noble Lord, Lord Hain. The underlying problem that many of us have with it is the following. I served as a Trade Minister for a number of years, and I was able to set up InterTradeIreland, the body designed to promote trade between north and south, and which still exists. It has not been as successful as I would have liked; nevertheless, there is still huge potential there to grow trade. However, our problem is what we are told, not only by the Prime Minister but by the Government more generally, as against our experience with the reality of doing business across boundaries and between different economic units.
Whether we like it or not, from 2 October of last year, when the Prime Minister produced the first phase of his proposals with the European Union, it was obvious that Northern Ireland would be in a different regulatory environment, and once that was conceded, the customs environment was added to it. While there are reassuring words and undertakings, people like me and the businesses that have been referred to cannot just reconcile the aspiration to have free movement without any inhibitions or difficulties and the practical realities of being engaged between the European Union single market and an economy no longer in the single market. We are therefore in this kind of hybrid, of which there is no current example that I am aware of, and where there is the potential, as time passes, for the gap to grow.
We start off the negotiations early next month in the transition period with exactly the same regulatory environment that we have all become used to—there are no differences. That distinguishes the United Kingdom in its negotiation with the European Union from other examples, whether Canada, Mercosur or whatever. We have exactly the same regulatory environment as the rest of the European Union. However, the Prime Minister and others have said that they see things changing over time. The single market, which was invented by this country, is a noble idea, but to retain the integrity of that single market, the consumer protection requirements and standards must be verified in some way.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, before the election, the whole Brexit debate was coloured by the Prime Minister’s call for certainty, his demand for the certainty that the business community throughout the United Kingdom was looking for. That demand for certainty concerning Brexit resonated in the general election, and we know the result: the Government received their majority, and a handsome majority it is.
I will address the amendments so ably and professionally outlined by the noble Lord, Lord Hain. Consistency in message is not only desirable but, I believe, imperative. Inconsistency in message undermines confidence and trust within society. Of course, there is a lot of mistrust out there between the community and politicians. Many suggest that history will tell you that Governments promise to do one thing out of office and then do the very opposite when they get into office. But during the debates about Brexit, specifically concerning Northern Ireland as regards what happens from the day we leave Europe, the Prime Minister has said one thing and the Brexit Secretary a completely different thing.
I am led to believe that Mr Barnier said in the European Parliament this afternoon that there will be checks within the United Kingdom. How does that equate with what our Prime Minister has promised the people and the business community of Northern Ireland, not only during the election but right up to the present? It is hard to reconcile what is being said and what is being put into legislation. Business leaders and political leaders have declared unitedly that the present situation, as outlined before this House, is not acceptable.
We find that the amendment that simply asks to change the word “may” to “must” seems to cause consternation within the Government. Of course, certainty is something that the Prime Minister said the United Kingdom was going to get with him. Certainty was going to be the very cornerstone of his Administration. Well, “may” is not certain; “may” can mean that it may happen or, of course, it may not. But “must” declares that it must happen. It is interesting: the Prime Minister has told us that there is a departure date, but it is not a “may”. As far as he is concerned, it must happen on that date. He has told the whole of Europe that there is no possibility of an extension. We can surely not be blamed, in the light of statements that have been made, for being deeply concerned.
Baroness Altmann (Con)
My Lords, very briefly, I want to add my support to the thrust of these amendments. I express sympathy with my noble friend the Minister. I suspect that, having listened to the arguments around the House, he would very much welcome the opportunity to try to keep to the manifesto commitments, which were so ably outlined by the noble Lord, and recognise the will of the people of Northern Ireland, who, as we have heard from across the House, support the thrust of these amendments, so brilliantly moved by the noble Lord, Lord Hain.
This does not delay the legislation but is about damage limitation. I implore my noble friend to take this back to the department and champion this House’s role of ensuring that the other place properly considers the implications of what is being proposed in this legislation. From looking at the debates in the other place, I do not believe that the sentiments expressed across this House and the wisdom that we have heard this evening were fully reflected there.
Lord Teverson (LD)
My Lords, the EU committee of which I am a member has spent a lot of time on Northern Ireland issues. Although I do not visit the Province regularly, I used to do business there and greatly enjoyed it; it is a fantastic part of the United Kingdom.
What really worries me goes back to what was said by the noble Lord, Lord McCrea: this denial by the Prime Minister that there is any problem here, when clearly there is. Yes, we have it in the protocol that the Province is to be part of the UK customs territory—but in reality it is part of the single market and the European customs union. It is de jure part of the UK and de facto part of the EU in terms of its economy.
The recent report by the EU committee stated:
“Notwithstanding the statement in Article 4 of the protocol that Northern Ireland is part of the customs territory of the UK, the practical implication of the protocol’s provisions on customs will be the introduction of a regulatory border for goods travelling from Great Britain to Northern Ireland. The introduction of such a border within the UK will have financial and political consequences”—
which is probably an understatement.
I was in the EU committee when the current Secretary of State for Brexit, Stephen Barclay, said, on the advice of his senior civil servants, that there would indeed be that border down the Irish Sea, and that there would be documentation; it would not be frictionless. So I find it very difficult to understand why we have this very trite statement, as always, by the Prime Minister, when that is not the case.
To emphasise what the noble Lord, Lord McCrea, said, I will quote what has been said today by the EU’s chief Brexit negotiator, Michel Barnier. He stated that the protocol on Northern Ireland outlined in the withdrawal agreement means that checks on goods moving from Great Britain to Northern Ireland would have to be in place. He said:
“The implementation of this agreement foresees checks and controls entering the island of Ireland. I look forward to constructive co-operation with the British authorities to ensure that all provisions are respected and made operational.”
We have not heard a great deal from the European Union on this issue. I suspect that it is very wary about entering the politics of Northern Ireland. But that silence has now broken, and it is very firm. So it would show respect to the Province if the Government could be honest about what is foreseen.
Lord Bruce of Bennachie (LD)
My Lords, I very much support the amendments moved by the noble Lord, Lord Hain, and I am very grateful for the detailed way in which he explained them. It could not be clearer; he covered pretty much every aspect. This has been reinforced by everybody else who has spoken. It is difficult to avoid the reality.
Let me first address the political dilemma. The Government have had an election, they have a majority of 80 and they can do what they wish in the House of Commons; we know that. The Minister has effectively got instructions that all amendments must be resisted. However, the Prime Minister’s personal reputation and integrity rest on this issue. He has explicitly said that there will be no checks—and in a sense, these amendments are trying to put into law the Prime Minister’s promise of what the protocol would mean. We all know the difficulty is that any analysis of the protocol does not square with the promise—unless the Prime Minister has got some way of explaining that which none of us has yet come across.
A useful analysis of the protocol has been produced by the Institute for Government, which makes it clear that the protocol means that while Northern Ireland will remain part of the customs territory of the UK, customs checks and controls will apply for goods moving from Great Britain to Northern Ireland because that ensures that customs checks or controls are not required between Northern Ireland and the Republic. That is the essence of the protocol in a nutshell.
The consequences of that, therefore, are that not only will there be checks but that exports into Northern Ireland from the rest of the UK will be subject both to customs checks and, potentially, tariffs. There is an argument that these tariffs could be reimbursable, but that immediately introduces a bureaucracy of having to regulate them, and apply, and when and how long that takes. So let us be honest; we are facing a dilemma.
As has been said, the Northern Ireland economy is one of small businesses and is vulnerable and fragile. For many of those businesses, the practicalities of dealing with this could be life-threatening and could effectively destroy their viability. Indeed, one begins to wonder how the pattern of trade might change, inasmuch as businesses in Northern Ireland may find that trading with the mainland of the UK is just too difficult; and, indeed, businesses on the mainland of the UK may decide that Northern Ireland is too much trouble. Somebody trying to order something online through Amazon may find that it does not supply Northern Ireland, or will only supply it at a premium, or will charge a tariff which may or may not be reimbursable. These are the kinds of complexities that we are facing and envisaging, and everybody who has spoken recognises that to be the case—and I think it is reasonable.
I do not envy the Minister’s position, but I would love him to have a conversation with the Prime Minister and say, “Prime Minister, you have categorically stated that there will be no checks or tariffs. It would be helpful if everybody else in the Government could have it explained to them how this is going to be achieved, because I have not come across anyone who yet knows how it can be done”. So the amendments are well-intentioned and constructive. They are about saying, “We have a promise and this is how it should be delivered.”
Given the Benches I am speaking from, I should make it clear that I accept that we are leaving the European Union at the end of January and that the Bill needs to be passed in good time and in good order. I certainly do not regard this as anything other than a genuine recognition of a crucial issue that needs to be addressed on behalf of the people of Northern Ireland. I do not have to repeat, but I will, that it has cross-party, business, and community support—literally, unanimity—across the entire Province that says, “Please help us through this dilemma.” I hope that the Government will recognise that they have an obligation to do so.
Perhaps I might raise one other slightly unrelated issue in relation to these clauses. The commitment to non-diminution of rights within the agreement is enshrined in Northern Ireland legislation—in other words, it applies to it—but there has been some concern, particularly in the debates we have already had about Henry VIII clauses and other clauses, that this does not apply to any other legislation passed by the United Kingdom Government. Does the Minister accept that if the UK Government can amend aspects of legislation in Northern Ireland—or, for that matter, elsewhere, but Northern Ireland in this context—the non-diminution of rights would be meaningless if UK law could compromise that and only Northern Ireland law is protected? I hope I have made myself clear and I would be interested to hear the Minister’s comments on that.
In conclusion, the Minister can be in no doubt about the feeling across the House. I have said, both publicly and privately to the Minister, that his engagement on these and all other issues is warmly admired and respected—there is no question about that. His commitment and sincerity in wanting to get the right results is not in doubt or in question, but he is defending a difficulty here on behalf of the Government.
He has between now and next week. It is probably a forlorn hope, but I think he should have a conversation with the usual channels and the Government to say that this issue is really causing a great deal of fractious difficulty and the Government need to show in very real terms that they are going to address it. If they could in some way or other accept these amendments or bring forward a government amendment that followed that through, a lot of mistrust might be evaporated and the situation might be regarded as one in which the Government have demonstrated a genuine determination to get to the right place, which is unfettered access.
Baroness Smith of Basildon (Lab)
My Lords, this has been an interesting debate, and I do not think its implications could at any point be overestimated. I am grateful to my noble friend Lord Hain, who moved the amendment on behalf of the noble Baroness, Lady Ritchie of Downpatrick. Noble Lords will be aware that she has a family funeral tomorrow and has to be back in Northern Ireland this evening. I think she would have been very pleased to hear the detailed, comprehensive explanation given by my noble friend Lord Hain of the implications of the Government’s legislation and the amendments that have been suggested tonight.
It is worth saying that we are having this debate against a backdrop of a changing political situation in Northern Ireland, one that all of us wholeheartedly welcome, which is the return of the Assembly and the Executive. I congratulate the Minister, his colleague the Secretary of State and the Northern Ireland parties because compromise was essential to get to this point. It could not have been achieved had not all parties come together, as we have seen in the past, to compromise to ensure that the Assembly is up and running again and the Executive has been established.
It is in that spirit of compromise that I appeal to the Minister tonight, because it is only by having the kind of compromise that has returned the Assembly and the Executive that we can make progress on this issue. We know—and people in Northern Ireland have been told—that the message from this Bill is no compromise, no amendments, nothing must change. That is a wholly unacceptable way to approach any legislation. The noble and right reverend Lord, Lord Eames, said that people will say this is special pleading for Northern Ireland. I do not think it is. It is pleading not to make life more difficult than it is going to be already. If the Northern Ireland political parties can compromise in the way we have heard about from the noble Lord, Lord McCrea, I am sure the Government can take a step in that direction as well. I am slightly concerned that there has been no Statement from the Government about the progress made in Northern Ireland. I hope one will be forthcoming shortly.
If anybody in government is concerned that this is a series of amendments about not accepting the result of the referendum—my noble friend Lord Hain and the noble Lord, Lord Bruce, made this point—if it were not for accepting the result of the referendum, these amendments would not be required. It is because we are leaving the EU that they are so essential.
I do not want to go through the purpose and the details already outlined by other noble Lords; I want just to re-emphasise three points. First, as the noble Lord, Lord McCrea, said, these amendments have not just cross-party support, but all-party and none support from people in Northern Ireland. I have not come across anything from anybody in Northern Ireland that says that the purpose behind these amendments is something they reject. It is universal. The Government have to listen to that. The people on the ground understand the implications of Brexit. Whether they support Brexit or not, they still support these amendments.
Secondly—this point has been made—this reflects the promises and commitments that the Government have made to the people of Northern Ireland. We all know that the Prime Minister gets a bit flamboyant during election campaigns, but let us bring it back to what he actually said. Basically, he said, “There will be no checks or tariffs, and if anyone has a problem with that, come and see me—phone me about it”. If that is the case, will the Government publish the phone numbers of the Prime Minister and his deputy, Dominic Cummings, so that people can phone them directly? Nobody is clear about the situation and there is a great deal of mistrust when flamboyant statements are made with no facts behind them.
Thirdly, Northern Ireland needs a level playing field if it is to protect businesses and consumers, as all of us in this House will understand. A trade expert, Professor Alan Winters, has undertaken an analysis that concludes that, taking into account both GB and international goods, a total of 75% of Northern Ireland’s imports could be subject to EU tariffs on arrival. That is a phenomenal amount. It will be damaging to the economy, as we have heard—I will say more on that in a moment—and it will also be quite complicated. Perhaps the Minister can comment on how this will work, but my understanding is that goods entering Northern Ireland from Great Britain and deemed at risk of being moved to the Republic will be subject to tariffs, but those could be rebated if it could be shown that the goods were consumed in Northern Ireland. How on earth is that going to work? Are we going to check what is consumed or part consumed? It is a recipe for disaster for the economy.
The integrity of Northern Ireland as part of the UK internal market is integral to the success of the Northern Ireland economy. To put additional costs on the economy, whether on the consumer or on businesses, is completely unacceptable. Looking at the political and financial implications of what is being proposed, the Government need to give absolute clarity that there will be unfettered access on trade. If they are unable to do that, they have to accept the amendments.
I say to the Minister that I do not think that the Government’s approach is good enough. I know that he will have a folder of briefing notes. I have been there—I have been a Minister. The notes on the amendment say “resist”, but there are times when that is the wrong course of action. It is not good enough to say that we need a clean Bill. We have heard that in this House before. These amendments can help the Government. They assist them in what they are seeking to do and they assist Northern Ireland. There is no good reason to oppose them, other than trying to take a macho approach to the legislation, but that just will not work. I am sure that the Minister personally is sympathetic, but we need more than warm words. We need to know that the Government are prepared to accept the amendments or come forward with their own suite of amendments.
Lord Morrow (DUP)
My Lords, I should like to speak before the Minister responds. I want to make a few brief remarks, not least on what has already been said. In Northern Ireland we are continually lectured and told, “If you could only speak with one voice, how different things would be.” However, we speak as one voice tonight. We speak not only politically, but for the business community, and I include all those who have spoken on this matter.
I know that the Minister is a listening man, but I want him to go a step further and implement the proposed changes. The noble Lord, Lord Hain, the noble Baroness, Lady Smith, the noble Lords, Lord Bruce and Lord Empey, my noble friend Lord McCrea and others have said very clearly what Northern Ireland expects. We must be allowed to function as a country and as a trading partner with the rest of the United Kingdom.
There is no doubt—and those who do not agree with my politics at all have clearly outlined—that what we are being told by the Prime Minister is one thing, but actions always speak louder than words. We need the Prime Minister, the Government and the Minister, the noble Lord, Lord Duncan, to take on board very clearly that there are serious issues at stake here.
It is ironic that one part of the United Kingdom will have a border with the rest of the United Kingdom. How can that ever be right? Even common sense will tell us that that is not functional; it will just not work.
It has already been stated that Northern Ireland’s economy is built on a multiplicity of small businesses—those which employ and engage fewer than 10 people. That is what our economy is built on; that is the backbone of our economy. We do not disparage the large companies that bring massive employment to our shores, but it has to be said clearly, and I do not exaggerate when I say it this evening, that those small businesses are watching every move, because their future is at stake—not only their future, but that of many homes.
It is no secret that wages in Northern Ireland are lower than those in other regions of the United Kingdom. Many families struggle. Many are in the poverty trap. Many live on the margins, as I call it. Are they not deserving to be treated equally? Is there not a strong case for saying that we need to look at this again? As my colleague and noble friend Lord McCrea has said, there is an ocean of difference in the meaning of the word “may” as compared to the word “must”, which the noble Lord, Lord Hain, has asked to be put in. You have an option if you may; you do not have that option if you must.
I concur with those who have said that this is not in any way a wrecking attempt. We know where we are in the whole Brexit debate. We know where we were in relation to Brexit. This is not a last-gasp, desperate attempt to do something over the Government. This can be implemented very easily and respectfully. I associate those remarks with the amendment in my name and the names of my three colleagues. We have absolutely no difficulty in supporting the amendments that have been tabled, and I trust that there will be no difficulty in supporting our amendment. It is there for the right reasons; there is nothing sinister about it. We are absolutely sincere. I plead with this House and with the Government to take it sincerely, because there is so much at stake.
Lord Duncan of Springbank
My Lords, this has been an expectedly wide-ranging debate because, when it comes to Brexit, the Northern Ireland protocol is where the rubber meets the road. I take on board the comments made this evening in that light. I also note the cross-party support for the amendments before us and I acknowledge that that is a unique occurrence.
I will try to give some context to where I think we need to take the debate. First, there is the question of unfettered access. It is straightforward for me to say that, as part of my party’s election commitment, we spoke of “unfettered access” in our manifesto. Further, my right honourable friend the Prime Minister has given a personal commitment on the notion of unfettered access; he is already on record as doing that. Further again, it is important to recognise that the world has changed since this matter was discussed in the other place. Over the weekend something—I will not say “miraculous”, and I do not mean it unkindly—extraordinary happened. We have restored the Executive and the Assembly, so the debate has gone on since then. It is important to note that New Decade, New Approach sets out explicitly that legislation to secure unfettered access will be in force by 1 January next year. Each of these are indeed new elements regarding this matter. It is important to stress that, between now and 1 January, there needs to be a serious and detailed granular dialogue with all of the business community of Northern Ireland as this matter evolves. For the first time we will have the voice of Northern Ireland in its right place—in the Assembly and the Executive. This Government commit to full engagement with the relevant Ministers and the wider Assembly in these matters.
Baroness Smith of Basildon
I thank the Minister, who is obviously trying to give some reassurance in his comments. He has said that it is the terms of the amendments—their wording—that cause some difficulties. However, I think he is conceding, and understands, the points and concerns raised, and why there is so little trust and a need for that reassurance in Northern Ireland. I apologise if he is going to come to this in a moment, but does it follow from what he is saying that he is therefore prepared to bring forward his own amendments that would give the certainty and reassurance required but deal with his concerns about the wording of these amendments?
Lord Duncan of Springbank
The important thing here is twofold. First, we agree on the destination—on where we are trying to go. Secondly, what we just said is that the amendments as drafted, from our position, undermine what we set out in the initial clause. We have said that the initial clause now delivers what we believe is right for Northern Ireland, both in terms of the wider dialogue and the ongoing evolution regarding the joint committee. That is why I would not propose replacing them with our own government amendments, but rather recognise the vitality of the original clauses.
I thank the noble Lord, Lord Hain, because he has put in place a very clear recitation of where he is coming from and, as he said very clearly, I anticipate that this matter will be pressed to a vote next week.
Lord Bruce of Bennachie
I want to pick up what was said about the United Kingdom’s customs rules being entirely under the jurisdiction of the United Kingdom—I paraphrase what I think the noble Lord said. However, the agreement is summarised as saying:
“The Joint Committee will establish further conditions under which goods coming into Northern Ireland from Great Britain would have to pay the EU tariff.”
This suggests to me that it is not in fact our exclusive responsibility, but will be jointly determined between the UK and the EU.
Lord Duncan of Springbank
In response to that, of course it will be our exclusive view in that negotiation to determine our own position as we respond to that. Again, it rests with us to try to move that in the direction in which we wish it to go.
Again, I am very grateful to the noble Lord, Lord Hain, for being so candid; I welcome that candour, as I always have. In winding up, I say that we need to be able to send the message to Northern Ireland that, through this process, there will be a deep dialogue with each of the affected parties and we will not place any prescriptive elements that will impact on their ability to determine the future that rests before them in terms of how their businesses will work. They need to have very frank discussions with the Government and ensure that, through each stage in that negotiation, there is transparency so that nobody is left behind or surprised, and the reality remains transparent for all to appreciate. I do not believe that it will be straightforward. It is important to emphasise that the protocol itself sets out very clear decisions, but there are still decisions which must be taken by the joint committee of the UK and the EU and which will have to be worked through as we go forward. There is no point in my trying to pretend that that will not be a challenging position.
The important thing to stress is that we are guided by certain principles that rest on the question of unfettered access. I was struck by the word “unfettered”; it is almost a Victorian term. Where did the notion of “unfettered” come from? What on earth is a fetter? It is a shackle, a thing that is linked around your ankles to stop you escaping. We are looking for a situation in which trade can continue in the customs area that the UK sits within, but which also recognises a democratic element in Northern Ireland, to ensure that it is content with the way this matter progresses in the Province of Ulster, and that businesses are content, too. With the newfound Assembly and Executive, this situation will ensure that Northern Ireland has a voice to register this content or discontent and that there is at no point a democratic deficit in Northern Ireland over what the protocol seeks to deliver or, ultimately, what Northern Ireland wants for itself. That will be important as a very strong check on where we go next.
Lord Empey
I apologise for interrupting the Minister. The Joint Committee has the capacity to widen the scope of its activities and what matters may be included. That disturbs a number of us, because what we see today could change. I do not think that any of us particularly want to get involved in votes, if that is avoidable. In consulting his colleagues over the next few days, will the Minister see whether some expression could be included which would effectively reassure people? A lot of the angst that we all feel would then dissipate. The last thing we want is to have any confrontations between the Houses, but this is heavy-duty stuff. The ability of the Joint Committee to expand its areas of operation and what is included, and not included, is a very big step over which we would have no veto or control. That is driving a lot of the uncertainty which we all feel here tonight.
Lord Duncan of Springbank
As always, the noble Lord brings an interesting perspective to this. I appreciate the fear that the Joint Committee may extend beyond its rails and somehow move into different areas. Within that Joint Committee is the United Kingdom itself, and the purpose there is to hold to account the United Kingdom as it seeks to engage directly with the wider EU. I note underlying that, however, the more important point: the question of reassurance. I hope that the words I can use will give some reassurance today. Equally, I think we will come back to this matter next week when the House will demand of me further reassurance. It is important that I am able to put clearly before this House, and as it echoes beyond this House into Northern Ireland, these reassurances: it has not been overlooked; the newly established Executive will have a strong voice in what goes on, going forward; and the business community can expect to be significantly engaged with each element of the question of unfettered access, to make sure that this is in no way an attempt by the Government to hoodwink either the people or the businesses of Northern Ireland.
If I may conclude, the important point is that I believe we are in common agreement that unfettered access is required. We have the assurance of the Prime Minister and we ultimately have—
Baroness Smith of Basildon
Since the Minister said that he was concluding, can I ask him this? He said that he wants to give reassurance. The noble Lord, Lord Empey, raised the point that we would rather not have disagreement between the two Houses. We would rather get the issue resolved, especially since I understand that in the other place they will have either no time for debate or so little time that it will move to a vote forthwith. Whether this House passes an amendment or not, we do not really have faith that this will be properly considered in the other place. It would be good to fully understand what the Minister is saying. Can he commit tonight to write to us with the details and place a copy in the Library, so that we can fully consider these matters before we come back? I urge him to think that the House is seeking reassurance from him because this matter has to be resolved. The consequences for the people of Northern Ireland if it is not resolved adequately are really very serious. Can he write by close of play on Thursday, so that we can fully debate it next week?
Lord Duncan of Springbank
Yes, I am content to put in a letter the elements I have set out today, with the appropriate detail and clarity which I may have lacked in my explanation this evening, so that the Committee can see exactly what I seek to put on the record. I am occasionally guilty of being expansive—I know that my Chief Whip looks daggers at me occasionally—but I am happy to put that down in a letter in appropriate time, so that the Committee can consider it and make sure that there is no dubiety in what I seek to put forward. I am happy to give that commitment and I will ensure that it is there in good time.
Again, I bring myself back to the important point: I believe that we seek the same outcome, which is to secure Northern Ireland’s place within the family of nations that is the United Kingdom, and to ensure that there are no impediments to the trade within the Province of Northern Ireland as it seeks to trade within its important relationships with the rest of the UK. On that point, I am sorry that I am not able to give more positive support, but I will do all I can in the next few days to set out in writing the Government’s position.
Lord Teverson
For simple clarity, can the Minister confirm whether he agrees with Monsieur Barnier in his analysis?
Lord Duncan of Springbank
Having been a Member of the European Parliament, I know that one of the challenges is that Commission officials can sometimes be too expansive in the way that they express themselves, for purposes that are not always clear. I am afraid that I do not know exactly why Monsieur Barnier said what he did but he may well fit into that category. I am also conscious that I did not answer the question of the noble Lord, Lord Bruce. If he will forgive me, I will write to him, and on that point, I conclude my remarks.
Lord Hain
My Lords, I congratulate the Minister on a beautiful response to the question put by the noble Lord, Lord Teverson. I must say that the skill with which he did it was admirable. I am grateful to all noble Lords who have contributed to the debate. The noble Lord, Lord Empey, made a truly excellent speech, the key message of which was that this is not a partisan issue. This point was reinforced by the noble Lord, Lord McCrea—he has not often praised me, especially when I was the Secretary of State for Northern Ireland, even though his leader did from time to time—so when the Minister consults with the Secretary of State and No. 10, can he make that point? We are not trying to re-fight a battle that dates from before the election; we are trying to resolve a problem that uniquely affects Northern Ireland. The point was reinforced by the noble Baroness, Lady Altmann, and the noble Lords, Lord Teverson and Lord Bruce, who put it very succinctly when he said that all we are asking is to put into law what the Prime Minister has promised. That is what it is.
My noble friend Lady Smith urged the Government to compromise, like the parties in Northern Ireland have compromised. Perhaps we can urge No. 10 to compromise. Your Lordships’ House has been put in a difficult predicament in this situation; it is like a sword of Damocles hanging over us. Unlike with other Bills, where we can make a logical and reasonable case, as we have done on Northern Ireland in recent times—I acknowledge that the Minister has been good enough to respond creatively, with the Government behind him—and there is then a bit of give and take, this does not even seem to be in the arena. It is as if we might as well not have this debate because the Government are not going to consider it anyway. I therefore urge the Minister to transmit in crystal clear terms what has been said right across the House in this debate. It is actually a question of trust, as a number of noble Lords said. I have tried to go into the detail in a reasonably forensic way, but it does not seem that what has been said in public by the Prime Minister—I am not taking a party-political pop at him because that is not what we are about this evening—actually reconciles with the facts on the ground.
I come to the Minister’s admirable summing up. To be perfectly frank, what he is really saying is, “Trust us because we are going to talk to the Assembly. It is going to be in business and that is a good thing. The Members can have their say and it will all work out on the day.” Well, there are certain brick walls here, and hard places and collisions between the two, so I am not convinced by that. I am not convinced that a process of sweet dialogue between the Government and the Assembly will necessarily solve these problems. The purpose of the amendment is to solve them, so that there will not be any costs on businesses and no impediments to trade between Northern Ireland and its brothers and sisters in the rest of the UK. That is what it is about. Therefore, I think that there is bound to be a sense of distrust if the Government are not willing to accept the amendment. As my noble friend Lady Smith said, if the Minister comes back and says that the Government would like to rejig the amendment to achieve what we want to achieve by using the expert help of his officials in the Box, of course we will look at that, because we want the same objective. Otherwise, we will be put into the position of having to consider a Division—which we do not want to do.
Can I just ask specifically: will there be direct Northern Ireland representation on the Joint Committee, to actually deal with this issue? Will there be direct input for the Executive and, sitting behind it, the Assembly, reflecting businesses? Will that be possible? Will the Minister clarify that point?
Lord Duncan of Springbank
I do not know the answer right now, but when I come back I will know the answer and I will set that out next week.
Lord Hain
I am grateful. As always, the Minister is very helpful.
We have a dilemma here. At the moment, we are intending to retable the amendments and we will have to decide what we want to do, and what the feeling of the House is. We all saw that the feeling in the Committee tonight, including on the Conservative Benches, was pretty unanimous that these amendments and the principles behind them are ones that the House wants to see.
Unless the Minister wants to add anything before I sit down—no? He is being diplomatic and possibly prudent in not doing so. But on that basis I will withdraw Amendment 13 in the hope that we will get something practical that is actually in statute on Monday or Tuesday before we consider this matter again.
European Union (Withdrawal Agreement) Bill
Wednesday 15th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Lord Thomas of Cwmgiedd
“( ) But regulations under this Part may not amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”Member’s explanatory statement
This would ensure that regulations made under this Part may not make provision to amend the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 in line with restrictions under new paragraph 11G, Schedule 2 to the European Union (Withdrawal) Act 2018 (Clause 19).
Lord Thomas of Cwmgiedd (CB)
My Lords, yesterday, I explained the purpose of the amendments that we sought to make at that stage, and the first, second and fourth amendments in this group all underlie the same purpose; namely, to ensure that if changes are necessary to the devolution settlements, they are dealt with in a proper constitutional manner, and that when we are outside the EU, the spirit, as well as the letter, of the devolution settlements is followed and the Government at Westminster pay the greatest regard to those.
I should make it clear, as I did yesterday, that I approach this from the standpoint of Wales, in part because that is where, by and large, my experience comes from, and because the union and its continuation is so important to Wales. It is essential that this House, and, I hope, Her Majesty’s Government, give every encouragement to those in Wales who wish to see the union strengthened, and by close co-operation. It may seem that these devolution issues are not that important at this time, but they are. It is inevitable that the devolution schemes will have to be looked at in the light of our departure from the European Union.
I will deal with each of the three proposed amendments, the first of which seeks to amend Clause 22. I intend to say very little about this. It follows on from last night’s debate on the amendments to Clause 21 and the extent to which powers conferred in that clause are not subject to limitations. The same arguments apply to Clause 22. In light of the position that was left last night, I see no point in advancing the arguments to the same effect all over again.
On Clause 26 and Amendment 23, in a way, this amendment comes out of order, because it presupposes that the amendments suggested that would delete proposed new subsections 5A and 5B in the name of the noble Lord, Lord Pannick, and other noble Lords, will not proceed. I will make some observations in due course in support of the objectives of the clause, but not on the manner in which those objectives are sought to be carried out. I will make those observations when we come to that amendment. This amendment addresses a much simpler issue: the importance of giving due regard to the views of the devolved Administrations in Wales, Scotland and—now that it is again in place—Northern Ireland, in formulating any draft regulations of the kind envisaged in the clause, both as to the courts that are to be entitled to depart from previous decisions and the tests that are to be applied.
The clause rightly provides for prior consultation with the judiciary if Ministers decide to proceed in this way. Although Wales’s judiciary is linked with that of England at present, I ought to declare that I presided over a commission appointed by the Welsh Government that examined the future of the legal system in Wales, and in particular, the possible establishment in due course—long outside the scope of the time of this Bill, of course—of a separate judiciary in Wales. The clause also provides for other persons to be consulted but does not list them. Neither Welsh, nor Scottish nor Northern Ireland Ministers are included in the list of consultees. However, bearing in mind that retained EU case law is comprehensive in its definition, and that both the devolved legislatures and the devolved Governments have made legislation and acted on the basis of current law within the devolved fields, it seems obvious that they should be consulted if there is to be a change in the scope of the courts and a new test is to be laid down. They are vitally affected by it, and they should not be left out. The amendment is simple, asking that the role of the devolved Assemblies and Administrations be recognised. I understand that when this clause first appeared in the Bill, there had been no prior discussion with Welsh Ministers about this issue. I hope that the Government will look at it and give the closest possible attention to this amendment.
On Clause 38 and Amendment 45, as the report of the Constitution Committee states in welcoming this clause’s recognising the sovereignty of Parliament, the clause has no legal effect. It may therefore be surprising that I wish to take up time on a clause that has no legal effect. However, the Explanatory Memorandum also makes it clear that there is no material difference to the position of Parliament. Yet I agree that there are circumstances in which it is useful to remind people of the basics of our constitution, and this is no exception.
However, this amendment has been tabled because if there is to be such a reminder—the clause can have no purpose other than that—it should be recognised that since 1998, there has been a significant change to the constitution and in particular to the devolved schemes of administration. In failing to refer to the Sewel convention, which provides that Parliament will not normally legislate without the agreement of the National Assembly, the Scottish Parliament and the Government of Northern Ireland in relation to devolved matters, the clause does not put in place the correct balance of our constitution as it now moves forward. The amendment has been tabled to provide such a reference. It would ensure that for the future—as I hope would be the case in any event—the importance of the devolution settlement is critical to how the union is preserved as we go forward to our life outside the European Union. I beg to move.
Lord Howarth of Newport (Lab)
My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.
Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.
Baroness Finlay of Llandaff (CB)
My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.
Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.
This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.
Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.
I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.
Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.
Lord Wigley (PC)
My Lords, my name is also attached to Amendments 18, 23 and 45. I am very pleased to support the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Finlay.
The issues at question are issues of trust between the devolved Governments and the Government of the United Kingdom. Nobody is arguing that the devolved Governments have power over international treaties—of course they do not; they are reserved powers. None the less, what will be undertaken in those treaties will almost certainly have a very direct effect on matters that are devolved, some of them fully, to the National Assembly for Wales, and likewise to Scotland and Northern Ireland in slightly different ways.
To that extent, there have been occasions when the UK Government has been well represented in negotiations in Brussels by Ministers from the Government of Wales. It is perfectly right that they should be there on matters such as the sheepmeat regime or when questions of smaller languages are debated. When such matters arise, as is likely, in the context of any ongoing treaties or new treaties that will emerge, it is vital that the confidence of the Welsh Government and the National Assembly, and likewise that of Scotland and Northern Ireland, is taken fully into account.
The real danger is that things happen by default. The UK Government, with all the good will in the world, might think that issues do not arise without having talked about them. There needs to be some system to avoid unnecessary tension and rows between the various Governments within the United Kingdom.
I did not participate in the debate last night, but I read with considerable interest the comments made by the noble Lord, Lord Duncan of Springbank. He said:
“This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule.”
He goes on to say that he would be happy to make a note available
“to all noble Lords who are interested in this, so they can see where we believe this power will be required”.—[Official Report, 14/1/20; col. 639.]
The point is that if the noble Lord, Lord Duncan, has recognised that there is a need for greater clarification than is provided in the Bill, surely with the Bill still going to Parliament there is an opportunity to table amendments, such as the ones proposed in this group, to safeguard the position. It is not enough to have a sentence in Hansard. That obviously helps to clarify the position, but there needs to be something more cast-iron than that.
This is not a party-political issue, it is a matter of getting means of sensible co-operation into the Bill. If the Government cannot accept the amendments now, I very much hope that between now and Report they will consider these issues and try to bring in some form of wording that gives an assurance in the Bill along the lines that the noble Lord, Lord Duncan, suggested last night.
Baroness Randerson (LD)
My Lords, these amendments are designed to cement the established position of the devolved Administrations in the new situation in which we will find ourselves.
Amendment 18 to Clause 22 relates to any amendment to the statutes establishing devolution. They can be amended by a Section 109 Order in Council as long as the devolved Administrations agree but, as the clause stands, it leads to a suspicion that the Government could take the power to change devolution settlements without the agreement of, for instance, the National Assembly of Wales. We need the Government to make it clear one way or the other that they do not intend to do this.
Amendment 23 to Clause 26 simply adds devolved Ministers to the list of those to be consulted before the Government bring forward regulations referred to in that clause. Amendment 45 to Clause 38 relates to the Sewel convention. It simply inserts the well-established principle that Parliament will not normally legislate on devolved matters without legislative consent from the National Assembly for Wales.
I want to spend a little longer on Amendment 29, which puts the Joint Ministerial Committee on EU Negotiations on a statutory footing and requires representatives of devolved Administrations to be briefed regularly on future relationship negotiations. The history of the JMC as a whole has been chequered, to say the least. I have been privileged to see it from both sides: from the Welsh perspective as a Minister between 2000 and 2003 in a coalition in the National Assembly, and from 2011 to 2015 when I was a Minister in the Wales Office here.
In the early years, 2000 to 2003, I would describe the JMC as having been part of an old boys’ network. Labour was in power, in government, both here and in Cardiff, where it led the coalition. There was a dangerous lack of formality about the business we did. It was very good humoured but it did not have structure and was slightly erratic. It at least met regularly, if not frequently, but its behaviour was erratic. From 2010, I would characterise relationships as at the other end of the spectrum, with the coalition Government— the Liberal Democrats and Conservatives—here, the SNP in Scotland and Labour in Wales, as well as the complexity of Northern Ireland. I would say it was more of an armed standoff in those years. It provided an opportunity to have a well-scripted, very formal row with each other, with people coming out on to the steps of Downing Street to tell the world what they had said on their side of the argument. As a result, not surprisingly, it did not meet that frequently. Having observed the JMC in recent times, it does not seem to have got much better.
The devolved Administrations have drawn a lot of their strength and confidence from their vital EU links, which affect so much of the devolved work that is taken in those countries. Those links are now to be severed. As a Welsh Minister in the early years of this century, for instance, I represented the combined Governments of the UK at a European Council of Ministers; the noble Lord, Lord Wigley, referred to that kind of situation in his speech. I presented the agreed joint position of those Governments. It has given the devolved Administrations status and strength and is a very important part of their overall situation.
Lord Griffiths of Burry Port (Lab)
My Lords, your Lordships are being spared a long speech from me simply because the noble Baroness, Lady Randerson, has made it for me.
I want to focus on Amendment 29. When we were debating the first European Union (Withdrawal Agreement) Bill, the irregularity and lack of efficiency of the JMC was referred to again and again. We identified exempted items from the provisions that would need to be set within a framework in order to try to establish an internal market for our country. We identified that, subsequent to the passing of that piece of legislation, the JMC would need to perform better to guarantee that what we were asking for would come to pass. That has not happened.
Amendment 29 seeks to tighten up on a resolution we made then and which we have had the chance to monitor since. If the proposals before us go through, a statutory basis, a serious performance and an impact assessement will be needed if we are to have the trusting relationship between the Administrations in these islands which will guarantee that the desires of the Government are implemented in an appropriate way. This is the shortened version of my speech. I know that your Lordships are rather sad at not getting it in full.
Lord Murphy of Torfaen (Lab)
My Lords, I endorse the remarks of my noble friend Lord Griffiths and the noble Baroness, Lady Randerson, on Amendment 29. Your Lordships will recall that it is nearly 23 years since the people of Wales and Scotland voted for devolution. It is almost 22 years since the people of Northern Ireland voted for the Good Friday agreement and the establishment of devolution there. Happily, last week we saw the restoration of the institutions of government and democracy in Northern Ireland.
The political landscape of our country has changed tremendously during the past two decades. Having been the Secretary of State for Northern Ireland and for Wales, I am not convinced that Governments of either persuasion—nor the coalition— understood, in the course of those 20 years, what devolution was all about. Certainly, the relationships between the United Kingdom Government and those in Belfast, Cardiff and Edinburgh could have been better. I am one of those old boys to whom the noble Baroness, Lady Randerson, referred. Back in 2003, we had Labour Governments in Scotland, Wales and England. It was a bit cosy, inevitably. Things changed after that. We never had a Labour Government, of course, in Northern Ireland.
The Joint Ministerial Committee, for which I held Cabinet responsibility from 2007 onwards, never really worked. It was a great idea, bringing together Ministers from all the different Administrations but it did not work as it should have done. It did not meet as frequently as it should have done. I am not convinced that even under the new designation of Joint Ministerial Committee on EU Negotiations it has been all that successful, but it has been a bit better than previous incarnations. Now is the chance because our constitution has changed dramatically, not just because of devolution but because of what we are debating today.
Our departure from the European Union and all that involves in constitutional matters has to be looked at in the context of devolution as well. I hope that the Minister will look very carefully at Clause 29 in particular and put when and how JMCs meet on a proper statutory footing. If JMCs do not work then the trust and the confidence between the three devolved Administrations—one now very new—and the United Kingdom Government will evaporate. A number of noble Lords, including the noble and learned Lord, Lord Thomas, have made the point that unless we get the devolution settlement post Brexit right, it will threaten the union. The Government talk about the precious union all the time but it can be threatened if we do not take the devolved Administrations seriously in their role within the United Kingdom. If this does not work then the movement for independence in Scotland will get even stronger and movement towards a united Ireland might actually happen in Northern Ireland. I do not want any of those things to happen. I am a unionist with a small “u”. The best way to prevent that and to restore strength in the union is to ensure that we respect the devolution settlement, and these amendments do precisely that.
Lord Wallace of Tankerness (LD)
My Lords, I bring a Scottish voice in support of the arguments that have been advanced in the amendments from the noble and learned Lord, Lord Thomas of Cwmgiedd, and by other noble Lords who have spoken. These are important points, not only as the noble Lord, Lord Murphy, has just said, for maintenance of the union but also for many practical reasons. As the noble Baroness, Lady Finlay, said, no one disputes that the negotiation of an international treaty is a matter devolved to the United Kingdom Government. However, we have to recognise that much of the subject matter of many of these agreements will fall to the devolved Administrations to implement; it will be in areas of devolved competence. Therefore, it is important that there be proper engagement with the devolved Administrations in reaching these agreements, not only to ensure a community of interest within these islands but to give those with whom we are negotiating some reassurance that what they are negotiating will be implemented properly by the various devolved Administrations. If the people from the devolved Administrations are not present, something may be missing in the reassurances they are seeking.
In paragraph 114 of the report published yesterday by the Constitution Committee—of which I am a member—the committee reiterated what it said in its report last year on the parliamentary scrutiny of treaties:
“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence … The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations”.
In paragraph 115, the Constitution Committee recommends that
“the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union”.
Amendment 29 goes further than that and wants to put it in the Bill; that is probably worth while.
Some noble Lords will recall that, when the Joint Ministerial Committee on EU Negotiations was established—I think, in the autumn of 2016—great commitments were made about the intention of the United Kingdom Government to engage at every step of the way in the negotiations to get a withdrawal agreement. Yet we know that, for many months, that Joint Ministerial Committee never even met. This is not the place to go into why it did not meet, but good intentions were not delivered on. We know that there were good intentions. In replying to the debate on the gracious Speech last Wednesday, the noble Baroness, Lady Williams of Trafford, said the following in response to a similar point that I and the noble Lord, Lord Kerr of Kinlochard, made then:
“the noble Lord, Lord Kerr, and the noble and learned Lord, Lord Wallace of Tankerness, asked about the representation of the devolved Administrations in negotiations on our future relationship. We recognise the need for their close involvement in negotiations on our future relationship with the EU in order to deliver a satisfactory outcome”.—[Official Report, 8/1/20; col. 289.]
That was a statement of intent with which I could have no dispute, but we want more: we want how it will work in practice to be fleshed out. Given that the Joint Committee on EU Negotiations has not had a happy track record—it improved as time went on—many of us would feel more reassured if it was on the face of the Bill.
Lord Hamilton of Epsom (Con)
Is it not difficult to legislate for a committee to meet more often when it does not meet often enough?
Lord Wallace of Tankerness
My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.
Lord Kerr of Kinlochard (CB)
My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.
I want to speak briefly to Amendment 29, to which I have put my name. I have little to add to what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.
I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.
That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.
I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.
Lord Morgan (Lab)
Many distinguished Lords have spoken on the amendments, and I agree with them all, particularly the noble Lord, Lord Kerr, who is just leaving. It illustrates the lack of comprehension that there has been about how the British union state has changed, and how its pluralism has changed and become a more central feature.
I have had the great privilege of being on the Constitution Committee for the past four years, and this issue kept recurring. It is not a dispute or debate that has suddenly emerged; it came in Bill after Bill connected with constitutional relationships and with trade, yet somehow it was not resolved, mainly because the devolved Assemblies were being bypassed, often in a very hurtful way, leading to accusations of power grab and such statements.
The issues that have been mentioned include: reserved powers for the Welsh, Scottish and Northern Irish Governments, an issue that has come several times and has not yet been dealt with properly; and the outcome of European legislation when it is transferred to this country, which has not been adequately dealt with either. We discussed this frequently on the Constitution Committee and wrote what I thought was a very important survey of intergovernmental relations. It seemed to have very little effect on ministerial thinking, or indeed on thinking about the nature and importance of devolution throughout our country.
In particular, there is the inadequacy of the Joint Ministerial Council, which is mentioned in Amendment 29. The JMC is an almost hopeless body that has staggered on for two decades with no clear membership, no clear times for convening, and very little effect in real intergovernmental consultation, so I very much hope, as everybody does, that the Government will feel able to accept these proposals. Otherwise, the effect could be disastrous. Our union is in grave danger. People refer primarily to Scotland, but in my experience discontent in Wales is certainly much stronger than it was. It would be tragic if inattention and carelessness led to our leaving not one important union, but two.
Baroness Hayter of Kentish Town (Lab)
My Lords, following not just yesterday’s speeches, but those today from the noble and learned Lord, Lord Thomas, my noble friends Lord Howarth, Lord Griffiths, Lord Murphy and Lord Morgan, the noble Baronesses, Lady Finlay and Lady Randerson, and the noble Lord, Lord Wigley, from Wales, as well as welcome additions to our West Country debate from the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Kerr, the Government should have heard by now that the devolved authorities and people close to them feel somewhat squeezed out of the Government’s handling of our withdrawal from the EU and our future relationship with it, and of how the Government plan to discuss, or not, with those representatives as we go forward. That was probably not helped by the response of the noble Lord, Lord Duncan, last night.
We particularly welcome Amendments 18, 23 and 45, accepting in particular that, if we really must have an albeit non-legally enforceable statement about the sovereignty of Parliament in the Bill, it surely has to be accompanied by at least an equivalent nod to the devolution settlements and the Sewel convention to safeguard the union, as my noble friend Lord Murphy emphasised.
Looking towards the future, the noble and learned Lord, Lord Thomas of Cwmgiedd, said earlier this week that devolved Governments have an interest in all the negotiations. It is not simply the bits that can be identified as within their competence, because how agriculture pans out will absolutely affect the future of those countries. So will other parts of trade.
Our Amendment 29 in the name of my noble friend Lady Smith, as well as those of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Bruce and Lord Kerr, seeks to achieve the input of the devolved authorities in the negotiations. As we have heard, it would place the Joint Ministerial Committee on EU Negotiations on a statutory footing—something that we have urged on the Government since its formation in 2016. As my noble friend Lord Morgan reminded us, it has been pretty constantly discussed in the Constitution Committee. The amendment would ensure regular and frequent meetings of the JMC on EU Negotiations, which as we have heard, has at times been sidelined, especially when it was seen as a bit inconvenient. The noble Baroness, Lady Randerson, said that it had a “chequered” history. As my noble friend, Lord Griffiths, reminded us, it was not used in the way intended when it was set up. Importantly—we have not heard this voice this morning—the amendment would also require the JMC to focus on the very unique challenges facing Northern Ireland, including the aspects discussed in your Lordships’ House last night.
The amendment also covers the relationship between the JMC—the Joint Ministerial Committee—and the new and, as we have heard, highly important UK/EU Joint Committee. For example, the Secretary of State would have to brief British members of the Joint Committee to make sure they knew what the JMC was discussing, so that discussions held with the devolved authorities were fed in to the UK negotiators. This is vital. The British members of the Joint Committee, who would, of course, be Ministers, would have to give regard to the views of the Joint Ministerial Committee, which brings together the devolved authorities. They would also have to bear in mind the requirement of the Northern Ireland protocol to facilitate trade between Northern Ireland and Great Britain.
It is particularly important, as the noble and learned Lord, Lord Wallace of Tankerness, said, to realise that, in addition to a general interest in all these negotiations, much of the implementation will fall to the devolved authorities. As any of us who have been involved in developing policy know, if you do not discuss beforehand how it is going to be implemented, the chances are that the policy will not work.
Given the importance of ensuring that Brexit works for all parts of the UK, including the devolved nations, and given the concerns of the devolved Administrations that they are being excluded from vital talks—as we have heard, an amendment which we will come to later about the authority of courts has been tabled without any consultation with them—we look forward to a rather more positive response from the Minister when he replies. If the response is really positive, it might help the Welsh Assembly to consider whether it wants to give its legislative consent to this Bill.
Earl Howe (Con)
My Lords, I am grateful to all noble Lords who have spoken to this group of amendments. The thread that binds together the amendments spoken to by the noble and learned Lord and other noble Lords is their entirely legitimate interest in the Government’s level of engagement with the devolved Administrations and the protection of the devolution settlements. Having listened also to the noble Baroness, Lady Finlay, I fully understand that these amendments particularly reflect some of the concerns raised by colleagues in the Welsh Government. I hope I can reassure the Committee that these amendments are not necessary and the Government are fully committed to proper engagement with the devolved Administrations.
I turn first to Amendment 18. It is clear to me that the concern here is about the scope and breadth of the powers in this clause. I hope that I can address those concerns satisfactorily. I should add that the Government have also taken note of the report produced by our noble colleagues in the Delegated Powers and Regulatory Reform Committee in relation to the powers contained in this Bill.
I hope I am right in understanding that the noble and learned Lord is concerned that, without this amendment, the devolved authorities would be able to use the powers provided in Clause 22 to implement the protocol and, in doing so, would be able to amend the devolution statutes in those areas where they have such competence. However, I am afraid I have to resist this amendment because the restriction proposed by it risks preventing the United Kingdom fulfilling its international obligations, which stem from the Northern Ireland protocol. The noble and learned Lord will understand that we must be able to fulfil those obligations as a responsible player in the international system and as a close partner of our European neighbours. The particular problem with the amendment is that the proposed restriction would prevent the devolved authorities adopting certain decisions agreed between the UK and the EU in the Joint Committee, in relation to the operationalisation—if I may use such a word—of the protocol in areas of devolved competence. I must make it clear that that risk to the UK being able to fulfil its international obligations is unacceptable to the Government.
This amendment would have the effect of preventing amendments to the devolution statutes, even in situations where the devolved Administrations agreed to an exercise of the power in new paragraph 11M(2) jointly with the UK Government. This restriction could therefore hinder the introduction of UK-wide legislation that has been agreed on by all four nations of the United Kingdom. The Government could not allow such a situation.
Lord Thomas of Cwmgiedd
I am grateful to all noble Lords, who have spoken in this debate. It has underlined how important it is for the future that we look carefully at these devolution issues and, in particular—what I regret to say is my experience as well—address a lack of understanding of the significance of devolution as we go forward.
Things have improved from the first occasion when I had to talk to an official about laying out legislation slightly more carefully so that Wales’s position was clear. He told us, “Yes, they did that in agriculture Bills for sheep, so they could easily do it in other Bills for Wales”. Things are better than that, but maybe not better enough.
It is very important that we put in place the necessary assurances—preferably in legislation, but also by way of structure. Words are fine, but deeds are better. I hope that, by raising these points, we will show that we can proceed with respect for our changed constitutional position and that we in this House—and the Government as well—can do everything possible to reduce the risk of any split in the union. With regard to Wales, it is important that those who may wish to see the union not continue be given no further ammunition for their cause.
Three amendments stand in my name and in the names of other noble Lords. The issue in Amendment 18 arose last night in relation to Clause 21. At the conclusion of the debate, the Minister said he would produce a memorandum which would try to explain why restrictions could not be placed on these powers. I still do not understand why not. These are a perfectly proper means of changing the devolution settlement. If the Governments of Wales, Scotland and Northern Ireland are agreeable, the Section 109 route—to take the example of Wales—will do so. I did not address this issue at any length because the better course is to await the memorandum which the Minister has promised to see how we might go forward.
On Amendment 23, I am very grateful for the assurance given and will consider that further. As to Amendment 45, the clause has no legal effect, but what is really important is that we try to show the people of Wales, of Scotland and of Ireland that things have changed. When we go forward as a United Kingdom, that is something that everyone, particularly those in London, should bear fully in mind. However, I am very grateful for all the speeches that have been made and in the light of the debate, I beg leave to withdraw the amendment.
Lord Beith
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.
Lord Beith (LD)
My Lords, I am moving Amendment 21 on behalf of the noble Lord, Lord Pannick, who apologises that he is in court. I look forward to the contributions of the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Taylor, who has chaired our Constitution Committee’s proceedings on this issue. As the committee has pointed out, the clause that we are seeking to amend raises substantial constitutional concerns. I note that two former Lord Chief Justices are in the Chamber as well, so I look forward to an interesting debate.
After the end of the implementation period, the United Kingdom courts will still have to interpret a large body of retained European law. This necessarily will involve reference to the case law created by the Court of Justice of the European Union. This case law will continue to apply in our courts alongside any relevant domestic case law. However, in Section 6(5) of the European Union (Withdrawal) Act 2018—as noble Lords will remember all too well—we have already legislated to give the Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law, having applied the same test as they would have applied if they were departing from their own case law. The Government now want to give themselves the power by regulations to extend that ability to depart from established case law to other unspecified courts—which could under the terms of the Bill be any court in the land—to specify the extent to which, or the circumstances in which, the court is not to be bound by EU case law, and to substitute the Government’s view of what test should be applied by the court after consultation for the Supreme Court’s existing and well-established test.
Lord Anderson of Ipswich (CB)
My Lords, I declare an interest as a litigator over 30 years of European law issues for whom these paragraphs and the legal uncertainty they unleash bring the prospect of endless work and riches as yet undreamed of. None the less, I put my name to the amendments, which of course will do nothing to obstruct or delay the Brexit that will occur on 31 January.
At Second Reading, I described another clause of the Bill as “Henry VIII on steroids”, but even that description is hardly strong enough for new subsection (5A)(b). That would allow the Minister, by regulations, to decide the extent to which, and the circumstances in which, our courts are to consider themselves bound by the law of the land, whether in the form of retained EU case law or retained domestic case law that relates to it. If Parliament is asked to change retained EU law, we will debate it and no doubt find a way to do it. Taking back control of our laws is one of the principal points of Brexit and, for my part, I hope to play a constructive role in that process. But to stand by and see these law-changing powers given to Ministers is quite another matter.
European law, no less than our own, is contained to a significant extent in the judgments and interpretations of the courts—what in the domestic context we refer to as principles of common law. If Ministers were free to remove the binding force of principles that they did not like, they could selectively neuter the protections given by law to workers, consumers, disadvantaged groups and the environment. Such a power in the Executive to interfere with the law declared by the courts, including the courts of this country, has no precedent that I know of. It would also cause uncertainty with effect from now, because no one can predict which parts of retained EU law will be changed over the year ahead or how the structure of what remains will react when a load-bearing element is removed.
Alarming in a different way is new subsection (5A)(c), on which the noble Lord, Lord Beith, began his remarks. Courts could be licensed under this provision to make their own departures from retained EU case law on conditions that Ministers could specify. As Sir Bob Neill explained in the Commons, that is a recipe for uncertainty, confusion and opportunistic litigation on a grand scale.
The Minister will, I anticipate, encourage us not to worry, because senior judges must be consulted. But consultation means only that. The Government have the whip hand. The complex ramifications will not be exposed by argument as they would be in court and, if deference to the judges’ views could ever have been assumed, it certainly could not be now. I suggest that there would be situations in which the judges will not even feel able to offer an opinion.
Imagine the scene. The Minister summons the judges and informs them of his proposal to instruct them that in accordance with the clear will of the people—or at any rate of the Government—they are no longer to be bound by the settled interpretation of the precautionary principle in environmental cases or the principle of indirect discrimination in employment law. The judges would no doubt come back with such comments as might occur to them on the timing, the procedural implications and so on. But since such instructions would be lawfully issued, if this clause passes into the Bill, and would implement clear government policy, these serving judges could not pass substantive comment without being dragged into the policy sphere, which, contrary to the views of some, they are extremely anxious to avoid.
Secondly, the Minister will point out, quite correctly, that the power in question will sunset when the transition period ends. However, it is the power to make regulations that will sunset, not the application of those regulations after the transition period. So that reassurance is illusory.
Thirdly, perhaps the noble and learned Lord, Lord Keen, who is as shrewd as he is principled, will tacitly accept the overbreadth of these provisions but hint at their restrained future use. In that case, I would invite him to come back with a version consistent with those restraints. We are reasonable people and if his only concern is a possible bottleneck in the Supreme Court other solutions could be devised and have indeed been suggested to him.
To leave this extraordinary clause unamended would be, I suggest, a dereliction of duty. I hope that amendment will come from the Government. However, when the time comes and in the last resort, as the noble Lord, Lord Butler, said on Monday,
“we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment”.—[Official Report, 13/1/20; col. 490.]
That is particularly so, I would add, on an issue that was not put to vote in the Commons, that has been the subject of strong comment from the Constitution Committee, that in no way jeopardises Brexit but that threatens the independence and good order of the courts.
Baroness Taylor of Bolton (Lab)
My Lords, members of the Constitution Committee are very concerned about this suggestion in the legislation. The case was outlined by the noble Lord, Lord Beith, who went into some detail, so I do not wish to repeat all that. I simply want to ask the Minister, first, whether it is the Government’s intention to use this new subsection (5A)(b), and, secondly, if they will not use it, why it is in the Bill. If they intend to use this provision, can the Minister please give us some examples of where that might be?
Lord Howarth of Newport
My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.
At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.
This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do it by regulation. Such decisions ought to be made by Parliament in primary law, ensuring that the sort of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.
Baroness Deech (CB)
My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.
Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.
There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.
I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.
I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.
Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.
The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”
In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.
Professor Ekins suggests that that
“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”
I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.
As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.
That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.
Lord Judge (CB)
My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.
I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.
I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.
Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that
“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]
But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?
Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”
That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.
I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.
As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.
Lord Thomas of Cwmgiedd
Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.
Lord Woolf (CB)
My Lords, if the noble and learned Lord, Lord Mackay, would like to speak first, I would welcome that.
Lord Mackay of Clashfern (Con)
I do not particularly wish to speak first, but in view of the noble and learned Lord’s invitation, I will make my brief contribution. Unlike the noble Lord, Lord Anderson of Ipswich, I have a fair amount of experience in this area of European law and the modification of existing judgments—I sat in the House of Lords when it set aside a previous judgment. It is extremely important that we consider the principle that has to lie behind this. The present situation is that EU retained law has been made part of the law of the United Kingdom unless and until it is modified by Parliament in due course. When passing the previous withdrawal Act, we placed a number of restrictions on that power for Ministers in various areas relating to human rights and so on.
From what I read in the newspapers as these things developed, my impression was that the Government were anxious that the power to modify or depart from EU judgments would be better given to a wider set of courts than the Supreme Court, and the High Court of Justiciary in Scotland on criminal matters, as had been done in the withdrawal Act. I can see that it may be part of overall policy that it should be rather wider than the present law would permit. However, it is important that whatever method is used, it is one that will prevail across the whole of the United Kingdom. Therefore, to give the power to do this to, for example, the Inner House of the Court of Session, would have the effect that it would apply in Scotland but not in England and Wales directly, nor in Northern Ireland. There would be a degree of difficulty in that. That is why, in my view, this power should be in the Supreme Court. As we all know, when the Supreme Court gives a judgment, it is a judgment for the whole of the United Kingdom. It is important to emphasise that the name of the court is the Supreme Court of the United Kingdom.
If it is desired to give the power to a wider section of the courts, the way to do so is to specify which courts they are. The example given by my noble and learned friend is one possibility, but it is for the Government to decide how wide they wish to be. However, it is important that the courts should not have the power to ultimately decide; it should be required to refer the matter to the Supreme Court. The Supreme Court can modify the burden that that would involve by a lead process, leaving it free to dismiss a case where it was thought there was nothing in it. One possible line is for the lower court to give a judgment which might ultimately help the Supreme Court, but I do not know whether that would always be necessary. The important thing is that any court that has this power would have it only as a way of referring the matter to the Supreme Court.
I was thinking of putting forward an amendment to this effect, but I thought it probably better to leave it until we have had a chance to discuss it. I have reached the conclusion that, as a practical matter, if we in this House can persuade the Government to change, it is likely to be effective; whereas if we do not persuade the Government to change, it may not be effective, with results that we may not altogether approve of. My main effort in this is to try to persuade the Government that a system along the lines I have proposed would be perfectly acceptable and workable, and would embrace all the courts that it needs to embrace.
Lord Woolf
My Lords, I am grateful to the noble and learned Lord for preceding me because he is in a unique position to give advice to the House on this issue. I only intervene to add to what has already been said because I want to stress the importance of the issue. There is an old saying that hard cases can make bad law. This may be a hard situation for the Government but they are in danger of making very bad law indeed. Why they are in danger and why they would be wise to think very carefully again before they ask for this to be implemented is apparent from the careful steps that were taken back in 2005 when I was still one of the chief justices—to whom the noble and learned Lord, Lord Brown, referred—who are present before your Lordships.
At that time, changes were being made which went to the root of the constitution, and the courts were concerned that they could be severely damaging to our unwritten constitution. As a consequence, the then Lord Chancellor and I—then Lord Chief Justice—came together to make a concordat to try to deal with those difficulties. It was recognised that one of the underlying principles of our common law and constitution was the separation of powers, and what was being done in 2005—which affected the position of the Lord Chancellor in relation to the courts—was trespassing on the principles that had existed hitherto. The noble and learned Lord, Lord Mackay, was well aware of these principles when he was Lord Chancellor and a member of the Government. The role that the Lord Chancellor played at that time was to ensure that the important balance—which explained how we managed to continue without a written constitution—succeeded, which it did remarkably well.
As I see the situation, what my noble and learned friends and my noble friend Lord Anderson have been saying to your Lordships is that this proposes a change in our law that would undermine the proper observation of the rule of law in a most critical way. I suggest that for this House to allow that to happen without protesting in the clearest way would be very undesirable indeed. I feel confident that if the Government look at this matter again and bear in mind the speeches made to this House today, they will see how it can be dealt with. However important Brexit is, it must not be allowed to create a precedent that could be followed hereafter, as has been suggested, which would damage our situation.
I hope we will always be able to continue in this country without a written constitution. However, if we let what is proposed go through with saying it should be amended, we will create a situation where that will not be possible. We should pause before doing so.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have no legal training, unlike many of the eminent lawyers who have spoken this morning. I have occasionally found myself in court, but mainly as a litigant against the Met Police and the Government, although occasionally as a defendant, but I was obviously always innocent.
As I have no legal training, perhaps I can be seen as somebody who represents some of the majority of the people in the UK who have no legal training and who perhaps will not understand what is happening here today, because quite honestly it is an aberration and something that we all have to resist. I very much hope that this Government can see that they have a fight on their hands, because if this clause gives any insight into government thinking it is quite chilling and quite upsetting, as it is contrary to everything that Britain stands for.
Our overconfident Government want to completely redraw the checks and balances in our constitution so that Ministers can opt out of legal precedent at will. Ministers are seeking power to disapply EU case law as though their existing Henry VIII powers are not enough. No good justification has been given, and no sensible restrictions have been put in place so that these powers are used only when strictly necessary. This clause will create a wild west of legal uncertainty, where no one can really be sure what the words “contained in retained EU law” actually mean, until even the most basic issues are litigated on. It is a scorched earth policy and totally inappropriate for our legal system.
Of course, these absurd powers will also be particularly harmful for the environment and our natural world, since so much of our environmental legislation comes from the European Union. The UK Government have a terrible track record of getting into trouble with the European courts for things like our air pollution epidemic and the amount of raw sewage in our rivers. It is almost no wonder that the Government would like this magic wand to take away EU case law. But what is convenient for our Government would be disastrous for our environment, which is why my noble friend, who cannot be here in the Chamber at the moment, and I so strongly support these amendments. I hope that the many clear, sensible and legal arguments put forward by so many noble and learned Lords today will encourage the Government to rethink this.
Baroness Hayter of Kentish Town
My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.
I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.
Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years EU legislation
“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]
Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.
Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.
Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.
As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.
Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.
The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.
The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.
We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers. Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.
Baroness Hayter of Kentish Town
The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.
Lord Keen of Elie
It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.
Baroness Ludford (LD)
The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.
Lord Keen of Elie
That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.
For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.
I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.
As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.
At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.
The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.
Lord Beith
Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?
Lord Keen of Elie
As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.
I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.
Lord Howarth of Newport
How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?
Lord Keen of Elie
I do not consider that this clause in any sense violates the principle of the separation of powers.
Baroness Hayter of Kentish Town
Given that that Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?
Lord Keen of Elie
No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.
Lord Newby (LD)
Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?
Lord Keen of Elie
My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.
Baroness Taylor of Bolton
Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?
Lord Keen of Elie
It is not a question of having policy areas in mind. We want to take forward a consultation process that will enable us to arrive at an appropriate conclusion as to how we should look at EU case law as a part of retained EU law after the implementation period has expired.
Lord Mackay of Clashfern
My Lords, I understand that the first part of the amendment may be reasonably accommodated within the answer given to the previous question about separation of powers. I cannot see how the second part can be accommodated—formulating the question the court has to decide in deciding whether the previous decision of the Court of Justice of the European Union should be followed.
Lord Keen of Elie
With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.
Baroness Hayter of Kentish Town
My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?
Lord Keen of Elie
My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.
Lord Brown of Eaton-under-Heywood
My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?
Lord Keen of Elie
That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if they wish.
Lord Beith
My Lords, I found that a very disappointing response from the Minister, for whom I have great respect. It did not answer the question of which courts would now be part of the process and added to the list; it did not answer the question of what test the Government envisage being introduced through the process; and it did not answer the question of why this is not included in the Bill. The attempt to use the regulation process as an ex post facto defence of the fact that the Government have not come up with a policy yet, but would quite like to talk to some of us about what it might be in the future so that it can be put in regulations, is wholly unconvincing.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, he was talking to the Government about this 20 months ago. There has been plenty of time to come up with a policy in the interim and not leave us in this situation where we are told, “It’ll be alright, we will bring in some regulations and discuss them with you all; all your concerns will be accommodated”. I do not think that they have been accommodated at all.
I welcome the intervention from the noble and learned Lord, Lord Mackay of Clashfern. As so often on these occasions, he pointed out that with a bit more work, maybe we could get somewhere and achieve something that is consistent with the Government’s intentions but meets people’s concerns.
There are times when Ministers have to recognise the level of feeling and concern which has arisen from significant quarters in the course of Committee proceedings. This has been a remarkable debate and, in the proceedings so far on the Bill, no other debate has brought out such intensity of feeling and concern, particularly from people with significant experience to contribute to the discussion. Ministers have to recognise this. We talk about consultation, and I think that some consultation is required between now and Report.
Certainly, we will want to reflect on what the Minister said on the possibilities—I was encouraged by the intervention of the noble and learned Lord, Lord Mackay —and how we can reconcile what the Government are talking about with the need for some degree of certainty around how the law is to be administered in future. We are certainly not there yet. I beg leave to withdraw the amendment.
European Union (Withdrawal Agreement) Bill
Wednesday 15th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Baroness Ludford
Member’s explanatory statement
This amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.
Baroness Ludford (LD)
My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.
When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with
“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”
arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.
In the Explanatory Notes, the Government had said that
“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”
That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.
Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that
“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”
It reminds us that
“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,
as I earlier cited. It concludes:
“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”
That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.
The delegated powers memorandum says about the justification for taking the power:
“These amendments are necessary to allow the power to function in the revised context of the implementation period.”
We were always going to have an implementation period. I simply do not understand this next sentence:
“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”
We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.
I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase
“not clear in its effect as a result of the operation”
gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.
Lord Tunnicliffe (Lab)
My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.
During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?
The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.
As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.
The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.
Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.
Lord Tunnicliffe
Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?
Baroness Ludford
The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely
“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?
Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?
Lord Callanan
Of course it may be possible to continue to use that power but until we see how the legislation works out—how it is introduced during the implementation period—we will not know that exactly. We therefore think it appropriate to extend the sunset period, et cetera, to give us the new powers to correct upcoming or future legislation that may be introduced during the implementation period.
Baroness Ludford
I was not talking about the length of the time of the powers but about extending the scope. Amendments 24 and 26 are relevant to the provisions that would insert new subsections (2)(ea) and (9), which widen the criteria for finding a deficiency. If there were a change in telecoms legislation, the existing Section 8 in the 2018 Act seems perfectly adequate because the Government could say that there is a failure of retained EU law to operate effectively, because telecoms legislation has changed. That is enough. We do not need the new, widened scope to find a deficiency.
Lord Callanan
It is certainly the view of our legal advisers that we would potentially need the new, widened powers to be able to do that, but I can write to the noble Baroness with further details of why it is necessary.
Baroness Ludford
I have probably made it fairly clear that I do not find the Minister’s assurances terribly convincing, and I look forward to his letter. Perhaps the legal advisers can explain to him why it would be necessary in my example. Our Constitution Committee has consistently warned us against wide powers in this area—things where there could be mission creep outside technical corrections to policy changes. I think its alarm bells are flashing on this, which is pretty convincing to me. The Government giving themselves a power to correct deficiencies because something
“is not clear in its effect”
and has something to do with
“any aspect of that withdrawal”
is pretty wide in scope.
I have to confess that I have not been reassured or convinced by this short exchange, but that is probably all I will get until we see further information. I beg leave to withdraw Amendment 24.
“Oversight of negotiations for future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means— (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statement
This amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.
As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.
Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.
Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.
Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.
Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.
The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that
“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]
Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.
The Earl of Kinnoull (Non-Afl)
My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:
“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”
It runs through that procedure and says, in paragraph 10:
“The European Parliament shall be immediately and fully informed at all stages of the procedure.”
That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:
“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.
That is at paragraph 23. It goes on:
“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”
Lord Wallace of Saltaire (LD)
My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:
“This Bill is of the highest constitutional significance.”
One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.
The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.
The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.
The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.
We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.
Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.
There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.
Lord Hamilton of Epsom (Con)
My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.
As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.
Lord Wallace of Saltaire
My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.
Lord Hamilton of Epsom
Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.
Lord Hannay of Chiswick (CB)
My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.
This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.
Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.
Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.
Lord Liddle (Lab)
My Lords, I support the amendment moved by my noble friend Lady Hayter. I particularly support the speech of the noble Earl, Lord Kinnoull. He is already establishing himself in this House as an excellent chair of the EU Select Committee, succeeding a previous excellent chair. My only regret is that I am no longer on that committee to serve under his chairmanship.
In my experience from my four years on the committee, the attitude of successive Secretaries of State towards the committee was always one of good will but they made promises they never kept. At one stage, we were told, “Oh yes, every month you’ll see me and I’ll come to answer your questions.” My recollection is that we saw David Davis at intervals of perhaps five months during his time as Secretary of State. I think that we saw Mr Raab once; I might be wrong about that. Mr Barclay was the most attentive towards the committee. He seemed keen to improve in the next phase of the EU negotiations on his own degree of accountability. He saw maximum transparency in the conduct of the negotiations as being in the Government’s interests. I am sorry that No. 10 has decided to go for breach of promise on all this. That is a great shame.
Whenever the issue of the European Parliament’s rights to scrutiny is raised, you get a vigorous shaking of the head from the Minister, the noble Lord, Lord Callanan. I would love to hear his explanation of why those rights are not what we all know them to be. He seems to reject the notion that the European Parliament has many more rights than the British Parliament to access information and question officials to find out what is happening, but that is the case. The role of the European Parliament was greatly strengthened by the Lisbon treaty, and again by the ECJ judgment to make it easier for the Commission to negotiate on the EU’s behalf on services as well as on goods. It has also been strengthened by the brouhaha over the Canada agreement; a stronger role for Parliament clearly would have prevented the difficulties that the agreement then ran into in its ratification in member states. I think it is in the Government’s interests to be more transparent.
Yes, Brexit is happening—as I said in my Second Reading speech, I fully accept that—but the Government do not yet realise what trade negotiations are really like, because they have not done them for half a century. Having served for three years in DG Trade, or at least in the cabinet of the Commissioner, I can tell you that they are brutal. The people in charge of the EU side in these negotiations stand up for EU interests with tremendous firmness. I suspect that this is what we will encounter once we have allowed ourselves to become a third country, which in a few weeks we will be. They will treat us like any other third country.
One has to be transparent about the trade-offs. I will cite just one example. How do we rate the relative importance of the fishing and car industries? The fishing industry has tremendous political profile and thinks that as a result of Brexit it will get much more fishing in British waters and that we can keep continental boats out—but it represents 0.5% of GDP. How much are we prepared to sacrifice in our negotiating position for the fishing industry? The car industry employs up to 1 million people in this country, when you look at the supply chain. If we do not achieve the kind of customs partnership that Mrs May said she was in favour of, there is a real risk that inward investment by the overseas companies that rebuilt the car industry in Britain will go elsewhere over time. There has already been a lot of talk of that on their part. This would be a devastating blow to one of Margaret Thatcher’s main achievements in the 1980s and 1990s in being able, as a result of creating the single market, to attract to Britain huge amounts of foreign investment, which has greatly benefited our people. I repeat: 1 million jobs.
If there is not transparency, how do the Government explain to people that they are not guaranteeing the future of 1 million jobs but have put all their negotiating eggs in the basket of trying to give a few more opportunities—not actually saving any jobs—to our fishing? We need openness if we are to have a proper debate in this country about where our interests lie. That is what we need in the coming 12 months if we are to have any hope of a harmonious outcome to these rushed negotiations.
Viscount Trenchard (Con)
My Lords, I will comment on the views of the noble Lord, Lord Liddle, about the European Parliament and the relative degrees of parliamentary scrutiny. He has much more experience of Brussels; I have worked there, but not for nearly as long as he did. It is not correct to say that the European Parliament’s rights in this matter are greater than the United Kingdom Parliament’s. Article 218 of the Treaty on the Functioning of the European Union states that the European Parliament must be kept
“immediately and fully informed at all stages of the procedure”,
but does not give it a role in deciding the substance of the negotiations. However, it must pass the final agreement by a simple majority vote. So it has to agree at the end, but it appears not to have the right, stage by stage, to dictate to the Government what they are to do as they negotiate.
Lord Liddle
I never claimed that. I claimed that the Parliament was so fully informed that it had a grasp of the trade-offs that it would have to make in deciding whether to vote for this deal at the end of the day.
Viscount Trenchard
As far as I understood, the noble Lord said that the European Parliament had much more say in dictating the mandate, but perhaps I misunderstood him. In any case, it appears that during the last three years the UK Parliament has been exercising power to control the Executive, and the Executive have not been seen by their interlocuters on the European side as having the right to negotiate, because all the time noble Lords opposite, and others, were saying to individuals in Brussels, “Don’t worry, Parliament isn’t going to allow the negotiating team to do this. We will reverse it.” Now the people have spoken and the House of Commons has a strong majority of 80 Conservative MPs, all committed to a real Brexit. That is known. This amendment is designed to obstruct because the House of Commons will not accept it, and noble Lords know this well.
Lord Wigley (PC)
My Lords, I very much agree with the points made a moment ago by the noble Lord, Lord Liddle. In Wales during the 1970s, 1980s and 1990s, we were fortunate enough to attract more than 200 American companies and more than 50 Japanese companies to invest in Wales, largely through the work of the Welsh Development Agency. They came to Wales in order to sell to the European market: there is no question about that, and therefore these questions are of mainstream importance to the National Assembly for Wales. That is why Amendment 40, standing in my name, covers the matters involved in Amendment 27 and brings into the loop a role for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly. I concur very much with the points made by the noble Baroness, Lady Hayter, in opening this debate.
Amendment 27 provides, in subsection (4) of the proposed section entitled, “Negotiations for future relationship,” that:
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless … a statement on objectives for the future relationship with the EU has been approved by the House of Commons.”
My Amendment 40 extends the same principle to the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly.
The lead Amendment 27 does indeed bring in the three devolved legislatures, to the extent that it provides that copies of the proposed progress reports should be provided for each devolved legislature, and to the relevant Ministers of those three nations. The general arguments in favour of my amendment are similar to those for Amendment 27, so I will not repeat them. I support everything stated by the noble Baroness, Lady Hayter. However, I will again press that the devolved legislatures should be fully in the loop and that their approval should be obtained. They have as valid a right to be in the picture as Members of the European Parliament; it impacts directly on their work.
I realise that the Government may withstand the whole concept of getting prior parliamentary approval for their negotiating position with regard, say, to trade in sheepmeat, but they contend that the Government can negotiate exactly what they like, and they have it in their power to do so. In reaching their negotiating position and their proposals, they will no doubt have discussed their strategic objectives with their ministerial colleagues in charge of sheepmeat issues in England. It would be amazing if they were not to do so; indeed, it would be a chronic dereliction of duty. But, unless a provision along the lines of Amendment 40 is brought into play, the government team in charge of negotiating with the EU on the future sheepmeat trade will be totally ignorant of the views of Wales, Scotland and Northern Ireland. These need to be systematically built in.
Lord Bowness (Con)
My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.
I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.
The parliaments of Denmark and Sweden, to name but two—
Lord Hamilton of Epsom
Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?
Lord Bowness
It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.
Lord Hamilton of Epsom
The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.
Lord Bowness
That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.
I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.
I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.
It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.
Lord Howarth of Newport
My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.
It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.
When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.
I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.
Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.
I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.
It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.
There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.
Lord Kerr of Kinlochard (CB)
The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.
Lord Howarth of Newport
It was desperate expedient. The Government had no option, given the parliamentary arithmetic.
Lord Kerr of Kinlochard
That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.
The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.
I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.
Lord Howarth of Newport
Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.
Lord Kerr of Kinlochard
Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.
Lord Wilson of Dinton (CB)
My Lords, I am pleased to follow my noble friend Lord Kerr.
This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.
I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.
Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.
The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.
Lord Hamilton of Epsom
Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?
Lord Wilson of Dinton
I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.
Baroness Finlay of Llandaff (CB)
My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.
The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.
The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.
The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.
Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.
Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.
Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no, we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.
The Lord Bishop of Leeds
My Lords, I think that the context has changed. When the Benn amendment went through, it was suspected of having the intention to thwart or delay Brexit. We are not in that position now: Brexit is going to go ahead. Surely, then, it is the job of the whole of Parliament to defend and promote its own interests and those of the Government in the negotiations going forward. So, in a perverse way, this amendment strengthens the hand of the Government by bringing in Parliament to back it and provide support as they embark on their negotiations; it does not diminish it.
Baroness Wheatcroft (Non-Afl)
My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?
My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.
Lord Butler of Brockwell (CB)
My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.
However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.
We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.
Lord Mackay of Clashfern (Con)
I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide
“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,
which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and
“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”
Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.
Lord Callanan
Amendments 27 and 28 in the name of the noble Baroness, Lady Hayter, and Amendment 40 in the name of the noble Lord, Lord Wigley, would all introduce new clauses with a similar purpose. They seek to create statutory roles for Parliament, the devolved Administrations and the devolved legislature in overseeing the future relationship negotiations. It is the view of the Government that the general election has shown that the public support the vision of the political declaration for a comprehensive and ambitious free trade agreement with the EU, and indeed this gives us the mandate to begin negotiations.
As this House will be aware, under the Royal Prerogative the negotiation and making of international trade agreements is a function of the Executive, as indeed in the EU it is a function of the European Commission, a point well emphasised by the noble Lord, Lord Howarth. This enables the UK to speak with a single voice in negotiations and ensures—
Lord Bowness
Just in the interests of clarity, is it not true that the European Commission acts on a mandate from the Council—that is, the elected heads of government?
Lord Callanan
Yes, it is. I am not quite sure what point the noble Lord is making. It usually acts on a mandate although it is not clear to what extent or what detail will be provided in that mandate.
Lord Hannay of Chiswick
If I can help the Minister, the point that my friend the noble Lord, Lord Bowness, was making is that the Minister said it was in the hands of the Commission. He has now said that it is in the hands of the Council, which is correct.
Lord Callanan
As the noble Lord is well aware, it is the role of the Commission to do the negotiating. It will report back to the Council and the Council will provide steers on how it will do that, but the detailed negotiation is a matter for the European Commission.
Lord Liddle
There is a meeting every fortnight of officials from member states that monitors what the European Commission is doing.
Lord Callanan
There is not a direct analogy between the position of the UK and that of the EU. The UK is one member state and the EU is 28—shortly to become 27—member states. My point is that this enables the UK to speak with a single voice in negotiations and ensures that partners can have faith that the Government’s position is the position of the United Kingdom.
It goes without saying that the Government will of course support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations. Both Houses will have all the usual arrangements for scrutinising the actions of the Government. I find incredible the statements that have been made about how little a role Parliament will have to play in these negotiations. This House alone has spent over 650 hours on debates on EU-exit-related themes since the 2016 referendum—believe me, from my point of view sitting on the Front Benches, it has sometimes seemed even longer. I find it difficult to believe that noble Lords will not want to question and interrogate me or whichever other Minister is in my place at the time on these negotiations. Indeed, committees of this House have already published three reports on this Bill after fewer than 10 sitting days of this Session.
Let me address the points made by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Liddle, on the role of the European Parliament and the famous Article 218. The noble Baroness, Lady Ludford, is sadly not in her place but we have served in the European Parliament and know the reality of these matters. It is important not to draw unhelpful comparisons between the Commission which, as I said, negotiates on behalf of the 27 member states, and the UK Government on how negotiations are conducted. The information provided by the Commission to the European Parliament is carefully calibrated to not put the EU at a disadvantage in the negotiations. The detail of what information shall be provided to the Parliament is left entirely to the discretion of the European Commission.
The European Parliament will, as this Parliament often does, try to insert itself into the negotiations and want to influence their conduct through its various committees and organs. That is entirely right. It happens in the European Union and I suspect it will happen in this country as well. However, we need to be careful not to overstate what Article 218 does. It is not specific on reporting requirements and that compares very well with the Prime Minister’s commitment to keep Parliament fully informed about the progress of these negotiations. Article 218 does not specify what documents will be available or when.
Of course, it also bears saying that this Bill is not the final word on engagement between Parliament and the Government. As I indicated to the noble Earl, Lord Kinnoull, when we met and as I have said a number of times, the Government will want to start a process of discussions with Parliament into exactly how the various committees and organs in both Houses will scrutinise the work of the Government in this area. In our view, there is no need to set out bespoke statutory reporting requirements in the Bill or impose a statutory duty on a Minister to provide public commentary on the likely outcome of confidential negotiations at a fixed point, as was proposed in Amendment 28. In our view, this risks seriously disadvantaging negotiators acting for the United Kingdom.
I also note that setting out requirements of this type in legislation might well not have the desired effect, as an attempt to pre-empt outcomes and timings can be easily overtaken by events. Let me give the House an example. Last week, I delivered an update in this House on the Government’s negotiations and on Article 50, as required by Section 13 of the European Union (Withdrawal) Act 2018 and the Benn Act which many Members in this House spent many hours telling us was essential. For that debate, which took place at 10.30 in the evening, virtually the only people in the House to debate these matters were myself and the noble Baronesses, Lady Ludford and Lady Hayter. Many of the Members who insisted on passing the Benn Act and introducing these statutory reporting requirements did not trouble themselves to come along and take advantage of the legislation they had passed. There were only three speakers in that debate, myself and the two noble Baronesses.
Baroness Hayter of Kentish Town
Does the Minister agree that he did not actually cover the negotiations but covered only why that requirement was no longer needed? He did not touch on the negotiations at all.
Lord Callanan
The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.
The Earl of Kinnoull
I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.
Lord Callanan
I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.
I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.
I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.
We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.
Lord Hannay of Chiswick
I think the Minister referred earlier to anything that is agreed being preceded by the CRaG process to ratify or conclude it. It is hard to believe that the sort of agreement the Government seek and which, as he rightly says, they have support for seeking will not include such matters. Does he not agree that if anything that is in an agreement includes changes to the UK’s domestic law, it will require primary legislation before it can be concluded? Can he just be clear on that?
Lord Callanan
I did not hear the first part of the question, but if the noble Lord was asking me whether I agreed that some parts of the agreement may well require domestic legislation to implement, the answer is yes.
Baroness Hayter of Kentish Town
My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.
During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.
The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.
Lord Hamilton of Epsom
Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?
Baroness Hayter of Kentish Town
I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.
The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.
What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.
The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.
Lord Newby (LD)
My Lords, Clause 33 amends the withdrawal Bill to debar any Minister from agreeing to an extension of the implementation period beyond 31 December this year. Such a possible extension is provided for in article 132 of the withdrawal agreement, which says that
“the Joint Committee may, before 1 July 2020, adopt a single decision extending the”
implementation,
“period for up to 1 or 2 years.”
My co-signatories and I object to this clause standing part because we believe that ruling out an extension of the implementation period in all circumstances is impractical and against the national interest. We do not believe that it will be possible to negotiate a comprehensive agreement covering trade, security and the other issues covered by the political declaration by the end of the year and, this being so, the logical and sensible thing to do is to allow for the possibility of an extension.
Why do we believe that such an extension will be necessary? I will concentrate on trade, although reaching agreement on other matters such as security will be equally contentious and time-consuming. What is the evidence that it will be impossible to conclude an agreement on time? Let us first be clear about what we mean by “on time”. The EU will decide on its negotiating mandate next month, so no talks will be possible at all until towards the end of February. The withdrawal agreement makes it clear in article 184 not only that the negotiations have to be concluded by the end of December but that ratification has to take place before the end of the year, so that the negotiated agreement can come into force, as far as practically possible, by 1 January next year.
Any comprehensive agreement will be a so-called mixed agreement, which will require it to be ratified not only by the EU Council and the European Parliament but by all national Parliaments and a number of regional assemblies. In the case of the Canadian trade agreement, the one we are told is closest to what the Government now have in mind, ratification itself took over five years. But to be very generous, let us assume that it might be possible within two months. This would mean that the agreement must be concluded by mid-October, giving a maximum of eight months for the negotiations.
It is well known that all trade negotiations, so far in human history, normally take years to complete. The Canadian agreement took more than five years, for example. The Government rightly claim that these negotiations will be different because we are already in full trade and regulatory alignment with the EU, so it will be easier than starting from scratch. While this may be true, it is absolutely clear that the negotiations will not be straightforward.
The head of the Commission, Ursula von der Leyen, said last week in London that it would be impossible to reach a comprehensive deal within the timetable. Even the Prime Minister yesterday said that, while he thought reaching a deal would be “epically likely”, he did not rule out the possibility of a failure to do so because of, as he put it, a possible
“complete failure of common sense.”
I looked up “epically” because, when I first read it, I thought it was a spelling mistake—it is a word that I have neither seen nor used before. It does not mean what the Prime Minister thinks it means. It means
“in a lengthy, grand or important way”.
He is in fact more correct than he probably realises, because this will definitely be done “in a lengthy way”.
What evidence is there to support the Commission’s view and to doubt the Prime Minister’s breezy optimism? It is worth looking at the Canadian deal to get some clues. First, despite the fact that that deal took many years of negotiation, it does not even give full tariff and quota-free access, something that the Government say is absolutely the first building block of what they are looking for. In the case of Canada, there remain quotas on poultry, eggs and meat and tariffs on beef, pork and wheat. This difficulty over agriculture is before we get to the even more difficult issue of fishing rights. The idea that we can easily reach agreement is simply false.
Secondly, on services, according to the Government’s own estimate produced in the document that we were allowed to read only by submitting our phones and going into a windowless room in January 2018, the Canada deal includes over 550 individual restrictions on the trade in services. Yet the Prime Minister says he wants the deal to cover all services. It might be possible in some areas, but the idea that there is a possibility of agreeing 550 concessions that were impossible to reach with Canada within the period that he is discussing is wholly implausible.
More generally, the Government want to minimise the cost of trading with the EU. This assumes a particular importance, because it applies not only to trade between the UK and the EU but also, now, to trade between Great Britain and Northern Ireland. We had a fascinating debate last night on the amendment of the noble Lord, Lord Hain, in which he sought assurance that there would be no restrictions on trade between Northern Ireland and the rest of the UK— restrictions, incidentally, that are envisaged, and indeed set out, in the Northern Ireland protocol. The Minister, the noble Lord, Lord Duncan, made a valiant attempt to argue, in line with the Conservative election manifesto, that there will be unfettered trade, but could not give a definition of “unfettered” consistent with the terms of the Northern Ireland protocol, which clearly provides for customs and other checks. Incidentally, “unfettered” is now the word when it comes to trade. For how many years, and how many hundreds of times, have we heard the Minister talk about “frictionless” trade? How much of a tactical retreat “unfettered” is from “frictionless” is an interesting semantic issue. There is something in it, but the fact that the Government are not even pretending that they are trying to seek frictionless trade says something.
The noble Lord, Lord Duncan, who was masterful—as was his Sir Humphrey-inspired brief—had to admit that achieving even unfettered trade across the Irish Sea would not be straightforward. This means that it will take time. If noble Lords wonder whether the kind of checks that may well be necessary in future between Northern Ireland and Great Britain and between Great Britain and the EU matter, I would direct them to the impact assessment produced by the Government on 21 October last year to coincide with the publication of the withdrawal agreement Bill. On customs declarations alone, HMRC produced estimates of administrative costs—nothing to do with tariffs—of between £15 and £56 per declaration for goods going from the UK to the rest of the world.
Lord Bridges of Headley (Con)
My Lords, just before the noble Lord sits down, I quickly ask him something on a point of information. He spoke for 10 minutes and did not mention two words: “Salisbury convention”. I am sure he knows that, on page 5 of the Conservative Party manifesto, there is a clear commitment not to extend the implementation period. Does he agree that this amendment is in contradiction to the Salisbury convention?
Lord Newby
No, because it does not require the period to be extended at all. If the Prime Minister is correct and we pass this amendment, there is absolutely no let or hindrance to the Tory party manifesto being adhered to. Deleting this clause will, I fear, make the Prime Minister’s life easier. He should welcome it.
Viscount Hailsham (Con)
My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.
The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.
Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.
I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth, was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.
This is a profoundly unwise provision in the Bill and we would do well without it.
Lord Howarth of Newport
My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.
That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.
Baroness Bennett of Manor Castle (GP)
My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.
Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.
There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.
Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.
Baroness Hamwee (LD)
My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?
Lord Davies of Stamford (Lab)
My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.
A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.
Baroness Hayter of Kentish Town
My Lords, at Second Reading I mentioned my “I told you so” speech that I have already prepared for when the Government have to come back and seek some additional time to negotiate the future relationship, the complexity of which we have heard about from my noble friend and others in this debate.
I am not an expert on negotiations, but I hear from those who are that they are not simple. They are brutal, according to my noble friend Lord Liddle in the last debate; tough and vigorous was how the noble Lord, Lord Wilson, described them; and fixed deadlines tie one’s hands too much. Indeed, my noble friend Lord Davies of Stamford said about fixed deadlines at Second Reading on Monday that,
“the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys … You cannot walk out for two or three weeks … You cannot try to halt proceedings while you undertake a study of a particular subject”—[Official Report, 13/1/20; col. 513.]
which could be a very difficult subject. The noble Lord, Lord Boswell, described this as the high-wire approach to negotiations.
For a Government who have resisted sensible amendments on the basis that they would tie the hands of negotiators, the prohibition on extending the transition period seems a bit nonsensical. Let me be clear, since not all reports have been entirely accurate, that we know we are leaving the European Union at 11 pm on 31 January. Our objection to the clause is nothing to do with the date of Brexit but is because it places an unnecessary constraint on our negotiators. Why would we tie the hands of our negotiators if another few hours or days could get a better deal over the line? Our EU Committee says that concluding talks by December will be “extremely challenging” and warns—this is something we need to know—that should no extension be agreed by July, it is not clear there is any legal route under the withdrawal agreement to extend it, whether by days or weeks, for whatever essential reason. So that one-line Bill may not actually work: it may work in this Parliament but not on the other side of the negotiations.
Not only that, but the new free trade agreement might need its own implementation period. Processes for customs and VAT, physical checks, rules of origin regulations and schedules—which will be enormous, with all the paperwork—licences and permits, contracts and new systems will need to be set up. Mrs May understood this well and chose the December 2020 date accordingly, but assumed it would be 20 months from when we left. It is now only 11 months from when we leave to the December deadline, but with equally challenging demands—indeed, probably more challenging, given the different regulatory and technical rules on opposite sides of the Irish Sea as a result of the new withdrawal deal. It is very hard to understand why the date for the end of the implementation period has not been changed now that we are leaving in January 2020, rather than in March 2019. The original timeline would have allowed the implementation of the deal, and we now simply do not allow for that.
There is an understandable fear that the hard deadline is not to force the EU to move at speed but because, as the noble Baroness, Lady Noakes, who is not in her place at the moment, helpfully clarified on Monday, a time limit has an “implicit no-deal outcome”. That may be what it is all about, as the noble Baroness, Lady Bennett, and my noble friend Lord Davies have suggested.
One small point on a different issue is that while the Bill disapplies CRaG, it has been pointed out by legal experts in Scotland, I think, that this does not seem to apply to the related EEA, EFTA and Swiss agreements, which were implemented under Clause 6. This means that CRaG continues to apply in those circumstances, so time might be needed for these agreements to pass through CRaG. Will the Minister respond to that issue raised by the Scottish Law Society?
The Government’s majority of 80 leads them to think they do not need to take account of this House. I do not understand why they still seem to need to take account of the ERG, for whom this clause has clearly been inserted. This is unnecessary, as we heard from the noble Lord, Lord Newby. Removing Clause 33 does not undermine the manifesto, because we can still leave and end the implementation period on 31 December. However, as I also said earlier in the week, we will let the Government take ownership of this. We will leave the EU shortly, but on their head be it if the negotiations mean they have to come back to ask for more time. In that case, we will give it with a smile, but also possibly with an “I told you so” note.
Lord Callanan
I am grateful to the noble Lord, Lord Newby, the noble Baroness, Lady Hayter, my noble friend Lord Hailsham and others who have contributed to this debate. I think the key point was made by noble friend Lord Bridges: the manifesto on which my party won the election that delivered a substantial majority for this Government was absolutely explicit in ruling out any extension to the implementation period. The general election has clearly shown that the public support that vision. I say gently to the noble Lord, Lord Newby, that his party put forward an alternative vision that was comprehensively rejected by the public. This clause implements that provision. It binds the Government to this commitment by enshrining in statute that Ministers may not agree to the extension of the implementation period beyond 2020.
I reassure noble Lords that in the withdrawal agreement both sides—we and the EU—have committed to using their “best endeavours” to negotiate a future partnership. Moreover, both the EU and the UK committed to agreeing a deal by the end of 2020 in the political declaration. It is worth quoting from paragraph 135, which says that,
“it is the clear intent of both Parties to develop in good faith agreements giving effect to this relationship and to begin the formal process of negotiations as soon as possible after the United Kingdom’s withdrawal from the Union, such that they can come into force by the end of 2020.”
This clause provides both parties absolute clarity on the timetable for negotiations. This will help ensure that our negotiations can progress at pace and that we have our future relationship agreed by December 2020. It is in the interests of the UK and the EU to agree a deal that supports the flow of goods, the provision of services and business being done. That is what we are going to do.
In sum, this clause delivers on our manifesto commitment to the British public not to extend the implementation period beyond 2020.
Viscount Hailsham
Would my noble friend tell the House whether he thinks there are any negotiating advantages that flow from this clause?
Lord Callanan
It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.
It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister, but what has worried me in listening to this debate is what happens if there are impediments to negotiations from the other side which absolutely cannot be resolved by 31 December. Do the Government think that they may have to leave without a deal?
Lord Callanan
No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.
Lord Newby
My Lords, the Minister has in a sense just given the game away. They “hope” to reach an agreement. The Commission has said that it is impossible. The Prime Minister said yesterday that it was not inevitable. The key question which this amendment seeks to address is what happens if you cannot get to that point. When asked whether this could mean we leave without a deal, the Minister said no. So what happens if there is no deal? Is he accepting a bare-bones deal? I do not remember seeing that in the Conservative Party manifesto.
The Minister has done nothing to reassure me that there is anything in the Government’s approach that makes reaching a deal in this timetable even vaguely possible. In those circumstances, as I said in my speech, I do not believe that it is in the interests of anyone—neither economically nor in terms of the national interest, given the security and other issues covered by the political declaration—for the Government’s hands to be tied by law in this way. Therefore, I am wholly unpersuaded by the Minister. For today we will not put this issue to a vote, but we will return to it.
Lord Dubs (Lab)
My Lords, I will argue that Clause 37 should not stand part of this Bill. I think I have had three sets of discussions with Ministers about this, for which I am enormously grateful: once on the phone and twice in meetings face to face. I am grateful for the time they have given me. Indeed, I was quite flattered on one occasion that there were three Ministers and seven officials—I thought the odds were just about even on that one. At any rate, I have had plenty of chances to make my points.
Regarding the Salisbury convention, as it was mentioned in the last discussion, it is fairly clear to me that it would allow us to move this amendment—to do what we like—on unaccompanied child refugees, because they were not given any mention in the Conservative Party manifesto. Indeed, it was quite a shock to many of us when we saw the Bill that Clause 37 was there at all, as we had had no previous warning.
Lord Kerr of Kinlochard
My Lords, my name is on the amendment because I regard it as the most important matter of honour that we must deal with in the Bill. The whole House admires the stamina with which the noble Lord, Lord Dubs, has pursued this issue. I declare an interest as a trustee of the Refugee Council, which was run by the noble Lord for many years and still runs on Dubs energy and still gets his constant support.
On this issue, the House was persuaded by the noble Lord’s arguments in 2016, and again in 2018. We are now in a curious position where the Government say that the 2018 provision is undesirable and needs to be replaced with this new one. The most important thing about the Government’s proposed new Clause 37 is that it kills Section 17 of the 2018 Act. What is the difference between the two? The 2017 Act laid on the Government the obligation to “seek to negotiate”—not to negotiate, because we cannot do that because a negotiation has two sides—a deal for these children. Everything else in the proposed new clause is the same as in Section 17, except that we now find that the Government must make a statement to us on what their policy is.
I am not terribly worried about the Government’s policy here. I believe the assurance given by the noble and learned Lord, Lord Keen, at Second Reading, that the Government’s policy has not changed. I believe that the Government want this to happen. However, I am not clear about what priority the Government attach to it and I am very suspicious that they wish to use it as a negotiating card. That is what is most alarming to me and, to be honest, most disgusting. The fate of these children should not be seen as a matter for negotiation.
The noble and learned Lord, Lord Keen of Elie, on Monday night made one substantive argument against this amendment, apart from saying that government policy has not changed—on which, as I say, I believe him. He said:
“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]
Implicitly, that means that the Government might not wish to pursue this and might wish to try to trade willingness to do this for some concession by the other side. That seems particularly offensive.
Baroness Hamwee
My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.
I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.
The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.
The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.
To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.
Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:
“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”
That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.
The Lord Bishop of Worcester
My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.
Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.
As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.
As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.
As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.
The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?
I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?
Baroness Butler-Sloss (CB)
My Lords, we should be ashamed, listening to the noble Baroness, Lady Hamwee, reading out what a primary school child is reminding us about. We are adults: many of us are parents, all of us are in some way related to children, and for goodness’ sake, we were once children ourselves.
I am quite taken aback. Here we are, as adults, debating what should happen to these children. Section 1 of the Children Act 1989 said that the welfare of children is paramount, but we must also remember that people are vulnerable, and children are vulnerable young people. This small group of children about whom we are speaking have rights. This Government are proposing to take away their rights, because in the 2016 legislation of the noble Lord, Lord Dubs, which I strongly supported, and in the 2018 withdrawal Act, the rights of this small group of children were upheld. Now the Government are taking them away, even from the latest withdrawal Act.
I am sorry that because of family affairs I did not attend the meeting yesterday, and I am afraid that I did not see the Minister’s letter, but it was extremely helpful to hear what was being said. What I find extraordinary is that it is part of existing law. As for the idea that it is an oddity and we should not be legislating, this House supported the House of Commons to legislate for children with rights to rejoin their families in this country in 2016 and 2018. I make no apology for repeating this. For goodness’ sake, it is existing law. We are not talking about going out on a corner or something unusual; we are talking about retaining what this House and the House of Commons have already passed. This is one point which the Government have not met. It is existing law. The children have rights under Dublin, but they also have rights under English law, and this Government are intending to remove them.
The Government’s proposals seem to me to be peanuts. They do not in any way reflect what has already happened in Parliament, and that is not good enough. Coming back to what a primary school child in year 6 was saying, are we going to fail our own children, let alone the children with rights to come to this country?
I did not want to support amendments to this Bill, because I recognise that we have got to get it through, but this is a separate issue. It bears no resemblance to the rest of the withdrawal Bill, but my goodness, it matters. It is not only the children under the trees in Calais and Dunkirk—I saw them last year, and former MP Fiona Mactaggart and I wrote a report about it—but also the fact that they have a right to come here. Are we just going to let it go by the board?
Baroness Nicholson of Winterbourne (Con)
My Lords, the compassion in the speech of the noble Lord, Lord Dubs, makes it extremely difficult to oppose him —but oppose him I do. Despite the wonderful statements by Cross-Benchers of enormous eminence who know more about children’s law than anyone else, my work in international children’s care tells me that this way lies danger. I have worked with children on all continents of the globe. I used to be a director of Save the Children and have worked with almost all international children’s organisations, and perhaps the heartland experience that I wish to offer the Minister is on child trafficking.
When I was fortunate enough to be the rapporteur for Romania, and when working in other countries on this, I saw the deep underbelly of the filthy trade that happens when you begin to move children away from their own jurisdiction. Whether a child is deemed to be a refugee or is labelled as part of a family, child trafficking is the fastest-growing sector of organised crime on the globe today. The European Union legislation has not only failed to protect those children but has, in some ways, made things worse. I will give a clear example of a Member of the European Parliament—from France, incidentally, although this is not a criticism of France as such. When we were having this debate in the European Parliament, he could not understand why the free movement of children should not take place, since the European Union allowed the free movement of camions. Noble Lords will remember that “camions” means lorries.
That is exactly what happens: once you start moving children around, there is no stopping it. It does not help to say that they are coming to the United Kingdom. One of the most traumatic cases I had to deal with was that of a child from Romania. When I went there, there were 30,000 children who had been trafficked in eight years: no names, no pack drill, just numbers on a computer. One of them was a boy who came as a refugee to London on a false passport. In London, that false passport was changed and he managed to get an American passport. When he arrived in America, he was met by eight men, and he has never been seen again. Thanks to one of those wonderful efforts by the FBI, the CIA, Scotland Yard and the Romanian police, 11 men were captured. They were said to be the biggest child trafficking ring for pornography on the globe.
I beg the Minister to retain Clause 37. We need to protect these children, to help them to stay in their own jurisdiction, not to move them around like this. They are unprotected as soon as they leave their own jurisdiction. We cannot manage it. We in Britain are very poor at managing unaccompanied children of our own. Look at the ones in the Midlands, for example. We have thousands of children coming in every year from countries trying to dump their children here. Others then pick them up and sell them.
I have another very good example, although there are too many to give all of them. When I went to Bucharest originally, there were 12 trafficking agencies—
Baroness Nicholson of Winterbourne
I will give way. I will have difficulty, as I cannot hear, as noble Lords know. Somebody will have to tell me.
In Bucharest there were 12 trafficking agencies, and when we pushed them out, they went over the border to Moldova, and they are now bringing in children from China.
Baroness Nicholson of Winterbourne
If noble Lords will forgive me, I will ask someone to interpret for me, because I was born deaf and will not pick it up.
Baroness Jones of Moulsecoomb
I have been to Calais and met unaccompanied children: on one occasion my noble friend Lady Bennett and I were together in Calais. Does the noble Baroness accept that the children most at risk are the unaccompanied children? The children we are talking about are coming to their families. They do not have a jurisdiction; they do not have a family unit. They are coming to their families.
Baroness Nicholson of Winterbourne
Lack of a jurisdiction is not quite the case. They have not lost their own jurisdiction, unless they have been signed out of it. You can therefore get them back home to their own jurisdiction. That is why my work, and the work of most people who, like me, work internationally, is to try to look after those children at home, to support the families and to bring clean water and food and everything else. Of course children can be signed out—by their own judges, for example—but most of the children that the noble Baroness is describing will not have been signed out at all; they will just have moved.
So I will merely say that we know all too well what happens to children when they are moved around. We in this House should not do anything to encourage that movement. That is why, from the heart, and from all my experience, I urge the Minister to retain Clause 37.
Lord Scriven (LD)
My Lords, I have sat and listened to the debate on the Bill in this House, which has been wise—and sometimes entertaining, sometimes depressing, depending on one’s view of leaving the European Union. For the past two days I have stayed quiet and reflected on what has been said. For me it has been a surreal debate at times. Last night we had a debate in which all sides of the House pleaded with the Minister to keep one single market in the United Kingdom, and the Minister could not agree that that could be guaranteed. Earlier today there was an amendment about the rule of Parliament, and taking back control of the sovereignty of Parliament and not the sovereignty of the Executive. In the previous debate the Minister said that our hands should not be tied in negotiations—but the Government are tying their own hands by putting a false deadline on the negotiations.
However, I have to stand up now, because we have moved from a surreal debate to a cruel and heartless debate. Now we are talking about children who have family in this country. They are segregated; they will have seen war and persecution; some of them may have seen their mothers raped; some will have seen things that we cannot understand. And we already have a law in this land that says that, as a guarantee and as a matter of principle, they will come here now. Clause 37 takes that away. The Minister shakes her head, but it does. Basically, it says that rules will be laid before Parliament in two months’ time. It stops the existing provision and tries to put in a new provision—and we know not what that new provision will be.
Sometimes in politics, you just do the right thing. You do a thing as a matter of principle. I see nothing at all wrong in bringing here, as fast and as safely as possible, unaccompanied children who have family in this country. It is the right thing to do practically, and it is the right thing to do in principle. I must say to the Minister that this is a political decision. It is not a legal decision; there is nothing impeding negotiations. What is more, it is the right thing to do. I do not care what the other 27 countries do. As a British citizen, I want my values to be that we accept these children as a matter of principle. If the other 27 do not wish to do that, that is about their values—but this country, and this Parliament, should stand steadfast in saying that this is the right thing to do, and we want it to happen now.
I tried to think why the Government would not just allow this to happen. Why would they want to put a two-month staging post in place? Do they not want to do it? The Minister and the Government keep telling us that they do want to do it, and that it will happen. Fine. Are they not quite sure how it will happen, so they want to change the rules and the policy? The Minister shakes her head. So why have they not shown us what the new policy will be? Why the two-month gap? What are we waiting for? If nothing is going to change, the existing provision should stand.
Are we saying that we are putting in a provision for a two-month wait and nothing will change? Yet there are children across the country who need our support and help. Or are we going to use these young, vulnerable children as a negotiating chip? What a disgraceful position for us, as a country, to get ourselves into—that we could use the most vulnerable of the vulnerable as a negotiating position to try to get the other countries to agree to do something, we know not what? There is no reason for this clause—other than the possibility that there is something, however slight it may be, that the Government wish to change. I do not believe that that is the British way, I do not believe that those are British values, and I do not believe that that is what the British public will support.
I will end with what Robin Walker said when he was a Brexit Minister in the other place. He said that this was a matter of principle. I agree: it is a matter of principle—and it is time to put principle into action and stop the fake negotiation.
Lord Mackay of Clashfern
My Lords, I think my credentials in legislation for children are fairly long and fairly clear—or at least I hope so. Before we start to think about children in principle, it is vital to think about the provision that we seek to replace. The Clause in the 2018 Bill gives children no rights whatever. It does nothing more than require the Government to enter into negotiations with regard to those children. That is all, which is very important.
However, the question is: is Parliament entitled to tell the Executive what they must negotiate for? That is the language of the part of the letter to which the noble Lord, Lord Dubs, referred. In other words, it is said that, as a matter of principle—I will elaborate on that principle in a minute—it is not right that the Government’s hands should be restricted by Parliament before the negotiations. It is the Executive’s responsibility to do the negotiation; it is for Parliament to call the Executive to account on how they have done it.
I shall refer to this only briefly, but your Lordships will remember that in the decision of the Supreme Court in relation to Prorogation, it pointed out that the important thing was the accountability of the Executive to Parliament. That makes an important distinction between the Executive and Parliament, because the Executive have the executive function, and then Parliament has the right to call them to account for the way in which they have carried it out.
The provision in question—Clause 17 in the 2018 Bill—is precisely that. It is an instruction to the Executive to open negotiations in a certain way. I understand from what we have heard already that the Executive have entered into such negotiations. However, the point made in the letter is a general one, of the kind I have just mentioned.
Baroness Jones of Moulsecoomb
My Lords, I support the noble Lord, Lord Dubs. Unlike him, I have not had any explanation from the Government about this, because an explanation—I looked it up in a dictionary just in case—involves explaining. We have not heard explanations, but we have heard excuses. Those excuses narrow down to three matters. First, the existing law in Section 17 of the European Union (Withdrawal) Act is perfectly all right and reflects the will of this House and Parliament generally; it has passed. The change cannot be interpreted as anything but a watering down. It is either a watering down or, as we have heard, a bargaining chip—something to trade when the negotiations happen.
The worst explanation is that this is a dead cat. It is an issue that the Government purposely know will excite much of this House; it will raise a lot of concerns and we will, I imagine, push it hard. The Government are therefore narrowing down the matters that we will push hard on when we come to Report. Whatever it is—whether it is a watering down or a bargaining chip, which would be absolutely wrong, or a dead cat—the conclusion is the same: we must remove this clause from the Bill. The Green group here, if I can call us that, supports the noble Lord, Lord Dubs, in his efforts.
Baroness Blower (Lab)
My Lords, it is a pleasure to support my noble friend Lord Dubs in this matter. For me, this is a moral and ethical matter as well as a political one. Why would a Government resile from a clear provision to facilitate the reunification of refugee children with their families, particularly when it had already been passed into law?
A noble Lord opposite, who is not currently in his place, said that a Government with a majority of 80 might make some big mistakes, and the inclusion of Clause 37 would be just such a big mistake. As my noble friend Lord Dubs said, the British people are essentially humanitarian. The Government would be seen to be lacking in their will for social justice and basic humanity if any inhibition was put in the way of ensuring that that small number of children—who are already out of whatever their jurisdiction might be deemed to be, but find themselves in difficult and, for us, unimaginable circumstances—are reunited with their families in this country.
It is often said that a society is judged by how it treats its most vulnerable, its weakest and those in the most difficult circumstances. We would be found wanting if we were not to oppose the introduction of Clause 37; we would be treating badly those who are already extremely vulnerable. I would much prefer to be well considered in how we deal with, consider and treat the most vulnerable.
Baroness Sheehan (LD)
My Lords, I cannot believe we are here again. It is like déjà vu, or a bad dream. I thought we had put this issue to bed. It took a long time previously and I have not forgotten how hard NGOs and people on this side of the House—and, of course, the noble Lord, Lord Dubs—had to work to make Dublin III work for unaccompanied asylum-seeking children who had family here. It was not an easy legal trip but, through JRs and so on, we got it to work eventually, and the thought that the system might be dismantled is too depressing for words.
It seems that Conservative Governments pass up no opportunity to try to prevent us abiding by our legal duty to uphold the rights of the child. I fear that views sometimes articulated by the right-wing press make some Members on the government Benches think they are being taken for a ride. One such view is that these children are sent here as a way to cleave open the system, so that the rest of the family may follow. Can they produce the evidence to back that up? No, because there is none. Children are more likely to stay quiet about where their family is because they fear that retribution might be visited upon them.
Another such view, referred to by my noble friend Lady Hamwee, is that allowing family reunification creates a pull factor that will encourage others to make the trip. I suggest that anyone who truly holds that view visits some of the refugee camps and speaks to people there. I am sure that listening to their human stories—such as that of Adam, whom I know well—will encourage them to think differently. Adam is not his real name. He fled north Darfur at the age of three with his family. He was orphaned but made it to a refugee camp where he lived a hand-to-mouth existence until the age of 14, in constant fear that the Janjaweed militias would one day succeed in taking him away. There was no school and no hope, just fear. At the age of 14 he took the decision to leave to try to make his way to Europe because the risk was worth it. He was driven to take the risk by desperation. His is just one story. There are many more children like Adam who desperately need our compassion and our kindness but, most of all, our commitment to international rules of law that protect the best interests of the child and, in particular, to the continuation of the Dublin III regulation once we have left the EU for good.
Removing our commitment to Dublin III from the Bill with a promise to make good later is not good enough. These children, and in particular their advocates, need to know that a system that has finally been made to work will not be dismantled. Starting from scratch to set up another system that works legally will mean that time will be lost, and lost time means that lives will be damaged. I think the Government will agree that there will be a gap in legislation and they cannot know how long it will be. Please let us leave things be.
Lord Mackay of Clashfern
The Dublin III arrangements will continue until the end of this year. The Government’s purpose is to make arrangements that will take effect immediately after that. That is what this is about. It is not about taking anything away. It is about construction after the end of this year, assuming that—I am assuming what was said in the last debate—still stands.
Baroness Sheehan
I thank the noble and learned Lord. The Government say that they will, but the question is when. There is no guarantee that there will not be a gap through which—
Lord Mackay of Clashfern
There is no guarantee that anything is going to happen particularly, but Dublin III is in and the Government have expressed their intention to replace it with an arrangement that applies to children here who have family in Europe and to children in Europe who have family here.
Baroness Sheehan
If, as the noble and learned Lord said, nothing is going to change, let us leave things be.
Lord Elton (Con)
I have just a small point. I understand that under Dublin III “specified family members” refers not just to parents but to grandparents, aunts, uncles and siblings. When she replies, will the Minister slip in a word because that would make it easier for some of us to follow what is happening?
Lord McNicol of West Kilbride (Lab)
My Lords, I rise to explain why Clause 37 should not stand part of the Bill. There is very little to add after the dozen contributions and the eloquent speech by my noble friend Lord Dubs, so I shall keep this short as we wait to hear from the Minister. I hope that her words will be positive.
The Government’s inclusion of Clause 37, which reneges on their previous binding commitment to seek to negotiate reciprocal agreements with the EU to facilitate the safe passage of child refugees with family in the UK is unnecessary and unjust. We will shortly be told that the Government’s commitment has not changed and that their policy remains the same. Your Lordships’ House was not convinced by this argument during consideration of the withdrawal Bill, which is why it voted overwhelmingly to insert the negotiating objective, and I am sure this House will not be convinced by the argument now, although we wait.
The provisions in the 2018 Act have been in place for 18 months and were not opposed by the Government. That surely means that they cannot be considered hostile or as examples of Parliament unfairly asserting itself over the Executive. The closest parallels I can see to the Dubs provision are the environmental ones in Section 16 of the 2018 Act. These required the Government to do something. Ministers fulfilled the requirement and that section has now been replaced. Ripping up prior commitments in the face of such opposition is not how a new Government should start their term in office. It is not too late for the Minister to accept the amendment or to bring forward the Government’s own text ahead of Report. I hope the Government will do the right thing. However, if they do not take note of this debate, we will certainly bring back the substance of it on Report.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this debate and, in particular, the noble Lord, Lord Dubs. I have had many discussions with him, as he outlined. We do not always agree on how we are going to get to places, but we certainly agree with the end. I think Parliament and the Government are in absolute agreement that we are all fully committed to the principle of family reunion and to supporting the most vulnerable children in the world. Our policy on this has not changed. I want to underline that point because noble Lords seem to think that perhaps the policy has changed. It has not. On the point the noble Lord, Lord Dubs, made on the manifesto commitment, it is writ large in our manifesto:
“We will continue to grant asylum and support to refugees fleeing persecution”.
We intend to keep to that commitment, and I am sure Parliament will hold us to account if we do not.
Clause 37 underlines that. We could have just deleted Section 17 and, by turn, Clause 37. We did not because we wanted to outline that commitment again in legislation. The commitment builds on the Government’s proud record of providing protection to vulnerable children. Since 2010, the UK has granted protection to 41,000 children—7,500 of them in the year ending September 2019—most of them because of our obligations under the refugee convention and the wider commitments that we have made. It is mostly nothing to do with EU structures.
More than 5,000 unaccompanied children are being cared for by local authorities in England alone—an increase of almost 150% since 2014. The noble Lord referred to local authorities, and he knows that the Government wrote to local authorities in good faith, and that whenever we heard about additional places being available, we took note and upped our number under Dubs. We have granted 27,000 family reunion visas under the refugee family reunion Immigration Rules over the last five years. This is not a mean Government or a mean country, and I am very proud of our record.
In 2018, the UK received more than 3,000 asylum claims from unaccompanied children, accounting for 15% of all such claims across the EU. That makes ours the third highest intake in the European Union. On national resettlement schemes, we take more children than any other country in the European Union. It is worth saying this because sometimes, if you listen to debates in this House, you would think that we do not do anything. It is important to outline our record, which reflects the unique importance of protecting unaccompanied children and preserves the principle of family reunion, which will continue. I commend this House on its strength of feeling on this issue—we are all humanitarians, and I assure noble Lords that the Government share an undiminished commitment to addressing these issues.
Clause 37 concerns only whether there should be a statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state, and who have family in the UK, and vice versa. The debate is not on wider issues relating to refugees, asylum or family unity. It does not represent a change of Government policy—as I said at the outset—it simply removes the statutory requirement to negotiate. We remain fully committed to providing protection to vulnerable children, and noble Lords might note that we have already committed to taking 5,000 people from beyond the MENA region, in dangerous areas of the world with vulnerable children, in the next year alone.
Noble Lords will be aware that, as part of the negotiation and making of treaties, including international trade agreements, this is a function of the Executive. It is interesting that the noble Lord, Lord Newby, said in the previous group that he did not want to tie the Government’s hands, but in the group before that, the noble Lords, Lord Butler and Lord Howarth of Newport, said that Parliament should not tie the Government’s hands. My noble and learned friend Lord Mackay of Clashfern made a good analogy with the Prorogation decision.
A statutory negotiating objective is neither necessary nor the constitutional norm. It is unnecessary because the Government have already written to the European Commission on 27 October to commence discussions on this issue. It is vital that the Government are now able to get on with it. The UK has existing and extensive legal provisions to guarantee family reunion, and one noble Lord—it may have been the noble Lord, Lord Scriven, but I apologise if I am wrong—spoke of no guarantees going forward, yet this legislation already exists, and is not affected by EU exit in any way. Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, as my noble and learned friend pointed out.
Lord Scriven
That is a bit perplexing. If the guarantee is already in law, what is this clause about?
Baroness Williams of Trafford
The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.
The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.
Lord Howarth of Newport
As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.
Baroness Williams of Trafford
No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.
The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.
Lord Hannay of Chiswick
I am grateful to the Minister for giving way. Could she be clearer about this correspondence with the Commission? The Minister said in the meeting we had yesterday, and again just now, that a letter went to the Commission in October, to which there has been no reply. It is perhaps not surprising, since the Commission does not have a mandate to negotiate until after we have left the European Union. Perhaps that is a perfectly innocent explanation, but surely the amendment being moved will actually strengthen the Government’s hand when they come to negotiate in March or April, by demonstrating the high priority which Parliament gives to it?
Baroness Williams of Trafford
The reason we have not had a reply is probably, as the noble Lord pointed out, to do with the fact that we have a new Commissioner. I do not agree with the noble Lord’s point—this amendment ties the Government’s hands in negotiation, and we do not wish to see that. We want to articulate our commitment through the manifesto and in Clause 37.
Lord Kerr of Kinlochard
I am not quite clear on how it ties the Government’s hands. If we leave what is now on the statute book in place, there is an obligation on the Government to seek to negotiate. The Government say that they have already started seeking to negotiate, so I am not sure how it ties their hands.
I am left suspicious. I am with the noble Baroness and am prepared to agree that policy has not changed. I reject dog whistles and dead cats, and I believe the Government’s policy has not changed. What bothers me is that I do not know what priority they attach to it in the coming negotiations, and I fear that we are into bargaining chip country, which is really offensive.
Baroness Williams of Trafford
The fact that the Home Secretary wrote to the Commission underlines our commitment, as does the fact that we put it in the manifesto and in Clause 37. The amendment to Section 17, to which the noble Lord referred, was an instruction to the Government, and I do not think that the Government should be bound by that.
I want to pick up on the noble Lord’s point about bargaining chips. Section 17 of the 2018 Act talks about seeking to negotiate. In one context—the way in which the noble Lord, Lord Dubs, puts it—that is noble, and I have absolutely no criticism of his intentions. On the other hand, when the Government say that they will write to the Commission and seek to engage with the EU in the coming year, that is seen as using children as a bargaining chip. I am not entirely sure how the Section 17 amendment, which talked about seeking to negotiate, and what the Government are proposing, which the noble Lord feels very sceptical about, are in any way different when it comes to bargaining chips.
Lord Kerr of Kinlochard
If the Government say, as they did on Monday night, in terms, that that amendment will not do because it is vital that the Government are not legally constrained in these discussions, that seems to imply that the Government might not pursue this point if the EU 27 decide to strike some sort of bargain with us which entails our not pursuing this point. If the statute book remained unamended—if the 2018 Act, which binds the Government only to seek to negotiate, remained in force—in what way would the Government be legally constrained unless they intended to negotiate in bad faith, which I do not think is the case, or to regard this as a lower priority, as a card that could be played? I find that very offensive.
Baroness Williams of Trafford
I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.
Baroness Hamwee
Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.
Baroness Williams of Trafford
I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.
The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means
“a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or … a parent, grandparent, uncle, aunt, brother or sister of the child”.
That is quite an extensive list and I hope that that helps my noble friend.
I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.
Lord Dubs
My Lords, perhaps I may say a few brief words. I am grateful to all noble Lords who have taken part in this debate, which has been quite illuminating in the main, but perhaps I may comment on two or three specific points.
First, I want to refer to what the noble Baroness, Lady Nicholson, said. I very much respect her important work with Save the Children and other organisations overseas, but I think she is quite wrong on the trafficking argument. Where there are no legal routes to safety, people will allow themselves to be trafficked and will come illegally. Surely, by having legal routes to safety, we are making the position of traffickers much more difficult and making it much easier for people to achieve safety. Therefore, I am sorry but I do not agree with her on that.
Perhaps I may also return to the point that the noble and learned Lord, Lord Mackay, made. I do not have the wording of Section 17 of the 2018 Act in front of me but it has been referred to. It says that the Government should seek to negotiate on a particular basis. We have already talked about Clause 33 of this Bill, which would add something to the 2018 Act. It says:
“A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.”
That is telling a Minister of the Crown exactly what he or she may or may not do, which is totally at variance with the argument that we have heard on Clause 37. I do not understand. On the one hand, the Government are saying in their own Bill that Ministers may be told what to do; on the other hand, they are using that as an argument against my amendment.
I am sorry to quote the Minister’s letter again but one paragraph seems to be at variance with other points and I wonder whether the Minister would like to withdraw it. It includes the words,
“so that the traditional division between Government and Parliament be restored”—
that is, by removing Section 17—
“and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”
That goes a lot wider than what we have been talking about tonight. It seems to me that this is meant to talk about some relationship between government and Parliament, which in any case Clause 33 disproves, and it refers to
“an appropriate manner across all policy areas.”
I am sorry but I cannot interpret that in the way the Minister suggests.
I want briefly to make two or three other comments. I agree that the manifesto talks about a commitment to refugees but it says nothing about child refugees. It says nothing at all that would enable the Government to invoke the Salisbury convention against my wish to remove Clause 37 from the Bill. If the Minister would like to meet me to talk about local authorities, I would be very happy to do so. I know that local authorities are very helpful. I know of Northern Ireland organisations that will want to help now that the Government there has been restored. The debate is going on in the Channel Islands and the Isle of Man, although no decision has been made there yet. It seems to me, however, that there are more local authorities. In addition, Safe Passage, one of the NGOs with which I am working closely, has written to all local authorities and we have got quite a lot of positive answers. This shows that local authorities are willing to take more.
When we debated Section 67 in 2016 and the amendment that I put forward about child refugees with no people here, there was a fierce battle. I was asked time and again to withdraw my amendment. The Home Secretary asked me to withdraw my amendment. It got through, despite the Government’s wishes, and it got through the other House, despite their wishes. Then we had the amendment to the 2018 Act that we are talking about now. Again, there was a big vote fairly late in the evening; the Government did not want it. In opposition, we had to argue for amendments on behalf of refugees and now the Government seem to be taking credit for that. I am sorry, but that is not the way the world has been. I appreciate that the Minister is totally sympathetic to refugees, but that is not how the Government have behaved. They have resisted all these amendments and all we have in opposition is the chance to move amendments in the hope of making our point. That is why we have had these arguments.
I shall not press this issue tonight, but particularly in the light of the discussion, I might wish to return to it on Report.
“Publication of further legislation relating to EU exit
(1) The Secretary of State must, within the period of three months beginning with the day on which this Act is passed, publish draft Bills relating to the—(a) agricultural arrangements,(b) employment rights,(c) financial services legislation,(d) fisheries arrangements,(e) healthcare arrangements,(f) immigration arrangements for EU nationals,(g) monitoring and enforcement of environmental protections, and(h) trade remedies arrangements,that will be in effect in the United Kingdom after IP completion day.(2) When publishing these draft Bills, the Secretary of State must make a statement outlining the steps they will take to seek the timely passage of such legislation before IP completion day.”Member’s explanatory statement
This amendment would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions, as well as requiring Secretaries of State to outline how this legislation will be passed before the end of the implementation period.
Lord McNicol of West Kilbride
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Jones, and the noble Viscount, Lord Hailsham, for adding their names to this amendment. If passed, it would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions.
During the 2017 to 2019 Session, the Government published a variety of Brexit Bills. These often stalled in the Commons due to the Prime Minister’s lack of a majority and ultimately fell when the parliamentary session ended. These pieces of legislation are listed in my Amendment 30. They covered agricultural arrangements, employment rights, financial services, healthcare arrangements, immigration arrangements for EU nationals, monitoring and enforcement of environmental protection and trade remedies arrangements. These are vital areas where businesses and the country need clarity on the future direction of travel. These Bills have not yet resurfaced and it is not clear what form they will take once they are published.
Many noble Lords from across the House—from the Government, the Opposition, the Liberal Democrats and the Cross Benches—spent many hours debating, discussing, negotiating and voting on complex details relating to these areas. For example, in relation to trade, we do not know whether the new trade Bill will include the scrutiny provision previously inserted by your Lordships’ House. We do know that the Bills are coming because they were reannounced in the Queen’s Speech, but it is not yet clear when we will see them and what their timetables will be. Amendment 30 requires the Secretary of State to outline how the legislation will be passed before the end of the implementation period.
This House has agreed to consider the Bill before us over the next few days on a truncated timetable due to the pressing need to ratify the UK-EU withdrawal agreement, and we understand that. However, I hope that the Minister can assure noble Lords that this truly is an exceptional case rather than one that sets a precedent for Bills in the year or 11 months ahead. I know that the Minister will resist this amendment, but I hope that, in doing so, he will outline approximate timetables for these Bills, including giving an indication of whether any of them will begin in your Lordships’ House.
In the past, the noble Lord, Lord Callanan, has refused to be drawn into such debates, simply stating that all required legislation will be passed by the relevant deadlines. As he has been reminded several times over the last few days, the implementation period will come to an end in just 11 months’ time. Now is the time for the Government to provide more detail and instil some confidence that proper time for debate and deliberation will be given and that we will not, in this House, hear the tired old argument that dissent and debate have to be stifled to get Brexit done. These base arguments—as we have heard many times over the last three days—try to remove from this House its function as a revising body where we have often brought good sense to help ailing or deficient Bills. I beg to move.
Lord Warner (CB)
Perhaps I might make a brief interjection. Following on from yesterday’s discussion on immigration, many of us were left a little uncertain as to what the Government were going to do with their new immigration system. So it is very important that we come back to the detailed legislation on immigration as quickly as possible.
Baroness Bennett of Manor Castle
My Lords, my noble friend Lady Jones was absolutely delighted to sign this amendment. I know that she, before I arrived in this House, did a great deal of work on many of the Bills referred to here. Your Lordships will all remember to some degree being a student at school, university or college, and that last-minute rush to write the essay. I am afraid that we have seen far too much of that kind of operation from the Government. Under normal conditions, the timetable here in this amendment would be a huge rush, but what we are saying is, “Let’s not have an even bigger rush than this provides.” These Bills have appeared in three Queen’s Speeches; surely they are oven-ready by now and we could have them very soon. They are going to be big meals that require lots of digestion. Please let us have a timetable that is clear, so people know where they are going.
My noble friend Lady Jones asked me to mention the latest reincarnation of the Environment Bill. We need to know when the environment enforcement body will be established. We have been told that it will happen as soon as possible; surely that has to be now.
Lord Callanan
My Lords, I am grateful to the three speakers that we have had in this debate on Amendment 30: the noble Lord, Lord McNicol, the noble Baroness, Lady Bennett, and, briefly, the noble Lord, Lord Warner. I can be brief on this one. The procedures for introducing and scrutinising Bills are, of course, very well established, and those procedures are not without reason. All the Bills mentioned will be introduced with adequate time for scrutiny. To ask for so many Bills to be published in draft is unprecedented, as it is for the Government to commit to a statement on the amount of time each Bill might spend in Parliament. Let me reassure noble Lords directly, however, that this Government are committed to ensuring that all the necessary legislation is passed by the end of the implementation period.
As the noble Lord intimated in his speech, versions of the Bills covering many of the areas noted in his amendment have already been published in previous Parliaments and are publicly available for study. Others were mentioned in the Queen’s Speech. However, I am sure that the House can appreciate the tremendous amount of work being done to make sure that these Bills best achieve their policy aims. In some cases, this means that the Bills will differ slightly from the previous versions. I can assure the House that the Government are committed to proper scrutiny and that we will balance the need to have the necessary Bills in place by the end of the implementation period with adequate time for Parliament to scrutinise them.
I suspect that the noble Lord got the answer he was expecting, so I hope he will feel able to withdraw his amendment.
Lord McNicol of West Kilbride
My Lords, I thank the noble Lords who have taken part in this very short debate, and I thank the Minister for his response. The reason for launching this is that we want to secure proper time for scrutiny, debate and discussion. The Trade Bill was my first Bill in this House. My noble friend Lord Stevenson and I put a lot of time and energy into that Bill and this House made some good, sensible changes to it. It would be a shame for that to go to waste. I beg leave to withdraw the amendment.
“Non-regression in relation to environmental and animal welfare matters
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—“16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) the environment,(b) food safety standards,(c) registration, evaluation, authorisation and restriction of chemicals, and(d) animal welfare.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a level of protection provided for in retained EU law, or(b) weakens governance processes associated with that protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish protections in retained EU law relating to the environment and animal welfare.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Lords who have added their names in support of this amendment on a cross-party basis. It would ensure that, post Brexit, the actions of Ministers and public bodies must not have a regressive impact on the environment, food safety, REACH and animal welfare. The amendment is necessary as the Government have seen fit to remove the provisions previously agreed in the 2018 withdrawal agreement, which provided for a legally binding commitment to non-regression in most areas of environmental law. The Government have said they remain committed to the principle of non-regression, so it is not at all clear why these provisions have been actively removed.
It goes without saying that there has never been a more important time for strong environmental legislation. The world is facing a climate change emergency, with global warming impacting food production, rising sea levels destroying habitats and catastrophic floods and fires threatening human life and livelihoods. The Government have signed up to the UN climate change conference political declaration, but those promises need to be backed up by binding and robust action. The Government have said that they want an ambitious environmental programme—indeed, the Conservative manifesto promised to legislate for high standards of environmental protection—so it seems strange that their first act is to water down a Bill that would have helped to achieve those high standards. Our amendment would put the non-regression principle back into the Bill where it belongs, and where other environmental principles remain via the withdrawal agreement.
The great advantage of a non-regression clause is that it would give reassurance for the longer term. It would protect current and future generations against the weakening of environmental standards once the issue drops out of the headlines and out of the list of government priorities. It would also help the Government to hold public bodies to account in achieving their environmental standards.
It is still not clear why the Government have taken the clause out of the Bill. If, as the Minister claimed in the Commons, the Government are committed to non-regression, why not leave it in? If the Government plan to put it in the environment Bill instead, what is the harm in having it in both pieces of legislation? If, as the Minister claimed in the Commons, the plan is to diverge from EU environmental principles and go it alone, who will judge whether the outcome will be as good as the environmental benefits that we have enjoyed in the past or that we should have enjoyed in the future?
As I said at Second Reading, over the years our environment has hugely benefited from EU directives and regulations, with over 80% of our environmental legislation derived from the EU. It is the main reason our habitats and birds have been protected and our water, air and soil quality have improved. The Government are expecting us to take a leap in the dark with their commitments to becoming a world leader in environmental protection outside the EU regime. If they are so committed, it is still not clear why they cannot accept a non-regression clause. Surely that is the minimum promise that they ought to be able to make if they are so ambitious for the future.
I hope the Minister will feel able to support our amendment. If not, I hope he can spell out in some detail what kind of non-regression guarantees are being proposed for the environment Bill. These questions were posed by a number of noble Lords at Second Reading, so far without a response. I hope that on this occasion the Minister can rectify that and give us some guarantees. I beg to move.
Lord Randall of Uxbridge (Con)
My Lords, I was very happy to add my name to this amendment because the whole question of environmental standards and what will happen after we leave the EU is something that concerns many on all sides of the House, as well as the general public. The environment, as the noble Baroness opposite said, is very high on people’s agenda.
I put my name to the amendment because, like the noble Baroness, I wondered why this issue was not going to be part of the Bill. However, I have to say that I have spent some time in detailed discussions with the Secretary of State and Ministers down the other end as well as with Ministers in this Chamber. I do not think I could ever be described as naïve, although I have been led astray sometimes by government Ministers on all sides, but I do not doubt for one minute this Government’s thorough commitment not only to maintaining the environmental standards of the EU but to going beyond that. This is a very useful exercise to reinforce to my noble friends on the Front Bench that no excuse will be taken if those standards are not maintained when the environment Bill comes forward, and I will be looking for improvement.
With that in mind, I have always regarded this more as a probing amendment—I have learned today that in Committee that tends to be what happens—but I do not at all regret adding my name to it because this is a matter of great importance.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I rise to speak to Amendment 31, to which I have also added my name. I fully support the comments made by the noble Baroness, Lady Jones of Whitchurch. Many contributions today have been extremely legalistic, but for me this amendment is much simpler.
Many noble Lords will be wondering why it is necessary to have this amendment in the Bill. The Government have committed not to compromise on environmental standards. An undertaking was in the previous withdrawal agreement Bill but was removed from the Bill that passed through Parliament in December 2019. If the Government have committed not to compromise, why was it necessary to remove this undertaking from the Bill? Despite being asked, the Government have provided no clarity on how environmental standards are to be protected.
As we can see from what is happening in other parts of the world, not least Australia, the environment is very fragile. Animal and plant species are constantly under threat from the effects of what used to be known as freak weather conditions. These excessive droughts, floods and temperature rises are having a devastating effect on animals and humans alike. They are no longer occasional disaster events but have become yearly occurrences. Unless the UK engages completely with preserving, maintaining and enhancing our environmental standards, we are likely to see an increase in flooding and fire damage in our villages and on our moors.
Ensuring food safety should be paramount when the Government come to broker trade deals with countries outside the EU. The UK consumes large quantities of chickens, and I am sorry about the next bit. Currently we import chicken breast meat and export darker leg meat. This trade currently goes to Europe, where we know standards of food protection are the same as ours. We could be self-sufficient in chickens if the British housewife could be persuaded to consume more dark meat and slightly less breast meat.
On a purely personal note, I am extremely reluctant to find myself having to buy chlorinated chicken that has arrived from America, be it whole chicken, breast or leg meat. A lowering of food safety standards has had dramatic effects on our country in the past; the BSE crisis springs to mind.
As stated at Second Reading, the UK currently has high standards in habitat protection and product safety. These standards have been developed with our European neighbours so that we now benefit from cleaner beaches, safer food and the best regulation of chemicals in the world. While these will pertain at the point of exit, are we really going to leave ensuring the maintenance of these standards to the joint committee? We have heard that the joint committee has the ability to amend the withdrawal agreement itself should it choose to do so, with no parliamentary oversight.
Baroness Bennett of Manor Castle
My Lords, from comments I have made on other matters, your Lordships’ House will know that democracy is one of my pet concerns. When we are discussing this excellent amendment from the noble Baroness, Lady Jones of Whitchurch—I endorse everything she said in introducing it—it is important that we make clear what we are talking about. Non-regression has now become part of our common parlance in your Lordships’ House and perhaps in the other place as well, but what does that actually mean? If we are looking for a definition in commonplace terms, I would suggest that it means not losing the hard-fought gains that we have won over decades. The Green Party and green campaigners have fought very hard for the level of standards that we now enjoy under the European Union. We have often been critical of those standards and said they should be higher, but we know they are much higher than in many other jurisdictions, most notably the United States of America—with which, of course, we know the Government are very keen to get a trade deal.
A few days ago, I asked your Lordships to think about the climate strikers, the young people who have been out on our streets, who will no doubt be out on our streets again. I ask noble Lords who want to reject this amendment—and the Government, if they want to reject it—to think about how those people will feel when they are told that what has already been won, which they would say is inadequate, will not be guaranteed. I think we know what their reaction would be.
With all the Henry VIII, secondary legislation making and judicial erasure powers that the Bill currently provides, the Government are going to find themselves in an unprecedented position to rewrite enormous parts of UK law at will. We are told that, “There is no intention to reduce standards; we’re going to try to improve them.” Of course I applaud those words, but if that is the case, why not accept this amendment? It should not be contentious, just as provisions to protect workers’ rights, which are part of the same kind of package, should not be contentious.
We have all had a long day, but I think everybody in this House from all sides has at some point fought to support some protection covered under EU legislation. Please let us protect and keep them all and not lose the work of the past and of decades of campaigns.
Baroness Parminter (LD)
My Lords, I rise to support this cross-party amendment in its entirety, but particularly to cover the issues I raised on Monday at Second Reading and, if I may, to have the right of reply to the noble and learned Lord, Lord Keen, who made reference to my speech from earlier in the debate in his closing remarks. He said:
“The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.”—[Official Report, 13/1/20; col. 556.]
That is factually correct and I entirely applaud the Government’s intention of doing something about that important issue. However, with the deepest respect for the noble and learned Lord, that is completely irrelevant to the point I made. There is nothing in a non-regression clause which stops the Government raising standards. What it does do, as other noble Lords have rightly said, is ensure that standards are not lowered. That is the issue we are collectively concerned about as we face the worrying prospect of these free trade agreements, with all bar one of the countries proposed having lower welfare standards than ourselves.
My noble friend Lady Bakewell of Hardington Mandeville talked about chicken legs and breasts. I want to talk a little about eggs because, as it stands at the moment, the United States of America has no standards whatever on the welfare of hens used for laying eggs. Therefore, if we allow the American market access to ours, we will face eggs coming in to be used in food products with standards far lower than those produced by British farmers. Our farmers will rightly argue that their welfare and production standards are higher and cost more and that they are therefore at a competitive disadvantage. They will press the Government to reopen the battery cage directive, which has been with us for so long as part of our membership of the European Union and guarantees higher farm welfare standards.
If the Government were to lower those standards, I would like to ask the Minister whether my understanding of the following is correct. Given that we have gone through this process of nationalising all this EU legislation through statutory instruments, sitting through hours and hours in the Moses Room, is it correct that, if the Government were to lower our animal welfare standards for battery hens, for example, the Government would need only to introduce a statutory instrument and would not require primary legislation? That is my understanding. It is a real worry to those of us right across this Chamber who have, as the noble Baroness, Lady Bennett, just said, fought so hard and for so long for high animal welfare standards that those could be lost by a simple statutory instrument.
The right reverend Prelate the Bishop of Worcester, who is not in his place, spoke movingly, in the debate on the amendment from the noble Lord, Lord Dubs, about the Government needing to set out their vision for Britain in the post-Brexit world. He articulated it very well. What is the Government’s vision for Britain? If they want Britain to be a world leader in animal welfare, they have to demonstrably deliver that through all their legislation, trade deals and marketing. Look at the example of New Zealand, which has said that it wants to be a world leader and is a world leader—it has done just that. This is in every piece of legislation and every trade deal and it is in their marketing strategy.
This is the first piece of legislation of the new Government which mentions animal welfare and yet, by not accepting a non-regression clause, they are basically saying that standards could be lowered as a result of trade deals in the future. Therefore, it begs the question: how will the Government guarantee that animals will not suffer lives compromised by lower animal welfare standards if the Government will not accept a non-regression clause in the withdrawal Bill?
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, I am grateful to the noble Baroness, Lady Jones of Whitchurch, and other noble Lords for raising issues which come within Defra’s responsibility. I entirely respect the sincerity of all the points that have been made by noble Lords.
The UK has a long and proud history of high standards for environmental protection, including chemicals, food standards and animal welfare. It is of the utmost importance that these are maintained as we leave the EU. The Government have been clear that we will not weaken protections in these areas when we leave, but rather we will maintain and enhance our already high standards.
This Bill is focused on putting the withdrawal agreement into domestic law. This amendment is about what happens to our environmental policy and others after our exit from the EU. We do not believe that that is appropriate for this Bill.
These matters were debated extensively in the passage of the 2018 Act, when the Government were clear that the regression of the type the noble Baroness fears would not be within scope of the key Section 8 power of the 2018 Act. Those Section 8 powers can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal from the EU. The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit. The Government cannot use the powers for the purposes of simply rolling back standards and protections.
Where substantive policy change is required, appropriate legislation will be brought forward. I underline this when I say that, if a Government were to introduce legislation to reduce protections, Parliament would be able to have its say at that point. This would allow for more effective and tailored scrutiny. In any case, I want to assure the noble Baroness and all noble Lords who have spoken—as I have done many times from this Dispatch Box—that this Government have absolutely no intention of introducing legislation that would have that regressive effect.
As I have said, the UK has this long and proud history of environmental protection. The UK was the first country in the world to introduce legally binding emission reduction targets. In 2019, the UK became the first major economy in the world to set a legally binding target to achieve net-zero greenhouse gas emissions. The UK is also the top performer in the EU on resource efficiency and is demonstrating leadership on the circular economy and smart taxes to reduce landfill.
The noble Baroness, Lady Bakewell of Hardington Mandeville, was absolutely right in talking about the world’s fragility, and I think we are absolutely seized of that imperative. That is why the Government will shortly introduce the environment Bill—I say this specifically to my noble friend Lord Randall but also to the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville—which is about strengthening environmental protections. That Bill will enshrine environmental principles in law and will also include measures to improve air and water quality, tackle plastic pollution and restore habitats. I should say, going off script, that we may have been subject to all sorts of EU directives and regulations, but we, the EU and the world have to do a great deal more. The point about that Bill is that it will create legally binding environmental improvement targets and establish a new independent office for environmental protection to hold the Government to account.
We are planning for the OEP to be operational from 1 January 2021. That may slightly answer the question the noble Lord, Lord McNicol, posed in an earlier debate. I want to emphasise that there will be no governance gap. This will collectively ensure that environmental ambition is at the heart of government once we leave. I am in absolutely no doubt that all of your Lordships who have spoken—and many more—will take much interest in that Bill, and I think that is tremendously important.
Regarding the UK’s effective regulatory system for management and control of chemicals, as mentioned in the amendment, this is partly based on the REACH regulation, which is widely seen as a gold standard worldwide. The environment Bill will have provision to amend REACH to make sure our chemicals management remains fully up to date. Any change must remain consistent with the fundamental aims and principles of REACH, including the precautionary principle. There will also be a series of protective provisions that cannot be changed, such as the last-resort principle on animal testing—I think that is a matter the noble Baroness, Lady Parminter, has expressed concern about before, so it is important to say that.
Baroness Jones of Whitchurch
I am grateful for everything the Minister has said. I did ask—I do not know whether he specifically addressed this point—whether there will be a general non-regression clause in the environment Bill. He has talked about there being legally binding targets for improvements in some areas. I understand all of that—the Government will have improvements on air or water quality or whatever it might be—but the great advantage of a generalised principle of non-regression is that it applies to everything: not just the Government’s priorities today but the things that are not sexy today and that might be on the back burner. It encompasses everything, and I am not sure whether the Minister has given me that reassurance. Maybe it was buried away in his script, but it would be helpful if he could say it again.
Lord Gardiner of Kimble
The environment Bill has not been published yet, but it will not be long. I am not in a position to start talking about the detail of some of the clauses tonight, but that is why I spent some time on this. I say directly that I cannot start suggesting what the clauses of the Bill will be about, because I am not in a position to do so.
As I have tried to set out in this explanation, I obviously understand the points that have been made, but I am not sure I agree with all that the noble Baroness, Lady Bennett, may have said about some of these matters. Yes, of course we should endorse the work of the past, but I sometimes sense a determination that either this Government or the party I represent would find it impossible to be positive and strengthening about the subjects we are discussing. I would regret that, because the whole focus of what I have tried to explain in detail—it is why I was asked to deal with this amendment—is precisely to show that this department and the Government are absolutely committed to maintaining and enhancing our already high standards, including through the legislation which will come forward very shortly.
As regards any Section 8 regulations made under the withdrawal Act, noble Lords already have the ability to scrutinise any changes which those regulations might make to retained EU law. This Bill is a vehicle to implement the withdrawal agreement, not, in our view, to legislate for environmental policy.
I am grateful to the noble Baroness and to all noble Lords for this important debate. I have gone on rather longer than I think I was requested to because I felt it important to set out some detail on the measures that the Government will bring forward, and to highlight what is a clear direction of travel. Our intention is to move forward. I therefore hope that the noble Baroness and other noble Lords will accept my firm commitment on behalf of the Government and the department, and that she will feel able to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank all noble Lords who have spoken in support of our amendment. I should say at the outset that the Minister will know, as we have said before, that he is held in high regard by this Chamber. We obviously do not doubt his intentions and commitment on many of the things he talked about. A lot of our concerns arise not from the intentions of Defra, or even perhaps the intentions in a future environment Bill, but through the pressures which will come from elsewhere. We can only anticipate or guess those pressures at this stage—from future trade Bills and future deals that might be wanted done.
Our anxiety is not about the Minister’s good intentions; we can see what is in the Conservative manifesto and the good words that have been written about all this. Many of us have worked on a number of the animal welfare issues that the Minister talked about, so, again, we do not doubt his good intentions or his record on all that. But we are going into an uncertain future, and deals will have to be made outside our immediate remit. I suppose that is where our concern comes from.
I am particularly grateful to the noble Lord, Lord Randall, for sticking his neck out on this issue, even if he back-tracked slightly. I had intended this to be slightly more than a probing amendment, and we have had a good debate as a result of it. We want to believe in the Government’s commitments in the way that he described.
Our particular concern about non-regression, which I know that the Minister felt he could not really respond to in the detail that we would have liked, was that it would give us that underlying safety net when everything else is moving around quickly, as it will be in the next year. I am still sorry that we were not able to go as far as we would have liked on that issue. The noble Baroness, Lady Bennett, was absolutely right: these progresses in policy that we have made over the years are hard fought for and hard won, and we all hold them very dear.
I have gone as far as I can at this point in the evening in probing the Minister. We are looking forward to the environment Bill. If it is anything like the draft we have already seen, it will be a long tome and we will spend many happy hours debating it all. I hope that we will see in writing the legal commitments that the Minister implied we will get at that point, so I look forward to the publication of and debate on that Bill. In the meantime, I beg leave to withdraw the amendment.
“Reporting of progress on achieving a data adequacy ruling
After section 15 of the European Union (Withdrawal) Act 2018 (publication and rules of evidence) insert— “15A Reporting of progress on achieving a data adequacy ruling(1) A Minister of the Crown must, before 31 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s discussions with the EU on a future data adequacy ruling.(2) The statement under subsection (1) must include—(a) a report of the discussions carried out to date or since the last report,(b) a declaration of whether, in the Minister’s opinion, a data adequacy agreement can be secured from the European Commission in order to take effect immediately after IP completion day, and(c) the policy of Her Majesty’s Government in the event of a data adequacy agreement not being secured to take effect immediately after IP completion day.””Member’s explanatory statement
This amendment requires a Minister to provide updates on the UK’s discussions with the EU regarding the granting of a data adequacy decision.
Lord Stevenson of Balmacara (Lab)
My Lords, Amendment 32 is in my name and I thank the noble Baroness, Lady Ludford, for her support. I am also pleased to see the new Secretary of State in her place. Although I think she will not respond to this debate, I am sure she is learning from the process and we look forward to further interactions with her in due course, not least the opening Question Time, which I see is now on the timetable—it should be fun.
This is a probing amendment, by which I seek to draw attention to two things. One is the importance of the personal data sector; that may not need to be said, but it is worth reminding ourselves of its importance. The other is the implications for our economy if the Government are unable to persuade the EU to agree a data adequacy decision within the tight timetable that we have. But I also want to raise concerns about the future of this sector in light of the Government’s plans for further changes to the law, some or all of which might reduce the chances of us obtaining a positive data adequacy outcome.
The facts are that 43% of EU tech companies are currently based in the UK and 75% of the UK’s personal data transfers are with EU member states. It is therefore vital that a data adequacy agreement is reached within the timescale proposed under the withdrawal agreement. But quite apart from the timescale, achieving a positive adequacy decision for the UK is not as uncontentious as the Government seem to think. For a start, any adequacy agreement requires the European Commission to consider a wide array of issues, such as the rule of law, respect for fundamental rights, and legislation on national security, public security and the criminal law in that country. As was pointed out during the passage of the Bill, the surveillance practices of the UK intelligence services may indeed jeopardise a positive adequacy decision tout court. But there are particular difficulties and it is worth reflecting on these.
Further modifications of the GDPR, as it was legislated for, are possible in the UK after Brexit using the powers in the European Union (Withdrawal) Act in areas such as rights, principles, definitions, powers of regulators, and fines. This means that the European Commission will have concerns on how secure the adequacy decision will be. Can the Minister say what guarantees will be under consideration in these areas? One problem with the UK’s version of the GDPR is that the Government resisted calls from this side of the House to include the recitals in the legislation. However, somewhat ironically, much of the ICO guidance on the GDPR is linked to the recitals and references are made to all of them. How will the Government square that anomaly whereby, after December 2020, those recitals will relate to the EU version of the GDPR but not specifically to the UK version? It has been argued that several of the exemptions in Schedules 2 to 4 to the DPA 2018 are not mirrored in other EU member states’ national data protection law, such as immigration and national security references, which might diminish the rights and freedoms of EU nationals in the UK. Can the Minister say how the Government will resolve this?
As was discussed at length during the passage of the Bill, the Investigatory Powers Act 2016 and the amount of bulk personal data collected routinely in the UK are generally accepted as a problem. Do the Government have any thoughts on how to address these issues? The status of codes of practice produced by the Secretary of State under the Digital Economy Act 2017 and the framework for data processing by government raises the question of whether the ICO is an independent regulator. Does the Minister accept that this may cause problems for the data adequacy ruling?
There are important provisions within the withdrawal agreement in relation to data protection over the transition period and I accept those. They include the fact that the GDPR and related EU privacy laws will continue to apply in the UK during that transition period and that there will be no immediate change in UK law on exit day. The UK must continue to interpret and apply the GDPR and related EU laws consistent with wider EU legal principles. The UK courts will therefore continue to apply decisions of the Court of Justice of the European Union and changes in EU law through the transition period, though presumably there will not be that many. The CJEU will continue to have jurisdiction in the UK, and decisions on the GDPR may be referred to the CJEU during the transition period.
We have all that as a base, but what happens if either we find that the EU will not grant an adequacy agreement or that it is significantly delayed? The current thinking is that impacted organisations—there will be a lot of them—will need to adopt specific legal safeguards to support the lawful transfer of personal data to the UK and that they will use standard sets of contractual terms and conditions, which the sender and the receiver of the personal data must both sign up to. But SCCs cannot be used to safeguard all transfers, and redress would of course be a civil and not a criminal matter in the courts, with all that that implies. The question is whether the Government have in mind to legislate to provide certainty for this possibility. Can the Minister comment on that?
The Government have ambitious plans, which we broadly support, to respond to increasing concern about the use and misuse of personal data, particularly as these affect children, but also including online trolling, fake news and undue influence on political issues. The Government are also considering how and in what way data companies are covered by competition and other regulations that apply to media companies.
Baroness Ludford
My Lords, I support this amendment, of which I am a co-signatory. I very much agree with what the noble Lord, Lord Stevenson, said, though I fear I might add a few questions for the Minister. As he said, free data flows across borders are an essential foundation of many key sectors of our economy, not just the tech industry as such but manufacturing, retail, health, information technology and financial services. It is vital that the free flow of data between the UK and the rest of the EU continues post Brexit with minimum disruption.
The European Union Select Committee, in its recent report on the revised withdrawal agreement and political declaration, pointed out that there was a lowering of ambition in the political declaration compared to what we have now as part of the EU’s digital single market. We have free flows, whereas the political declaration talks only about the “facilitation” of data flows. That is not the same as “freedom” of data flows. A host of organisations and the Information Commissioner have all persuasively argued that we need to ensure that our data protection legislation and practices are ruled as adequate. That is why it is so important that we get these regular reports and, as the amendment says, that we discover what the policy of HMG is if we do not have a data adequacy agreement after the end of transition.
We cannot take such a decision for granted merely because the GDPR more or less forms part of UK law. A major obstacle to an adequacy ruling is, of course, the bulk data provisions in the Investigatory Powers Act 2016, particularly in the light of the European Court of Justice decision in Tele2/Watson, the case brought by David Davis and Tom Watson over the legality of GCHQ’s retention and bulk interception of call records and online messages. That judgment ruled that UK mass surveillance laws breach the Charter of Fundamental Rights.
Just today there has been an opinion from the Advocate-General, the court’s legal adviser, who tends to get followed in 80% of ECJ cases, on a case which involves Privacy International, and a reference from the Investigatory Powers Tribunal. The Advocate-General has reinforced EU privacy law against mass retention and access to customer data by GCHQ, MI5 and MI6. I think this concerns provisions in Section 94 of the Telecommunications Act 1984. So we may get a second CJEU ruling, which will be problematic for any adequacy ruling given the very explicit requirements of Article 45(2)(a) of the GDPR, requiring the commission to consider
“respect for human rights and fundamental freedoms”,
as well as
“national security … and the access of public authorities to personal data … and … international commitments”.
They will probably want to look at any potential transatlantic transfers agreed with President Trump.
It is already clear that many aspects of the Investigatory Powers Act fall short of satisfying the CJEU criteria. The purposes of retention are not limited to fighting serious crime, data retention is not targeted to what is strictly necessary, prior independent review or judicial authorisation is not required in all cases, and there is no provision for informing individuals.
What are the Government going to do in the area of the powers of intelligence agencies to satisfy the European Commission—and the European Parliament, where I had some experience of this, particularly in the era of the Edward Snowden revelations, when many in the Parliament were jumping up and down about GCHQ but there was nothing they could do about it while we were in the EU? Once outside, we actually get much stricter scrutiny about our interception practices than when we are inside; it is something of an irony, really. Then there is the problem about the exception for immigration data in the Data Protection Act 2018. The EU will no doubt closely monitor how the Home Office reviews settled status applications and whether data subjects can obtain full access to their personal data if there are disputes or problems about their status.
In addition, we discussed earlier today the accusation —it seems stronger than that—that the UK has illegally copied, and therefore misused, the Schengen Information System database by copying it into a national database and even sharing it with private companies. The commission report says that UK practices
“constitute serious and immediate risks to the integrity and security of SIS data as well as for the data subjects”.
That is another area where we are going to be under strict review. There is the trust issue, which we also discussed earlier today about the criminal records fiasco—I think one would have to use that word.
There are lots of questions and challenging reviews that the Government will have to answer in seeking data adequacy decisions. We need to know what steps they have taken so far to achieve this decision. Will they apply to continue to participate in the European Data Protection Board? What will they do if we get turned down for a data adequacy agreement? Anything else is second best. Have the Government thought through what their strategy will be if they do get refused? Will they change the legislation on handling personal data for national security purposes? Those are a lot of questions, but it is a very significant area of the negotiations with the EU 27. From past experience, I know that the European Commission will be very much on the ball— not least because of the eagle eye that the European Parliament will have on this area—so the Government have to be as well.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Ludford, for this amendment, which seeks to add additional scrutiny to the data adequacy assessment process by introducing a bespoke statutory reporting requirement. It has certainly been very useful in drawing attention to the importance for both the UK and the EU of the UK pursuing and obtaining positive data adequacy decisions to enable the free flow of personal data after we exit the EU. It is also helpful that the noble Lord highlighted the success of our tech sector, which I thoroughly echo. I am sure that my noble friend the Secretary of State shares that view.
The free flow of personal data is an important feature underpinning the UK and the EU’s future relationship for economic and security purposes. The UK is currently a global leader in strong data protection standards, and protecting the privacy of individuals will continue to be a priority. The noble Baroness, Lady Ludford, referred to a lack of ambition. I do not think there is any lack of ambition on the part of the Government in this area. The Data Protection Act 2018 strengthened UK standards in line with the EU GDPR and law enforcement directive, providing a unique starting point for these discussions. The UK is ready to begin the adequacy assessment process and we are pleased that the EU has committed, in the political declaration, to the Commission beginning its assessment of the UK as soon as possible after our withdrawal, endeavouring to adopt adequacy decisions by the end of December 2020.
Before I try to answer some of the questions posed, I hope it will be helpful to touch briefly on some of the preparation that has been going on in government for the last two years for this eventuality. The Government established a data adequacy negotiation hub which sits within the Department for Digital, Culture, Media and Sport. It was set up early in 2018 and includes experienced experts in both data protection and negotiation. They are ready and waiting and keen to start negotiations with the Commission now.
This amendment would introduce a bespoke statutory reporting requirement, as we heard, covering the assessment period. However, as we heard very eloquently from my noble friend Lord Callanan earlier, there is a need for flexibility of reporting during what will be at times, I am sure, sensitive negotiations. While the Government are absolutely clear in our responsibilities to keep Parliament updated on that progress, and that obviously includes your Lordships’ House, we do not believe that such a rigid regime is appropriate. Obviously, both Houses have an array of tools at their disposal to scrutinise the Government, including through their Select Committees: I refer to the recent report of the Lords EU Committee, which scrutinised the revised withdrawal agreement and political declaration and concluded that the provisions on data protection were to be welcomed.
In this context, we believe there is no need for further bespoke reporting requirements for data adequacy, particularly as setting these out in legislation may have unintended consequences, as was discussed earlier this afternoon. I shall now try to address some specific points, but I am very grateful to the noble Lord, Lord Stevenson, for his offer that I might write to cover some of them.
In a sense, both noble Lords asked about the spirit which would underpin our approach to moving forward in these negotiations. Our aim is to try to find the right way to safeguard privacy while both promoting trade and innovation and protecting citizens from crime and terrorism. All those things are crucial to fully realising the opportunities from the data economy.
Baroness Ludford
I am sorry to interrupt the Minister, but the fact is that the CJU has condemned our regime under the Investigatory Powers Act. The European Commission will have to take account of that, so to say that we and the EU have common high standards is not entirely borne out by the facts. The CJU has criticised, in a full judgment, the Investigatory Powers Act. How will we cope with that in the search for data adequacy?
Baroness Barran
As the noble Baroness understands very well, the adequacy discussions will be broader than strictly personal data and data protection, and will cover these issues. It will be our role to explain to and convince the EU of that, which we are confident we can do.
Similarly in relation to immigration data, which the noble Baroness raised, we believe that there are some misunderstandings about how this provision works. Rather than going into that detail tonight, I can write to her on this. However, we are confident that the provisions included in the Act are fully compatible with EU law, although clearly we recognise that they will be closely scrutinised.
The noble Lord, Lord Stevenson, asked about the independence of the Information Commissioner’s Office. We believe that the ICO is a strong, independent and effective regulator and that its relationship with DCMS upholds that independence. We really do not have concerns that this will be an issue in relation to adequacy.
The noble Baroness referred to the opinion received today from the Advocate-General of the EU; as she said, the opinion is non-binding and the impact will happen only when we have the court’s judgment, although I note her comments on the probability of that. Since the opinion was published only a few hours ago, my officials are currently digesting it, so noble Lords will understand that our ability to comment on these proceedings is limited.
The noble Lord, Lord Stevenson, asked about recitals in the future UK GDPR which still include the EU terminology. Recitals are non-binding in both EU GDPR and future UK GDPR. They are there only as an aid to interpretation and we do not believe that the references to the EU will be confusing.
The noble Baroness, Lady Ludford, referred to the Schengen Information System. I understand that the House will discuss the UK’s access to several EU law enforcement databases on the next amendment. If she will permit it, I think it would be easier to return to that question then.
Both noble Lords asked what will happen if an adequacy decision has not been granted at the end of the implementation period. Obviously both sides have committed clearly, and it is an absolute priority, to make this work, but in the event that an agreement is not reached, the Government have already done a huge amount around no deal, working proactively to communicate companies’ responsibilities in this area—particularly in relation to smaller companies, which we know might find this more challenging. The Information Commissioner’s Office produced a portal to support organisations preparing the standard contractual clauses referred to by the noble Lord, Lord Stevenson.
I fear that time may not permit me to answer any more questions but I will endeavour to write and cover all the important points made. I hope that I have managed to reassure the noble Lord that, once adequacy discussions are under way, both Houses will continue to use all the available scrutiny tools at their disposal to ensure that they are absolutely appropriately informed on the Government’s data adequacy progress and policy. I hope that he will feel able to withdraw his amendment.
Lord Stevenson of Balmacara
Before the Minister sits down, I hope that she can respond to one section of what I was asking about, on the interaction between existing responses to the data adequacy question and the new legislation that the department is working on. Does she feel that the new legislation as previously conceived—and, indeed, as set out in her party’s manifesto—is being progressed and that there is no adverse fallout from that?
Lord Stevenson of Balmacara
My Lords, I thank the noble Lords who have contributed to this short but good debate. It was a robust response. I thank the Minister for the various points that she was able to cover and I look forward to her letter.
I did not raise it, but sitting a bit behind those on the Benches opposite is the question of why such a mess was made on the age-verification issues relating to children’s safety online. In a sense, that is why I asked about future policy in relation to where we were. This is a moving target. I do not want to be critical about this in any sense because it is right that we keep things moving and do not stick on where we were, in some sort of pre-Brexit mode. We must move forward. Life is changing, attitudes are changing and technology is moving forward at a huge pace.
We must be ready to anticipate that but it must not be at the expense of some hard-won decisions that were reached after a lot of debate. They were good decisions in relation to the Bill; both the Home Office and DCMS were heavily involved in them and I am sure that they are joined at the hip over this wonderfully named data adequacy hub. I wish it well in its future negotiations; I am sure that it is raring to go and that it will be very successful.
That leaves us with a bit of an information gap. Yes, the existing arrangements for getting information can be used, but they are never as efficient or effective as the Opposition want and are probably too frequent and difficult for the Government to respond to. How much better if we had a plan where we could say, “Every two months, you’re going to stand up and say something about it.” Perhaps we can make this work but I hope that this important issue is kept very much at the forefront of the department’s work, that there is an all-government response to this because it applies across the piece, and that we see something positive come from it. With that, I beg leave to withdraw the amendment.
Lord Paddick
“Implementation period negotiating objectives: security partnership
(1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve equivalent outcomes to—(a) continued UK participation in the European Arrest Warrant;(b) continued UK membership of Europol and Eurojust; and(c) continued direct access for UK agencies to the following EU data-sharing mechanisms—(i) the Second Generation Schengen Information System (SIS II);(ii) the European Criminal Records Information System (ECRIS); (iii) the Prüm Decisions;(iv) Passenger Name Record (PNR); and(v) the Europol Information System (EIS).(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek a comprehensive security partnership as part of its negotiations for the future relationship with the EU.
Lord Paddick (LD)
My Lords, Amendment 33 is in my name and that of my noble friend Lady Ludford.
At Second Reading, I alluded to the amendment as a means of mandating the Government to deliver on their promise that the UK would be as safe and secure outside the EU as it has been within the EU by specifying what the Government should seek in a comprehensive security partnership with the EU.
Various EU measures and mechanisms that are currently available to us as an EU member state are valuable to UK law enforcement. At a briefing given to the APPG on policing in 2017, the National Crime Agency lead on Brexit outlined what these were, what the alternatives might be and the impact on the UK’s safety and security were they no longer available. They were the Schengen Information System II, sharing information about terrorist suspects, those wanted under the European arrest warrant, stolen vehicles and similar information; the European arrest warrant, allowing rapid extradition without political involvement; Europol, pan-European strategy development to counter serious and organised crime; ECRIS, sharing information about criminal convictions handed down by any court in the EU; Prüm, rapid electronic comparison of DNA, fingerprints and vehicle registrations held on the databases of each EU state; cross-border surveillance, allowing surveillance of UK suspects in the EU and vice versa; and joint investigation teams under Eurojust, prosecuting pan-European crime.
He concluded that there were “workarounds”, but that these would be less efficient and effective than the existing EU mechanisms. For example, if Interpol were used instead of Prüm to try to match DNA found at a UK crime scene with DNA profiles of criminals held on EU member states’ databases, it would take months—and in some cases no response would be received at all—compared with seconds up to 24 hours using Prüm. He anticipated that extradition agreements would need to be negotiated separately with each of the remaining 27 EU states and that these would require political involvement, as opposed to the European arrest warrant where the decision is made by a judge. He concluded that the UK would be less safe and less secure if, rather than relying on existing EU mechanisms, it had to work on the basis of non-EU workarounds.
It was therefore reasonable to conclude that if these EU mechanisms were no longer available to the UK when we left the EU, alternative mechanisms would need to be put in place that delivered the same outcomes as efficiently and effectively as the existing EU mechanisms. Otherwise, the Government would have failed to deliver on their promise that the UK would be as safe and secure outside the EU as it had been inside. The amendment would require a Minister of the Crown to update Parliament on progress in achieving these outcomes within four months, and regularly thereafter.
Why do we consider this so important? First, as Andrew Marr put it on Sunday to the Security Minister, the right honourable Brandon Lewis MP, the European arrest warrant and Europol, for example, rely on the European Court of Justice to resolve disputes between participants, and it is a red line for the Government that the ECJ should play no part in UK affairs after Brexit. The Security Minister replied that Europol has United States of America involvement, and clearly the US is not a member of the EU. What he was actually referring to was an agreement between Europol and the United States to share information within strict limitations—an agreement that can be terminated by either side at three months’ notice—not active involvement as an equal partner in Europol, deciding on the nature and scope of Europol’s activities, and nothing to do with the ECJ. Neither the USA nor any other third-party country has a say in Europol’s operations.
The Security Minister did not comment on the European arrest warrant, which more clearly and obviously requires the ECJ to adjudicate between participating states where a warrant is issued but another state refuses to extradite. The Security Minister did not comment on the EAW, probably because he knows that we are very unlikely to continue to be part of the European arrest warrant after Brexit. For example, Germany changed its constitution to allow the extradition of its own nationals under the European arrest warrant, but limited extradition to other EU member states. As I mentioned at Second Reading, Iceland and Norway applied to participate in a limited variation of the European arrest warrant in 2001, but that has yet to take effect, and they are both within the European Economic Area and the Schengen area.
Lord Warner
My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.
The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.
We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.
Lord Tunnicliffe
My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.
I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a
“broad, comprehensive and balanced security partnership.”
However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.
Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.
In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that
“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]
Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.
To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.
Baroness Williams of Trafford
I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements of co-operation that are so crucial in keeping our citizens safe.
It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.
On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.
The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.
I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
My Lords, I thank the noble Lord, Lord Warner, for his support and his perspective, from his experience in the Home Office, on how important this issue is. He made an important point about the Government acknowledging the weakness already of the UK criminal justice system without losing these EU mechanisms. I am also grateful for the support of the noble Lord, Lord Tunnicliffe.
It is all very well for the Minister to keep putting matters off by saying, “This is going to be negotiated and I can’t say what the details of the negotiations will be.” Time is running out. That excuse will not be available in less than 12 months’ time and we are concerned that our law enforcement agencies will be handicapped as a consequence of losing some, if not all, of these EU mechanisms, as the National Crime Agency lead for Brexit told us in a briefing a few years ago.
I am grateful for the correction on the modified European arrest warrant arrangements with Norway and Iceland, which apparently came into effect on 1 November last year. That means that they took 18 years to come into effect. If that is the kind of timescale we are looking at to get a similar agreement between us, as a third-party country, and the EU, we are in serious trouble. However, at this stage I beg leave to withdraw my amendment.
“Mobility framework
It is an objective of Her Majesty’s Government to take all necessary steps to secure an agreement within the framework of the future relationship of the United Kingdom and the EU which includes a mobility framework that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study, including the ability while resident in one state to work with ease across borders.”Member’s explanatory statement
This new Clause would require the Government to seek reciprocal rights for UK and EU citizens to work, live and study.
Lord Fox
I thank my noble friend Lady Ludford and the noble Earl, Lord Clancarty, for their support.
Earlier the Minister spoke about the teams of people working hard on drafting legislation, so if the Government felt moved to accept the spirit, if not the content, of this amendment then the drafting of the immigration Bill may be made simpler.
The amendment essentially reproduces an amendment to the Trade Bill which was passed in your Lordships’ House. As your Lordships will remember, it never went any further because it was never put in the next stage to the other place. With that in mind I shall keep my comments to a relative minimum. I beg noble Lords’ indulgence as I shall talk a little about some of the statistics that I related to that amendment last time. If we look at the statistics about economic migrants from the Migration Advisory Committee in autumn 2018, it found that migrants had little or no impact on the overall employment or unemployment of the UK-born workforce. Migration was not a detriment to the wages of UK-born workers. The MAC noted that migrants had a positive effect on productivity and innovation and that EEA migrants contributed more than they consumed in health services and social care.
The Earl of Clancarty (CB)
My Lords, I have added my name to this amendment. I wish to say something about services since this amendment in significant respects covers their operation for UK workers living in this country and in Europe. I feel that we should be moving on from making the case to considering the details of the solution, yet services is an area that right through the Brexit debate has not been given the proper attention it has deserved, and continues not to be given it. Services are 80% of our economy, account for 40% of our exports, and most services go to Europe.
This is urgent. We are, for example, already losing large numbers of jobs in tourism in Europe, and Carolyn Fairbairn, director-general of the CBI, referred in May of last year to:
“Creative and tech firms that should be the foundation of our future economy moving their headquarters to Europe.”
This is before the transition period has even started. As I said last year in the debate on a similar amendment to the Trade Bill that the noble Lord, Lord Fox, mentioned, services are the canary in the coal mine. The problem is that the free movement of people is integral to the success of services, because so many individual citizens, including freelancers, not only drive these industries but are in many respects the product itself.
It is not just the financial industries—which the noble Lord, Lord Ahmad, who is not in his place, singled out in his reply to my Question last week on this area—but creative, IT, translators, tourism, and many more. I ask the Minister whether any impact analysis has been done on the effect of Mr Johnson’s Brexit deal on our trade in services with the EU. The sense from industry is that unless a mobility framework is put in place, the result is going to be devastating for those industries. As one IT worker put it this week, “A deal without a mobility framework for professionals delivering services in person will mean enforced redundancies and loss of income for thousands of people.”
Many of the sectors that will be affected have many of the same or similar concerns. What consultations have the Government had with relevant sectors to list and compare requirements? How much have they talked to the creative sector, to IT, and so on? There has been a lot of discussion about transparency and consultation today. In many ways it has been the theme, but those working in services currently feel that they have no idea what the Government intend to fight for on their behalf. EU companies do not know either.
A solution needs to be found that neither discourages European employers or clients—as indeed is unfortunately already happening—nor is impractical or costly for UK workers. More fundamentally, even at this stage, the Government need to look more closely at the effect of the loss of free movement on our hugely important services. For their continuing success, UK and, through reciprocity, EU workers urgently need an appropriate mobility framework.
Lord Warner
My Lords, I want to add a couple of words to the points made by the noble Lord, Lord Fox, in his amendment. As far as the NHS is concerned, if the Government do not allow more people to come in and work in a highly labour-intensive industry, then they will not be able to spend the money that they are promising to put into the NHS in a way that is useful to patients. But that is not my main point.
My main point is to emphasise the extent to which there is continual movement between the UK and European countries, as part of big research projects in medicine, science and technology. People can freely move around Europe for six weeks, a month, a week or a weekend, and many of these projects have EU money, which has come to this country to be used to set up and run projects, but not all the work is done here. The work may be done with partners in other parts of the EU, and there is a constant flow of people. If we put barriers in the way of that movement around Europe of expert people—and many are not highly paid professors but PhD students who have come to this country—working on joint research projects, not only for basic research but for translational research, we will get ourselves ostracised. We will not be a partner that people want to play with, because it is difficult for people from other countries to move around Europe as part of those projects. We will cut off our nose to spite our face. We need something like this amendment to ensure that mobility and a mobility framework get the attention that they need for the future.
Baroness Hayter of Kentish Town
My Lords, the Minister—the noble Baroness, Lady Williams, who is now not in her place—spoke earlier about our seeking reciprocity with regard to children. I assume that the same is true as regards reciprocity for UK citizens abroad and EU citizens here. Thus far, the Government have singularly failed to negotiate successfully to secure the same rights for UK citizens as they have now to work, live and move across the EU. It is true that they can continue to live and work where they are at the moment at the end of the implementation period, but UK citizens will then lose their current right to move elsewhere across the EU—something that is, as we have just heard, at variance with the right of other EU citizens. Therefore, they will be disadvantaged compared with their fellow workers who are EU citizens already here, be they researchers, as referred to by the noble Lord, Lord Warner, artistes, mentioned by the noble Earl, translators, interpreters, freelancers or a number of other specialist staff who tend to move around because of the nature of their jobs. Under the agreement so far reached, they will only be able to live, stay and work in one of those 27 countries but will lose their freedom to move elsewhere.
Therefore, it is vital that we raise this matter higher up the Government’s negotiating aims. This is urgent as well as important. It is time that the Government did more to defend their own citizens’ interests rather more robustly than they have succeeded in doing thus far.
Baroness Ludford
My Lords, I just want to add briefly that the wording in the amendment reflects the wording in the White Paper of July 2018 on the future relationship. I do not know whether that White Paper has become “paper non grata” under the present Government but it talked about a framework for mobility providing reciprocal arrangements, which is broadly what the amendment refers to. That is what we want to hear about—a framework for mobility.
The noble Baroness, Lady Hayter, prompted me to think. To the extent that we have EU citizens with settled status, assuming that they do not feel that they have to seek British citizenship, they could be working on a research project based in the UK and, because they will retain their EU citizenship, they will be able to travel around 27 countries. However, the UK citizen may well not be able to do that, so will be second class compared to a work colleague who is an EU citizen and has a passport from one of the EU or EEA countries, unless a mobility framework with reciprocal arrangements and rights encompasses the ability of those UK citizens to work across the EU 27. Therefore, it is relevant to UK citizens living here but of course also highly relevant to UK citizens living in the EU 27. Many face difficulties in getting their residence finalised in an EU country but a lot are also very worried that they are losing their ability to work across borders. The fact is that nothing can be as good as EU free movement. The same applies to the security partnership —nothing is as good as EU membership. Therefore, we are trying to approximate as far as possible what we have at the moment, even though it falls short of that, but a key point is encapsulated in the final words of the amendment, which are:
“including the ability while resident in one state to work with ease across borders.”
My other point concerns pensions, pension uprating and healthcare arrangements, which are absolutely crucial to UK citizens in the EU 27. This is hugely important for the UK economy and for individuals—whether they are EU citizens or, perhaps even more, UK citizens resident here and resident in the EU 27 —who need to be able to move around where their work takes them.
Baroness Bennett of Manor Castle
My Lords, the noble Lord, Lord Fox, used a few key words when he quoted from the respected committee. This is a regression. This is going backwards for the people of the United Kingdom. Far too often, this has been seen as an issue that concerns people from other parts of Europe coming here. We need to look at this the other way around, and far too little has been discussed about that. When this issue has been discussed, it has often been seen as an economic issue. The noble Lord, Lord Fox, made some powerful arguments about that. But the fact is that this is much more than an economic issue. The noble Lord, Lord Warner, made arguments about the NHS. Of course, we know that if you meet an EU citizen in the NHS, they are far more likely not to be in a queue with you seeking treatment but to be treating you.
I will focus very briefly on young people. There is a principle that young people should not have fewer freedoms and opportunities than their parents. They should be able to live, work and love wherever they want to be. It is a quality issue, because rich, wealthier young people from more privileged backgrounds will always have those options; it will be people from poorer and more disadvantaged backgrounds who will lose those options. The noble Baroness, Lady Ludford, talked about where we are going. What we are trying to do here—collectively, all of us—is to end up with the least worst Brexit, and the best possible mobility that we can have will ensure the least worst Brexit.
Lord Callanan
My Lords, I thank the noble Lord, Lord Fox, for his amendment and for raising the important subject of a mobility framework. I also thank the noble Earl, Lord Clancarty, the noble Lord, Lord Warner, my main interlocutors, the noble Baronesses, Lady Ludford and Lady Hayter, and the noble Baroness, Lady Bennett, for their contributions.
We are all aware that free movement of people between the EU and the UK will end as we leave the European Union. I am sure that noble Lords will appreciate—even if they do not necessarily agree—that seeking to mandate the Government to negotiate further free movement provisions goes against our entire approach. As we have previously announced, the Government will be introducing a new points-based immigration system built around the skills and talents that people have, not necessarily based just on where they are from.
I appreciate the desire to secure rights to travel, work, study and live in the EU in the future. We recognise the importance of mobility for economic, social and cultural co-operation, and we committed to agreeing the best deal for the whole of the United Kingdom. The political declaration that we have agreed sets out the aspects of mobility that the UK and the EU have committed to discussing in the future-relationship negotiations. These include: providing for visa-free travel for short-term stays; mobility for research, study, training and youth exchanges, and securing mobility for business purposes.
The noble Lord’s inclusion of the right to work across borders is well intentioned, but in our view unnecessary. The agreements that we have reached on citizens’ rights with the EU, EEA/EFTA countries and Switzerland protect the rights of these so-called frontier workers. These are UK nationals who are living in the UK or a member state but are working in another member state, or EU citizens living in the EU and working in the UK. That will take effect at the end of the implementation period.
For example, this will protect an individual who lives in London but works in Paris or Brussels, and vice versa. I hope that I have been able to reassure the noble Lord on this point. However, as we have argued in other amendments, in this situation it is not helpful for Parliament to set a negotiating objective for the Government in statute. This would limit the Government’s flexibility in negotiations and, as I said, the detail of future mobility arrangements with the EU is set out in the political declaration and will be discussed in the next phase of the negotiations.
The noble Baronesses, Lady Hayter and Lady Ludford, raised the important subject of the onward-movement rights of UK nationals in the EU. We recognised at the outset that this was a vital subject for those UK nationals who are living in the EU. I have to tell both noble Baronesses that we tried very hard to get it included in the negotiations, but the EU refused to discuss it in the withdrawal agreement and said that it was an issue to be discussed in the future relationship negotiations—so that is what we will do. I assure noble Lords that we tried very hard to get it included in the negotiations, and it was not for the lack of trying on our side that we were not able to conclude an agreement on that. On that basis, the details of future mobility arrangements will be subject to negotiations in the next phase of the talks.
I hope that I have been able to satisfy the noble Lord, Lord Fox, with my response to his amendment—although I suspect that I have not—and that he will feel able to withdraw it.
Lord Fox
I thank the Minister for his response. Frankly, I had not expected a great melding of minds. It is clear that from these Benches, and seemingly from all the other Benches, that we think the Government are wrong on this. The Government of course have a majority and therefore have the right to pursue their wrong-headed policies, but there will be many of us who will continue to remind them of, and take opportunities to change, that wrongness. As time unfolds and the Government begin to attempt to implement a complex points-based system, as they call it, they will find that they have neither the personnel nor the systems to do so quickly, and pretty soon they will find that we are accessing and bringing in at least as many people as we are now, if not more. Personally, I welcome that, but it stands against many of the things that the Government have said in the past. That said, I beg leave at this stage to withdraw the amendment.
“Implementation period negotiating objectives: level playing-field
(1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve the following outcomes—(a) close alignment with the EU single market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution; (b) dynamic alignment on rights and protections for workers, consumers and the environment so that UK standards at least keep pace with evolving standards across the EU as a minimum; and(c) participation in EU agencies and funding programmes, including for the environment, education, science and industrial regulation.(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek close alignment with the EU single market on key level playing-field provisions such as workers’ rights and environmental and consumer standards and protections as part of its negotiations for the future relationship with the EU.
Lord Fox
Oh dear, it’s that man again. Amendment 35 concerns the level playing field. We have heard a lot about standards and regulation over the last day and a half. This is not about going through all those standards and regulations and whether they are being regressed or otherwise. It is about the overall effect that the playing field, as we have called it—we will talk about that—will have on the negotiation stance. This is very much a probing amendment to try to find out how the Government will deal with what seem to me a number of conflicting circumstances in their positions.
We have heard a lot about regression but we are not going to talk about the individual issues here. Amendment 35 seeks to require the Government—those words again—to seek alignment of their regulations, institutions and objectives for the future FTA with the EU. My noble friend Lord Newby talked about whether we are talking about unfettered or frictionless access. A key element to access to the single market will be the level playing field, which is why this is a really important element. I am keen to hear the Government’s intellectual thoughts here. For the avoidance of doubt, we are talking about workers’ rights, environmental regulations, state aid, food and product safety, data rules and the whole framework by which people do business and live their lives. It is not a small issue. Picking out just one of those—employment regulation—I note with surprise that the Prime Minister is quoted in the Financial Times as describing employment regulation as “back-breaking”. I come from an agricultural background and it was the absence of employment regulation that caused backs to break. The point I am trying to make is that regulation is often seen as harmful and terrible, but it has had a beneficial effect on many people’s lives. You have only to ask agricultural workers alive today to see how employment regulation has improved their lives. That is just one small example.
These rules matter to people, the environment, business and many other things. But they will also matter to the EU trade negotiation; in fact, they will make or break it. The non-binding political declaration on the future EU-UK relationship makes it clear that there is a direct link between Britain’s regulatory regime and market access; we know that to be true. That is picked up in the wonderful report from the European Union Select Committee, which I have already referred to. It talks about where there has been a substantial rewrite, which we have heard about in other cases. The report says that the declaration, in adding the issue of the
“geographic proximity and economic independence of the parties,”
adds more doubt about how this will go forward.
In the event that the EU eventually agrees to a UK-wide customs union, which it may, member states will require the UK to sign up to level playing field provisions. What is a level playing field? Most people who talk about them are usually trying to tip one in their direction at the same time; that is of course the subject of the negotiation, and I would not dream of seeking to tie the hands of the Government on that. By the definition of the negotiation, a level playing field is the price of any zero-tariff, quota-free and rules-of-origin-free access to that very important market for the United Kingdom. Anything less will create friction, or perhaps fetter access to that market. That is what our major industries fear. If noble Lords talk to major industries, as I am sure they are doing, they will hear that the issue of data, which we heard about two amendments ago, is frightening the fintech industry to death. Questions about rules of origin are frightening the food industry. Chemical and pharmaceutical companies fear, among other things, how the chemical regulations will pan out. Aerospace and automotive are famously concerned about how their industries will survive in this remit.
There are many other examples of when the Government and Ministers have said the right things—I praise them for that. The Government have worked with the words and talked about balance and regulatory alignment. However, the noble Baroness, Lady Jones of Whitchurch, talked about the pressures on the Government that will come. There are also examples of the Government painting a picture of a much more freewheeling approach. We have heard people worrying in other debates about regression of rules and regulations and there are those quotes from different Ministers in different places, particularly the Prime Minister, who sometimes chooses to set out a Britain on the edge of Europe, with lighter regulations. Before the election, DExEU signalled an openness to “significant divergence”. This all adds to people’s distrust of the Government’s intentions.
In Johnson’s case, his ambivalence seems determined by his proximity to the United States: the nearer he is to President Trump, the more free market he is in what he says. We should note that talk of the US trade deal really makes the level playing field issue with respect to the European Union very difficult. We talked on a previous amendment about some of the food security issues which the United States could create, so there is a big challenge here. These mixed messages from Government could be constructive ambivalence before we go into a negotiating period, or there could be splits or confusion. Perhaps the Minister can define quite why all these different messages are coming forward.
From the EU’s perspective, there is no such thing as a little bit of a level playing field. From its perspective, it is level or not level. I think a lot of the talk has been about having some levelness, but not all of it. I think that is to misunderstand the approach that the European Union will take when it comes to negotiations. Theresa May’s deal agreed a relatively generous level of provisions around taxation, labour and social standards and environmental protection. We are now in a different place, so I think we need some delineation from the Minister of which areas will be the focus for negotiations because I am sure that those Theresa May provisions will be, at the very least, a starting point from the European Union’s perspective.
Viscount Trenchard
My Lords, the noble Lord, Lord Fox, has talked at great length about a level playing field. The level playing field he refers to is the EU level playing field. It is not any other level playing field, such as the House of Lords level playing field, which seems to suit the Liberal Democrats, who are overrepresented in your Lordships’ House by 67% on the basis of the proportion of votes cast at the last general election.
Viscount Trenchard
That is my pleasure. Proportional representation has its place but it may not be applicable everywhere.
I am very surprised that the noble Lord has sought to require the Government to adopt his amendment seeking a level playing field with the EU on workers’ rights and environmental and consumer standards. Is he not aware that it was a manifesto commitment of the Conservative Party, to which all Conservative candidates signed up, that the Government would get a proper Brexit done and that we would leave the customs union and the single market? It is essential that we do that to have the flexibility we need to develop and maintain our own independent trade policy, and to negotiate free trade agreements with third countries.
The noble Lord’s amendment requires close alignment with the EU single market, underpinned by shared institutions and obligations. “Shared institutions” sounds to me as though we could still be regulated by EU regulators even after we had left. The EU will seek to export its regulatory framework and standards to us in return for providing market access. Dynamic alignment on workers’ and consumers’ rights would completely subjugate us to the EU, ruling us out as a potential trade partner for others and denying us the benefits and upside of Brexit. We know that the noble Lord does not want to leave the EU but surely he understands that, given that Brexit is going to happen anyway, we should make sure that we can play on a level playing field at the global level. That means freeing ourselves from EU strictures, such as the noble Lord’s amendment would make worse.
Lord Warner
I am sorry to interrupt the noble Viscount’s flow but I cannot resist asking him, even at this time of night, whether the Prime Minister’s new best friends in constituencies in the north of England and the Midlands will welcome his robust approach to workers’ rights at the next election.
Viscount Trenchard
I believe that the policy which my right honourable friend the Prime Minister used to persuade his new supporters in the north of England and elsewhere to support is one that will produce more prosperity for the United Kingdom and a brighter future for all, and that those who voted for him in the north of England will see that it is in their interests to continue to vote for him and his successors, because his policy will have so clearly worked. Furthermore, since we will be free of the cash drain and the regulatory strictures of the EU, which have progressively stunted the United Kingdom’s voice in global fora—I speak as someone who has spent a large proportion of his working life outside the UK, looking in—the new supporters of the Conservative Party in the north will, I hope and trust, wish to continue to support it.
The noble Lord, Lord Fox, talked a lot about regression and standards. He is always trying to bind the Government not to resile or retreat from the high standards set by the EU. But standards are not about high and low; they are about what is proportionate, what properly balances the interests of the innovator with those of the consumer, and what sufficiently but properly protects the consumer against risk. EU regulation in many fields relies so much on the precautionary principle that it has a very negative effect on innovation. That places at risk the UK’s position as the best country in the world in which to conduct medical and scientific innovation, so for all those reasons I would resist the noble Lord’s amendment.
Baroness Ludford
Before the noble Viscount sits down, can I point out that the reputation he just mentioned, as the greatest country in the world in which to develop medical and other research, has been acquired while we have been in the European Union?
Viscount Trenchard
The noble Baroness is quite right—it is in spite of our being in the European Union. This precautionary principle regulation increasingly affects international pharmaceutical companies, which have said to me that it is important that we should not allow much more of that or we will be a less friendly place for innovation.
Baroness Hayter of Kentish Town
My Lords, I do not know about this talk of workers’ rights, but I started at 11 this morning, it is now nearly 10 pm and we are starting again at 11 tomorrow morning—sadly not being paid to be here; I am not a worker, so I cannot use the EU regulations. But that is rather beside the point. I am looking forward to the Minister’s “intellectual thoughts” as the noble Lord, Lord Fox, asked of him.
The Government’s aim is for a free trade agreement—“unfettered” trade—which, if we are not to undercut our competitors across the EU, is bound to involve a level playing field of regulations and state aid rules, as the noble Lord, Lord Fox, said. Michel Barnier has repeatedly stated that Boris Johnson’s ambition of a tariff-free, quota-free deal hinges on accepting this, and EU leaders suggest that level-playing-field commitments will be a precondition for the EU to conclude a free trade agreement. Emmanuel Macron has stated that
“the more ambitious the agreement, the more substantial the regulatory alignment”.
That does not mean all the same rules and institutions—we do not go along with that—but this is about the rules by which we can trade with the EU. Macron also said that a level playing field will make the negotiations “go pretty quickly”.
As we know, the Prime Minister keeps saying “Get Brexit done”, but this also means getting an FTA before the end of the year. If we do not uphold workers’, consumers’ and environmental rights, this will not help the Prime Minister to get his Brexit done. Appearing willing to undermine EU standards—and the Government are seen as undermining them—will immediately indicate to the EU that its companies may face unfair competition from ours. The Government’s deletion of the clauses upholding existing rights has already alarmed the EU and companies there, let alone our own workers and consumers.
Amendment 35 inserts the aims already set out in the political declaration—though of course they are not enforceable in that—where the Government agreed to
“maintain environmental, social and employment standards at the current high levels provided by the existing common standards.”
We are asking for this, from the political declaration, to be included in the Bill.
We have had 45 years of progressive integration of our employment rights and other standards alongside the EU. These regulations are good in themselves for the workers and consumers concerned and for the environment, but they are crucial for an open, fair and competitive continental market on whose growth and resilience all our well-being depends. Furthermore, as has been suggested, any future trade deal must incorporate these high levels of alignment and a level playing field with the EU in order to prevent an alternative vision—the deregulatory US deal—taking primacy over the EU deal. It sounds as though that it is something the noble Viscount, Lord Trenchard, would like, but we on this side of the House would not. Let us keep to the high standards that we have.
Lord Callanan
My Lords, I first thank the noble Lord, Lord Fox, for so ably moving his amendment on the issue of close and dynamic alignment on single market rules. I have a sense of déjà vu, because we have of course discussed this subject many times, both during the passage of the previous EU withdrawal Bill and in many debates and Questions in this House. I will probably not surprise him with my answer but I will nevertheless plough ahead with it anyway.
It will, I am sure, not come as a shock to the noble Lord to find that the Government cannot support his proposed new clause in Amendment 35, for the reasons that I will set out. I will say, before that, that we want an ambitious future economic partnership with the EU, one that allows us to be in control of our own laws and benefit from trade with other countries around the world. Adopting his amendment would prevent that. We do not believe that dynamic alignment with future EU rules is in the best interests of this country. It is here in this Parliament, not in Brussels, where decisions should be taken over the laws that govern our country. That is the very essence of taking back control. This view is supported by many of the leading experts in the field, including the Governor of the Bank of England, who recently said in the Financial Times:
“It is not desirable at all to align our approaches, to tie our hands and to outsource regulation and effectively supervision of the world’s leading complex financial system to another jurisdiction.”
Lord Fox
I thank the Minister for his response and noble Lords for their contributions. Whenever I have a feeling of self-doubt, I have only to listen to the noble Viscount, Lord Trenchard, to cure it and I feel a lot better afterwards.
The Minister talks brilliantly on the Government’s regulatory approach, saying that we do not need to follow EU rules to achieve this. That would be true had the Government not done the deal they did on Northern Ireland. That is the point I am making about the internal tension within the regulatory scene in that negotiation. That is his problem and we will be following it very closely. I will read the Minister’s response in Hansard and inwardly digest it, but in the meantime, I beg leave to withdraw the amendment.
Baroness Brinton
“UK participation in the European medicines regulatory network
(1) It is the objective of an appropriate authority to take all necessary steps to implement an international trade agreement, which enables the United Kingdom to participate fully after IP completion day in the European medicines regulatory network partnership between the EU, the EEA and the European Medicines Agency.(2) A Minister of the Crown must lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek to maintain participation in the European medicines regulatory network as part of its negotiations for the future relationship with the EU.
Baroness Brinton (LD)
My Lords, I am moving Amendment 36 as my noble friend Lady Jolly cannot be in her place tonight, given that the arrangements for today changed at very short notice. I thank the noble Lords, Lord Warner and Lord Davies of Stamford, for supporting the amendment.
As a member of the European medicines regulatory network, the UK enjoys a wide range of benefits, including access to a vast network of expertise and the ability to draw on specialists from across member states. It is particularly important in the recruitment of participants for clinical trials, especially for rare diseases. As a lone state we would not have a large enough patient population to carry out meaningful research and produce meaningful evidence. Within the EMRN, the shared reporting of side-effects means that NHS clinicians have instant access to important data regarding the safety of medicines they prescribe to their patients. These benefits cannot be recreated outside this network and if we are to continue to benefit from them, the Government must negotiate continued participation following the UK’s departure from the European Union.
The European Medicines Agency has already relocated to Amsterdam. If we leave the EMRN we will be leaving a body that constitutes 25% of the global pharmaceutical market to be a stand-alone country that makes up only 3% of that market. Pharmaceutical companies will have to submit separate applications to the MHRA to gain UK marketing rights. Evidence shows that countries such as Switzerland, Canada and Australia all receive applications for drug licensing after the EMA, with an average delay of six months. The sad fact is that the UK will not be seen as a priority, and patients will inevitably see delays in accessing new medicines.
There is no way for the Government to replicate the expertise of the EMA and the power of the single market. Therefore, it is essential that the Minister commit to the UK negotiating the MHRA’s full participation in the EMA marketing authorisation on a similar basis to EEA countries’ regulators. Will the Minister confirm that the Government will commit to making this a priority in negotiations? The United Kingdom’s departure from the EMA will damage patients in the UK, who will be collateral damage of our leaving the EU. This is not something that the UK public ever voted for.
Given the discussion on Amendment 34 on more general reciprocal rights, I ask the Minister a further question, of which I have given her advance notice, on the lack of mention of reciprocal health arrangements after leaving the EU. The European Union Committee report, Brexit: the Revised Withdrawal Agreement and Political Agreement, which came out on Friday, notes the lack of any mention of reciprocal health arrangements and says, in the section on mobility on pages 56-57, that clarity is needed on how this will work. Specifically, paragraph 252 says:
“There is no reference in this section of the Declaration to reciprocal healthcare”.
Paragraph 257 says, in bold type:
“We are concerned at the omission of any reference to reciprocal healthcare, including the European Health Insurance Card, as a means of facilitating mobility. We call on the Government to set out, as a matter of urgency, its plans for maintaining reciprocal healthcare arrangements in the context of the future relationship.”
In paragraphs 173 and 174 there is also specific reference to reciprocal healthcare in Northern Ireland and the Republic. I will not repeat it now, but it makes the point that that is vital.
Can the Minister explain why there is no mention of reciprocal healthcare in the Bill and confirm explicitly to the House that the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which many of us worked on, provides for such reciprocal arrangements? Perhaps most importantly, can she confirm that the Government will stand by that Act and not amend or repeal it? I beg to move.
Lord Warner
My Lords, I support this amendment, to which I have given my name, which has been moved so clearly by the noble Baroness, Lady Brinton. I do so as a former Life Sciences and Pharmaceuticals Minister who has stayed in touch with this sector since my time as a Minister.
The UK life sciences ecosystem has thrived, with an EU pharmaceuticals regulator based in this country and a strong medicines research base working closely with other European researchers. Over the years a strong pan-European research collaboration has grown up, which has benefited UK jobs and NHS patients. Every month, 45 million packs of medicines move from the UK to the EU and 37 million packs come the other way. The pharmaceuticals sector invests more in R&D than any other—20% of all UK business R&D. This is an industry with an annual turnover of £60 billion and exports of £30 billion. It employs 63,000 people, of whom 24,000 are working in high-paid jobs in R&D.
I say this because all of this is now at risk of lasting damage, particularly if there is not enough time to agree a well thought out deal during the transition period. There is now the prospect of a very clunky regulatory system, with companies having to deal with two regulators—the EMEA and the MHRA—if they want market authorisations in both the EU and the UK. The Government are saying that they want the UK market authorisations to be obtained first, but the EU is the bigger market and some companies think that they may end up with shorter IP protection in the larger market if they do what the Government ask. A dual regulatory system is likely to mean higher costs, driving up NHS prices and damaging patient access to new drugs. It will mean fewer joint research projects benefiting from EU funds, and UK-based companies are less likely to find the UK Government replacing the lost R&D funds from the EU. Over time, we may well see fewer clinical trials being done in the UK.
That is why this amendment is important. It offers the possibility of repairing some of the damage done by Brexit to UK life sciences and UK-based pharmaceuticals and biotech companies. We need to do our utmost to restore some basis for extensive collaboration and research work between us and the EU in the life sciences, and we need to do the best we can to make the regulatory processes as smooth as possible if we want people to continue to do pharmaceuticals research in this country. The Government have been slow to appreciate the damage they have been doing over the last three years to this British success story. Passing this amendment would start to repair some of the damage.
Lord Davies of Stamford
My Lords, my two colleagues have made a powerful case for the European Medicines Agency. They are perfectly right. The consequences of getting rid of it—of leaving the EU structure—are very serious. There are two parties involved in any introduction of a new ethical compound to the market. One is a pharmaceutical major—and by “major” I mean household names that the House will be familiar with: Pfizer, Merck, Eli Lilly, AstraZeneca, Glaxo, Boehringer, Bayer, Sanofi, Roche—I have left out two or three and a couple of Japanese ones, but you can count them on the fingers of three hands or so. The second is a regulatory agency that provides registration, which is of course the key to licensing, prescribing and selling freely a drug in the jurisdiction concerned.
Baroness Thornton (Lab)
My Lords, let me say how much I welcome the amendment moved by the noble Baroness, Lady Brinton.
When I had the temerity to raise this issue and all the others raised by the noble Baroness on Monday at Second Reading, I sought information and assurance on a range of healthcare matters. I think we can say that I got the bum’s rush from the Minister when he answered my questions. In fact, he did not answer them at all. I hope we might fare better this evening.
The medical research sector has been clear that continued close co-operation should be a priority in the negotiations. Indeed, the Government have recognised the international nature of the life sciences sector. They are committed to aligning as closely as possible with the European Union clinical trial regulation when it comes into effect, safeguarding vital UK-EU clinical trials. Indeed, the political declaration also refers to continued co-operation with the European Medicines Agency, which would help ensure that patients in the UK have swift access to the newest medicine. However, the political declaration has no legal standing, so the noble Baroness, Lady Brinton, is quite right to repeat in the Committee the concerns expressed by the European Union Committee. As it stands at the moment, we cannot see that the European Medicines Agency will continue to benefit patients in the UK.
For some treatments, those of rare diseases, a single authorisation at EU level is vital in providing for cost-effective licensing and distribution of medicines for small populations. If the UK is outside the EU market and companies are required to pay again for separate MHRA licensing, as well as an appraisal by NICE and equivalent bodies in the devolved nations, there must be real concern that some treatments for rare diseases may become not financially viable to launch in the UK, therefore risking patient access entirely.
I know that the Minister absolutely understands all this, so it is very important that she reassures the Committee that these issues will not just be taken into account but will be part of the negotiations and will be successful.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, I welcome the opportunity to discuss this important issue, and I thank all noble Lords for their, as always, thoughtful and expert contributions. During the Government’s preparations for EU exit, this House has discussed on a number of occasions the great value of the UK’s life sciences industry and the importance of ensuring that it remains—as the noble Lord, Lord Warner, rightly said—one of the most productive health and life sciences sectors in the world. As noble Lords will know, this sector alone contributes over £74 billion a year to the UK economy and employs close to 250,000 people. I contest the argument that it has recently been damaged. A report just today shows our leading position in cell and gene therapies, in which ongoing UK trials represent 12% of global trials and have increased by over 45% in the last year alone. That is in the context of Brexit.
The Committee is right that this is a crucial sector to the delivery of healthcare treatments to patients across the UK and will continue to be so in future. We must get this right. I assure noble Lords that the quality and safety of patient care is paramount in the department’s and our partners’ EU exit plans. This has been visible in our extensive efforts and preparations to ensure that the supply of medicines and medical products into the UK remains uninterrupted following the UK’s departure from the EU. This led to the department’s multilayered approach to put in place in the case of a no-deal exit from the EU. It was a substantial approach, which included work to procure additional freight capacity and to ensure buffer stocks and stockpiling; working closely with industry to improve trader readiness; and collectively helping to ensure visibility in the supply chain and, therefore, much more robustly ensuring continuity of supply processes.
While no-deal planning has been stood down, there is no question but that this work will stand us in good stead going forward, given the strategic importance of the supply of medicines and medical products in all scenarios—as the noble Lord, Lord Warner, pointed out. In fact, we are finding that the learning from this work is already helping us to better manage routine shortages, which are becoming increasingly common globally.
During our preparations for EU exit, we have at all times worked closely with our delivery partners. We are committed to doing so in future. Their support, expertise and hard work have been invaluable and will remain so as we enter the next stage of negotiations.
Turning to the amendment moved by the noble Baroness, I hope noble Lords will understand that we cannot accept this proposed new clause. The amendment was originally proposed in the other place and was not accepted there. I do not want to impute motive, but following debate, the sponsor in the other place chose not to move his version of the amendment to a vote there.
I wish to reassure the Committee on some of the questions raised, because it remains our objective to work closely with our EU friends, as we do at present, to ensure that patients continue to have access to safe and effective medicines and reap the rewards of our new relationship with the EU. Our overarching aim for medicines and medical devices regulations at the end of the implementation period is underpinned by the following commitments, which I have given before: patients should not be disadvantaged, which speaks to questions raised around rare diseases in particular; innovators should be able to get products to the UK market as quickly as possible; and the UK should continue to play a leading role in promoting the health of the public. We are in a better position than some of the countries—
Lord Davies of Stamford
All this is fine PR speak. All these principles sound splendid, but what are the Government actually going to do? The answer cannot be simply, “We will stay close to the European Medicines Agency.” Does that mean that we will leave that agency, not leave it or have some new, structured relationship with it?
Baroness Blackwood of North Oxford
As always, the noble Lord gets to the point. As my noble friend Lord Callanan said, the exact relationship with agencies will be subject to negotiation. I have set out the core principles which will be part of our negotiation, and I would also point out the key assets which we bring to the table. The MHRA has real expertise in many areas —licensing of medicines, pharmacovigilance, clinical trials regulation—and already provides benefits to patients across the UK and the EU.
Regarding the points on clinical trials, raised by the noble Baroness, Lady Brinton, as part of EU exit negotiations, we are working to ensure that we will continue to have the best possible environment to support clinical trials. Our overall aim is to ensure not only that patients in the UK have access to the best and most innovative medicines but that we improve UK trials applications—so that they continue to be authorised by the MHRA and ethics committees, as they are now—and that the UK’s ability to participate in multinational trials will not change. We will also have a simpler way of allowing a single application to a single national decision in the UK, which we have been working on very hard.
The Government have set out the key principles of the UK’s negotiations with the EU in their manifesto, and as part of the political declaration. However, as has been said this evening in response to similar amendments, a statutory negotiating objective in primary legislation, as proposed in this amendment, is neither necessary nor the constitutional norm. We cannot accept a statutory reporting requirement either, but the Government will support this House in fulfilling its crucial role of scrutinising the actions of the UK Government during negotiations. The Prime Minister committed at Second Reading in the other place that Parliament will be kept fully informed of the progress of these negotiations. We will have many challenging and robust debates in this place as well, where your Lordships will hold us fully to account on the progress of those negotiations with the EU.
It is important to note that our approach to negotiations with the EU in this area is set out in the political declaration and the Government’s mandate, but this is only one part of our overall support for the life sciences sector. This commitment is also clearly demonstrated through the medicines and medical devices Bill, which was published in the Queen’s Speech and which we will have a lot of debate about in this place. The Bill is to ensure that the UK remains competitive and at the cutting edge of innovation, to the benefit of patients. I look forward to discussing those provisions with the House later this year. I hope that I have reassured the noble Baroness on the Government’s intentions, and on how we intend to take this forward, and on that basis I urge her to withdraw her amendment.
Baroness Brinton
Before the Minister sits down, may I tell her that I passed my question about reciprocal healthcare through to the Whips Office? I also asked in my speech whether the Healthcare (European Economic Area and Switzerland Arrangements) Act would remain in place unamended, which would reassure the EU Committee on its concerns at the fact that there is no mention of reciprocal health rights anywhere in the withdrawal agreement.
Baroness Blackwood of North Oxford
I apologise to the noble Baroness; I passed over that note in my response to the debate. Where the UK, a member state, an EEA or EFTA state or Switzerland is responsible for the healthcare of those in scope of the social security co-ordination part of the agreement, such individuals will be entitled to reciprocal healthcare cover from their competent country. This includes EHIC cover for people with full social security co-ordination rights under the agreements, and cover for people who have previously worked in the UK, another member state, an EEA or EFTA state or Switzerland before the end of the implementation period. Obviously, the specifics in future will be subject to the negotiations that will be forthcoming. I hope that that answers the noble Baroness’s question, and she will feel that she can withdraw her amendment.
Baroness Brinton
I am grateful to the Minister for her comments, and to other colleagues for their contributions. I am particularly grateful to the noble Lords, Lord Warner and Lord Davies, for their expertise, and especially for the intervention by the noble Lord, Lord Davies. The Minister is always courteous, and always gives us her best brief, but I am not reassured at all on the issue of the EMRN, partly because. although there was plenty of talk about trying to maintain the excellence in life sciences, there was no response to the question of how, with only 3% of the pharma market, we would be able to play the same role as we currently do in the EU, with 25%. There was also a complete failure to respond to the major concerns that everybody expressed about patients not being able to access drugs because we suddenly become a very minor player. On that basis, I will withdraw my amendment this evening, but I will consider whether to lay something for Report.
On the other matter, concerning reciprocal healthcare, again, I am not quite as positive as I think the Minister would like me to be. I remain concerned that the phrase “no-deal planning” was mentioned in the context of both parts of my speech. We on this side are concerned about the impact on UK citizens abroad, and on EU citizens here, of the loss of reciprocal healthcare arrangements. That is really worrying. But I am pleased to hear that there is some reliance, at least in the transition period, on the healthcare arrangements Act. I beg leave to withdraw the amendment.
European Union (Withdrawal Agreement) Bill
Thursday 16th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Baroness Hamwee
“UK citizens resident in the EU, EEA or Switzerland: protection of rights
(1) The Secretary of State must make arrangements to preserve, as far as is possible, the United Kingdom’s obligations under EU law to British citizens who are resident in any EEA country, or in Switzerland, on the day before IP completion day.(2) The arrangements in subsection (1) must include—(a) arrangements for people in receipt of a United Kingdom state retirement pension to continue receiving that pension under the same uprating and other arrangements as apply on the day on which this Act is passed, for the rest of their lifetimes as long as they remain resident in any EEA country, or in Switzerland,(b) arrangements for British citizens to continue receiving the same level of publicly provided healthcare as they do currently as EU citizens.(3) The duty in subsection (1) applies whether or not the United Kingdom reaches any relevant reciprocal arrangements with other EEA member states, or with Switzerland.”Member’s explanatory statement
This new Clause requires the Government to take steps to preserve the rights of UK citizens living in the EU, EEA or Switzerland, including continuing to uprate UK state pensions and paying for publicly provided healthcare.
Baroness Hamwee (LD)
My Lords, this amendment is in my name and that of my noble friend Lady Miller of Chilthorne Domer. I do not know whether she shares my feeling when I see noble Lords leaving the Chamber that we have a challenge in making this riveting. But it is a matter that was referred to by a number of noble Lords on the first day in Committee on the Bill. They rightly drew attention to the UK’s responsibilities to British citizens who are now living and working in the EU. This amendment seeks to protect their rights to preserve after the implementation period the rights which they enjoyed immediately before the implementation period completion date.
The UK has responsibilities, and there are things that the Government can do. Not everything has to be reciprocal. There are about 1 million UK nationals in the EU, and it is for them that this amendment is proposed. Reciprocity is of course desirable, but it is not clear to me why technically it is essential over all policy areas, because it seems that there are choices for the UK.
I am a member of the European Union Justice Sub-Committee of the EU Committee of your Lordships’ House. In October, following an evidence session on this subject, the chair wrote to the Government telling them that the sub-committee had been informed that they could do more in a number of areas, with various assurances, including that the UK should continue to fund healthcare for those to whom it is liable at Brexit until new agreements are made, and should commit to uprate the pensions of UK nationals living in the EU for as long as they continue to live there. I shall quote extensively from the letter, because it says everything, very clearly, that I want to say:
“The situation means that many UK citizens have lived in a state of anxiety and uncertainty for some time. Many moved to the EU decades ago with a reasonable expectation that the rights to which they were then entitled would not be removed without due notice and consultation.”
The committee had heard evidence that
“the consequences of some of the actions of the UK Government may be actively counter-productive. For example, a failure to uprate pensions after 2023”—
the Government have committed to uprating them for three years—
“could result in UK nationals … being forced to return to the UK”—
and this is not what they would want to do—at expense, including expense to the UK Government, who would be,
“required to meet the costs of their future healthcare, any welfare benefits,”
and so on.
“Many pensioners may wish to return to the UK but may realise insufficient funds and be forced to seek public sector housing.”
So the questions arising from this are: what assessment have the Government made of the potential costs to the UK taxpayer of such returns, and what analysis have they conducted of the likelihood of this outcome, and of course the potential number of people involved?
The committee was concerned about the impact on individuals and UK businesses, particularly those that have offices in the EU. The committee heard how social security rights, for example, are currently protected when workers move through the EU, but that after Brexit they will no longer be able to aggregate contributions and build up entitlements to pensions if they move between EU countries for work. So, again, there are questions about the work that the Government have done to assess the problem and seek solutions.
The point goes wider than the UK state pension and healthcare, but those are the points on which we have particularly asked for assurances. There are about 180,000 British-born pensioners living in the EU. They, like us, will have worked, or will work, paying contributions and taxes in the UK. When they left the UK, the right to pension increases for life was guaranteed. I suspect that we have all been made aware through direct representations over the years of the position of pensioners in, for instance, Australia and South Africa, whose pensions have not been uprated. Are we prepared to put many more people in the same position?
As for healthcare, I do not think that I need to stress the importance for both working and retired people. As I have said, there is a danger of the Government’s actions, or inactions, being counterproductive. These are urgent matters. The individuals need to take decisions, but they should not have to. When they moved, they believed—and, no doubt, relied on the fact—that there would be no change to their situations as a result of their move.
Lord Shipley (LD)
My Lords, I strongly support the amendment. Around 1.2 million British pensioners live abroad. Just over half have annual uprating of their pensions as they would if they still lived in the UK. They are in one of the 48 countries where the UK Government apply an annual uprating, and over half those countries are in the EU.
In September the Department for Work and Pensions made an announcement on the extension of uprating for a further three years to those pensioners in the EU. I quote from its press release:
“Nearly half a million people living in the EU will continue to have their UK State Pension increased every year for the next 3 years in the event of a no deal exit from the EU”.
There is no explanation of why it is three years as opposed to permanently, or any other figure. It goes on to say:
“During this 3-year period the UK government plans to negotiate a new arrangement with the EU to ensure that uprating continues.”
I stress “plans to negotiate”. The question arises as to what happens if those negotiations fail. Along with the question of why the figure of three years was selected, there is a possibility that the negotiations will fail. There is also no explanation of why the uprating should not apply to all the pensions affected for those pensioners’ lifetimes.
My noble friend Lady Hamwee has mentioned the fact that if all those pensioners returned to the UK there would be substantial costs for public services, not least the NHS. I hope that when the Government calculate costs they also include the benefit that accrues to the Treasury from UK pensioners living outside the UK who do not directly use those services.
There is of course a question about those UK pensioners who move into EU countries after 1 February, because at present it would appear that they do not have a right to an uprated pension. I seek the Minister’s assurance on that point. UK expatriate pensioners need and deserve greater certainty when they are living outside the UK in the EU. I very much hope that the Minister will be able to confirm that it is government policy to uprate their pensions permanently once the three-year period is over.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I put my name to this amendment and I remind noble Lords of my interests in that I spend a considerable amount of time in France. I should add that I have health cover in France, so when I speak on health, I do not have an interest in being covered by the UK.
First, I ask the Minister if he still agrees with his noble and learned friend Lord Keen of Elie who, when summing up at Second Reading on Monday, said:
“Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is … not a matter of domestic law and is therefore not a matter for the Bill”.—[Official Report, 13/1/20; col. 552.]
The fact is that the Government have chosen not to include in the Bill either the pensions upgrade or anything about health cover; it is a choice. The Bill could encompass the rights of UK citizens should the Government choose or should we, for example, win this amendment. At the moment, it is the Government’s choice to exclude any cover for UK citizens from the Bill, rather than a matter of fact.
Secondly, I want to speak about health. Many UK citizens working abroad in the EU will have health cover by virtue of their occupation or if they are a dependant of somebody in an occupation that qualifies, so they are fine. The problem is for those who are not covered by that either because they have not yet qualified for settled status but hope to—for example, those who have been in a country for less than the qualifying period; in France that would be five years, so perhaps someone has been there for three years not five—or because their financial status is questionable because of low income. What cover from the UK can those UK citizens expect? Some are likely to have ongoing conditions such as cancer and some will develop illnesses between now and the period in which they would qualify, and certainly by the end of December.
Up until now, the S1 provision has dealt with this for a significant number of people; can the Minister say how many people are actually covered by it? If only 1% of UK citizens in the EU are thus adversely affected, that is still 10,000 people with enormous worries about their health cover. For some, this is bound to mean that they will have to return to the UK, where their healthcare will be 100% covered by the NHS. When the Minister replies, could he outline just what provisional arrangements will be in place until the arrangements in whichever EU state those UK nationals are in finally take effect because they have their settled status?
The last point I want to make is that I do not think that, at the moment, the Government have done nearly enough to publicise the fact that UK citizens living in the EU will not be able to access NHS services for free when visiting the UK after this, unless they have a UK-issued S1 form. The problem is that the Government have not done nearly enough to publicise what will happen, country by country. I accept that the embassies have done some outreach work and have embassy pages, but in many cases those are pretty generic and the situation alters very much country by country. Again, at Second Reading, I asked if the Government would provide information on where reciprocal arrangements were in place with the EU states—for example, for qualifications. The Minister made no reference to that in his summing up. The absolute least the Government could do for UK citizens in Europe is to provide a comprehensive country-by-country guide covering all the issues that concern UK citizens abroad.
Lord Steel of Aikwood (LD)
My Lords, I have not yet spoken on the Bill, preferring to leave it to the experts —of whom there appears to be quite a lot on these Benches—but I want to speak in support of these two amendments which my noble friends have tabled.
I have a holiday house in Languedoc—not the fashionable part of France. Every time I have gone there during the last three years since the referendum, the people who live and work there, as my noble friends have described, have said to me, “Come on, you’re a Member of Parliament, even in the upper House. Can you tell us what is going on? What are our rights?” I have given them a truthful answer: “I’m sorry. I haven’t a clue and, what is more, neither have the Government”. That is the position we have arrived at today. They have all made the point that during the last three years we have had no fewer than three different Cabinet Ministers responsible for exiting the EU. That was their job, but never, in the whole time of our membership of the European Union, have we ever had a Cabinet Minister whose sole responsibility was to stay within the EU and to make sure it developed in such a way that it improved our relationship with it and that its terms and condition and its new regulations were those that we found acceptable. That was an extraordinary omission that we made during that time.
Some of the people whom I have met are thinking, as one of my noble friends said, taking out French citizenship. If they have lived there for more than five years, they can do that. Another one has found an Irish grandparent and is thinking of taking out Irish citizenship. It is a tragedy that we are possibly losing these people and losing them from the citizenship of our country. It is not desirable at all. A lot of them are aware that I took an active part in the 1975 referendum. I keep pointing out to them that I am sorry because there was a huge difference between the two referenda. In 1975, there were huge public meetings in every town and city in the land; there were huge arguments about our role in Europe, and about the reasons why we were having European unity and the European Economic Community as it then was. This time, it was all about a grubby figure on the side of a bus. It was a very different atmosphere, and one they found very difficult to understand. These people have been treated rather shabbily, and I hope that the Minister, in his reply, will be able to give them some words of comfort.
Baroness Altmann (Con)
My Lords, I shall speak particularly to the pensions aspect of Amendment 37, and I draw the House’s attention to my register of interests. I say to my noble friend on the Front Bench that I understand the dilemma faced by the Government on this issue. There are more than half a million pensioners around the world who have frozen pensions. There has been a sustained and impressive campaign by the International Consortium of British Pensioners to try to persuade the Government to uprate the state pensions of people who live in the 150 countries, of the 200 countries around the world, in which there are not reciprocal arrangements to uprate state pensions and therefore their pensions are frozen. So this issue goes much wider, and I applaud the Government for at least agreeing to uprate the pensions of those citizens who live in the EU, regardless of reciprocation in the meantime. I would encourage my noble friend, and the Government, to consider this in the context of the overall uprating issues for people with frozen pensions around the world. If you live in the US, Mauritius or Jamaica, your British state pension is uprated; if you live in places such as Canada, Australia, the Falkland Islands or Antigua, you do not receive any pensions uprating.
The important issues here are, first, to look at it in the context of the overall policy. That is why I understand the Government’s position in not having committed to uprating at this point. Secondly, it should be borne in mind that these EU citizens—at the very least, those who already live abroad or are over pension age—will have made a decision to relocate on the understanding that their pension would be uprated. They could not possibly imagine a position in which it would not. I hope that the Government, in their future negotiations on and considerations of this issue, will bear that in mind, but I understand the position that my noble friend on the Front Bench is in.
Lord Teverson (LD)
My Lords, I very much support Amendment 37, tabled by my noble friends, but I want to talk to Amendment 44, which is in my name and in this group. It concerns retaining European citizenship for UK nationals. I do not expect this provision to appear in the final version of the Bill when it becomes an Act, as in a way this is a probing amendment, but it is of huge importance and something that many people feel strongly about.
I remind the House of the privileges that come with European citizenship. We know about the freedom of movement, which is often discussed, but there is also the freedom to establish a business. There is the freedom to carry on your education in the whole of the European Union, and there is the freedom of being able to buy property without permit within the European Union. On the health side, we have our European health cards. We also have consular protection from other EU member states, should we need it. We have visa-free travel in 153 other nations. We have no customs queues as we come into the then-to-be 27 member states and, of course, we have voting rights in a number of elections. Those are fundamental rights that we have had as European citizens and that we will lose as UK citizens once we leave the European Union, which we will do on 31 January.
By an accident of birth in the 19th century, I am able to retain my European citizenship, as I think a number of Members of the House are through various other historic reasons. But that ability is entirely random and not available to the vast majority of our citizens who wish to do that. I recognise entirely, as the constitutionalists will say, that it is generally agreed that it would require a treaty change for full European citizenship to be bestowed upon UK citizens once we are a third country. However, there are perhaps alternatives to that, such as associate citizenship, and there is a will among certain European institutions to allow it or to find a way for it to move forward over time, once we have left.
I thank the Government in that, when I have raised this in the past, they have been very open and said, “It’s not within our power as such, but if that offer came to the United Kingdom then we would not necessarily shy away from it”. I congratulate the Government on that quite brave statement, and I hope that they will continue to have that attitude in future. I also think, perhaps strangely and counterintuitively, that if a way were to be found for some form of associate citizenship, it could be one way in which the country could come back together again, because it would clearly not be compulsory. Those who do not want their European citizenship—I recognise that, for many years, many people have treated that status with disdain and have said they do not want it—can keep that “non-citizenship”. Only those who want to volunteer for this citizen status need take up the offer.
This is perhaps a way forward; it is one method by which the country could come together, so that people feel that they have not lost all of those rights that are so important to them. Yet those people who feel strongly, and who were the majority in the referendum who wanted to exit their citizenship, will indeed still be in that position. I would like to hear from the Minister that this is something on which the Government will keep their mind open, should such an approach ever come from the European institutions—many of us may continue to encourage that.
Baroness Buscombe (Con)
Before the noble Lord sits down, can he tell me: do you have to pay tax in any EU country in order to obtain EU citizenship?
Lord Teverson
Well, at the moment, you are automatically a European citizen if you are a national citizen of one of the member states, so your tax position is no different to your position as a national. You are subject as an individual to the treaties and the book of law of the EU and its member states, so I do not see that it makes any difference. If you become an associate citizen, then clearly it will depend on the details of that associate citizenship.
Baroness Buscombe
So the answer is that you do not necessarily have to pay tax in any EU country in order to obtain that citizenship. You could be claiming benefits in—or, in other words, not contributing to—any one of those countries.
Baroness McIntosh of Pickering (Con)
I congratulate the noble Baroness, Lady Hamwee, on shining a light on this particular difficult policy area. I follow on from the remarks made by my noble friend Lady Altmann, but on a slightly different question, regarding a case study with which I am all too familiar because it concerns my own pension, so I hope that noble Lords will forgive me for raising this.
One area of EU law that has long concerned me is the free movement of pensions and that the pension to which one contributes while living and earning money in another EU member state should be recognised when one returns to the UK. In my case, I remember only too well that I contributed on two occasions, once as an employee and once as a self-employed independent lawyer. On one of those occasions, my contribution was taken and has simply not been recognised. I am sure that this is a common problem; I cannot believe that it applies only to me.
I am in a privileged position as regards my pension, other than the fact that I am told I cannot take my state pension until a slightly later year than I was expecting. When summing up on this small group of amendments, can my noble friend give the House assurance that, where an individual of whatever nationality —British, in my particular case—has contributed to a pension scheme in, for example, Belgium, France, Germany or Denmark and at some future date wishes to return to the United Kingdom, there is a guarantee that their pension will be recognised and will be paid as part of either a private or occupational or state pension at the time of retirement?
Lord Whitty (Lab)
My Lords, I had not intended to speak on this amendment: indeed, I did not speak at Second Reading and have concentrated in my own amendments on some fairly technocratic issues. However, my noble friend Lord Teverson—or, rather, the noble Lord, Lord Teverson, who on occasion is my friend—has provoked me. One reason I did not speak at Second Reading is that I now recognise that Brexit is going to happen on 31 January and I am feeling emotionally negative about it. I shall not be joining any celebrations, even if they raise the money for Big Ben to bong.
Lord Steel of Aikwood
Does the noble Lord agree that the slogan, “Get Brexit Done” is completely wrong? What is happening on 31 January is that we will get Brexit started.
Lord Whitty
That is absolutely true and I believe that it is gradually being realised by large sections of British society, business and individuals. Nevertheless, 31 January is a symbolic date in that we leave the political institutions of Europe, and that upsets me as it does the noble Lord, Lord Steel. I was very positive in the 1975 referendum, although my party was of a rather different view, and I have remained a committed European since. Sometimes I got fed up with Europe, but one of the issues referred to by the noble Lord, Lord Teverson, that of EU citizenship, is making me seriously emotional because it concerns my grandchildren.
My grandchildren were born into European citizenship. They are too young to have voted in referenda or general elections, but we are depriving them of all the benefits of European citizenship that the noble Lord spelled out. There must be a way of their being able to reassert their birthright at some future date, through arrangements between ourselves and the institutions of the European Union. I therefore very much support the intent of the noble Lord’s amendment. How it is actually worked out has yet to be made clear to me, but I hope that Ministers will at least take on board that, whatever view we took of Brexit, we are depriving some people of rights through a decision over which they had no say. That is one of the things I will be thinking about on 31 January, and it could be resolved in the long term by future arrangements between ourselves and the European Union.
Lord Kerr of Kinlochard (CB)
My Lords, I support the amendment in the name of the noble Baroness, Lady Hamwee, and I use that as an excuse to ask the Minister what the status is, from 1 February, of the EHIC card. I had assumed it would remain valid until the end of the year, but I have seen suggestions in the press in the last few days that it will be invalid from 31 January.
On the point made by the noble Lords, Lord Teverson and Lord Whitty, of course my heart is with them, but as the noble Lord, Lord Teverson, said, this is a matter of treaty amendment and it does not seem likely to me that it will go very far. It is of course driven by good will in the European Parliament, created in part, no doubt, by the noble Lord, Lord Teverson, during his time there. Reading the debates in the European Parliament, it strikes me as significant that the arrangements we have in this country for obtaining settled or pre-settled status are not seen as satisfactory. There are a number of reports in the continental press from which I draw one common factor: it is the absence of any documentary proof of one’s status that is particularly worrying for EU nationals living in this country.
My last point concerns an area in which I am very supportive of what the Government are trying to do and I urge them to go on trying to do it. For UK nationals resident in continental Europe, the absence of any continuing right of onward movement, even if their status in an individual member state is secure, is a very serious defect. I encourage the Government—I know this is their aim—to go on seeking to have that defect remedied.
Lord McNicol of West Kilbride (Lab)
My Lords, I declare an interest—unfortunately, it is not a house in France or Italy. My uncle, Neil McNicol, is an expat who lives in Spain and if these amendments were to go through, it would affect him.
Amendment 37, in the name of the noble Baroness, Lady Hamwee, would require the Government to take steps to preserve the rights of UK citizens living in the EU, EEA or Switzerland. Proposed new subsection (2) cites the uprating of pensions and the continued availability of public healthcare as priorities, but importantly, there would be flexibility for Ministers to act in additional areas.
Lord Bethell (Con)
My Lords, I am enormously grateful for the opportunity to respond to the noble Baronesses, Lady Hamwee and Lady Miller, and to all noble Lords who have contributed to this debate on Amendments 37 and 44.
Amendment 37 refers to UK nationals in the EEA and Switzerland and protections to their state pensions and healthcare. I hope that the debate will provide a valuable opportunity to give some reassurances on some of the key and important points made by the noble Baronesses, Lady Hamwee and Lady Miller, and the noble Lords, Lord Shipley, Lord Steel, Lord Kerr, Lord Whitty, and other noble Lords.
The noble Baroness, Lady Hamwee, is quite right to state that confidence in the system is absolutely essential. This has been a difficult period for those who have felt, at times, that their benefits and arrangements might have been in jeopardy. The noble Lord, Lord McNicol, spoke movingly about the concerns of UK nationals in the EU, and EU citizens in the UK, who have cross-border lives and who are seeking reassurance that those healthcare and state pension rights will be protected. I reassure the House that that protection has been a high priority for the Government.
We have delivered certainty for the 1 million UK nationals that the noble Baroness, Lady Hamwee, referred to, and to the 3 million EU citizens in the UK, via the withdrawal agreement which we have reached with the EU. We have also reached a separate agreement on citizens’ rights which, in great detail, protects the rights of EEA, EFTA and Swiss nationals in the UK, and UK nationals living in those states.
Certainly, it is absolutely critical that people should feel at ease about their futures—the noble Lord, Lord Steel, touched on that point movingly. I will offer the crumb of comfort that he asked for. These agreements give citizens the certainty that they need about their rights going forward and ensure that they can continue to live their lives as they do now. That includes, importantly, the right to live, work, study and access healthcare; to receive an uprated UK state pension in the EEA and Switzerland, in line with the triple lock; and to access valued benefits.
I will tackle the question of the three-year period. I reassure the House that the uprated pension in these areas is not just for three years; that was a proposal floated under a possible no-deal arrangement. This is an uprated benefit for life. These are the key components of what I believe the noble Baroness is trying to achieve in her amendment. I make it clear to the House that these are already protected.
The Government have also gone further than the withdrawal agreement and the proposed new clause require, protecting the rights of UK nationals in the EU where it is unilaterally possible to do so. In April last year, the Government published a policy paper, Citizens’ Rights—UK Nationals in the EU, which supplemented the rights contained in the withdrawal agreement for UK nationals resident in the EU at the implementation period. I will give a few examples. In respect of family reunification when UK nationals return to the UK, there is an additional seven-year period from the end of the implementation period for UK nationals living in the EU to access higher and further education in the UK under home fee status, and with support from student finance. This offer on education has also been applied by the devolved Administrations.
I will address the proposed new clause in Amendment 37 and the specific arrangements referred to by the noble Baronesses, Lady Hamwee and Lady Miller. I reassure the House that the citizens’ rights provisions in the agreement already ensure that those who have made their lives in or plan to retire to the EU by the end of the implementation period will receive an uprated UK state pension in the EU and any associated reciprocal cover while they have the right of residence in that member state. The provisions of the agreement will protect approximately 500,000 state pensioners already in receipt of a UK state pension and approximately 190,000 UK state pensioners and their dependants for reciprocal healthcare cover across the EU, EEA, EFTA states and Switzerland.
The current arrangements go further than the amendment itself. The proposed new clause in Amendment 37 falls short of the protections offered by the agreements. That is because they ensure the protection of not only UK nationals currently in receipt of a UK state pension in the EU, but UK nationals resident in the EU who are not yet of state pension age but who might be considering retiring in the country in which they live: for example, someone who has retired early to the EU once they reach UK state pension age. I reassure those who, like the noble Lord, Lord Steel, are concerned about our EU friends. The agreements will also protect reciprocal healthcare for all those in scope of the agreements, regardless of whether they are UK nationals.
The noble Baroness, Lady Hamwee, asked about the aggregation of pensions and benefits. I reassure the House that all contributions today, made from whatever country in the EU or EFTA, and Switzerland, will be protected by the Bill. The noble Lord, Lord Kerr, referred to ongoing negotiations about those who look to make onward movements beyond the implementation period. I reassure the House that those negotiations are being carried out with energy and enthusiasm. I also reassure him that his EHIC card will be valid until the end of the year—as it will be for the Bethell family, including my four children, on our forthcoming holidays.
Lord McNicol of West Kilbride
The Minister said that UK pensions will be uprated “while they have the right to reside in that state”—I think I quote him correctly. But what if they move to another EU state?
Lord Bethell
Those parts of the pension that are already in the bag, as it were, will continue to be uprated, depending on where they move to. If they move to another area where there is a treaty arrangement, they will continue to benefit from the uprating arrangements relevant to the country to which they move. However, as my noble friend Lady Altmann referred to—a point I shall move on to—if they move to an area which does not have a treaty arrangement, their future contributions to the pot will be relevant to that country’s arrangements.
Lord Shipley
Can the Minister clarify something that I think he said? He referred to UK citizens who are not yet of retirement age but become entitled to a UK state pension and then move to one of the 27 countries of the EU. Will their pensions be uprated?
Lord Bethell
I am not sure that I completely understand the question. If they have qualified for the UK state pension while still in the UK, of course they will take their pension with them. If they are currently living in the EU but contemplating retiring in that country, the arrangement that we have had means that their benefits will continue while they are in that country. I hope that answers the question.
Lord Shipley
My question was whether, if someone who is currently working and then retires, receives the UK state pension outside the European Union after 1 February but then moves to an EU country after that date, their pension will be uprated in that country. Is that what the Minister said?
Lord Bethell
That is a question of sufficient complexity that I am reluctant to commit to an answer at the Dispatch Box, but I will be glad to come back to the noble Lord with a detailed response.
The noble Baroness, Lady Miller, made a good suggestion when referring to the concerns of EU citizens living in the UK about their arrangements. I reassure those citizens that the arrangements in place will preserve their current situation, so they should feel confident and reassured. Her suggestion of a country-by-country guide is a good one, which I welcome, and I will pass it on to the department as a recommendation.
My noble friend Lady McIntosh talked about the fair recognition of pension payments in the round. I cannot comment on the precise arrangements for her pensions, but I reassure her that everything that is contributed to pension pots in any EU country before the end of the implementation period will be recognised as contributions to the pension.
Lastly, my noble friend Lady Altmann talked movingly about the uprating of pensions for those who live in countries with no suitable treaty. That is way beyond the scope of this agreement. I have sympathy for those people who live in countries where there is no pensions treaty, but as she quite rightly explained, they did make that move knowing what the arrangement was. Bringing in uprating for such people would add an enormous cost to the Treasury of around £600 million a year, but it is something that remains on the Government’s radar screen.
The new clause proposed by Amendment 37 is well intentioned and is entirely supported in spirit by the Government, and that is why we have put in place the arrangements set out in the Bill. However, it is unnecessary as the agreements that the Bill will implement safeguard both healthcare and state pension rights for UK nationals living in the EU, and therefore I will ask the noble Baroness, Lady Hamwee, to withdraw it.
Before I do so, I will address the points made by the noble Lord, Lord Teverson, on his amendment. I thank him, the noble Lord, Lord Whitty, and others who also spoke to it. The proposed new clause is a well-intentioned and creative move. I acknowledge that there are some people in the EU, as mentioned by the noble Lord, Lord Teverson, who would like such a measure to be enacted. But I want to be really clear with the Committee: EU treaty provisions on this matter are very straightforward. Only the nationals of EU member states are able to hold EU citizenship. When the UK ceases to be a member of the EU on 31 January, UK nationals will no longer be able to hold EU citizenship. For those who have dual nationality with another EU member state—I would guess that the noble Lord, Lord Teverson, is in this group—it will be different. However, those with only British citizenship will not be EU citizens.
We have worked hard to ensure that the effect on people’s lives will be minimised. The withdrawal agreement we have reached is a fair and reciprocal agreement with the EU on citizens’ rights. It provides certainty and a means for all UK citizens living in the EU and EU citizens resident here in the UK at the end of the implementation period to be able to continue to live their lives broadly as they do now. These rights as provided by the withdrawal agreement will take the status of international law, having a direct effect in EU member states under EU law and in the UK under Clause 5 of the Bill. These provisions are meaningful and give people who are concerned about this the security that they need.
Baroness Hamwee
My Lords, I knew that once we got going on this subject it would reel in Members from the across the Committee, and I am grateful for their observations and contributions, as well as to the Minister, of course. He started his response by referring to confidence in the system being essential and finished it by referring to the need for flexibility. I am not sure that those two notions can live together very comfortably.
On the issue of uprating for life, the Minister said that that is being protected where it is unilaterally possible to do so while the person remains in an EU state. That raised the question that the noble Lord, Lord McNicol, intervened on, which is: what if the individual moves? At the moment the protection would be in place. He also used the phrase “in scope” but I am not sure what that means in this context. But perhaps most importantly, he talked about the protections broadly remaining the same, which is the terminology used on the government website, which refers to, “broadly the same entitlements”. What is also apparent when one looks at the website more closely, and certainly as I understand the position, is that the withdrawal agreement protections are dependent on there being a deal. I end by echoing my noble friend’s plea made for the Government to make detailed information much more widely available and comprehensible. These are technical issues and I accept that finding the right language is a problem, but if there was no problem, we would not have been receiving representations about the issue. If all that comes out of today is better communications, that will actually be a good deal of progress. Leaving the Minister with that plea—it is more than a request—I beg leave to withdraw the amendment.
European Union (Withdrawal Agreement) Bill
Thursday 16th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Lord Storey
“Implementation period negotiating objectives: Erasmus+
(1) It is an objective of Her Majesty’s Government to secure an agreement within the framework of the future relationship of the United Kingdom and the EU before the end of the implementation period that enables the United Kingdom to participate in all elements of the Erasmus+ programme on existing terms after the implementation period ends.(2) A Minister must lay before each House of Parliament a progress report on the objective in subsection (1) within six months of this Act being passed.”Member’s explanatory statement
This new Clause would require the Government to seek to negotiate continuing full membership of the EU's Erasmus+ education and youth programmes.
Lord Storey (LD)
My Lords, the referendum on Brexit shows that young people in particular want to remain in Europe. Now that we are leaving, it is important that young people’s opportunities to learn, study and exchange in Europe are an opportunity to bring young people back together again. Nobody can doubt the value and importance of Erasmus+. Every year, through the Erasmus programme, 17,000 UK university students, plus hundreds more college students and apprentices, study or work abroad. The opportunities that Erasmus offers to UK students, particularly young people, to study, work, volunteer, teach and train abroad are irreplaceable.
For school pupils, the scheme offers the youth exchange programme and volunteering opportunities, and volunteering is something that the Government have always been very keen on. Erasmus+ has paid out tens of millions of pounds in grants to UK schools for exchanges, collaborative programmes and professional development. If we want to be an outward-looking country that realises the importance of friendship, sharing ideas, culture, language, education and opportunities, and brings people together, this is not a programme that you would consider watering down or dispensing with.
As my colleague Layla Moran has said about her amendment,
“what people remember most about studying abroad normally isn’t that they increased their employment prospects”—
which of course they do—
“They recall learning a new language, falling in love with the culture and building new friendships.”
I am somewhat confused about the Government’s stance or policy on Erasmus+. Is it that of the Secretary of State for Education, Gavin Williamson, who said:
“We do truly understand the value that such exchange programmes bring all students right across the United Kingdom, but to ensure that we are able to continue to offer that we will also develop our own alternative arrangements should they be needed”?—[Official Report, Commons, 14/01/20; col. 912.]
Or is it that of our Prime Minister, who said:
“There is no threat to the Erasmus scheme, and we will continue to participate in it. UK students will continue to be able to enjoy the benefits of exchanges with our European friends and partners, just as they will be able to continue to come to this country”?—[Official Report, Commons, 15/01/20; col. 1021.]
Perhaps the Minister would be good enough to tell me which version it is. The amendment that we are moving certainly supports the Prime Minister’s view that the Erasmus scheme is under no threat.
Currently the in-phrase in government is “levelling up”. We want to ensure with this amendment that there is no levelling down for students and young people across the UK, whether they be from the south or the north. By staying in the Erasmus+ scheme, we can keep that level playing field. UK universities are clear that Erasmus is not broken and so does not need fixing, and they warn that a UK replacement would find it impossible to match the reputation, brand awareness and sheer scale of Erasmus+. I beg to move.
The Earl of Clancarty (CB)
My Lords, I have added my name to this important amendment. I will be brief.
The Government should have a fairly good idea by now of the views of academics, universities and other institutions. Hopefully, they will have taken note of the strong views of students and former participants in the Erasmus programme that have been expressed in the press and on social media in the last week or so, and their huge concern about the potential loss of this programme.
In terms of projects, Erasmus is now about more than learning and higher education. As the noble Lord, Lord Storey, has pointed out, there are schemes for apprentices, adult learners, schools, youth programmes and entrepreneurs. On that point, what is less heard and discussed is the implications of Erasmus for business. The Russell Group has spoken of the considerable opportunities in industry that Erasmus opens up for students on their return to the UK. If we are also to maintain our business links with Europe, it will become more important, not less, that young people learn and use languages such as French and German, an issue that the noble Baroness, Lady Coussins, will no doubt expand on.
I hope the Government will look at this objectively and understand that the loss of Erasmus would represent a significant overall loss in terms of the choices that students will have to study abroad. In those circumstances, where the choice remains it will be at a considerably greater cost, to the extent that for students from poorer backgrounds, that choice would disappear. That is an important point. Erasmus favours those from less privileged backgrounds, a point that has been well made by former participants.
One of the arguments that is put is that we can replace Erasmus with a global arrangement. We have such arrangements already, which Erasmus does not preclude. The loss of Erasmus would be a net loss for students, and a reduction of opportunities to study abroad and to broaden horizons. I agree with the noble Lord, Lord Storey, that the loss of Erasmus would, in the Government’s own terminology, be a levelling down, not a levelling up. I earnestly hope that the Government will do everything to maintain our meaningful membership—that is, programme membership —of Erasmus. Surely this being an intention endorsed by Parliament will only strengthen our hand in negotiations with the EU. I fully support the amendment.
Baroness Coussins (CB)
My Lords, I too have added my name to Amendment 38. Last week, after the vote in the House of Commons to reject a similar amendment, I was semi-encouraged by the statement issued by the Department for Education:
“The Government is committed to continuing the academic relationship between the UK and the EU, including through the next Erasmus+ programme if it is in our interests to do so.”
I hope I can offer some information and arguments today that will convince the Minister to go back and persuade the Government that it is indeed very much in our interests, and that they should think again and put their commitment to Erasmus+ in the Bill. As we have heard, the Prime Minister said only yesterday that there was no threat to Erasmus. If that is a genuine commitment, fantastic—there can be no reason why that cannot be irrefutably placed in the Bill. Otherwise, all that we actually know we can be sure of is that Erasmus is secure only until the end of 2020.
I have spoken several times before in your Lordships’ House on the importance of Erasmus in the context of the teaching and learning of modern foreign languages, but that is neither the whole picture nor the whole reason for needing to stick with the programme. It is also in the far broader interests of the UK, its economic resilience, its competitiveness and the employability of young people—and I do not just mean relatively privileged students. I understand from a press report in last Saturday’s Times that one of the Government’s reservations is that Erasmus is viewed as mainly benefiting middle-class students and that the money might be much better directed towards the schools budget. If accurate, this view shows a misunderstanding of the breadth, purpose and benefits of the Erasmus programme. I hope I can now shed some light on this, to assist the Government in looking again and changing their mind out of sheer self-interest.
Lord Wigley (PC)
My Lords, I apologise to the noble Lord, Lord Storey, for missing the first half minute of his speech in rushing into the Chamber for this debate. I am delighted to support the amendment, which is one of the most important that we have before us. I welcome the speech of the noble Baroness, which brought in the whole dimension of multilingualism and our responsibilities towards the wider world, to show that our minds are open in that way.
A good friend of many of ours in Brussels, Hywel Ceri Jones, was one of the instigators of the original Erasmus programme, which, as has been mentioned, has been developed so that it now reaches and is relevant to far more people. It can therefore exert its influence in a much more beneficial way.
Over the period since the referendum, the Government have stressed that we are—sadly—leaving the European Union but not Europe. Having the Erasmus+ programme available sends a signal that we still want our young people to engage with Europe. That is a two-way process: equally, we want to see the Erasmus+ programme enabling young people from European countries to come to the countries of the United Kingdom. This is a very modest amendment, but it sends a very strong signal and I urge the Government to accept it or at least to come back with some statement or amendment of their own that shows that Erasmus+ will certainly be part of our future.
Baroness Blower (Lab)
My Lords, I was going to make exactly the same point as the noble Lord, Lord Wigley: we are indeed leaving the EU—much to my regret—but not leaving Europe. As a former teacher of modern foreign languages, I am very well aware of the great benefit that students derive from speaking the target language in situ in the country, rather than in the classroom or—heaven forfend—a language laboratory. Speaking a language in the country where it is spoken necessarily involves all those aspects of culture that are so much more difficult to bring into the classroom, where they will sometimes appear slightly artificial. Even though all the points have already been made eloquently by the noble Baroness, Lady Coussins, I wish to associate myself, as a former teacher, with all those remarks.
As I said in my maiden speech, I work extensively with teacher organisations across Europe, not in just the 27 countries that will remain in the EU but also in the other countries mentioned that subscribe to Erasmus+. My colleagues across Europe wonder what is going on in Britain and why we are leaving, but they are also at great pains to say that they are very keen to continue to work with British teachers, and to ensure, in so far as they can—although it is not in their purview—that we remain closely engaged with the Erasmus+ programme.
The budget is, as the noble Baroness, Lady Coussins, said, an enormous amount of money and a huge increase. It would simply be folly for the Government not to remain in this programme to access all those opportunities—at school level, at university level, with apprentices and, indeed, to assist the recruitment of teachers of modern foreign languages, as the noble Baroness said. I know more teachers of modern foreign languages who are no longer in the classroom than I do who are actually teaching. It is a very big problem and I hope the Government will listen to all the wonderful speeches that have been made today, make the very slight amendment to the Bill and determine that we will remain full participants in the Erasmus+ programme.
The Duke of Somerset (CB)
My Lords, I too would like to support this amendment. Erasmus has been a most successful EU scheme and benefited 800,000 people in 2017, which seems to be the last year for which statistics are available. It has existed for three decades, benefiting 9 million people in that time. In 2015, the UK received funds of €113 million to implement the scheme.
As we know, it funds students and staff on vocational courses, voluntary work and sports programmes throughout the 28 EU countries. I should declare an interest: one my daughters attended the University of Naples for a year on the scheme and she has gone on to live and work there. In general, the scheme is hugely influential in broadening the education and cultural values of our young, including introducing them to foreign languages, which is not a natural skill for us Britons, as we have heard. When they return home, this knowledge helps them obtain more challenging jobs that benefit our own UK economy. Vice versa, EU students who study here learn to appreciate the British way of life and its values, which they spread back home in a positive manner.
It is hard to overestimate the often life-changing benefits Erasmus has bestowed on those who have participated—from all walks of life, as we have heard. We all gain from this programme and to refuse to commit to trying to continue our participation after IP seems unworthy of this Government and a kick in the teeth for so many aspiring young people.
Baroness Kingsmill (Lab)
My Lords, I started my career living in France in my early 20s, and for the last 10 years I have earned my living in Europe in several different countries. Living and working in Europe has been a very educative experience.
The Erasmus programme is amazing. I have met several young people who have had the opportunity to learn about other countries, and to spread their knowledge of English while acquiring other languages. At a time when we are, through this unfortunate Bill, restricting the abilities of young people to experience living and working abroad, blocking this amendment would be very petty on the part of the Government. They have such a large majority and can do whatever they like, but to penalise young people in this way and to restrict their ability to experience Europe in all its glory is a great pity.
Lord McNicol of West Kilbride (Lab)
My Lords, I am grateful to the noble Lord, Lord Storey, for tabling Amendment 38 and affording me the opportunity to probe the Government’s intentions with regard to excellent Erasmus+ scheme.
As we have heard, the current Erasmus+ scheme has benefited thousands of our young people and given tens of thousands of EU young people the opportunity to spend time in the United Kingdom. Despite previous statements that the UK will consider options for continued participation, the Government may be tempted to make a clean break. That would be a mistake. If we were to leave Erasmus+, current participants would be able to wind up their placements but other young people would be denied the opportunity to study, to work and to volunteer, which has become so commonplace. We on these Benches very much hope that this will not be the case. It would be a huge mistake to walk away from a scheme that has led not just to better employment outcomes but to an increase in the participants’ confidence, independent thinking and cultural awareness.
The Prime Minister has indicated that the UK will seek to continue participating in Erasmus+. As the noble Lord, Lord Storey, and others who have participated in this debate have said, we support the Prime Minister in that position. I hope the Minister can confirm that this is definitely the Government’s intention, as well as outlining what discussions—if any—have already taken place with the EU 27.
If I may abuse my position for just a second, could the Minister also confirm whether any progress has been made on our continued participation in the Horizon research programme, which is similar in many respects?
The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)
My Lords, I am pleased to respond to this amendment moved by the noble Lord, Lord Storey, and I will try to respond the comments made by the noble Earl, Lord Clancarty, the noble Lords, Lord Wigley and Lord McNicol, the noble Duke, the Duke of Somerset, and the noble Baronesses, Lady Coussins and Lady Blower.
I appreciate that in recent days there has been a great deal of interest in, and confusion about, the UK’s participation in the next Erasmus+ programme. International exchanges are strongly valued by students and staff across the education sector. That is why we published our international education strategy in March 2019, setting out our ambition to increase the value of education exports to £35 billion a year, and to increase the total number of international students hosted by UK universities to 600,000 by 2030. The numbers of international students and EU applications are at record levels. The total number of international students, EU and non-EU combined, studying in the UK increased from 442,000 in 2016-17 to 458,000, and the most recent figure is 486,000 for 2018-19.
The most recent mobility analysis shows that Erasmus accounted for less than half of all mobility activities. I agree with the noble Baroness, Lady Coussins, and the noble Lord, Lord McNicol: there is evidence that students who have spent time abroad as part of their degree are more likely to achieve better degree outcomes, improved employment prospects, enhanced language skills and improvements in their confidence and well-being. I must gently point out to the noble Baroness, Lady Blower, however, that it was a Labour Government who removed the requirement that modern foreign languages be a compulsory subject. As soon as that happened, participation collapsed and we have fought hard over the last nine years to increase it.
I would like to clarify the Government’s position and explain why the proposed new clause is unnecessary. As several noble Lords have said, the Prime Minister made it clear at Prime Minister’s Questions yesterday that we will continue to participate in the existing programme. Our future participation will be subject to our negotiations on the future UK-EU relationship, but we have in our elected Prime Minister, almost uniquely, a person steeped in European culture. He was educated in Brussels for part of his childhood, at the European School, and is bilingual in French. This is not a person who is going to turn his back on European education and its institutions.
We believe that the UK and European countries should continue to give young people and students opportunities to benefit from each other’s best universities. Our exit from the EU does not change this. As several noble Lords have said, we are not leaving Europe. The withdrawal agreement ensures that UK organisations, students, young people and learners will be able to continue to participate fully in the remainder of the current programme.
On the question of future participation in the next Erasmus programme, which runs from 2021 to 2027, we have been clear that we are open to continued co-operation on education and training with the European Union. We remain open to participation in the programme, but the amendment is not necessary. The next generation of EU programmes, including the proposed regulation for Erasmus 2021-2027, is still being discussed in the EU and has yet to be finalised. How can we comment on something that does not yet exist? The existing scheme is nearly seven years old and as the noble Baronesses, Lady Blower and Lady Coussins, said, the new programme will be different. It will be bigger and, until we see the substance of those proposals, we simply cannot be sure what the next stage of the Erasmus programme will look like. On this basis, it is not realistic for the Government to commit ahead to participation in a programme yet to be defined.
As set out in the political declaration, we have said that if it is in the UK’s interests we will seek to participate in some specific EU programmes as a third country. This includes Erasmus+ but this will of course be a matter for upcoming negotiations arising from our future relationship with the EU. We are considering a range of options with regard to the future of international exchange and collaboration on education training, including potential domestic alternatives. This is a significant moment in our history. In two weeks’ time, we will begin to pivot to become a more outward-facing country. We do not need just an EU university scheme but a much wider one.
I hope that we will have a global programme, encompassing all continents. We have many small schemes. Time is too short here to list them all but I will ask officials to attach an addendum to Hansard. I shall mention one: the Chevening scholarships scheme, which offers some 1,600 postgraduate scholarships and fellowships for potential future leaders. Last year, we doubled the number of scholars coming from Argentina. To celebrate this, I held a dinner for them in Lancaster House and was joined by the Argentinian ambassador—and before noble Lords worry about a taxpayer-funded junket, I can reassure them that I paid for this myself. I did this because I want Britain to have a wider window on the world.
This Government will look carefully at all available opportunities to fund international co-operation on education matters, including with the EU. I hope this explanation demonstrates why the proposed amendment is not necessary and I ask that the noble Lord, Lord Storey, withdraws it.
Baroness Coussins
The Minister put a lot of emphasis on the Government’s wish to see the offer to students be much broader than just European and to encourage students to go worldwide as well. Does he not acknowledge that the whole point of Erasmus+, as opposed to the original form of Erasmus—without the plus—now means that the programme includes the opportunity for UK students to take up their placements in their year off in countries that are outside the EU, as well as inside it? This is precisely because it is acknowledged that some students may well benefit from a placement in China, Brazil, Turkey or wherever. That is exactly what has been happening with Erasmus+.
Lord Agnew of Oulton
I entirely accept what the noble Baroness says but the key principle here is that we cannot offer a blank cheque in the withdrawal Bill to say that we will automatically join a new programme where the details have still not been agreed. However, none of the mood music coming out, including what the Prime Minister said only 24 hours ago, suggests that we are going to turn our backs on the educational institutions of Europe. We want to be part of it. We are in a rapidly globalising world but the point that I want to make to everyone is that we cannot continue to slavishly focus on the EU. This is why we had the referendum and why, at the 2017 election, the manifestos of 85% of MPs supported leaving. We then had three years of chaos in Parliament and now we finally have a decent mandate to do it. That does not mean that we flounce out of Europe, or that we leave the culture and institutions of Europe. I am sure that we will work proactively to maintain close links.
Baroness Blackstone (Ind Lab)
Does the Minister accept that the Chevening scholarship scheme has absolutely nothing to do with Erasmus? As a former Minister responsible for all post-school education, I am familiar with these schemes. The Chevening scheme is for master’s degree-level programmes and for students coming to the UK; it is not for British students going out to other countries, whether in Europe or elsewhere. Why the Minister’s officials have put this in his speech, and why he does not realise that it has absolutely nothing to do with Erasmus, I simply cannot imagine.
Lord Agnew of Oulton
I can answer that. The point is that nearly every Peer who joined the debate on this amendment was mourning the leaving of Europe. Many of them just said, “We are very sad to be leaving the EU”, but we have got to get beyond that. In two weeks’ time, we are going to be an outward-facing country looking to the rest of the world. The reason that I mentioned Chevening—I put it into the speech, not officials—is because I had direct experience of it recently. I was sent to the OECD conference on education in Argentina about 18 months’ ago. I met the Education Minister, and it is those sorts of contacts which will help the future of this country. I accept that Chevening is a master’s degree programme and that it is for high-potential future leaders, but it is about the connection between institutions in our country and other countries.
The Earl of Clancarty
The point I made in my speech was that Erasmus does not preclude these arrangements. My nephew was at Swansea University, which had an exchange with Arizona that had nothing to do with Erasmus. Losing Erasmus means that students would lose choices overall; that is the point.
Lord Agnew of Oulton
The reassurance that I can give the noble Earl is that we support the value of Erasmus. We are not signalling that we are going to come out of the next version of it, but we cannot offer a blank cheque on a scheme that has yet to be agreed. It will be part of the far wider withdrawal agreements that we foster with the EU over the next 12 months.
Lord Storey
I am grateful for the Minister’s comments. I am sure that he will want to reflect on the comments made by Members in this debate, particularly on the importance of Erasmus to languages and inclusion. I am pleased that he has told us that we are committed to staying in the current Erasmus scheme, as that is important. I would also point out that regarding our ability to engage with—in the phrase the Minister uses—the wider world, these things are not mutually exclusive. There is already a whole host of schemes where young people can go to non-European countries to study; those exist currently. I hope that we can build on those as a nation over future years as well.
The key issue is that while, to some extent, the Minister is right that we do not yet quite know what the new Erasmus programme will look like, if we can give a commitment to be part of it we can be part of forming that new programme, which will, I hope, do some of the things that he has been espousing. I will reflect on what he said and I hope that he will consider what Members have said. For the moment, I beg leave to withdraw the amendment.
Lord Lea of Crondall
“Future relationship: EEA alignment
It shall be an objective of the Government to secure an agreement with the EU that aligns as closely as possible with EEA member status, having regard to Article 184 of the withdrawal agreement (concerning ongoing commitment to the political declaration).”
Lord Lea of Crondall (Non-Afl)
My Lords, the President of the European Commission indicated last week that there was no way that the Government’s open-ended agenda—I stand to be corrected about the detail of the shopping list for the rest of this year—could be dealt with by the end of this year. Indeed, it is seen in Brussels as simple wishful thinking; Boris Johnson will think of another wheeze in time to keep the show on the road.
Instead of “Get Brexit done”, the real question is “Let’s get Brexit real”. At the moment, we assume that the starting point was something like the withdrawal agreement and political declaration of October 2019, but we would like to see a credible programme of what the Government will try to negotiate by the summer or autumn in order to meet the commitment made by the Prime Minister. It is in that connection that we could have something like EEA/EFTA as a point of reference—a tick-box, if you like—for many of the questions that will arise. We have just heard an interesting debate about Erasmus, but there are 20 or 30 such subjects, all of which will need decisions, including in many cases on their compatibility with free trade for the rest of the world—all that work has been done over many years since the Stockholm Convention of the late 1950s and Britain’s participation in EFTA and, eventually, the EEC in 1973-74. We have now therefore to set out where we want to be on the whole range of things where we have alignment at the moment.
The Government often say “We have alignment at the moment”, so why not say the next thing? If we are taking some comfort in the fact that we have alignment at the moment, is not the question surely why we want to move away from it? Do Her Majesty’s Government have some ideological reason for moving away from alignment? At the end of January, we will be putting out the flags to say Brexit is all done—it has hardly started, as we know.
The EFTA and EEA agreements have other consequences as well. I am not suggesting that we would enter into them, given the short title of this Bill, but they include the very important questions of jurisdiction of settlements of disputes, the arbitration panel and so on, all of which are important if we want to continue to attract foreign direct investment into Britain. As the Financial Times charts, this is going down very rapidly, partly because these rather straightforward decisions have yet to be made. If they are not made very soon, there will be an assumption that the Government have not thought through how these Brexit-related issues will be resolved.
To remind ourselves, the EEA agreement provides for a free trade area covering all the EEA states. It does not extend the customs union to the EEA/EFTA states. The free trade area also abolishes tariffs on trade between the parties, but there are still border procedures. This is a model that I hope the Government will not run away from simply because it was not their idea in the first place. To get Brexit real, these become very serious options for consideration, and I hope that the Minister will agree that we should look at all these questions on their merits and at having a framework for the compatibility of them all. Looking at each question one by one is not necessarily the most helpful way to see how a framework can be agreed. Surely, by the end of this year, the notion is not just that we will have a number of separate agreements on everything under the sun but that we will have some sort of framework, because there are consequences between the different silos in any framework. I hope the Minister appreciates that—I say it in a constructive spirit—because it is, unfortunately, against the background that we will have left the European Union, possibly to rejoin the EEA at a later point. That is another question, but it is not something that the Minister should balk at simply because it sounds like a stalking horse for rejoining the EU. It is a perfectly good shopping list for the Government. I would like to know when the Government’s framework concept for the negotiations in the next few months will be published, or will the Government just keep all their cards up their sleeve and not publish such a thing?
Take the question of jurisdiction: it is very odd indeed that we should now want to attach more importance to jurisdictions where we have no judge, as we do in the European Court of Justice at present. During the transition and under the future envisaged in the political declaration, does the Minister agree that we will have to accept that it will be for the ECJ, without a UK judge, to present the authoritative view in any imaginable case between the EU and the UK before the new arbitral tribunal?
We know that there are issues that do not necessarily fit within the framework that I have just described, such as the free movement of persons and mutual recognition of diplomacies. There are limits to how far one wants to go in putting everything in what we might call a framework agreement but, again, a lot of work was done in the EEA negotiations. If we are going to shadow anything to see what works and what does not, that would be an excellent place to start. It would be far more effective than a one-off set of negotiations on a whole range of things one at a time. I hope that, in that spirit, the Minister will agree that there could be value to the Government in looking at such a framework.
Baroness Quin (Lab)
My Lords, I have not spoken on this Bill so far, because I was not able to attend the closing speeches at Second Reading, though I have followed most of the Bill proceedings. I added my name to the amendment moved by my noble friend Lord Lea because I felt that it was a way of raising the issue of how close we manage to stay to the European market after Brexit. The amendment of course raises the importance of alignment. We have already heard several times from Ministers today that we are not leaving Europe even though we are leaving the EU, yet in so many ways we are putting obstacles in the way of our ongoing relationship with Europe. In terms of alignment, there is much emphasis on having freedom to make our own standards, but this seems quite an illusory freedom in many ways, which is probably not in our interests. Obviously, there may be some rules within the EU that we do not particularly like, but most of the rules we have agreed over the years are as part of the single market, which the United Kingdom very much pushed for in its early stages. Most of those standards and rules concern such things as consumer safety, environmental standards and sensible trading arrangements: we must not forget that as we move forward. In many ways, we actually made those rules: we were the prime mover in making those rules in the European market.
One of the arguments against being too close to EFTA was that that would make us rule-takers rather than rule-makers. Of course, that argument already concedes the fact that we have been rule-makers in the past. Within the EFTA arrangements, there are certainly ways in which we can influence the rules, which will not be the case if we do not follow any kind of close alignment after Brexit.
I have been struck in the course of our debates by how the issues I have been raising have been translated into vivid examples in different parts of the UK. I was very struck by the remarkable debate that took place quite late on Monday night about Northern Ireland, about the importance of the single market to Northern Ireland’s relationship with the Republic and how vital unfettered access to the UK market is to Northern Ireland. In particular, my noble friend Lord Hain made that point very powerfully, and there does not seem to be any easy answer. I cannot understand, and nobody has been able to explain it to me so far, why the arrangement consists of trying to assess whether goods that go into Northern Ireland from the UK may, or may be likely to, end up in the Republic of Ireland. I have no idea how that system of assessment is going to work. It seems unworkable and the debate in your Lordships’ House on Monday night underlined that point very strongly.
We also know that Scotland is very keen to keep as close to the European market as possible and is concerned about the Government’s trading stance. In my own part of the country, the north-east of England—the Minister will not be surprised that I mention it, because I always do—a higher proportion of our trade goes to the European market than any other region of the UK. When the Prime Minister visited the north-east recently, before election day, I was very much hoping that someone would ask him whether he accepts the figures of his own Government that the north-east is going to lose out in so many specific ways. He was never asked that but I would have liked to ask him whether he accepted those figures or, if he did not, what his own figures were. Perhaps the Minister will give us some clarification of that now. Certainly, our future trade arrangements will be vital to the future of the north-east economy.
There is a political point that needs to be made. We know that the referendum result in 2016 was narrow and that, despite the Government’s handsome majority of seats in the House of Commons now, none the less those people who voted for parties who either wanted a second vote or were in favour of remain comprised 53% as opposed to 47%. That is a contrary picture to that in 2016 and for that reason, while the Government have a mandate in terms of seats to go ahead with Brexit, they also have a responsibility to work towards a solution that will at least not seem totally antagonistic to what the other part of our population actually thinks. For that reason, a compromise would be to stay as close to the European market in as many constructive ways as we can.
We have just had a fascinating debate about Erasmus: that is a very good example of the kind of thing I am talking about. I urge the Government to look at this whole issue of alignment and staying close to the European market in a much more positive and constructive way than they have up to now.
Baroness Hayter of Kentish Town (Lab)
My Lords, the EEA relationship has been, and, indeed still is, one that suits its member states exceedingly well. It enables certain non-EU member states to take full advantage of their geographical proximity and their historical trading and cultural relations with the EU to the benefits of both sides of the various borders. It is a model, as we have heard, that our negotiators would do well to follow, not necessarily on the exact detail, which is, after all, tailor-made for the various parties, but in its aim: to retain the alignments that foster trade, and to build on our different natural resources, strengths, patterns of exchange, labour needs, service expertise and investment potential. The negotiations should build on those strengths, just as the EEA has managed to achieve. That, we think, would be to the benefit of the EU as well as ourselves.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thank all noble Lords who took part in the debate, but we have been very clear in the political declaration, and indeed in our election manifesto, on our vision for the UK’s future relationship with the EU, which is based on an ambitious free trade agreement.
As I always do, I enjoyed the contribution of the noble Baroness, Lady Quin. We share an interest in the north-east of England. She is an experienced former Minister, doing some aspects of the job that I do now, and I always listen very carefully to what she has to say because she speaks a great deal of sense. She asked about the impact on the north-east of England, something I am of course very interested in. The answer will depend on the future trading arrangements that we negotiate, so I say: come back and ask me again at the end of this year. We have been very clear that we want an ambitious free trade agreement. We want trade to be as free as possible and we will be negotiating hard to bring that happy state of affairs about.
The election has clearly shown, in my view, that the public support the vision that we put forward. It was extensively debated in the election campaign and we won our majority on that basis. To answer the question of the noble Lord, Lord Lea, directly, I say that it is only by leaving the single market that the UK will be able to obtain an ambitious free trade agreement and to strike new trade deals with new and existing global partners. Attempts to remain in the EEA agreement beyond exit is by no means a simple as many noble Lords would have us believe. The EEA is an arrangement that exists at the moment between the EU and a number of EFTA countries—
Lord Lea of Crondall
I emphasise for the third time that this amendment is not about rejoining or staying in: it is, as my noble friend Lady Quin said, about alignment. Indeed, it is, if I may use the phrase, shadowing some of the rules that we have at the moment. Will the Minister comment on the fact that he has said many times that we are beginning from alignment? Why leave alignment, as a theological requirement?
Lord Callanan
I do not think that I said that. However, the noble Lord is right—although I did not say it on this occasion—that of course we are starting from a position of alignment. I do not have his amendment in front of me, but I think it refers to the EEA: it is the purpose of the amendment he has tabled, which is why I was exploring the issue.
The point I was going to go on to make is that the EEA is an agreement between the European Union member states and a number of EFTA states, and it is not open to the UK just to be able to join that agreement. We will leave it when we leave the EU part of that agreement, but the EU would almost certainly want to renegotiate it, because it was never designed for a country the size of the UK. That is if we did want to join it, but as I will shortly set out, I do not think it is desirable that we should. It is not a simple case, even if we wanted to, of happily trotting off and joining the EEA agreement: there are a number of other countries which are in at the moment that would no doubt have some observations on that.
My point is that attempts to remain in the EEA agreement beyond exit would not deliver control of our borders or our laws—two of the main three pillars of our argument for why we need to leave the EU. On borders, it would mean having to continue to accept all four freedoms of the single market—I take the point made by the noble Lord, Lord Lea, that we could perhaps pick and choose which ones we wanted to abide by or align with, but I suspect that the EU might have something to say about that. However, we would of course have to accept free movement of people. On laws, it would mean that we would have to implement all new EU legislation—as the noble Baroness, Lady Quin, said, we would be rule-takers. The noble Baroness was not in her place last night, but I quoted Mark Carney, the Governor of the Bank of England, who said how dangerous it would be, as we seek to manage one of the largest and most complex financial markets in the world, to turn ourselves into rule-takers, whereby the rules were set by another jurisdiction. Despite Mark Carney’s views on EU exit, which are well known, he made it clear that he thinks that it would be an unacceptable state of affairs for us to proceed with. It would mean that the UK would have to implement all new EU legislation for the whole of the economy, including services, digital and financial services.
We do not believe that that would deliver on the British people’s desire as expressed in the referendum to have more direct control over decisions that affect their daily lives. Rules would be set in the EU that we would then have to abide by. The public want the Government to get on with negotiating this future relationship, which was set out in the political declaration, without any further unnecessary hurdles, and that is what the Government will do.
Baroness Quin
I am listening carefully to what the Minister says, but he is responding to something that the amendment does not say. It does not say “rejoin” or “join” EFTA or the EEA but simply that we should have a look at what is happening in that process and look at areas where we would want to align with it.
Lord Callanan
The amendment refers to the EEA, and the noble Lord, Lord Lea, indicated earlier that he would be in favour of joining it, so I was making the arguments against that. However, we have also explored the arguments on alignment at different times in the past, and it may well be as a result of the negotiations that there are some areas of EU legislation that we may wish to align with or put in place an equivalence procedure. That is all for the future negotiations.
As we have said on many other amendments, we do not believe that it is a sensible tactic to set out our negotiating objectives in statute, or that setting a negotiating objective along the lines of that advocated in the amendment would be what the public voted for in the general election or in the original EU referendum. Our manifesto at the election was explicit about the Government’s intention and determination to keep the UK out of the single market. On that basis, although I suspect that I have probably not satisfied the noble Lord, I hope that he will feel able to withdraw his amendment.
Lord Lea of Crondall
I thank the Minister for that reply, although I think that whoever wrote his speech had not read the terms of the amendment. Over the course of the next four years, even if the Government do not want to set out a blueprint—
Lord Callanan
I have a copy of the amendment and it says:
“aligns as closely as possible with EEA member status”.
Lord Lea of Crondall
To align is something that we can do unilaterally or with agreement, but the amendment does not say “join”. I am sorry—I am not trying to be pedantic; we both know where we are, but that is what the amendment says.
To conclude, I hope that the Minister and the Government will generally reflect on the fact that, if they want to get Brexit real rather than just saying “Get Brexit done” as a slogan, they will have to see how a framework can be approached which will have certain common principles that will then be understood by the President of the European Commission. At the moment, she is baffled about whether the Government know what they are doing when they say that we can get all these things done one by one—scores of them all done and dusted by the end of this year. I beg leave to withdraw the amendment.
Lord Wigley
“Economic impact assessment
(1) A Minister of the Crown must—(a) lay before each House of Parliament, and(b) submit to the Presiding Officer of each devolved legislature,a comprehensive economic impact assessment of potential outcomes arising from the conclusion of negotiations on the future relationship with the EU.(2) An assessment under subsection (1) must include—(a) an analysis by NUTS1 and NUTS2 regions of the United Kingdom including (but not limited to)—(i) impact on employment as both an actual figure and a percentage, and(ii) impact on Gross Value Added; (b) a sectoral analysis including but not limited to agriculture, health and social care, manufacturing, the aerospace industry and financial services.”Member’s explanatory statement
This new Clause would require the Government to produce an economic impact assessment on the future relationship with the European Union.
Lord Wigley
My Lords, the objective of Amendment 41 is to require the Minister to present, both to Parliament and to the devolved legislatures, an economic impact assessment of the potential outcomes of negotiations so that we may know where we are heading.
First, over the past three years, numerous prophecies have been made as to the economic implications of Brexit, most of which were based on guess-work at the time as to what would be the outcome. All those guesstimates are now largely irrelevant. We now know three basic dimensions of our way forward. We know that we shall be leaving at the end of this month and that the implementation period will last until next December.
Secondly, the Government, presumably, know exactly what they want in any agreement reached with the European Union. They therefore will have made their own assessment of the economic impact if they get their way. The House and the devolved Governments have a right to know the detail of any such assessment, as well as a right to know the implications for each of our four nations and for the standard regions—in the amendment this is covered by virtue of a reference to the NUTS areas.
Thirdly, the Government have made it clear that, if they fail to reach and to achieve their negotiating objectives, they will choose to leave without a deal. Again, they have presumably estimated the effect of any such course of action. The implication could be disastrous for manufacturing, exporters, hill farmers and many others. However, surely the Government have, at the very least, a duty to make known the detail of any such estimates. Anyone in the world of trade, agriculture, manufacturing, industry or finance will clearly want to know, at the earliest time possible, what are the official forecasts for these implications, for the basic reason that they are quite fundamental to making any future investment decisions.
If the Government have their own estimates, they are surely duty-bound to share them, and if they do not, they should step back from negotiating a trade deal until they have the basic tools needed to make such a major and far-reaching decision, and to have those tools and the information on a logical and quantified basis. I beg to move.
Baroness Hayter of Kentish Town
My Lords, perhaps it is a symptom of the way that Brexit has been handled that the noble Lord, Lord Wigley, even needs to table this amendment; we would have hoped that all this work had been done, published and debated well before any decisions were made. Indeed, I think reference was made yesterday to the Room 101 experience we had when we were called to be shown in secret the so-called sector-by-sector analyses of the impact of the withdrawal. They were of course no such thing—they were A-level descriptions which could have been got from published documents. Now we find that the Government want to head into negotiations on the future of the UK and its constituent parts with no prior appraisal of the impact of a range of outcomes, either on sectors or on geographical areas, and importantly, with no debate with either the industries concerned or with elected representatives of the geographical areas. Yet as we heard in the debate yesterday, important trade-offs and difficult judgments are going to have to be made as we struggle to find a workable trade relationship with the EU.
This should not be done in the dark. We should have full knowledge of the likely impact of each possible approach. The Government should have done this work, but I have little confidence that they have, which is why the amendment tabled by the noble Lord, Lord Wigley, is so relevant.
Earl Howe (Con)
My Lords, I am grateful to the noble Lord, Lord Wigley, for introducing his amendment which, as he made clear, relates to the future economic relationship between the UK and the EU. Our agreement with the EU in the political declaration was expressed in the following words:
“to develop an ambitious, wide-ranging and balanced economic partnership. This partnership will be comprehensive, encompassing a Free Trade Agreement, as well as wider sectoral cooperation where it is in the mutual interest of both Parties.”
We look forward to working with our partners in the EU to negotiate this free trade agreement in the year to come. But on that, there is a basic point to be made. It would be neither possible nor appropriate to publish a detailed analysis of the specifics of an agreement that is yet to be negotiated. Indeed, publishing such a detailed report, as the noble Lord’s amendment would require, would completely undermine the UK’s negotiating position heading into the next stage.
There is a way to address the noble Lord’s concern that does not land us in that kind of trap. In November 2018, the Government published a detailed analysis that covered a broad range of possible EU exit scenarios. This report ran to over 80 pages and was designed to provide an understanding of how changes to our relationship with the EU might affect the United Kingdom’s economy in the long run. This is available for all to see.
In exactly the same vein, let me reassure the noble Lord that the Government remain committed to informing Parliament with the best analysis to support parliamentary scrutiny. We will do so at an appropriate time that does not impede our ability to strike the best deal for the UK. As I emphasised in our debates yesterday, we have also been clear that we will engage with the devolved Administrations and draw on their knowledge and expertise to secure an agreement that works for the whole of the UK.
I hope therefore that the noble Lord, Lord Wigley, will feel able to withdraw his amendment. I can assure him that the Government will continue to update the House with analysis at appropriate points.
Lord Wigley
Could the noble Earl clarify why, if it was possible to publish in 2018 the figures to which he has referred, it is not possible to do so now?
Earl Howe
My Lords, the intention behind those scenarios was to cover a broad spectrum of circumstances which we could find ourselves in. They were not designed to posit our desired end-point; they were designed as a guide to the citizen to illustrate what could happen, given certain variables. I do not think that it is possible or advisable for us to go beyond that at this stage.
Lord Wigley
I am sorry to labour the point, but could he therefore say whether the figures of 2018 are still valid?
Lord Wigley
My Lords, I do not think I will succeed in taking this matter very much further this afternoon, but the House will have seen the position that we are in: some figures were available in 2018 that may or may not be relevant now, and we do not know the direction we are going in to know whether they are relevant. It seems a very strange way of entering negotiations—I only hope that the outcome will be better than the prophecy on that basis. I beg leave to withdraw the amendment.
Lord Whitty
“Transport between the United Kingdom and the EU
(1) During the implementation period a Minister of the Crown must as necessary make regulations and seek agreements with the EU or with an individual member State of the EU to ensure that transport of freight and of passengers by road, rail, air and sea continues to operate smoothly between the United Kingdom and member States of the EU during the implementation period.(2) No later than 31 July 2020 a Minister of the Crown must set out in a report to both Houses of Parliament the basis for movement of freight and of passengers by road, rail, air and sea between the United Kingdom and member States of the EU after the implementation period.(3) A Minister of the Crown must, within the period of 14 sitting days beginning with the day on which the report is published, make arrangements for an amendable motion on the report to be debated and voted on in each House of Parliament.”Member’s explanatory statement
This amendment is to alleviate concerns that permits will become less available and more complicated for lorries and drivers on cross-Channel journeys by ensuring that contingency arrangements can be made during the implementation period.
Lord Whitty (Lab)
My Lords, I said earlier this afternoon that my amendments were somewhat technocratic today, but this one actually, in a sense, deals with the most fundamental issue of all. As we split from the European Union, what actually happens when we move from one economic and political entity to another and how does it differ from the free movement we have had over the past few years? In other words, what will be different for the citizen or the trader once Brexit is “done”? Of course, as we said earlier, it is being done in stages: some things will happen from 1 February, some presumably from 1 January, and there might well be further stages in any ultimate agreement.
What matters to citizens and business is: if you drive your lorry off the ferry at Ostend, what has changed? If you land at Schiphol Airport, now in a different economic area, as a British citizen what has changed? Despite the fact that we have had major debates on Northern Ireland, it is not at all clear what will happen in relation to Northern Ireland, even internally within the United Kingdom. What actually happens if you are a trader moving produce from Stranraer to Larne or vice versa? I am not clear and nor are many businesses in Northern Ireland. Indeed, what changes if you just drive produce down the road from Strabane to Letterkenny? We need to know that; businesses, citizens and communities need to make arrangements that anticipate the new relationship with our European colleagues.
In May last year, the sub-committee of the EU Select Committee that I then chaired produced a major report on transport. That report is yet to be debated in the House. I was told that we would be debating it next week, in which case I probably would not have moved this amendment, but that seems to have disappeared, in which case we are not likely to debate transport in any other context before Brexit on 31 January.
We are told that things will not change during the implementation period, but some things will change. We will no longer be party to any decisions on transport or any other area during that period. I have therefore tabled an amendment that tries to deal with these stage changes to enable Ministers to make regulations to deal with those changes even during the implementation/transition period, because some will be needed. More importantly, after the end of that period, we will have a whole new relationship for every mode of transport—air, sea, road and rail. The implications will be different for passengers and for freight.
Take the road haulage industry: we have already had two different attempts to get it to prepare by developing its certificates and its ability to trade post Brexit, originally in preparation for 29 March. Those arrangements have, of course, now fallen. Even now, the road haulage industry is not yet clear whether we will be dealing with ECMT permits, which are limited in number, whether the whole range of road haulage will be required to have a new certification process, or whether drivers’ qualifications will remain recognised by the European Union, and therefore whether we can continue to trade in anything like the way we currently do without going through a whole new process.
When 29 March was in prospect, the European Union unilaterally, but subject obviously to reciprocal action, proposed that there would be a period of between nine and 12 months when the current arrangements for aviation and road transport would remain, so there was to be a buffer contingency provision. Those have sort of been rolled forward, but it is still not yet clear how long they will last and whether they will actually maintain continuity, or whether they will require new bureaucratic limitations on the ability to maintain the current level of aviation service, the current number of slots available to British-based companies, or, in the road haulage industry, the current level of permits.
The EU Select Committee has reviewed the withdrawal treaty and the political declaration. There are, of course, very high-level commitments in the political declaration to try to maintain some degree of movement. The committee concludes—as, more or less, does my committee—that it is not yet clear, and is unlikely to be clear until we get a free trade agreement of some sort, what the arrangements will be post-December this year. The committee concludes that we need much firmer commitments from the Government on their objectives in these areas, and much clearer commitment from the EU during the coming months.
The second part of my amendment therefore requires that, halfway through the year—by the end of July; let us give them a few months to get it sorted—the Government offer some clarity to industry and citizens. This involves us even as individual motorists. Will we need an international driving certificate by the end of this year to get off the ferry at Calais or Boulogne? It matters that we know the Government’s intention in these areas. As yet, we do not know the intention or—if it is to maintain free movement of goods and passengers on the present basis as far as possible—the credibility of that intention.
Of course, we then run up against a basic objection: free movement is dependent on alignment and common regulations, or what one of Mrs May’s propositions referred to as a common rule book. Without that, even if we have no tariffs, there are administrative problems, including costs and potential delays. That could snarl up Dover and make traffic at Holyhead almost impossible to check. It could mean snarling up trade with Ireland, as well as our relationship with the Irish Republic, which uses the UK as a transit area to get into the rest of the EU.
If the Government genuinely want what the Prime Minister on occasion says they want—the maximum freedom to diverge from European Union regulations—and they apply this to transport, the system will snarl up. There will not be frictionless trade, which has been said by successive Prime Ministers to be the objective. Frictionless trade does not exist without pretty close alignment of regulations, which the European Union has. As my noble friend Lord Lea said earlier, even between the EU and EEA/EFTA countries, there are some administrative problems at the borders, despite the agreement between the EU and those countries.
In every transport sector, whether you are a big road haulage company, a major world airline, a small trader with a van or an individual motorist, you do not yet know how the world is going to change and we have had no real indication from the Government of how they will deal with this. Can they give us some indication? As I have said, I would have preferred a report on transport in a different context—and I hope we will still have that even if it has to be after Brexit day—but this is a major subject which affects almost every sector of our country. I will come on to another amendment that deals with the agencies. The European agencies are very important to effective transport safety, be it road haulage, the railways or, more importantly, aviation and maritime activities.
I hope that we can get a coherent response—a report—from the Government on this issue. I have given them time before we exit. Between now and July, they should tell us where they are going and how we are to travel and trade beyond next year. I beg to move.
Baroness Randerson (LD)
My Lords, I was a member of the committee to which the noble Lord, Lord Whitty, referred when he mentioned the evidence on this issue. Week after week we heard witnesses from the transport industries giving evidence, and they presented a pretty united picture. Not one of them bounced in and said, “No, it’s all right, we’ll cope; we aren’t worried.” They were all worried and they were all frustrated. Of course, they will do their best to cope, but many of them genuinely fear that their businesses will go to the wall in the process.
Transport of one sort or another has been the subject of a lot of discussion and controversy throughout the Brexit debate. This is a comprehensive amendment which includes references to passengers, freight, roads, rail, air and sea. All of these are currently governed by a mass of different rules and agreements. Some of the agreements are with the EU and some are international treaties, but we are a member of those treaties solely as a member of the EU. Therefore, our position has to be renegotiated as we leave. All of this has to be unravelled and reconstructed if our transport system is to flow smoothly. It will never flow as easily after we leave the EU, because the Government have set their face against the close trading relationship needed for it to do so. However, they can still do things to paper over the cracks.
It is important to recognise the size of the problem. The prosperity of our economy rests on the shoulders of our transport system. Much of that involves foreign trade and the movement of people between countries, but even parts of the economy that are purely internal are to a varying extent affected by problems in the international movement of goods and people. To give one example, any delay to the ports in Kent has a huge knock-on effect not just on the motorways but on the towns and villages of Kent as a whole, and has an impact directly on its internal economy.
Now we have the added factor of the border down the Irish Sea. I have spoken repeatedly in this Chamber about the impact that this would have on Wales—for example on the port of Holyhead, which is badly unprepared to deal with long queues of traffic simply because of where it is situated—and on the farming industry in Wales as a whole. Transport-related problems are not confined to the impact of increased bureaucracy, to which the noble Lord, Lord Whitty, referred, nor to more complex border arrangements and the delays they might produce. They are also caused by the steady departure of EU nationals. This industry has a very high percentage of such employees, and their departure will also cause recruitment issues.
I draw the attention of the Minister to the fact that many of the early arrangements we made as a country with the EU in preparation for this are now badly out of date. Indeed, I remember sitting opposite the noble Baroness, Lady Sugg, when she was the Minister, discussing whether the dates matched for the interim arrangements that had been reached. So all these now need to be updated. They took us a long time in the first place—many hours of work went into them—but they must be looked at again, and it would be very useful for this House to know how well the Government are getting on with that.
The Government have been relatively keen to maintain our membership of aviation-related treaties but have been much more limited in how they have approached, for instance, links with our current EU partners on the railways. They have wanted agreement only with our immediate neighbours. Is that still their position?
The Government have gradually woken up to the general issues and concerns, especially in relation to freight and ports. A great deal of money has been spent on an emergency infrastructure in Kent. Of course, a lot of that money was wasted because it led to previous dates for departure from the EU that did not come to anything. Then there is of course the famous ferry company with no ferries.
I see that the Government are now trying to reclaim some of the £10 million that they gave to this industry and others to prepare for a no-deal Brexit. That displays the Government’s confusion on all this, because the Prime Minister continues to threaten that if there is no trade deal this year there will still be a no-deal Brexit. Everyone I talk to or listen to who has any knowledge of the complexity of a trade deal says of course that it is a highly likely event, because it is virtually impossible to get an agreement by the end of the year.
The transport industry remains seriously concerned. It grapples with uncertainty and complexity. I argue that this issue is so fundamental that it deserves the spotlight and the report that the amendment suggests. It is about a great deal more than whether we will all need two different sorts of international driving permit. It is that kind of thing that will have a huge impact on the general public, but it is the complexity of all the other issues that will have a major impact on how our goods are carried to and fro, and with what efficiency.
The amendment is designed to impose on the Government an obligation to work for the smoothest possible trade arrangements going forward. I hope that the Government have no problem in accepting that principle; but I also hope that they accept that Parliament should have the opportunity to assess progress. I believe, and I have always believed, that it is not until we get the impact on our transport arrangements across the board that people in Britain will realise the size of the change coming to us.
I hope that the Government can accept the amendment. If they cannot, I hope that they will work toward agreeing something along similar lines that will impose similar obligations on them to give updates on progress as they move forward with agreements on transport.
Baroness Noakes (Con)
My Lords, like the noble Baroness, Lady Randerson, I served on the EU sub-committee, led very ably by the noble Lord, Lord Whitty, and took part in the preparation of the report to which the noble Lord referred.
It was very clear from the evidence we received in that committee that some serious issues remain to be resolved. In particular, I single out road haulage, with the issue of permitting. Not all the other sectors present the same degree of difficulty. However, in that committee we took evidence from the Minister in the Department for Transport. While there were no definitive answers, because at that time last year there was a range of possible Brexit outcomes, it is fair to say that the Minister demonstrated a full grasp of the issues involved. I have confidence that the Government are aware of the issues and know what needs to be addressed in order for there to be a successful outcome for all aspects of transport post Brexit: that is, post the implementation period, in effect, so this is not a burning-platform issue.
I cannot support the amendment in the name of the noble Lord, Lord Whitty, because I do not think that reports to Parliament are a particularly useful mechanism, especially in the context of what I believe was relatively clear evidence at the time that the Government were aware of the issues and determined to address them. I look forward to hearing my noble friend the Minister’s response and hope that she will be able to demonstrate to the House that the Government are indeed aware of the issues and committed to finding practical solutions to them.
Lord Tunnicliffe (Lab)
I do not normally have sympathy for the Government Front Bench, but I, like the noble Baroness, Lady Sugg, took part in many hours of, broadly speaking, good-natured debates preparing for a no-deal exit. That very action revealed to us the sheer complexity required to make international transport systems work effectively. We were dependent on what we could do for ourselves, because we were in no way able to demand reciprocal action from the EU. Indeed, the EU saw the sheer risks of a no-deal exit and in fact came some way towards providing interim arrangements. Those interim arrangements do not now exist. It is possible that they will emerge between now and the end of December, but given the sheer effort required to do these complex deals, where somehow it is subtly acceptable with our European friends but is not actually like Europe—roughly speaking, that is what the Government are saying—I fear it is impossible.
I do not want to leave the European Union. Most of the House before the election did not want to leave the European Union and probably does not now, but with the odd exception there is virtually acceptance in this House that we have to get Brexit done. We may not like it, but we accept it. However, the sheer practical difficulties the Government face are terrifying.
It also happens that they have picked the worst date of the year. I had a crisis when a permit to operate ran out on 31 December; the alternative was to stop London on 1 January. It was pretty terrifying, because Christmas happens all over the place. Frankly, the end of December is the 22nd if you are lucky. The problem is that everybody else thinks the end of December is the 31st. It turns out that it is not. People are not there—senior people to make decisions and last-minute scrambles, which are what deadlines produce. It becomes utterly chaotic. Anyway, we survived and London did not stop, but it got incredibly close.
During consideration of the Haulage Permits and Trailer Registration Act, we debated the concerns of the freight industry at length. That industry is key to our trading with the EU 27, with millions of road goods vehicles travelling from Britain to the European mainland each year.
Since the passage of the Act, as part of its preparations for a no-deal exit, the Department for Transport began allocating permits via a lottery system, a system that was to be a fallback. Inevitably, because it is so overwhelmed, that became the main allocator. Figures show that less than 1,000 of more than 11,000 HGV operators' applications for annual permits were successful. With a deal now in place and a time-limited transition period running to the end of December, hauliers, drivers and users of other transport modes will be able to continue largely as normal.
However, as with other topics debated in recent days, there is no certainty about the post-December 2020 picture. Indeed, with the Government imposing hard deadlines for a new trade deal, transport operators face a renewed threat of suboptimal contingency measures. I lived in the transport industry. The lead time simply to have the right people in the right places to load the trains, drive the trains, fly the aeroplanes takes weeks and months. If you do not know what you are going to do in an industry that is so integrated, chaos reigns.
I welcome my noble friend Lord Whitty’s amendment and look forward to the Minister providing more up-to-date information. We have had precious little detail from the Government on their plans for future UK-EU transport arrangements, and while we accept that this will be subject to negotiation, I hope the Minister can indicate the type of arrangements that we will be seeking, and that the Government are successful.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, I thank the noble Lord, Lord Whitty, and members of his committee, including the noble Baronesses, Lady Randerson and Lady Noakes, for their very thorough report in May 2019, Brexit: Road, Rail and Maritime Transport. I also thank the noble Lord, Lord Tunnicliffe, for his contribution today. While I appreciate the intended effect of the amendment proposed by the noble Lord, Lord Whitty, it is at best unnecessary and at worst unwise, as I hope to explain.
The first part of the noble Lord’s amendment relates to transport during the implementation period. It is worth reiterating that, once the withdrawal agreement is ratified by the EU and the United Kingdom, EU law will continue to apply in the UK during the implementation period, and the Government will make regulations as appropriate. This will guarantee that the transport of freight and passengers will continue to operate smoothly, just as it does now. So in the implantation period, nothing changes. I hope this reassures the noble Lord that this part of the amendment is therefore unnecessary.
Regarding arrangements for the moving of freight and passengers by road, rail, air and sea between the UK and the EU after 2020, these considerations will form a very important part of the negotiations with the EU and should be allowed to proceed without undue impediment. While it is beyond the scope of today’s debate to go into great detail, I will take this opportunity to reassure noble Lords that the Government are fully prepared across all four modes: roads, aviation, rail and maritime. The landscape is complex, but the challenges are not insurmountable, and the work done in your Lordships’ House and beyond has been critical in crystallising our understanding.
On roads and road haulage, while international haulage accounts for only a small proportion of haulage activity in the UK, it is essential for our imports and exports. The political declaration therefore identifies road transport as an area for negotiation. We hope to agree arrangements that will allow the haulage industry to continue to act as the vital enabler of wider economic activity, while respecting our right to decide for ourselves how we regulate this sector in the future. We are developing a programme of discussions with the haulage sector on the future relationship, and this will include regular industry round-table meetings.
The noble Lord, Lord Tunnicliffe, mentioned permits and the time taken already by your Lordships’ House on a permitting system. This has helped our understanding of the challenges that the haulage industry will face. The Government are aware that the ECMT permitting system can be limited, and therefore if we do not have an agreement, we will look at bilateral arrangements with individual countries. Many of those historic bilateral road agreements can be restarted, and we have them with all EU member states, excluding Malta for reasons of geography. These would be the foundation for maintaining connectivity. However, our immediate focus is on getting an arrangement, particularly for road haulage. There is huge interest on both sides to make sure the arrangements work and that we are able to serve the supply chains across all nations.
Private motorists are also mentioned in the political declaration. Noble Lords will recall that by ratifying the 1968 Vienna Convention on Road Traffic we have already ensured that UK driving licences should be recognised in EU member states which also ratified the convention. Ireland, Spain, Cyprus and Malta have not ratified this convention, but we have ensured that UK driving licences should be recognised in those countries through their ratification of the 1949 convention. We are prepared to consider complementary arrangements where those would make sense.
Another example is on type approval for vehicles. The Government are working on implementing a UK type approval system to regulate which vehicles may be sold on the UK market, so that we remain confident that vehicles registered in the UK are safe, secure and clean. The UK is a respected member of the UNECE World Forum for Harmonization of Vehicle Regulations. We expect to maintain our high level of influence over the development of international vehicle technical standards.
On aviation, the political declaration foresees a comprehensive air transport agreement that will provide market access for UK and EU airlines, and provisions to facilitate co-operation on aviation safety and security, and air traffic management. The UK has long-standing expertise in negotiating aviation agreements and is fully prepared to reach a beneficial deal.
The noble Baroness, Lady Randerson, mentioned the safety agencies. Within the field of aviation that is the EASA, a significant player with whom the UK works closely. It is paramount that the safety and security of all passengers travelling in the UK and EU is not compromised under any circumstances. We want our consumers and EU consumers to continue to experience the best safety practices, when flying both to and from the UK. The Government understand the industry position on the UK’s continued participation in EASA and we will continue to work closely with industry throughout the negotiations.
On rail, arrangements are already in place for services through the Channel Tunnel and on the island of Ireland to ensure that these cross-border services continue in all circumstances. These arrangements will be supplemented by bilateral arrangements with France to support the continuation of these mutually beneficial services over the longer term, and we will continue to support the Northern Ireland Civil Service in future discussions with Ireland. The Government want to secure a close relationship with the EU transport safety agencies, including those for rail, as part of our future relationship.
Finally, maritime is a global sector and largely liberalised in practice. The UK’s departure from the EU will not create obstacles for UK ships in accessing EU ports. However, free trade arrangements can provide the legal certainty to underpin the market access that exists in practice.
The amendment of the noble Lord, Lord Whitty, also proposes a reporting requirement, a debate in both Houses and a vote thereon. On reporting, there is no need to set out—indeed, there may be a significant detriment in setting out—bespoke statutory reporting requirements on a specified date. I hope noble Lords agree that imposing a statutory duty on a Minister to provide public commentary at a fixed point in time on the likely outcome of confidential negotiations risks seriously disadvantaging negotiators acting for the UK. However, I highlight the comments on scrutiny made by my noble friend Lord Callanan in your Lordships’ House yesterday. It will remain the case that both Houses will have all the usual and long-standing arrangements for scrutinising the actions of the Government.
Let me summarise the Government’s response to the two key elements of this amendment. First, the smooth running of transport during the implementation period is already guaranteed. Secondly, the proposed report being published during the course of the negotiations is unlikely to be helpful and may significantly undermine the UK’s negotiating position. Given these considerations, I hope that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.
Lord Whitty
I thank the Minister for that very full reply, and I thank colleagues, particularly committee members, who contributed to this debate. I accept some of what the Minister said, in the sense that, theoretically, during the implementation period nothing is supposed to change—but some of the mechanisms for ensuring that things do not change have disappeared. That is probably an issue for my next amendment because, if we are not involved in discussions in the various agencies and issues arise, there will be a problem in the implementation period.
I agree that the real problem is from the new date of 31 December—or, in deference to my noble friend on the Front Bench, 22 December or thereabouts. The whole point of me asking for a report in July is to ensure that, in good time for the December date, all the various sectors, plus individual motorists, brokers and insurance companies and so forth, understand the position. It may be over-glossing it to require a vote of both Houses, but I think the industry and the nation require a comprehensive report, in some form, to the House and the country, to explain what will happen in all these modes of transport beyond December.
I will not press this amendment or the July date. This was always a probing amendment, and I have got a number of commitments from the Government, for which I am grateful. I am sure the Government are well aware of all these issues. I am not sure I entirely agree with my former colleague on the committee, the noble Baroness, Lady Noakes, about the degree of preparedness of Ministers before us; that was probably true of the last Minister we saw, but it may not have been true of earlier Ministers. I shall draw a curtain over that.
I accept the Government’s good intention in this respect, but, in the coming months, they will be under pressure from these various sectors to have greater clarification. It would be quite a good idea if we debated that again in the House, in whatever form the Government think is appropriate. Otherwise, we could still be in a situation where there is chaos in at least one of these sectors on 1 January next year. I beg leave to withdraw the amendment.
Lord Whitty
“Agencies of the EU and Euratom
(1) During the implementation period, the Secretary of State must continue to cooperate with the agencies listed in Schedule (Agencies of the EU and Euratom) and, if the Secretary of State considers it necessary, make regulations to enable cooperation.(2) Subsection (3) applies whether or not during the implementation period the United Kingdom is a member, associate member or observer at an agency, or has no formal association with it.(3) No later than a month before the end of the implementation period, the Secretary of State must lay a report before both Houses of Parliament setting out the United Kingdom's intended future relationship with each agency listed in Schedule (Agencies of the EU and Euratom) after the implementation period.”Member’s explanatory statement
The EU executive agencies have impacts on different sectors of UK business and society. This amendment would compel the Government to set out how they intend to fulfill their obligations in respect of the agencies during the implementation period, and how they intend future relations with those agencies will be conducted afterwards.
Lord Whitty
My Lords, I shall speak also to Amendment 62. Veterans of these withdrawal Bill debates—I cannot remember how many we have had now—will know that I have become somewhat obsessive about the agencies. The original EU withdrawal Bill transposed into UK law in a very sensible way—albeit a complicated way, and one that has taken a lot of work by our sub-committees to put into effect—most directives and regulations from the EU. In addition to those directives, however, day to day, it is often the agencies of the EU that are actually smoothing the way so that we have a co-ordinated market in the areas that they cover. Other areas—for example, security; I heard the noble Lord, Lord Paddick, talking about police co-operation the other day—are facilitated via these agencies in interpretation, enforcement, gathering information and monitoring the activities that they oversee.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I thank the noble Lord, Lord Whitty, for his dogged persistence in pursuing this matter. There is no doubt that, as we move beyond the end of this year, we will start to lose out on all the joint research on the issues around novel foods, scientific research into diseases and threats, pollution, climate change and so on—all the things that scientists are working on—unless we move ahead in the way that the noble Lord has described. It would be criminal if at a time when we are all facing so many common threats, particularly from climate change, we started reinventing the wheel. We do not have the scientific capacity to reproduce the sort of work that goes on at the Joint Research Centre in Ispra in Italy, for example, which is the combined research of the cutting-edge scientists of so many countries.
I doubt that it will be in the lifetime of this Government that we will be able to measure their failure to do the sort of work that the noble Lord is suggesting but, unless a solution is reached along the lines that his amendment suggests, we will certainly suffer in five, seven or 10 years’ time.
Lord Tunnicliffe (Lab)
My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.
We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.
Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.
As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.
In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.
I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)
My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.
It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.
It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.
The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.
The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.
I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.
Lord Whitty
My Lords, I am very grateful for that full reply from the Minister on the intent of Government in these areas. I would, however, ask him to comment on one or possibly two areas.
First, the three agencies that he picked out were the ones that the previous Prime Minister picked out, in one of her major speeches in this saga, as being particularly important for continuing participation. Perhaps I should solidly approve the consistency of policy within the Government over the change in regime, but if that is still the priority, it is a rather limited number of these agencies.
Secondly, the noble Lord said that things will continue as normal during the implementation transition period. My understanding—as of a few months ago, anyway—was that, while the rules would remain the same, our participation in any of the executive bodies of these agencies has been denied by the European Union. If there is a change in that situation, I would strongly support it, but my understanding is that only a few weeks ago the EU’s view was that we would no longer participate, even though we were bound by the rules. Could the Minister comment on that?
Lord Duncan of Springbank
Yes, of course. The noble Lord is correct. I did not mean to imply that there is no change whatever. I meant that what those agencies do, and our commitment to those agencies, continues unchanged during the implementation period, until such time as the negotiations reveal the structure or the future arrangement. I picked out the three particular agencies because there has been continuity on those between the two Administrations post the election or post change of regime, and those are clearly ones in which we would wish to see an active participation. We would prioritise these in developing a relationship with the EU, but not exclusively so—I would not wish it to be thought that, of the agencies that have been listed, only those three are for active consideration. Those are ones that, in light of our conversations and debates so far, probably stand at the top of the list. For each of the others, an accommodation and a relationship will be required. What it will be and how it will be determined will ultimately evolve through those negotiations. I hope this House and the other place will be kept fully informed of those.
Lord Whitty
My Lords, I thank the Minister very much for that clarification, and I beg leave to withdraw the Amendment.
Lord Wallace of Saltaire (LD)
My Lords, Clause 38 is purely declaratory: it has no effect whatsoever, except to appease the appetite of the hard ideologues on the Conservative right. The Select Committee on the Constitution notes explicitly that
“this Clause has no legal effect”.
Its opening phrase,
“It is recognised that the Parliament of the United Kingdom is sovereign”,
is poorly drafted. It does not say who recognises it, or what effect that might conceivably have. It ought, at least, be an active declaration of the principle of parliamentary sovereignty.
The model for such a declaration was, of course, the ultimate Henry VIII clause in the Statute in Restraint of Appeals 1532, which asserts that,
“this realm of England is an empire”.
It did not surprise me when I checked the date of that statute on Wikipedia to find an accompanying side reference to Sir John Redwood calling for the full restoration of our imperial sovereignty by excluding any appeals to any continental court. This clause is about the myths of English identity and history far more than about current practice.
The foreign appeals which the 1532 Act were restraining were to the Pope in Rome, rather than to any political institution. It has often struck me as odd and eccentric that several of the most ardent English nationalists and Brexiteers are right-wing Catholics, some of them converts, who regard the current Pope critically as tending towards a dangerous liberalism rather than the dogmatic orthodoxy that they prefer. They have nevertheless embraced an English doctrine which is rooted in our Protestant Reformation and its rejection of the universalism of the Catholic Church.
Since the 16th century, the doctrine of sovereignty has evolved a great deal and been the subject of a great deal of scholarship, some of which I had to teach when a university teacher. As Dutch, Danish, English and other lawyers have argued, national sovereignty is embedded in a framework of international law, which is necessary to enable trade and peaceful interchange among nation states. Under our system of parliamentary sovereignty, trade agreements and treaties have to be transposed into domestic law, but Parliament accepts that it cannot renegotiate what the Government have agreed and that international treaties therefore limit absolute parliamentary sovereignty. That is why it is inconsistent with any coherent doctrine of parliamentary sovereignty for a Government to neglect to carry Parliament with them as they negotiate major treaties which have significant implications for domestic law and domestic economic life.
International law and domestic law—as the Minister who is to answer knows extremely well—are closely intertwined. This Conservative Government, like their predecessors, stress the depth of their commitment to the legal, institutionalised international order. As the ideologues on the Conservative Benches rejected the constraints of European Union law, they will still be hemmed in by wider international commitments on human rights, standards, aviation safety, environmental law, shipping, data exchange and a great deal more.
Purists within the United States have gone further than English nationalists and argued that the perfection of the American constitution and the democracy it encapsulates must override the constraints of international law and treaties. Justice Antonin Scalia, appointed by President Reagan to the US Supreme Court, explicitly argued this exceptionalist view that international law could in no way override American law but, so far as I know, no right-wing English lawyer has gone quite so far yet.
The cry of the Vote Leave campaign was to re-establish parliamentary sovereignty by leaving the EU. Now that we are leaving, we hear a different tune, calling on Parliament to accept that it should not examine the process of government too closely. I listened this morning to the noble Lord, Lord Bethell, no doubt reading from his brief when he said that it is vital that we restore the traditional relationship between government and Parliament. I understand that to mean: that Parliament should accept that majority government has now returned; that it should accept what the Government propose without significant amendment, particularly in the second Chamber; and that the key principle of Britain’s unwritten constitution is that the Queen’s government must be carried on without let or hindrance. That is not easily compatible with parliamentary sovereignty.
This clause therefore declares a half-truth. The relationship between Parliament and government in reality remains contested. The noble and learned Lord, Lord Woolf, spoke yesterday of the importance of maintaining the separation of powers between Executive, Parliament and judiciary, but there is nothing here to suggest that the judiciary can in any way be a counterbalance to government. If I correctly understood what the Prime Minister implied in Prime Minister’s Questions yesterday, he thinks it improper for judges to play such a role.
Twice in the last week, we have probed the promise in the Government’s manifesto and the Queen’s Speech to establish within the next 12 months, as the manifesto said, a commission on the constitution, justice and democracy. We have gathered the impression from the incoherence of ministerial answers that the Government are unsure how far they wish to open up such underlying questions of our constitutional and democratic order. It may even be that some within the Government now regret that the commitment has been made, but the commitment to a constitutional commission has been made and these questions will have to be addressed.
This clause, however, with its very poor drafting and its failure to refer in way to the unavoidable influence of European law on the UK as we negotiate a close future relationship, as the political declaration makes clear, does not offer any useful contribution to that task or to providing clarity for our political, legal and constitutional debate.
Baroness Hayter of Kentish Town
My Lords, as we have been told, Clause 38 is essentially meaningless. It is declaratory, I think it was said; a sop to the ERG. Indeed, the Explanatory Memorandum makes clear that the clause makes no material difference to the scope of Parliament’s powers.
However, it is not just neutral. The problem, as we discussed on Tuesday, is that, by having this clause but failing to refer alongside it to the Sewel convention that the UK Parliament will not normally use its powers to legislate in devolved matters without the agreement of the National Assembly—or indeed the Scottish Parliament—it appears to our colleagues there to undermine the devolution settlements.
It is for that reason, as we discussed in relation to Amendment 45 on Tuesday that the Welsh Government wish the Sewel convention to be restated alongside what is in this clause, if it really must remain in the Bill, although it is in fact otiose and it would probably be best for it to go altogether. I see the Chief Whip in his place; he always likes to know what we will return to. That is one point to which we shall return next week.
For the Opposition, however, there is a different problem with the clause, which is that the rest of the Bill does the exact opposite to what it says in it. Virtually all the rest of the Bill dilutes parliamentary sovereignty vis-à-vis the Executive: it takes powers from us, not to give them to Wales or Scotland but to give them to the Government.
Future historians will puzzle over why this clause is here. We are particularly grateful to the noble Lords for giving notice of their intention to oppose that Clause 38 stand part, because it gives us the opportunity to write that into Hansard, so that when future historians—I am a historian—look at why on earth this clause was there, they can say it was there to keep the ERG of the Tory party happy. That does not seem to us to be a very good reason to have it, but if it really must remain, without the reference to the devolution settlements it is in fact unhelpful, rather than neutral.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.
Lord Wallace of Saltaire
My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.
Lord Keen of Elie
My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.
On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.
Lord Wallace of Saltaire
I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.
Lord Keen of Elie
It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.
I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.
The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.
Baroness Hayter of Kentish Town
Does the noble and learned Lord therefore accept that if there was an addition to restate the convention, that would not detract in any way from what is in the clauses at the moment?
Lord Keen of Elie
It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.
As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.
Lord Wallace of Saltaire
My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.
Lord Keen of Elie
I think we are aware that it did not join the League of Nations.
Lord Wallace of Saltaire
Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.
I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.
“Regulations: extension of EUWA 2018 sifting provisions
(1) Schedule 7 to the European Union (Withdrawal) Act 2018 is amended as follows.(2) In paragraph 1(3), after “8(1)” insert “, 8A(1), 8B(1) or 8C(1)”.”Member’s explanatory statement
This amendment ensures the sifting provisions in the European Union (Withdrawal) Act 2018 apply to regulations made under inserted sections 8A to 8C.
Baroness Hayter of Kentish Town
In moving Amendment 46 I will speak to the other amendments in the group, which essentially have the same effect. Under the Bill there will be no extra sifting procedure of the sort that we established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments that were laid using the negative procedure. Quite a large number of instruments were recommended for upgrade to the affirmative procedure, and the process helped to identify a variety of drafting errors that could otherwise have left the statute book inoperable in the event of a no-deal Brexit.
Our thoughtful and highly experienced Delegated Powers and Regulatory Reform Committee has recommended a sifting mechanism for this Bill along the lines of the 2018 Act. It would be able to recommend an upgrade from the negative to the affirmative procedure where the regulations were seen to be significant. That recommendation has been endorsed by our Constitution Committee, given the importance and potential breadth of powers in the Bill. It has also recommended that the sifting mechanism should be added as part of parliamentary scrutiny. In particular, the committee concurs with the recommendation of the DPRRC that the powers in Part 1, which are not accompanied by a sunset provision and are thus particularly important, should be subject to a sifting mechanism, as well as those in Part 3 and for the Clause 18 powers.
Rather than duplicate unnecessarily the provisions laid out in the 2018 Act, the amendments tabled in my name seek to make clear that the relevant delegated powers would be subject to these provisions. Given that we are in Committee, I hope that the Minister will understand that any issues in the drafting are the result of not having gone through all detail before, and that he will focus instead on the principle that the wide-ranging powers allowed for under the current Bill should be subject to a greater level of scrutiny. That, as I say, is not only for the sake of Parliament but to protect the Government from any errors.
I know that there may be some noble Lords who will probably disagree, having spent many a long afternoon in the Moses Room, but actually the sifting mechanism in the 2018 Act did work really well, and I think that that was the view of Ministers as well as those doing the scrutiny. Given that, it is slightly hard to see why the Government have not thought to repeat that process in this Bill, particularly given that it has been recommended by the DPRRC and the Constitution Committee. I beg to move.
Lord Tyler (LD)
My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.
I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.
I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—
“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”—
was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.
Lord Callanan
I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Tyler, for their opening statements on the amendments in this group. Of course, I well remember the many debates that we had during the passage of the 2018 Act on the extremely important subject of delegated powers. It is of great interest to us. I do not think the other place took as much interest in it, but it is nevertheless an important subject and I am grateful to both the noble Baroness and the noble Lord for raising it.
I will say at the start that the Government have read with care the reports of the Delegated Powers and Regulatory Reform Committee and, of course, the Constitution Committee, which were referred to. I am also grateful, as I said in my opening at Second Reading, for their contribution to the exit process to date.
I will speak first to the amendments of the noble Baroness, Lady Hayter. I note that they are co-signed by the noble Lord, Lord Blencathra, who is not in his place. He is a signatory to these amendments and an extremely distinguished chair of the committee. A number of Members here are, of course, veterans of the debate that we had during the passage of the EU withdrawal Act about the introduction of a sifting mechanism into the Act. I agree that the sifting mechanism introduced then was a contribution to the unique set of circumstances in which we found ourselves as a consequence of that Act. I will argue today that the circumstances in which we find ourselves now are very different from those of the 2018 Act.
The first point, of course, is that the volume of statutory instruments that we will make under this Bill will be significantly less than those made under the 2018 Act. I suspect that this comes as a significant relief to many noble Lords. Secondly, the powers themselves are much narrower and more specific in nature. The DPRRC report itself acknowledged that:
“The scope of each power is … naturally constrained by the scope of the … matter contained in the Agreements that it is intended to address.”
Even more importantly, we have set out the procedure to be used when exercising the powers in this Bill. Ministers do not have the discretion that was afforded to them in the 2018 Act regarding the procedure attached to the use of the powers in this Bill. The argument then was that we needed a sifting mechanism because of the wide discretion given to Ministers to select the appropriate procedure. We do not have that procedure in the way this is drafted. As Members have observed, the general approach that we have taken is that the affirmative procedure will apply when the powers in the Bill are exercised so as to modify primary legislation—the so-called Henry VIII power—or retained direct principal EU legislation; the affirmative procedure will always apply in those circumstances.
Where the negative procedure applies, Members of the House may scrutinise the regulations and may, of course, pray against them should they wish to do so, as is usual for regulations of this kind. The sifting mechanism that was inserted in the 2018 Act worked very well. It was a unique response to a unique Bill. There were always going to be a huge amount of SIs introduced. There was much less certainty at the time about how they would be used, and a considerable amount of ministerial discretion on the procedure to be used. I submit to the House that none of those conditions applies to this withdrawal agreement Bill. I hope I have explained why the procedures for the powers in this Bill are of a different nature to those in the withdrawal Act and why the Government therefore cannot accept these amendments.
I turn to Amendment 66A, tabled in the name of the noble Lord, Lord Tope. As noble Lords are aware, consequential powers are standard provisions in legislation—even legislation of great constitutional importance, such as the Constitutional Reform Act or the devolution statutes. The Bill already includes many consequential amendments at Schedule 5, but we also need to take a power to make further consequential provisions to the statute book. Again, this power is limited to making amendments consequential to the contents of the Act itself and. like consequential powers in other primary legislation, this power will be construed strictly by the courts. It is in everyone’s interest that the statute book functions effectively.
Lord Tyler
Is the Minister really saying that Clause 41(1) is so limited in that way? Perhaps I may read it to him again:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”
That is very widely drawn. If, as he said just now, there are fewer orders in prospect, that makes it all the more important that, with something as important as this, the recommendations of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee be taken into account. I cannot see that his argument stands up.
Lord Callanan
The clause that the noble Lord quoted comes under the consequential provisions. As I just said, the consequential power is construed strictly by the courts. I am advised by departmental lawyers that there is an extremely narrow focus; they are amendments that can be made only as a direct consequence of the Bill when it is enacted. I do not think that it in any way provides leeway for a Minister to make things up on the spur of the moment and amend primary legislation. The powers are very strictly constrained to consequential amendments, and this is not an unusual provision. It exists in many other Acts, including those I quoted earlier. We believe that moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make consequential changes before exit day.
As I said also on the other amendments, I am sure that the noble Lord will agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members will still have the opportunity to pray against regulations should they consider it appropriate—and, as I said, there are the restrictions on the use of that power that I mentioned earlier.
I hope that, with the reassurances I have given noble Lords and a fuller explanation of the powers we propose to take, the noble Baroness will feel able to withdraw her amendment.
Baroness Hayter of Kentish Town
Let it never be said that we think the Minister would make up something on the spur of the moment.
I have only two things to say. First, I am sure that both our Delegated Powers and Regulatory Reform Committee and our Constitution Committee considered the points that the Minister has just made and nevertheless recommended a sifting procedure, but be that as it may. Secondly—this does not actually affect these particular amendments, because we are talking about the negative procedure here—the Minister said that there would be fewer SIs under this Bill. He also said that it has “narrower powers.” I do not think our noble and learned Members who spoke the other day would see the power it gave, albeit of the affirmative, to Ministers to alter the way ECJ rulings are heard as a “narrow power.” But that, as I say, is not covered by this, although some of the powers in the Bill are rather large.
However, the point the Minister makes about the ability to pray against negative draft orders is significant. I beg leave to withdraw the amendment.
Lord Greaves
“(d) a member who knows about conditions in England relating to the relevant matters.”Member’s explanatory statement
This amendment adds England alongside the other constituent parts of the United Kingdom.
Lord Greaves (LD)
My Lords, I find myself having to move the last amendment slightly by accident. I will also speak to the other three amendments in the group. I apologise to the Committee: I had intended to group them with a much earlier group that was debated yesterday morning. Unfortunately, the way in which the Bill has been concertinaed caught me napping and I have ended up having to do this at the last gasp.
Since it is the last gasp, I want to say one thing. I am a little concerned. I have listened to a lot of the debate both in the Chamber and outside it, and I am reading the rest of it. I feel that this has not been a normal Committee in the House of Lords. That is not just because it has been concertinaed into three days; we understand why that is so. It is the first time, I think, that I have not heard or read debate on a single amendment when the Government Front Bench have said, “Yes, there are interesting points to consider here. We’ll take them away and consider them and perhaps have some meetings outside the Chamber before Report.” Again, the concertinaed timetable makes that difficult but that is the way the House of Lords normally works. This is a special and unusual Bill and we are in unusual times, but it is an indication of the way Brexit has divided not only the country—almost down the middle—but this House and every institution in the country. I believe that there is a fundamental lack of trust here.
Perhaps I am being presumptuous, but I will have been here for 20 years come May, so I have a right to be slightly so. I say this to the Government Front Bench: at times, I have seen the House of Lords descend into a certain amount of chaos, but most of the time it does a very good job of scrutinising and revising Bills. We now have a majority Government in the Commons. I have been here when there have been big majority Governments. There have been periods of Labour government during which we in the Liberal Democrats worked closely with the Conservatives, as the two opposition parties, and sent things back to the Commons time and again.
We have also negotiated with the Government; indeed, there were Lords Ministers in a majority Government during the 2000s who took it upon themselves to go back to the Commons and the Government to try to get a deal. The noble Lord, Lord Whitty, who was here earlier, was excellent at that. On a number of occasions, he got deals on agriculture Bills and then came back here and satisfied—or at least half-satisfied—the Liberal and Conservative groups. I hope we will move back to that sort of thing once we get over the traumas of Brexit.
I sense a feeling on the Government’s side that everybody who is against Brexit—who voted to remain and tried to stop Brexit—is trying to stop the exit day on 31 January and to put off the final reckoning at the end of the year until some time in the far future. I can speak only for myself—I cannot speak for my group, and my Chief Whip is here so I had better be careful what I say—but I believe that there certainly is consensus in our group. We accept that the UK will leave the EU on 31 January. That decision has been made. That is why we are more than happy to co-operate in getting this Bill through in time.
I believe that, now the decision has been made, to quote whoever it was:
“If it were done when ‘tis done, then ‘twere well
It were done quickly”.
The quicker it can now happen—and everything can be sorted out in the meantime—the better. Then there is certainty and we can all move forward into the future. If some of us want to start long-terms campaigns to go back in, we can do that; but let us have the certainty of the end of this year, if at all possible. Many of us are very doubtful that the Government can do all the necessary negotiating by this summer but, if they can, good luck. They will need the help and assistance of opposition parties in Parliament—including in the Commons, where there is a huge majority—to achieve that. I believe that is what should happen. I do not know if that is the view of my group generally, but it is what I believe.
I have four little amendments, on which I will try to be quick because everybody who is still here wants to go for the trains. Amendment 48 comes back to the relationship with the devolved authorities and other “relevant” authorities, as it says here. We are back to the composition of the independent monitoring authority. Three of the members—or perhaps four, if Gibraltar is included—will have to know about “conditions” in Scotland, Wales, Northern Ireland and perhaps Gibraltar. It is a strange phrase, “knows about conditions in”. That leaves the rest of the UK appointees, who are supposed to know about conditions everywhere.
The appointments of the specific people who will, in a sense, have a duty to represent what is going on in Scotland, Wales and Northern Ireland—and perhaps Gibraltar—are subject to consultation with the relevant authorities in those areas. But if the authorities say they do not like the person put forward, the Government can go ahead anyway and appoint the person; all they have to do is write a few words as to why they have done it. That is a tiny thing, in a sense, but it seems to strike at the heart of the relationship between Whitehall and Westminster and the devolved authorities. I think it is wrong, and this amendment and another say that they have to come to agreement, in effect. It is not difficult to negotiate and come to an agreement in those circumstances.
The other amendments, which are slightly wild, add England to this. The present devolutionary settlement in this country—I am talking particularly about England and Scotland here—is not stable and, I believe, not sustainable for the future. This is just one little example of that. People will be there as UK persons but also representing England. It is not clear whether the people with special knowledge of Scotland and so on will have anything to do with England, but it is an asymmetrical relationship and is falling apart in all sorts of ways. Every time there is a little example of something falling apart, it just stokes up the pressure for Scottish independence.
In my view, Scottish independence as such, just brought about by a referendum, would be pretty disastrous for this island. We must sort out the relationship between Scotland and England. I say “we”, because at the moment it is assumed that the future of Scotland is all to do with people in Scotland. I do not think it is; it is to do with people in Scotland and England, because it is a question of the relationship between us.
Finally, if Scotland and Wales have representatives or people who know about the conditions there, why does not the north of England? These issues of devolution within England are going to come to the fore. I know this is far and away beyond the purview of this Bill and these amendments, but such issues will underline a huge amount that happens in this Parliament and a huge amount of the politics out there during this Parliament. If this constitutional convention can start to get to grips with those things—starting from scratch; not from “Will Scotland be independent or not?” but from “What relationship do we really want in future between Scotland and England?”—then Wales and Northern Ireland can follow along. Having said that—I am totally out of order talking about this under this group of amendments—I beg to move Amendment 48.
Lord McNicol of West Kilbride
My Lords, I responded to an amendment in the name of the noble Lord, Lord Greaves, on day 1 of Committee, so it seems we have come full circle. I offer a brief response to these further amendments regarding the independent monitoring authority. I understand that these are probing amendments, and I am keen to hear the Minister’s response, so I will not detain the Committee after three consecutive days of debate on this Bill, which I hope will not be a trend in future when debating Bills off the back of Brexit.
I am particularly interested in Amendments 49 and 50, which would prevent the Secretary of State from appointing a person to the IMA against the wishes of the relevant body. This suggestion strikes me as entirely sensible. Given previous ministerial assurances on the issues of devolution, I would be very interested to hear from the Minister in what circumstances the Government would seek to force through an appointment that had been opposed by a devolved Minister. If that were to happen, the current sub-paragraph (7) requires the Secretary of State to make a statement outlining the reasons for proceeding with that appointment. Can the Minister confirm what form this statement would take, and what opportunities, if any, the relevant devolved legislatures would have to hold the Secretary of State to account?
Lord Keen of Elie
I am obliged to the noble Lords, Lord Greaves and Lord McNicol of West Kilbride, for their contributions.
As was the case during Tuesday’s debate on Clause 15, we have noticed the importance of the IMA’s role and functions interacting properly with the devolved settlements. I seek to reassure the noble Lord, Lord Greaves, and the House, that the IMA has been designed in a way that takes into account the individual interests and circumstances of Scotland, Wales, Northern Ireland, England and indeed Gibraltar.
In addressing the amendments, I begin by showing the Committee that the Government’s approach to establishing the IMA, as set out in Clause 15 and Schedule 2, was reached following detailed and extensive engagement with the devolved Administrations. As a result of this consultation, we have ensured on the face of the Bill that the IMA’s board will contain members with knowledge of relevant matters in relation to citizens right across the United Kingdom. Those relevant matters include not only matters reserved for the United Kingdom Government, but also matters that are devolved to the Scottish, Welsh and Northern Irish Administrations. Therefore, we have provided a full and robust role for Ministers of the devolved Administrations in the appointment of candidates to board positions. Of course, parts of the citizens’ rights agreements that the IMA will monitor, such as provisions covering healthcare, welfare and education, are already devolved to Scotland, Wales and Northern Ireland, which has been taken into account. That is why there is a requirement for expertise in these areas.
However, I reassure the noble Lord, Lord Greaves, that the IMA will also possess the same expertise specifically in relation to England. He refers to Amendment 48 as seeking to achieve expertise in that area, but I draw his attention to paragraph 4(1) of Schedule 2, which states that
“the Secretary of State and the non-executive members must have regard to the desirability of the IMA’s”
board possessing relevant expertise in relation to citizens’ rights across the United Kingdom. It should embrace both reserved areas which are pan-UK and those devolved areas specific to the particular devolved Administrations. We can ensure by default that regard is had to the desirability of the IMA possessing expertise in relation to England. It is for that reason that Amendments 48 and 51 are unnecessary and I shall in due course invite the noble Lord not to press them.
Lord Greaves
I am grateful. I thank the Minister for his reply and his usual diligence. My mischievous gene says that I should now call a Division but I do not think that would make me popular with anyone and it is not necessary. I beg leave to withdraw Amendment 48 and, in so doing, wish everyone a relaxing weekend before we start again on Monday.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
If Amendment 58 is agreed, I cannot call Amendments 59 and 60 by reason of pre-emption.
European Union (Withdrawal Agreement) Bill
Monday 20th January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
16:18 - Division on Amendment 1 - Ayes: 269 / Noes: 229 - Amendment 1 agreed.
19:24 - Division on Amendment 12 - Ayes: 241 / Noes: 205 - Amendment 12 agreed.
19:39 - Division on Amendment 14 - Ayes: 206 / Noes: 186 - Amendment 14 agreed.
Lord Oates
“Rights related to residence
(1) The Secretary of State must by regulations make provision implementing—(a) Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document),(b) Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document), and(c) Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document),including making provision for a physical document providing proof of residence.(2) Subsection (1) applies in the same way to—(a) persons within the personal scope of the withdrawal agreement having the right to reside in the United Kingdom, and(b) persons to whom the provisions in paragraph (a) do not apply but who are eligible for—(i) indefinite leave to enter or remain, or(ii) limited leave to enter or remain,by virtue of residence scheme immigration rules (see section 17).”Member’s explanatory statement
This amendment removes the Bill’s references to a constitutive system and instead makes clear it will implement the Withdrawal Agreement via a declaratory registration system that ensures EU citizens can receive a physical document to prove their right of residence in the UK.
Lord Oates (LD)
My Lords, Amendment 1 is in my name and those of the noble Lords, Lord Warner, Lord Kerslake and Lord McNicol of West Kilbride. It seeks to achieve two things. First, it would provide citizens covered by the settled status scheme with a right to a physical form of proof of status; at present, only a digital proof is available. Secondly, it would shift the settled status scheme from a constitutive application scheme to a declaratory basis, meaning that rights were based on eligibility and not forfeit as a result of not meeting an arbitrary deadline.
I want to be clear at the outset. This amendment is not a partisan matter. It is not in any way an attempt to challenge Brexit, frustrate this Bill or change the substance of the rights established under the settled status scheme and in the withdrawal agreement. It simply seeks to ensure that the scheme will work effectively; that a plethora of problems that will, on the current basis, be encountered inevitably by the Government and EU citizens after the registration cut-off period are avoided; and that EU citizens have the option to have physical proof of their status should they wish it.
As noble Lords will recall, in June 2016, the current Prime Minister, Boris Johnson, the current Home Secretary, Priti Patel, and the current Chancellor of the Duchy of Lancaster, Michael Gove, made the following, unequivocal statement:
“there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”
Sadly, although a great deal of progress has been made with the settled status scheme, these commitments have not been honoured.
First, the settled status scheme is not the automatic route to indefinite leave to remain that was promised. It is an application-based system with a finite cut-off date of 30 June 2021. The only thing automatic about it is that after midnight on that date, any person who has not applied will be criminalised—deemed to be unlawfully in the United Kingdom, whether or not they would otherwise have been eligible for permanent residence under the scheme—and subject to deportation. We know that despite its best efforts the Home Office will inevitably not be able to reach, and grant settled status to, every one of the 3.6 million-plus eligible EEA and Swiss citizens resident in the UK. As a result, possibly tens of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.
The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted on people by the Home Office in the Windrush scandal, but it will do nothing of the sort. The cut-off date will simply empower the Home Office lawfully to inflict such injustice. Under the settled status scheme, there will be no hope of redress, as there was for at least some of the Windrush victims, because after June 2021 EU citizens will have automatically lost their lawful immigration status by virtue of having failed to meet the cut-off date, regardless of being otherwise fully eligible under the scheme. That cannot be right, and it is not what the Prime Minister and the current Home Secretary promised.
A second issue with the settled status scheme is that, unlike the system of indefinite leave to remain for non-EU, EEA and Swiss citizens, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office, which has to be entered on the relevant website by whoever requires proof of their immigration status. The group the3million, which represents EU citizens in the UK, has published today the largest survey undertaken so far of settled status scheme applicants. It finds that 89% of EEA and Swiss citizens surveyed wanted physical proof of their right to reside because they are afraid of the difficulties that a lack of physical proof will inevitably cause. Interactions with landlords, airline staff or other officials obliged to check immigration status will become fraught with anxiety for them, dependent on the frailty of an internet connection and the resilience of a government IT system.
I have seen at first hand how these problems can arise, even before the settled status scheme comes into force. Some months ago, I was travelling back from Kenya to London with a colleague who is a German citizen and permanently resident in the UK. At the airline check-in desk, the official wanted proof of her right to residence in the UK because with all that was going on about Brexit, that was how he understood the situation. She explained that she did not need any proof; she was an EU citizen and, as such, had the right of entry to the UK. But we can imagine many circumstances in which people trying to travel will find themselves asked to provide physical proof but be unable to do so. Given that physical proof is provided to other people, such as non-EU citizens who have permanent leave to remain, this will inevitably cause confusion to officials around the world.
Your Lordships can see that if you are to tell people that you do not have physical proof but do have a number that an official must look up, on many occasions you would just be looked on with incredulity. If the internet is down or there is a problem with the Government’s IT system—I understand that it happens on occasion—then what predicament will that airline traveller be in? Will they be carried by the airline concerned but be unsure of their status? Will the carrier be liable if they allow that passenger to board?
As the noble Lord, Lord Warner, said in Committee, we must live in the real world. In the real world, in respect of permanent residence, proof of immigration status is in physical documentation; that is what people are used to. Those expected to comply with immigration rules will expect physical proof, and EU citizens will be severely disadvantaged if they do not have it.
Lord Warner (CB)
My Lords, I support the amendment, to which I have added my name. I want to make just a couple of points in support of the very elegant speech made by the noble Lord, Lord Oates.
This is also a matter of government competence. We made it clear in Committee that there were doubts in all parts of the House about whether people going about their business who were legitimately here and had been given leave to remain and settle here would face challenges to that right on a regular basis. That was because there was no guarantee that they would have some physical manifestation to demonstrate to people whom they had to convince that they were indeed entitled to be here. We cited many of the circumstances; the noble Lord, Lord Oates, cited more today. There are landlords; there are schools; there are GPs; there are airlines; there are many things which we all take it for granted that we can do in our daily lives where other people may have to prove that they are entitled to be here in order to do them.
I do not think that the Government convinced many of us in Committee that they really understood this issue. They were still touchingly attached to their idea of giving people a code to get into the Home Office computer, which the person who had to be convinced would then use to see that they could be here. Just spelling that out suggests that there may be some doubts in the Government about their ability to understand how today’s world really works.
There is also the issue of whether the Government could rely on the Home Office computer systems to be working reliably 24/7 for 365 days of the year. I do not know what others’ experience has been but, in the real world, things sometimes go a little awry in the Home Office and not everything works as smoothly as we would like.
My noble friend Lord Oates made the point very well about the risks that now await many of these people in about 18 months’ time. As I recall, in the Conservative Party manifesto there were concerns about the way the criminal justice was struggling, and a need for an independent review of that system. Does it really make a lot of sense to take the risk that, in 18 months’ time, we will criminalise another large number of people who may have to go through that system, which is creaking at the seams? That is the risk that the Government are taking in the way they are going about this exercise.
This amendment does not call into doubt the Government’s right to have new rules on immigration as a result of Brexit. It is about whether the scheme itself will do that effectively and efficiently. It is about whether a lot of people who have proved their right to be here will be put to a great deal of trouble to prove that they have the right to go about their legitimate day-to-day business. I strongly support the amendment.
Lord Kerslake (CB)
My Lords, I will speak in support of the amendment, and add my voice to those of other noble Lords who have spoken so well on it. I am sorry that I was not able to be here when the amendment was debated in Committee, which clashed with another public meeting that I had agreed to chair. I am grateful to my noble friend Lord Warner for stepping in and speaking on my behalf. I have, of course, read the report of that debate.
I think that we can agree on two things here. The first is that EU citizens are innocent bystanders in the Brexit battle; this is not a fight of their making. They have made a big contribution to the economic and social well-being of this country. It follows, therefore, that we must take every reasonable step to ensure that they are not disadvantaged by our departure from the European Union. Secondly, the way forward on this issue is entirely in the UK Government’s hands. Agreeing the amendment need not delay Brexit, nor does it require changes to the withdrawal agreement. It is our choice to make.
I fully appreciate that good progress has been made on the application process, but it is a long way from complete and almost certainly it will never be so. In Committee, the Minister said that the Government will take a pragmatic approach to providing a further opportunity to apply for those who have reasonable grounds for missing the deadline. I have no doubt of the Minister’s sincerity on this. However, as the Windrush scandal has shown, pragmatism, good judgment and fairness have not always been strong features of our immigration system—and, as we also know from Windrush, the consequences for those on the wrong side of our system are very serious.
The two changes proposed in the amendment—adopting the declaratory system and providing physical proof—are simple safeguards that do not, as the Government suggest, in any way undermine the applications process that is now under way. They just provide more reassurance and safeguards to those affected.
In the conclusion of Amelia Gentleman’s brilliant book on the Windrush experience, which ought to be required reading for anyone interested in these issues, she talks about her shame, on hearing of the experiences of those affected, that we could treat our citizens so badly. She expresses the hope that the memory of the Windrush scandal will linger and ensure that such extremes of institutional cruelty are never allowed to be repeated. Approving this amendment today is one way that we can act to reduce that possibility.
Lord Anderson of Swansea (Lab)
My Lords, I adopt the wise words of the noble Lords, Lord Oates, Lord Warner and Lord Kerslake, and echo what they said about the danger of rerunning Windrush and about the fallibility of government computer systems, which we have seen in many cases.
I will add only one further point. I had the honour to serve, during the last Session, on your Lordships’ EU Justice Sub-Committee, ably chaired by my noble friend Lady Kennedy of The Shaws. It was a friendly committee and we worked in a consensual way. The committee examined EU citizens’ rights after Brexit, and one of the key concerns that we expressed was precisely that the EU citizen in the UK, for reassurance, needed some physical proof of the fact that they could remain in the UK. Certainly, some of us thought that Ministers, in seeking to justify their position—not pragmatically—seemed just a little uneasy. The committee heard much evidence, both oral and written, from a number of representatives of EU citizens, travelled to two parts of the UK and, importantly, met representatives of all the EU embassies on two occasions. They were able to represent the concerns of their citizens—so it was not, therefore, a capricious conclusion that we reached, but one based very firmly on evidence.
We tried to put ourselves in the shoes of those EU citizens in the UK. Of course, they would be used to ID cards, but some might have a certain hesitation about authorities and would certainly need an assurance, as the Government have said on a number of occasions. Have they had adequate protection? Not in my judgment, because a physical document is necessary to give those citizens confidence. In passing, it would also show that the Government do listen to one of their committees that has researched the project quite thoroughly.
Viscount Waverley (CB)
My point, following the noble Lord, Lord Anderson, is that there does need to be supporting digital, because, for example, a government agency from the UK has on occasion questioned the validity of a Portuguese residency card—I have first-hand experience, being resident in Portugal—as being either fraudulently obtained or else open to counterfeit.
Lord Carlile of Berriew (CB)
My Lords, I venture to suggest to your Lordships that it is sometimes wise to address and solve problems before they occur and to avoid the distress that otherwise would occur. In my nine and a quarter years as Independent Reviewer of Terrorism Legislation, I often stood at border posts, airports and sea ports, watching people being stopped, sometimes for absolutely no reason. But, whether there was a reason or no reason, one saw the shades of emotion of the people who were stopped, ranging from real distress to quiet acquiescence. The advantage of the simple measure suggested in this amendment would avoid the distress; it would mean that speeding through the border post really was quick, and we would solve a problem that is bound to occur if we do not resolve it now.
Baroness Hamwee (LD)
My Lords, I am glad to follow the noble Lord, Lord Carlile, on that point. In Committee, the Minister thought that I was advocating two separate systems: a digital one and an analogue paper system, if you like. I was not, and neither is my noble friend Lord Oates; he used the term “alongside”.
The Minister was also concerned that a physical document would be forgeable. There are many documents in use which are sensitive and important. Yesterday, I fished out from my office my Disclosure and Barring Service enhanced criminal record certificate. That is on watermarked paper; so is my copy of my birth certificate, a certified copy which is watermarked, though I discovered—I had not realised this—that the seal on it is not actually impressed. So why not have a physical document?
Lord Cromwell (CB)
My Lords, there seems to be a slight pantomime element to this. Many from the3million say, “We need physical proof”; the Government simply reply, “No you don’t”, and so it goes round and round. We are going to have to rebuild relationships with many of these people, who have been bruised by the lack of clarity, by being referred to as “bargaining chips” and by other unkindnesses. My point is simply this: the Government can have their cake and eat it. This is not two parallel systems. You can provide physical evidence which will bear that identity number, which anybody who needs to can be obligated to look up. They are not two systems. I support this amendment.
Viscount Ridley (Con)
My Lords, I have a reservation about this amendment, based on a possible unintended consequence of physical proof of identity. The noble Lord, Lord Anderson of Swansea, mentioned identity cards. It is not impossible that, if there was physical identity documentation in existence, we would get to a situation, whether intended or not, where people would be asked to produce proof in this form. An identity card required of EU citizens but not of UK citizens would come in by the backdoor. That would be a worrying development. It might be a remote possibility, but it is one we should take into account.
Lord Campbell of Pittenweem (LD)
My Lords, I flew down from Edinburgh today. I was asked to prove my identity before I was allowed on to the aeroplane. It is a common request. I may be missing something here, but, if I want to be able to drive a motor vehicle in this country, I make an application; it is recorded somewhere, I have no doubt, that I have been granted a licence, and I am given a document. It is perhaps a modern form of document, but it makes it clear any time I am stopped by a policeman that I have a legitimate licence. What is wrong with applying that system to the circumstances we are describing here?
Lord Cashman (Non-Afl)
My Lords, as in Committee, I speak in support of this amendment. I previously served on the EU Justice Sub-Committee, where we undertook a long inquiry into this very issue. We were reassured neither by the then Home Secretary nor by the officials from the Home Office. It seems absolutely clear that the two systems are complementary: we have nothing to lose by running them together and everything to gain by doing the right thing and leading on this issue, and making people feel that after 31 January—bongs or not—they belong in our country.
Baroness Deech (CB)
My Lords, like several previous speakers, I too have been a member of the EU Justice Sub-Committee. We questioned Ministers on this, and their answers about there being no need for physical proof have been very unconvincing. They show a touching belief in the power of digital and wi-fi, yet all of us know that, at moments of stress, and in places such as airports, schools and hospitals, it is extremely unlikely that the internet will work properly. I cannot see why a simple piece of paper or a little card should not be issued to everyone who has successfully applied.
As for the point made by the noble Viscount, Lord Ridley, in fact we all have ID cards of one sort or another, as has been pointed out—it is just that the 3 million EU citizens are slightly less likely than the rest of us to have driving licences, national health cards and so on, and therefore are all the more in need of a small piece of paper or card to prove that they are entitled to be here. I therefore support this amendment.
Baroness Altmann (Con)
My Lords, I congratulate my noble friend in the Government on their statement that there will be pragmatism in applying this system. However, what contingency plans are there or could there be in place should there be a major IT failure which prevents somebody, for example, who wants to rent a flat, being able to prove digitally that they have indefinite leave to remain? Maybe the department could consider that further.
Lord McNicol of West Kilbride (Lab)
My Lords, I thank all noble Lords for their comments in the debate.
The amendment to Clause 7, in the name of the noble Lord, Lord Oates, and supported by myself and other noble Lords, is a variant of that tabled in Committee. As the noble Lord, Lord Oates, previously outlined, we are far from convinced by the responses we have heard from government—I think the noble Baroness, Lady Deech, said that the Government were “unconvincing”.
Indeed, there have even been a number of contradictory statements from No. 10 in response to Friday’s comments by the European Parliament’s Brexit lead, Guy Verhofstadt. He claimed that the Secretary of State had provided assurances over the provision of physical documentation, as well as confirming a policy of no forced deportations if individuals fail to apply for settled status by the June 2021 deadline. However, the newspapers carried a contradictory quote from a government official, who said of the meeting:
“They discussed their respective position on physical documents. There weren’t any offers or changes from yesterday’s meeting.”
A statement from the Home Office later added:
“There is no change to our digital approach. It has always been the case that people could print a copy of their confirmation letter, but this can’t be used as evidence of status.”
The noble Viscount, Lord Ridley, said that this could lead to ID cards. The response to that is that people will be asked for physical documentation that proves their status now—as I will come on to, people are already being asked for it. If the Government could make this small change, we would be able to move on.
We should look at the last statement from the Home Office. When we travel abroad and hire a car on the continent, before we go we can print out a document from the DVLA which is proof that we are legally able to hire a vehicle and that the driving licence is covered. While the DVLA holds that documentation on computer, we can get physical documentation that proves the position. Again, it would be fantastic if we could see a little movement by the Government on this.
Under the evidence, we are not satisfied that the Government will provide assurances on physical documents, although I hope they will, or that they will verify the policy of no forced deportations for those who do not apply for settled status by the deadline. As the noble Lord, Lord Oates, touched on, a new poll of EU citizens living in the UK found that an overwhelming majority of 70% would favour physical documentation. These are people who have chosen to make the UK their home and to live, work and play in and thus be part of our countries and our society. On this evidence, the Government are going against good practice and the wishes of EU citizens currently living in the UK.
I shall go back to the point made by the noble Viscount, Lord Ridley. As many as 11% say that they have already been asked for proof of their status, and there have been warnings from private landlords that the new system could introduce the risk of discrimination.
Why would the Government implement a system that puts people who contribute greatly to our society at the risk of facing discrimination? Are they saying that the current proposal for a digital-only system is risk free? The arguments on documentation and deportation at the end of non-registration or non-agreement to pre-settled or settled status were well rehearsed in Committee and we have heard a number of contributions to that effect today, so I will leave it there. We recognise that the Government have provided some comfort as regards the appeals procedure, but there is too much uncertainty about other aspects of EU citizens’ rights. A representative of the3million campaign group has rightly pointed out that far from providing certainty, the current system is best described as giving an “unsettled status”.
We continue to believe that the declaratory system is the best way forward and that EU citizens should enjoy the same rights as many UK citizens living on the continent. Negotiations have already started and hopefully further talks will secure the position as we go forward. If the Minister is unable to promise to table a suitable government amendment at Third Reading and if the noble Lord, Lord Oates, chooses to push his amendment to a vote, we will support stronger protections for the millions of EU citizens who have made this country their home.
I shall touch briefly on the comments made by the noble Lord, Lord Kerslake. He said that the Government should take every reasonable step to ensure that EU citizens who choose to make the UK their home are treated fairly, and the simple safeguards set out in the amendment would achieve that.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lord, Lord Oates, for his explanation of the amendment, but he will not be surprised to learn that we reject it. The amendment would require the Government to establish a declaratory system for those eligible for residence rights under the withdrawal agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement, which for the sake of brevity I shall call from here on in the agreements. References to EU citizens should likewise be taken to include EEA, EFTA and Swiss nationals and their family members.
The noble Lord has continued to press for this change in the belief that it will reassure EU citizens already resident here. The Government have already provided this certainty through the EU settlement scheme—not as a proposal, as the noble Lord, Lord McNicol, has suggested, but as something that is up and running and which the noble Lord, Lord Kerslake, acknowledges is working well.
Fundamentally changing a system that is working well would have the opposite effect to that which I believe the noble Lord is trying to achieve. Amendment 1 would create a declaratory system under EU law, whereby EU citizens may apply for a document confirming their residence status if they wish but do not have to do so. The Government do not agree that this is the right way to secure the status of EU citizens resident in the UK at the end of the implementation period.
After the implementation period, free movement will end and those who are not British or Irish citizens will require a UK immigration status to enter and reside in the UK. The EU settlement scheme is a vital part of transitioning the UK from free movement to a new, points-based immigration system that starts in 2021.
Viscount Ridley
I apologise for interrupting. On that very point, I was not reassured by what the noble Lord, Lord McNicol, said. It seems to me that if landlords or other authorities are already beginning to ask for proof of settled status, this would get worse if there were known to be a system where they could produce a card. It would then de facto become a card that they had to produce.
Baroness Williams of Trafford
I totally agree with my noble friend Lord Ridley. His point about ID card creep is also part of this point. It is exactly what happened to the Windrush generation. The Government are adamant that we must avoid a situation in which, years down the line, EU citizens who have built their lives here find themselves struggling to prove their rights and entitlements in the UK.
The approach suggested in the amendment is also unnecessary. Managing the end of free movement in the UK and providing certainty for resident EU citizens during that transition has been an absolute priority. We firmly believe that the current, constitutive approach under the EU settlement scheme is the right one. According to the latest internal figures, more than 2.8 million applications have been received and 2.5 million grants of status have already been made. The Home Office, as I said the other day, is processing up to 20,000 applications a day.
We are working with communities up and down the country to raise awareness of the scheme and keep up this momentum. It already allows EU citizens who would be protected by the agreements and other people the Government have chosen to protect, such as many non-working spouses and primary carers not covered by the agreements, to obtain a UK immigration status, enabling them to remain here permanently after the end of the implementation period. This status will mean that their rights and entitlements under the agreements are guaranteed. However, the new clause would interrupt the flow of a system that is well under way, already working well and achieving precisely what it was designed and implemented to do: providing certainty to those who have made their lives here.
EU citizens resident in the UK before the end of the implementation period will have different, enhanced rights compared with those who arrive afterwards. It is therefore essential that these citizens have the evidence they need to demonstrate their rights in the UK. This is also why we are seeing many other EU member states planning to take exactly the same approach and establish a constitutive system for UK nationals living there.
The EU settlement scheme means that those who have built their lives here will not find themselves struggling to evidence their rights in the UK, or have to carry around multiple bits of paper to evidence their previous UK residence. We are legally required to issue all successful applicants under the EU settlement scheme with a written notification of their UK immigration status, and all successful applicants are given a letter confirming their status. The status can be viewed online and shared securely with others, but as noble Lords have said it is not proof but confirmation.
Access to the online status service is via secure two-factor authentication using the document, such as a passport or national ID card, which the individual used to prove their identity and their date of birth. The user is then required to input a one-time use code, sent to their mobile number or email address. This ensures that no one else can access the individual’s information without their permission. Once in the service, users can view their information and update their details, and can choose to share their status information with third parties. This might be with employers, to prove their right to work, or with other service providers, to prove their right to access public services, benefits or the NHS.
When an individual chooses to share their information, they share only the content that is specific and relevant to the checks in question, as I went through the other day. This will include their name, their image and any information that is relevant to that particular purpose. This supports data minimisation, ensuring that only the information required is made available, which is not possible with a single physical document.
All our digital services are designed and developed to be robust and reliable, with extensive internal and user testing before launch to ensure that they perform as expected. We will monitor services to ensure that any issues are identified and acted upon. Mechanisms are already in place for users to report any technical issues with the service. We continue to refine and improve these processes, and all data will be treated in compliance with data protection law.
We do not want to go back to issuing physical documents, which, as we know, can be lost, stolen or tampered with. Our vision for the future is a digital status and service for all migrants. The continuation of a declaratory system would force employers, banks and other service providers to wade through various documents to establish for themselves whether the person is indeed protected by the agreements. Such an approach would be burdensome, for the citizens and others, and for the very systems we have committed to protect.
I will pick up a number of questions which noble Lords asked. Several noble Lords talked about airports. The noble Lord, Lord Oates, gave the example of a friend who was questioned at the airport, and the noble Lord, Lord Carlile, talked about the border, too. What happens at the border is proof of identity to cross the border, as opposed to proof of status to be in the UK.
The noble Lord, Lord McNicol, talked about hiring a car abroad. In doing so, he inadvertently proved the point that, with the dispensing of the paper part of the licence, all one needs when abroad is a code to prove that you can hire a car. You do not need the physical document, you need only the code—as I learned to my peril when I did not realise that that was what you had to do.
Baroness Kramer (LD)
I must correct the Minister. Having had great faith and gone abroad with my code, on attempting to rent a car in the United States and Spain, I found on both occasions that the process failed miserably. Only the fact that I had a piece of paper with me enabled me to rent the car. I hope the Minister will reply to the noble Baroness, Lady Altmann, who asked what the back-up is when it goes wrong or there is a cyberattack.
Baroness Williams of Trafford
I will of course respond to my noble friend, and to other noble Lords who raised that point, but the point I was trying to make is that we have not had a paper part of the licence for some years. Whether it worked for the noble Baroness or not, to hire a car one gets a code from the DVLA. We do not have a paper part of the licence.
Lord Cromwell
There appears to be a certain amount of confusion and a lot of people are gesturing to show that they have a plastic card in their hand. I think we have plastic driving licences; we have not done away with them.
Baroness Williams of Trafford
That is not the point that I was making. We used to have paper accompaniments to the licence and we no longer have them. We used to have a paper part of the licence and it was phased out, but to hire a car you need a code.
Lord McNicol of West Kilbride
The noble Baroness is correct that the paper part of the licence has been phased out, but when you go abroad you need proof for the insurance to hire a car. The noble Baroness might well be correct that you can just use a code but, as we have heard, if you go with just a code there is no proof with it. I, many other noble Lords and many other people would print out proper documentation and proof that you have that code with the DVLA’s name at the top of it. That is what we are saying: it does not just show it when you hire a car, but proves it.
Viscount Waverley
My Lords, while the noble Baroness is still sitting down, would it be possible, or is it anticipated, for government agencies in the EU 27 countries concerned to have access to our official databases so that they can look up and access data to confirm all these relevant issues, whether for borders or for whatever reason?
Baroness Williams of Trafford
The point I was trying to make was that any agency that has access to information about proof of digital status has access only to the information for the purpose it is required to prove, such as right to work or right to rent. Data is given only for the purpose for which it is required.
The noble Lord, Lord Oates, talked about deportation and criminality for those failing to apply by the deadline. I explained in Committee that EU citizens who failed to apply to the scheme by the deadline will not be acting unlawfully in the same way as illegal entrants or overstayers and will not be subject to automatic deportation—they will not have knowingly entered the UK in breach of the Immigration Acts or overstayed their leave. Once free movement has ended, they will need leave to remain in the UK. That is why we set up the EU settlement scheme. As the noble Lord, Lord Kerslake, and my noble friend Lady Altmann said, we have been clear that we will take a pragmatic approach. In line with the agreements, those with reasonable grounds for missing the deadline will be given further opportunities to apply.
On the reliability of IT systems, I say to the noble Lord, Lord Cromwell, and my noble friend Lady Altmann that immigration decisions have been securely recorded and stored digitally since the turn of the century, so this is nothing new. I ask the noble Lord not to press his amendment.
Lord Oates
My Lords, I thank all noble Lords who have taken part in the debate. I thank the Minister for her response, but I must say that I am utterly bewildered by it. This really is not a complicated issue. Millions of EU, EEA and Swiss national citizens are desperately concerned and asking for physical proof.
In Committee, the Minister said that to provide them with physical proof would be confusing and create a two-tier system. We have a system of permanent residence in this country for non-EU citizens; my husband is one of them. In his passport is a Home Office sticker, a nice colourful thing with watermarks and all sorts of anti-fraud protection, which gives him permanent leave to remain. It is physical proof. Doubtless it is also recorded on some Home Office computer system—I certainly hope so. There is no complication about this; we can do it. We just need the same scheme. The complication with a system where there is no physical proof is that landlords, employers or others who may be used to having physical proof may not accept, or find it difficult to deal with, people who do not have it.
Let me pick up on a few points. The Minister talked about the driving licence issue. We have a physical driving licence. The Minister is indicating that I have missed her argument but the licence is proof of my right to drive. All these people are asking for is physical proof of their right to residence, which the Government are not providing. The Minister also said that there was a danger of ID-card creep; I do not think there is any danger of that. Again, we already have a system for permanent residence in which physical proof is provided.
The Minister said that the system is working well because a large number of applications have already been made. I will say two things about that. First, the argument that we have always made about why we need a declaratory system is to do not with the number of people who have applied by now but with the number of people who will not have applied by the cut-off date. That is what concerns us. Secondly, the Minister says that the system is working well, but I refer her to the information provided by the Public Law Project from freedom of information requests. It shows that 90% of those decisions to give people pre-settled status under the scheme—rather than settled status when they have come under administrative review, at a charge of £80 to the people applying for it—have been found to be wrong.
In summary, people having the right to physical proof is a critical issue. It is absolutely essential that the Government honour the commitments that the Prime Minister and the Home Secretary made at the time of the referendum. In view of how important this issue is, I beg leave to test the opinion of the House.
Lord Hutton of Furness
Lord Hutton of Furness (Lab)
My Lords, in moving Amendment 2, I shall speak also to Amendments 22 to 28. The withdrawal agreement requires the United Kingdom to establish a new independent body to monitor the implementation of the citizens’ rights provisions contained in the agreement once the implementation period has elapsed. As noble Lords will be aware, there are over 3 million EU and EFTA nationals living in the United Kingdom today. The independent monitoring authority to be set up under this Bill will therefore have an essential role in helping the United Kingdom to meet its international obligations. It goes right to the heart of our standing as a nation governed by the rule of law and on respect for human rights and individual liberties, so this is a very important part of the Bill. My main concern with Schedule 2 as it stands —this is why I have tabled these amendments—is that it appears to place administrative convenience ahead of the proper enforcement of citizens’ rights. This is unacceptable; my amendments are designed to address this imbalance.
Amendments 2 and 22 relate to the composition of the independent monitoring authority. It must surely be a matter of principle that a body such as this, charged with the important responsibilities that we are about to give it, should comprise a majority of non-executive members. That is consistent with every principle of good, corporate governance. These amendments will make that clear. At the moment, it is not clear—in fact, quite the opposite. Under Schedule 2, it is possible for the body to be properly constituted and make decisions even without a majority of non-executive members. If we allow that position to go unchallenged, there is a risk—small perhaps, but not a risk we should be prepared to run—of executive capture. We should not let that happen.
Amendment 23 deals with the balance of the non-executive members. The Bill does not require the non-executive members to reflect properly the nations of the United Kingdom. The words “so far as possible” are inadequate in this context and should be removed. There can be no excuse not to ensure a proper reflection of the nations in the membership of the IMA.
Amendment 24 deals with defective appointments and vacancies. Given the importance of the work of the IMA, it should surely be possible to ensure a full complement of non-executive members. In the case of defective appointments, I do not think that decisions taken by people who have not been properly appointed should be treated in the same way as the decisions of people who have been properly appointed. Otherwise, what on earth is the point of our requiring the Secretary of State to follow a particular appointment process?
I turn now to Amendment 25. Under the schedule as currently drafted, the IMA could delegate to any official of the authority all or any of its decision-making powers other than the production of its annual report. I do not think that that can be right either. Surely the powers to investigate and reach decisions on individual cases or complaints brought to the IMA must be the sole preserve of the members of the IMA itself. My amendment would ensure that that is the case.
Amendment 26 also deals with quite an important issue of principle. In my view, sub-paragraph (4) as it is currently drafted is completely at odds with sub-paragraph (3). If the IMA is satisfied that the UK has failed to comply with its international obligations under the agreement or it is satisfied that a public authority has acted in contravention of the agreement—that is what this part of the schedule is dealing with—then surely it would be astonishing if the IMA could simply ignore this and decide not to take any action at all.
When the composition of the IMA was first revealed and the Department for Exiting the European Union published its document explaining the remit and mandate of the authority, it said:
“The IMA will be established to monitor the UK’s application of the citizens’ rights parts of the Agreements and identify any breaches.”
However, sub-paragraph (4) allows the authority to completely ignore any evidence of a breach of the UK’s international obligations; it allows it not to pursue an inquiry even though it is satisfied that such a breach has occurred. So it might decide to investigate some breaches of our commitments under the agreement but not all, and I do not think that is right. My amendment would therefore delete that provision from the schedule altogether.
Amendment 27, which I have tabled, also deals with a fundamental question of procedure. Sub-paragraph (3) in this part of the schedule seems to me to drive a coach and horses through the whole concept of an effective monitoring body. It is hard to imagine that many of the complaints we can envisage being made to the IMA will not involve at least the potential for an issue to be resolved or referred to the courts. This sub-paragraph gives the IMA a carte-blanche power to simply refuse to make any inquiries even if there is evidence that such a breach has taken place or that it believes that the proper redress is for an individual action in the courts. I do not believe there can be a justification for such a carte-blanche power, and certainly not one that is as widely drafted as this is.
On Amendment 28, many noble Lords have focused on the powers granted under the schedule for the Secretary of State to transfer the functions of the IMA to another body at some point in the future. Here I definitely can see why the Secretary of State might want to do this at some point in the future, but we should insist as a minimum threshold that any new body that might discharge these important statutory powers has the same constitutional safeguards—regarding independence and regional representation, for example—as the IMA. That is how we are setting it up under the schedule so surely any new body should reflect those essential provisions. I therefore do not think this amendment is asking for very much. It would simply require the Secretary of State to satisfy himself that any such body that these functions are transferred to is constituted in the same way as the IMA.
Lastly, on the point about dissolving the IMA, perhaps the Minister, whose response I am looking forward to, could confirm that under Article 159(3) of the withdrawal agreement the joint committee would have to agree the abolition of the IMA anyway, so the UK has already ceded authority—to use that argument—over the continued existence or otherwise of the IMA. I beg to move.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thank the noble Lord for his amendments. Given his long experience of government, he will understand that we have designed the IMA’s constitution as set out in Schedule 2 in line with the best practice for the establishment of new public bodies. I fear that the amendments he has tabled risk undermining that approach.
As noble Lords will be aware, we have introduced a number of requirements relating to the membership of the IMA’s board in line with the well-established procedures relating to the governance of public bodies. An important principle of this is that the board of public bodies must contain more non-executive than executive members. That is why we have required the Secretary of State to ensure that, as far as possible, the number of non-executive IMA members exceeds the number of executive members. It is also why the Bill sets out that an IMA board meeting is quorate only if there is a majority of non-executive members present. Because these restrictions exist elsewhere in the Bill, Amendment 2 is unnecessary.
Lord Hutton of Furness
My Lords, I am grateful to the Minister for his reassurances. He has, however, confirmed my suspicion that what matters most to Ministers is the administrative convenience of this new body, rather than its effective operation as a monitoring authority. I am certainly prepared not to press my amendments. I do not intend to test the opinion of the House; that was never my purpose in tabling them. However, I suspect that we will return to this issue in the months and years ahead. I fear that we are setting up a body in a way that is not consistent with its purpose. Its purpose is clear under the withdrawal agreement; time will tell whether the Minister is right or I am right. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.
Baroness Hayter of Kentish Town (Lab)
My Lords, I beg to move Amendment 3 on behalf of myself and the noble Lord, Lord Tyler. I shall also speak to Amendments 4, 5 and 7. These amendments are all tabled for the same reason: because the Government seem to like deciding things for themselves, with no reference to Parliament. That is possibly why they want to shove us up to York, where our voice will not be heard as loudly as it is in Westminster—although they have missed a trick by not trying to send us to Coventry.
Amendment 5 is needed because when the Government signed the withdrawal agreement allowing the EU-UK joint committee to amend the agreement itself, they failed to allow for scrutiny of the joint committee. The Government have this power under the Bill which is, in the words of our EU committee, a power immune from
“clear scrutiny procedures or parliamentary oversight”.
Clause 21 contains significant new powers to amend by statutory instrument the 2018 withdrawal Act, in what our DPRRC describes as
“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act”.
It is not just unusual for the Government to have that power with only the most cursory of scrutiny to amend primary legislation; it is also unexplained.
Implementing the Northern Ireland protocol may well prove challenging, of course, but we have seen nothing to suggest that this would demand changes to the 2018 Act. Nor does the letter of 16 January from the Minister, the noble Lord, Lord Duncan, provide comfort when it states that the power could not be used to repeal the devolution settlement but be exercised only for the purposes of implementing the protocol and the Government’s policy on unfettered access. If that is the case, why is the power there to repeal? While the Minister says that the power would not be used to repeal any power in the 2018 Act, there is still no reason given as to why it is there, nor why Amendment 3 cannot be accepted, given that it would simply take out from the Bill the ability to amend the 2018 Act by statutory instrument, which the Minister says the Government will do not do anyway.
Amendment 4, in the name also of the noble Lord, Lord Beith, is needed because, as the DPRR Committee states, the Bill contains
“a … potent form of Henry VIII clause … creating a new legal regime that would otherwise require”,
an Act of Parliament. Furthermore, these Clause 21 powers have none of the restrictions which are found in respect of similar powers elsewhere in this Bill or in the 2018 Act. Amendment 4 would insert the same limitation on the Clause 21 regulation-making powers as exists elsewhere in this Bill and the other Act. After all, it would be pretty exceptional for Ministers to be able to create new criminal offences, including with two-year terms of imprisonment attached, to set up public bodies—just referred to by my noble friend Lord Hutton—or to levy taxes, yet the Government want the power the do that. The assurance in the letter of 16 January from the noble Lord, Lord Duncan, that this would be by affirmative procedure is of no comfort to this House, given that such a procedure is effectively never used to stop a Minister doing exactly what he or she wants.
Amendments 5 and 7 are in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, who rightly said at Second Reading that it would be a terrible precedent if we altered the devolution legislation other than by primary legislation. The amendments would simply prevent Ministers using Clause 21 and 22 powers to amend the statutes which embed the devolution settlements. As we know, there is a perfectly viable, acceptable way of amending the Welsh statutes without primary legislation where the National Assembly agrees with the change; that is, through Section 109 Order in Council. We have been given no reason why the Government have written themselves these powers, which I fear can mean only that they want to change the devolution settlements without the consent of the National Assembly and Welsh Government.
Given that, even now, the Government seem determined to push this Bill through without legislative consent from the Welsh Assembly, these powers are understandably fuelling suspicion. I therefore trust that the Minister will accept Amendments 5 and 7 and, by doing so, rule out any chance of the Government trying to amend the Government of Wales Act without the consent of the National Assembly.
The Minister knows full well that the Assembly is due to debate its legislative consent Motion tomorrow. It would be shame—in fact, it would be more than a shame; it would be a constitutional landmark and a bad one—if this consent Motion were to be withheld due to the powers in this Bill, which appear to threaten the Government of Wales Act. Amendments 5 and 7 are therefore of some consequence.
We have been given no satisfactory explanation for why Parliament should give Ministers powers to amend by order the withdrawal agreement, the 2018 Act or the devolution statutes. Frankly, unless and until we have such an explanation, this power must come out of the Bill. I beg to move.
Lord Tyler (LD)
My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.
Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.
Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:
“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”
The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.
In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:
“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]
As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.
Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.
Lord Howarth of Newport (Lab)
The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.
The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.
I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.
Baroness Butler-Sloss (CB)
My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:
“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”
That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.
Lord Beith (LD)
My Lords, I am a signatory to Amendment 4 and my willingness to support it is partly based on a constant desire to police the boundary that ought to exist in the use of regulatory powers, so that they do not permit the imposing of taxation or fees, the making of retrospective provision, the creation of criminal offences or the establishment of public authorities, some of which could arise as a result of what is in the protocol. The Minister may well want to explain to what extent he thinks the protocol itself limits the powers that can be used under this section.
This is an area we have often been reminded of by the noble and learned Lord, Lord Judge, who until his recent departure was such a valued member of the Constitution Committee. If we had not policed the boundary, he would have been urging us on to do so. Indeed, he may have something to say on this amendment. It is an issue we keep having to come back to, because there are those within government who seem to think they can keep putting these kinds of powers into Bills, and we know how dangerous they are.
Lord Judge (CB)
My Lords, I cannot resist the invitation. First, a word of apology to the noble Baroness, Lady Hayter; I was not here for her very first words, but I was on my way.
Can we just pause? We are going to give a Minister power, if he so chooses, to impose taxation. The whole basis of our democracy started because no taxation was allowed without representation. The Americans picked it up in 1776, but it goes right back to Clause 12 of Magna Carta. The way Henry VIII powers are being used now has led to constant protests by the parties in opposition and by Cross-Benchers.
The time has come for us to address the difficult problem and decide that, if the powers given under these Henry VIII clauses are being misused, we will reject the affirmative process when they are put before us and take it on. If and when Labour comes to power, and one day it will, or if and when the Liberals come to power, and maybe they will, let us hope that when they are addressing Parliament and creating Henry VIII clauses they will remember their hostility to them now and allow the then Opposition, the Conservatives, to lead an attack on affirmative resolutions misusing these powers.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will speak to Amendments 5 and 7. The same arguments apply to both, so I will deal with them together.
The purpose of these amendments, as with all the amendments we have moved, is to try to ensure that, for the future and in the passage of this Bill, the union is strengthened. To that end, it is of the greatest importance that amendments to the devolution statutes should be made only by primary legislation or by the procedures under the pieces of legislation, such as Section 109 of the Government of Wales Act, that allow amendments to be made by consent. Secondly, we should go forward in our negotiations with the European Union and in the adjustments necessary within the UK in a spirit that honours the constitution as changed as a result of devolution—not merely its letter, but its spirit.
The amendments that we seek to raise address two distinct points. First, why are these powers needed, if it is said that they are, to implement the international obligations of the United Kingdom? Secondly—this is quite a distinct issue—why are these powers needed to implement the United Kingdom Government’s commitment to unfettered access for Northern Ireland goods to Great Britain? They raise entirely different constitutional issues and need to be looked at separately.
As regards the claim that they are needed to implement the international obligations of the United Kingdom, the powers under the Government of Wales Act, particularly Sections 82 and 114, give the Government very significant powers to direct the Welsh legislature and Welsh Ministers, so that what they do complies with international obligations. It is difficult to see why those are not sufficient.
Secondly, the astonishing breadth of these powers enables the Minister to repeal the devolution statutes. The Minister has in his helpful letter indicated that the Government would never contemplate doing so. Indeed, it is asserted that there would be no power to do so given the restrictions in the Bill on what can be done in respect of these powers to the implementation of the protocol. If that is the case, why is this not spelled out in legislation? Why is there not some limit on the Henry VIII powers?
Baroness Finlay of Llandaff (CB)
My Lords, I will also focus my remarks on Amendments 5 and 7 in this group, to which I have added my name.
My noble and learned friend Lord Thomas has explained in some detail the legal reasons for our concern at Ministers’ unwillingness to consider these amendments. For my part, while I understand the importance of the promises that the Government have made to Northern Ireland, surely it cannot be right that Welsh and Scottish devolution appear to be treated as less important than that of the six counties of Northern Ireland. The Northern Ireland Executive are assured that they will have direct representation when bodies under the joint committee consider matters relevant to Northern Ireland, but the Government fail to give any assurance to the devolved institutions in Scotland and Wales that their interests will be protected during the negotiations which are to come.
As I and other colleagues have repeatedly argued, there is a perfectly adequate way, through Section 109 Orders, to amend devolved competence where there is agreement between the Welsh and UK Governments. Such an approach involves both this Parliament and the Welsh legislature. I also understand that if an issue falls outside the scope of Schedules 7A or 7B to the Government of Wales Act, other powers may need to be used, but any suggestion that this may happen must be fully consulted on with the Welsh Government from the outset. Wales cannot be ridden over roughshod or treated as a second-class nation. If in extremis such agreement cannot be reached, it is of course open to the Government to ask Parliament to amend the Government of Wales Act, but such extreme measures should be used only as a very last resort.
If this clause is not amended, it will remove the incentive for Ministers of the Crown to reach a reasonable accommodation with the Welsh Government and the Senedd if and when it emerges that changes affecting the nature or implementation of devolved responsibilities and regulation are needed. There is a need to rebuild and regain trust. It may seem trivial, but as the noble Baroness, Lady Hayter, has said, despite the fact that we are on the verge of seeing the Senedd vote against legislative consent, I believe for the first time, and despite the Minister having suggested to me that direct dialogue between the Governments would be helpful, it is with regret that I understand that there have been no conversations between the Secretary of State and Welsh Ministers for the last 10 days. I assure noble Lords that that is not due to any reluctance on the part of Welsh Ministers.
The letter of 16 January from the Minister, the noble Lord, Lord Duncan of Springbank, states that under this Bill, the Government are “wholly incapable” of repealing the devolution statutes. Can he explain the absolute limits on the powers as written in the Bill because, as my noble and learned friend Lady Butler-Sloss has pointed out, no limits seem to be defined in the legislation before us? The letter also contains the phrase that it is not “normal” to use the main power set out in Clause 21 in areas of devolved competence without the agreement of the relevant devolved Administration. Can the Minister also explain the use of “normal”, which feels a bit like a get-out term?
In conclusion, let me say that Amendments 5 and 7 in no way seek to block or slow down Brexit—I remind the House that Wales voted in favour of Brexit— and they would not stand in the way of the Government’s wish to make a success of the Northern Ireland protocol. We are simply trying to avoid the perverse consequence of undermining faith in the union in Wales as a result of trying to shore up belief in the union in Northern Ireland.
Lord Morris of Aberavon (Lab)
My Lords, I support these amendments, in particular Amendments 5 and 7 spoken to by the noble and learned Lord, Lord Thomas of Cwmgiedd. They are of fundamental importance and go to the heart of the devolution settlements. For a number of reasons I was not able to take part in the Committee stage of the Bill, although I was present for a great deal of the debate.
My interest in a devolved model of government began to crystallise when I was a postgraduate student at Cambridge as far back as 1954. As the Welsh Secretary, I was fortunate to have the opportunity to frame the architecture of a Welsh Bill in 1975, ill-fated as it was, but in 1998 I was given a second chance as a law officer in the Cabinet Committee to contribute to a more acceptable Bill. Anything that casts doubt on it or the important advances made since arouses my suspicion, because we have moved on. My principle is that once a matter is devolved, there is no going back. Once the hand of Westminster grants devolution, it cannot then be withdrawn. The Government must ensure that any suspicion of backsliding is removed.
New subsections (2) and—probably—(5) in Clause 21 cause deep suspicion for me. New subsection (2), which has already been referred to, says that a Minister may make by regulation
“any provision that could be made by an Act of Parliament (including modifying this Act).”
This year I have enjoyed reading the book on Thomas Cromwell; I commend it. It is the life of the greatest political manipulator this country has ever seen—and probably the deviser of Henry VIII powers, because his hand was a very firm one on the tiller in all the legislative processes of that time. I ask the Minister frankly: could anything be wider than new subsection (2)? It is the Trojan horse that could amend the statutes that embed the devolution settlement.
As it stands, my suspicions are justified. The power is there to make changes to the devolution settlement even if the National Assembly and Welsh Government are opposed to the change. If Westminster has the Assembly’s agreement to changes, there is a perfectly respectable machinery for making them. It has already been referred to in the debate. In uncharted waters, such changes may be necessary.
I ask the Minister specifically: have the Government considered the alternative, a Section 109 Order in Council? This is the machinery available and could be used for any changes that might be required. Above all, they would be consensual as opposed to imposed changes. My second specific question is: will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act? Thirdly, have the Government discussed with the Welsh Government the anxieties they have? I commend these amendments.
Baroness Humphreys (LD)
My Lords, my concerns in Amendments 5 and 7, to which I have added my name, lie around relationships, trust and respect—because, for all the legalese, that is essentially what is at issue here.
The National Assembly for Wales will be 21 years old this year—in human terms, a coming of age: the age of maturity and majority. Over these last 21 years, I have watched the Assembly take on more powers and responsibility—successfully, on the whole—and have seen many of its politicians increase in expertise and stature. But the inclusion in the Bill of these clauses, which would enable Ministers of the Crown to amend the devolution settlement, can only be described as a retrograde step and will surely have a detrimental effect on the relationship between Westminster and Assembly Governments.
These clauses give the Government the power to amend the Government of Wales Act in certain circumstances, without the consent of the Welsh Assembly. It is a recipe for a breakdown in trust and respect. The words “potential major constitutional conflict” have been mooted, and the potential for such a situation concerns me greatly. Far better, then, to use the route already open to the two Governments and already referred to by the noble Baronesses, Lady Hayter and Lady Finlay: consultations that could lead to the Assembly agreeing with changes to its own competence through a Section 109 Order in Council.
Whether we are talking about families, schools or workplaces, or, as in this case, politics, trust and mutual respect are key to successful relationships. The taking away of freedoms and powers is a means of control, and not a constructive act of relationship building between adults, or adult institutions—unless of course in this instance the aim is to disregard the relationship and impose the will of the UK Government on the Assembly Government. This Government, with their large majority in the other place, are in a position of power, but they have a duty to avoid unnecessary conflict and relationship breakdown by using that power wisely.
Lord Wigley (PC)
My Lords, I have an apology to make to start with: I am so sorry that Wales sent Henry VII and Henry VIII through to Westminster to impose the sorts of powers that are now being used in the way they are. Henry VIII was also responsible for the Acts of Union, and I am sorry about that as well.
With regard to Wales, quite clearly these powers are being drawn up in a way that is, at best, cack-handed and, at worst, causing immense reaction in the National Assembly. It is no overstatement to say that Members across party divides in the National Assembly are seething about these powers being brought forward. It follows two years of discussion and debate about fears of a power grab, with powers being taken away from the National Assembly, and indeed possibly from the Scottish Parliament—no doubt Scottish Members of this Chamber can speak up for themselves on the situation there, although I must admit that I have heard very few Scottish voices in these debates. However, as far as Wales is concerned, there is real fear that, in areas such as agriculture and on the question of the single market and the purchasing power of the Assembly, powers may be taken back. That might be done on the pretext of their being necessary for the UK single market, or possibly for other reasons.
Given that there has been co-operation in Wales across party boundaries to make sure that the settlement we have is worked out in a sensible way and progressive additional powers have been given, and, by and large, that successive Governments in Wales have worked in collaboration with Governments in London, for this clause to be put forward in this way is, frankly, not acceptable. The Government of Wales Act could itself be amended, or even overturned. How on earth can these powers be necessary when there are other ways of achieving the objectives the Government may have in the context of international treaties, as the noble and learned Lord, Lord Thomas, mentioned a few moments ago?
I beg the Government to look again at this. They are stoking up unnecessary conflict between Cardiff and Westminster. There may well be areas where we will have conflict and differences of opinion, so, for goodness’ sake, do not do it gratuitously. I ask the Minister to look seriously at this again and, if he cannot accept these amendments, to bring forward amendments on Third Reading to deal with this situation.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)
Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.
As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.
At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.
The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.
Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.
I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.
The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.
The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.
The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.
On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.
The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.
I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.
There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.
I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.
The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.
I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.
Lord Howarth of Newport
Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?
Lord Duncan of Springbank
I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.
Lord Thomas of Cwmgiedd
Before the Minister sits down, could he possibly give some illustration of the kind of provisions for which he and his officials feel it would be necessary to use these very extensive powers that cannot be done under the various sections of, for example, the Government of Wales Act, to which we have referred? Can he give some assurance about what they are? Are they merely technical issues or are they further? It seems extraordinary that, when there are these detailed powers and it is asserted that they are insufficient, no illustration can be given as to why they are necessary.
Lord Duncan of Springbank
The noble and learned Lord raises a point that needs to be addressed head-on. The point is that we know that the existing powers whereby we can direct Welsh Ministers, or by using a Section 109 order, might well be inadequate for certain elements of the types of negotiations we anticipate. The problem we would have is that, if we place in the Bill all those aspects that we anticipate, we will run into some difficulty. They are primarily technical in nature, as might be expected in a negotiation of this complexity. The purpose of the powers is therefore to ensure the technical alignment of the various elements as we go forward to implement the Northern Ireland protocol. The ambition to do so will be done using the various instruments already available to us, including the Joint Ministerial Committee, which is primarily a method whereby we can examine the technicalities. The negotiations that will unfold will be technical and it might well be that out of that will emerge no elements in which we will need to invoke these powers—but, if we do need to do so, in areas where we anticipate that the current means to do so are not available, we would need to have these additional powers to move this matter forward.
Lord Morris of Aberavon
I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.
Lord Duncan of Springbank
I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.
Baroness Finlay of Llandaff
Before we finish this, I understand that the Minister cannot foresee all the issues that might arise, but what mechanism is there to ensure that, the moment something comes up that will clearly involve the specific competencies, responsibilities and regulations held by the Government of Wales, the Welsh Government will be involved from the outset—however much behind the scenes—and will have early warning that something might be coming down the road and that the Henry VIII powers might be used? The track record to date is not very reassuring.
Lord Duncan of Springbank
The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.
The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.
Baroness Hayter of Kentish Town
I thank the Minister, but he is struggling. I have three points to make.
First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.
As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.
The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.
I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.
“8D Power in connection with Ireland/Northern Ireland Protocol in withdrawal agreement: supplementary provision(1) Regulations under section 8C(1) must enable businesses in Northern Ireland to continue to be able to sell their qualifying goods to Great Britain without tariffs, origin requirements, regulatory import controls, dual authorisations or discrimination in the market, regardless of whether they trade directly with Great Britain or trade via Dublin port.(2) Any regulations made under this Act or any other Act that would introduce new requirements on goods traded from Northern Ireland to Great Britain (including, but not limited to, import customs declarations or origin checks) may not come into force without the consent of the Northern Ireland Assembly.(3) Regulations under section 8C(1) may not provide for additional official or administrative costs to be recouped from the private sector.(4) Regulations under section 8C(1) must provide for mitigations to safeguard the place of Northern Ireland businesses and consumers in the UK internal market in accordance with the Government’s obligation, under Article 6.2 of the Protocol on Ireland/Northern Ireland, to use its best endeavours to facilitate trade between Northern Ireland and other parts of the United Kingdom.”
Baroness Ritchie of Downpatrick (Non-Afl)
My Lords, Amendment 6 is in my name and in the names of the noble Lord, Lord Hain, and the noble and right reverend Lord, Lord Eames.
There is a sense of déjà vu about this debate, because last week in my absence—which I apologise for, but it was due to a family funeral—this debate took place in Committee stage. This amendment is a consolidated amendment, or a consolidated clause, made up of about three of those amendments. The amendment requires regulations made under Section 8C(1) of the European Union withdrawal Act, to facilitate access for Northern Ireland firms to the GB market, as well as requiring consent from the Northern Ireland Assembly for the introduction of any new checks on goods traded from Northern Ireland to GB.
Many of us from Northern Ireland—and not from Northern Ireland but noble Lords none the less—have met the business interests in Northern Ireland, and their main, abiding concern is to ensure that there is unfettered access for businesses from Northern Ireland to GB. Why would that be the case? They do not want tariffs; they do not want import controls; they do not want dual authorisations or discrimination in the market. There is a necessity, therefore, to provide for mitigations.
Why is this necessary? This is necessary to protect Northern Ireland business, which trades in large part with colleagues—for want of a better word—in Great Britain. If any restrictions are placed on that, it will cause untold damage to those businesses at a time when the Northern Ireland Executive and the Government are trying to ensure the reform of the Northern Ireland economy to increase job creation and to ensure that, in the fullness of time, there may be a lowering of corporation tax—all to underpin our local economy, which is vitally important. I find it unbelievable that the Government do not want to bring forward that legislation or these amendments, or do not consider it appropriate, particularly at a time when the Northern Ireland Executive have been restored.
It is interesting that today the Northern Ireland Assembly declined to agree to the legislative consent Motion which deals with certain aspects of the withdrawal Bill relating to Northern Ireland. I saw statements from the various political parties. There is striking new unanimity on this issue of unfettered access, as was displayed last week in this House—across all parties and none—and across all parties in Northern Ireland, and above all in the business community. They wrote to noble Lords on Friday afternoon saying that the amendments before us this evening, in my name and that of the noble Lord, Lord Hain, and the noble and right reverend Lord, Lord Eames, and the other amendments in the names of the noble Lord, Lord Morrow, have the support of all the main political parties and of the broadest representation of the Northern Ireland business community. This level of common purpose and collaboration is unprecedented. The intention is to ensure that Northern Ireland businesses are supported and protected to continue trading unfettered and with no additional costs as full and valued members of the UK internal market.
I was not at the debate last week, but I listened on BBC Parliament. Some might think that was a rather sad thing to do, but this issue is of such vital importance to business and the wider community in Northern Ireland that direct participation is necessary. The noble Lord, Lord Hain, very ably put forward the explanation for those technical amendments, and, as a former Secretary of State for Northern Ireland, he is well equipped to understand not only the political machinations but also the political difficulties that can ensue if things do not work out.
The document that was agreed by the five parties and the British and Northern Irish Governments says:
“To address the issues raised by the parties, we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”
Noble Lords will forgive me if I am a little sceptical about that.
First, I want to know how much and what work has been done with businesses, because I have talked to them. I also want assurance from the Minister, the noble Lord, Lord Duncan of Springbank, that immediate discussions and meetings will take place with those businesses, the Northern Ireland Executive, the Northern Ireland Assembly and the leaders of the political parties in Northern Ireland to ensure that this is given effect. If it is not, and if the Government do not see fit to do so at this stage, what is the timeframe for those references to legislation? Also, will this be done through primary legislation, statutory regulation or—that old chestnut we faced for years in Northern Ireland—an Order in Council, which you cannot amend?
Lord Hain (Lab)
My Lords, I support the excellent speech of my noble friend Lady Ritchie of Downpatrick. I remind the House that I spoke at some length and in detail in Committee last Tuesday, so I will speak only briefly in support of Amendment 6 and do so with increased urgency.
Since last week’s debate on essential damage limitation amendments to the EU withdrawal Bill—I remind the Chamber that they have the support of the entire business community and, as the noble Lord, Lord McCrea, pointed out last week, not just cross-party but all-party support in Northern Ireland—the Chancellor of the Exchequer has confirmed what many of us had long believed: that the Government are hell-bent on an ideologically hard Brexit that could do untold damage to the small and medium-sized enterprises that make up the overwhelming bulk of businesses in Northern Ireland.
When he told the Financial Times last week that there will be no regulatory alignment with the EU after Brexit and insisted that firms must “adjust” to new regulations, the Chancellor blithely said that businesses have had since 2016 to prepare. However, businesses in Northern Ireland were not presented with the Northern Ireland/Ireland protocol until last November, just a couple of months ago. How on earth are small and medium-sized businesses, which are the cornerstone of Northern Ireland’s private sector economy, supposed to adjust in only 11 months to a unique and complex set of relationships with the internal UK and EU markets —and just when the Northern Ireland economy slowed last year because of a contraction in the private sector?
When the Secretary of State said in terms in the other place that the Assembly and the Executive should take greater responsibility for Northern Ireland’s economic and financial future, I doubt that many here, or indeed in Northern Ireland, would say he was wrong, but the Government cannot have it both ways. They cannot demand that and at the same time inflict serious damage on many private sector businesses through erecting obstacles to trade across the Irish Sea and through their hard Brexit policies.
As was stressed by speaker after speaker from all sides of the Chamber last week, these amendments are essential to protect the very businesses that the Government say they want at the core of Northern Ireland’s economic future. They are intended simply to put into law what the Government profess to support: that there should be no impediments to trade in both directions across the Irish Sea.
The Minister wrote to noble Lords offering what I am sure he hoped would be reassurance on the issues raised here, but we are not remotely reassured. To be frank—I say this as an admirer of the Minister—the letters were full of warm words and elegant waffle. The core message was, “Don’t worry. Trust us and it will all be all right on the night.” But business leaders and politicians in Northern Ireland do not want mere reassurance. They want action and they want it without delay, through either accepting Amendment 6 or the Government coming up with their own mechanism in law that will have precisely the same effect.
I have huge admiration for the Minister. I know that he is in a difficult position because No. 10 is flatly refusing to listen and accept amendments, but that is not acceptable. Businesses in Northern Ireland should not be sacrificed on the altar of government dogma and be forced to incur obstacles and charges when trading both ways across the Irish Sea.
Lord Eames (CB)
My Lords, I added my name to that of the noble Baroness, who spoke so eloquently on this subject this afternoon, for one reason: throughout my professional life, I have come to value the core of Northern Ireland life through its business community. In many cases, those businesses were small. They are the heartbeat of the Northern Ireland community. Given the sensitivities of our situation both politically and economically—politically because of the sensitive nature of reaching the recent agreement, which we all welcome—and of our geographical position, having on our shore what is soon to become the border between the United Kingdom and the European Community, there is no better word than “sensitivity” to be adopted regarding the wording of the amendment.
During the lengthy debate in Committee, I coined the phrase “the reality of reassurance”. Behind what has already been said this afternoon, that remains the key reason why we make a strong plea to Her Majesty’s Government to take seriously not just the amendment’s wording and technicalities but the motive behind it: the reality of reassurance. No one can tell how this will develop once Brexit is a reality. The noble Baroness quoted the letter that came to us from right across the business community, which is united in making a plea for this reality of reassurance. At this stage, I simply say this: I realise the difficulties faced by the Minister and I accept the sincerity of his position, but I urge the Government to realise that there is a lot more to this amendment than simply technical phrases.
Lord Morrow (DUP)
My Lords, I shall speak to Amendments 8 to 11, which stand in my name and that of my noble friends Lord McCrea, Lord Hay and Lord Browne. These amendments and the amendment moved by the noble Baroness, Lady Ritchie, are very similar. Indeed, some might say that they overlap slightly, but I think that is no bad thing because of the situation in which we find ourselves.
I speak as a unionist and a supporter of the leave cause. We are clear that the withdrawal agreement does not get Brexit done, but that is to be proved. It merely creates an opportunity to get it done for Great Britain, but not for the United Kingdom. The final agreement will determine whether it is done for Great Britain and the United Kingdom. I will be happy to be proved wrong on this occasion, but I suspect—I say it myself—I will not be proved wrong.
The withdrawal agreement leaves Northern Ireland behind in the single market and, despite the legal technicalities, inside the EU customs union. The vote to leave was a vote not of Great Britain but of the United Kingdom. It does not respect the referendum result. There was never any discussion about the difficulties of a land border. The European Union dismissed all solutions, and, shamefully, many used the implicit threat of republican violence to make it appear unsolvable. The result was not to solve the trade and customs issue but to move the problems from the UK-Irish border to inside the UK.
The EU can hardly now approve a series of alternative arrangements that it spent three years dismissing as unworkable and undeliverable without admitting it was disingenuous on the land border. The act of putting a regulatory customs and tariff border between Northern Ireland and Great Britain did not solve the trade problems; it multiplied them. Great Britain is Northern Ireland’s largest market, and something like 70% of Northern Ireland’s retail goods come from Great Britain, so these potential checks will be more harmful than if they were at the land border.
The Prime Minister has given many interviews and there were commitments in the Conservative manifesto saying that our concerns are mistaken. I hope we are mistaken, as I said earlier. If we are, there can be no difficulty in putting those words and commitments into law. It would add a further layer of confidence that, in any breach or failure to fully implement the Prime Minister’s words and his Conservative Party’s manifesto commitments, it should not be Northern Ireland businesses and consumers who pay for that failure but the Government.
In the coming year, there is not one negotiation but two: the UK-EU free trade agreement and the Joint Committee working on the Ireland-Northern Ireland protocol, which has often been spoken about here today. This measure in law would reinforce and bolster a strong negotiating position in a joint committee. The Government’s comments to address the concerns of Northern Ireland at the next stage of negotiations are being given practical action with legal weight.
I turn briefly to Amendment 9. The United Kingdom internal market is vital for the well-being of Northern Ireland, as others have said. We trade more with the rest of the UK than with the rest of the world. As a unionist, I do not want to see any barriers to trade placed inside my country, but from a practical, economic point of view it harms Northern Ireland to have any impediment to internal trade with the United Kingdom. This amendment attracted not just cross-party but all-party support in Northern Ireland. That has already been stated, and it cannot be stated often enough. That level of support is rare in itself, but on Brexit it is unprecedented.
The recently published New Decade, New Approach ushered in the restoration of devolution a little more than a week ago. It states:
“To address the issues raised by the parties, we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”
This amendment can put that government commitment into action. Furthermore, the Government have stated that there will be no negative impact on Northern Ireland businesses. The only way to demonstrate that is to carry out the assessment called for by this amendment. It will ensure that there is ongoing monitoring, not just a one-off snap-shot.
Lord Empey (UUP)
My Lords, last week in Committee I supported the amendments in the name of the noble Baroness, Lady Ritchie, and others. It is only due to me being late getting to the office that my name is not on this amendment, but I support it nevertheless.
The Minister did his best in his letter. The only thing missing from it was a poetical quote; otherwise, he pretty well exhausted every lever at his disposal to make a silk purse out of a sow’s ear. I congratulate him on attempting to do it.
I have always felt, and have said to colleagues, that the key to what we are discussing today will evolve as we go through the rest of this year. The necessary parts of the negotiations will ensue, and we will see what happens. The Minister was kind enough to quote my widget example in his letter. It was merely to illustrate the enormous complexity and difficulties, and it does not immediately occur to me how we solve them. We spoke to the business community. Reference has been made to the letter that was sent to the Minister on 17 January. Not only is such a letter unprecedented, but I think it is worth mentioning who has signed it. It states:
“The amendments that have been laid down”—
those are the amendments we discussed in Committee—
“have the support of all the main political parties … and the broadest representation of the Northern Ireland business community. This level of common purpose and collaboration is unprecedented.”
It is.
“The intention of these amendments is not to seek subsidy or hand-out but, rather, to ensure that Northern Ireland businesses are supported and protected to continue to be able to trade unfettered, and with no additional costs”—
that is an important factor, because that goes directly to competitiveness—
“as full and valued members of the UK’s internal market.”
That was signed by the FSB, the CBI, the Dairy Council, the Freight Transport Association, Hospitality Ulster, the Institute of Directors, Manufacturing NI, the Mineral Products Association Northern Ireland, the Northern Ireland Chamber of Commerce and Industry, the Northern Ireland Food and Drink Association, the Northern Ireland Meat Exporters Association, the Northern Ireland Retail Consortium, Retail NI and the Ulster Farmers’ Union. To get all those bodies to sign anything with all the political parties is quite an achievement. The Minister must be very proud of what he has achieved in provoking that. But we are not simply politicking here; we are trying to speak on behalf of an entire community.
References have been made to the new Executive and how they should be engaged. We warmly welcome the fact that they are in place and, one hopes, will be able to speak on behalf of the community and get our message across. Many of us have been extremely worried over the past few years, because during these negotiations the people of Northern Ireland have effectively had no one to represent them. That has been a huge tragedy, and a lot of the mistakes that have been made have, in part, been linked to that. Despite repeated requests, there was little or no significant impact from Northern Ireland’s voice, because it was not at the table, where it was needed.
I hope that when the Minister replies he will understand that and understand the competitiveness issues involved. He has to acknowledge that, as we sit here today, there are not on the table the practical solutions that will allow unfettered access. Our anxiety is that those solutions may not be there and that in a year’s time “unfettered” will become “fettered”—that there will be differences, competitiveness issues and costs. I sincerely hope that the Minister is able to square the circle when he concludes this debate. I support the amendment in the name of the noble Baroness, Lady Ritchie.
Lord Bruce of Bennachie (LD)
My Lords, I, too, support the amendments. Having spoken in support of the principle last week, I shall be brief.
It is fair to say that this and the previous group of amendments are based fundamentally on a problem of trust with the Government. The Minister has given us detailed assurances as far as he is able, but the words of the Northern Ireland protocol and the assurances given by the Prime Minister do not seem to square with the facts. Understandably, therefore, it is difficult for people in business to feel comfortable that “unfettered access” means what it says. The noble Lord, Lord Empey, has indicated that there is a question over that. For example, being based in Northern Ireland, you may well have access to the Great Britain market but you may still have to fill in a customs declaration. That is a fetter and a tie, and it involves a cost. There is also the issue of at-risk goods, which may or may not cross other borders and will perhaps have to be separated out. That will involve an administrative cost and will be a problem. The Minister is fully aware that businesses in Northern Ireland—many of them small, as has been said—are facing Northern Ireland being half in and half out of both unions: half in and half out of the UK, and half in and half out of the EU. If anything is a recipe for confusion, that is it.
The point that the noble Baroness’s amendment makes is, given that in reality it looks as though there will be rules and regulations that change and that will have implications, what is required is a guarantee that businesses in Northern Ireland will be compensated or covered for that so that they will not be worse off. Many of us see a real intellectual challenge as to whether that is even practically achievable within the proposed framework. The Minister is not allowed to accept amendments to demonstrate good faith. He writes extremely detailed and genuinely constructive letters but they are not law, and that leaves us in this rather uncertain scenario.
To be absolutely blunt—I think that the Chancellor’s interview with the Financial Times last week made this clear—the hardliners are in charge. What is being practised is a hard Brexit and Northern Ireland is almost like a nut in a nutcracker. Many people feel that Northern Ireland is not the Government’s top priority in “getting Brexit done”: there is a worry that it is expendable.
The Minister needs to understand that behind these amendments is a genuine concern—even a fear—that all the assurances being given will be very difficult to square with the realities of the Brexit we will get, in terms of both how we withdraw and the future agreement. There needs to be a real and positive recognition that Northern Ireland cannot be left to be squeezed in between all that. If the United Kingdom means anything and if the commitments mean anything, Northern Ireland deserves those assurances, which is why these amendments have been tabled.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I support the amendments in the name of the noble Baroness, Lady Ritchie, and those of my noble friends, to which I have added my name. The Minister knows that in discussions my colleagues and my party supported Brexit. We did so believing and agreeing that Northern Ireland would leave the EU on equal terms with the rest of the United Kingdom. However, what is proposed certainly does not do that.
Over the years, those running businesses in Northern Ireland have faced many challenges. Indeed, for 30 years they faced the bomb, and they did so with great courage. We ought to salute them in coming through those years of terror and tragedy. However, we had hoped that those challenges had been left behind and that the door would be open for prosperity. There was great hope for the future for the generations to come. However, we now find that businesses face further challenges.
I am reminded of the words in the document that was presented to the parties in Northern Ireland. In fact, I can still see the Secretary of State for Northern Ireland and the Foreign Minister from the Irish Republic standing at Stormont presenting the document and practically saying, “Take it or leave it”. That document contains the clear statement that,
“we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”
However, what is proposed does nothing of the sort.
I appreciate that the Minister did his best in the letter that he sent to us but there is no cast-iron guarantee that fulfils what is promised in that document, New Decade, New Approach. I listened very carefully to the debate that exercised many noble Lords a short while ago and noticed that the Northern Ireland protocol and the problems it has caused were emphasised over and over again. However, the reality is that that is because of the sorry state that the Government got themselves into when they negotiated the protocol, and now Northern Ireland is left as a pawn in the game.
Last week, the EU’s chief Commissioner confirmed the checks and controls between Britain and Northern Ireland under the agreement that will govern the UK’s exit from the EU. As the noble Lord, Lord Hain, has already mentioned, the Chancellor of the Exchequer said in his statement that there will not be regulatory alignment with the EU after Brexit and that firms will simply have to adjust. That throwaway statement is not worthy, bearing in mind the question of quite how businesses in Northern Ireland are simply to adjust. The small and medium-sized enterprises are left confused and deeply worried about the future.
Can the Minister categorically guarantee that there will not be a raft of checks and controls placed on the movement of goods to and from Northern Ireland and Great Britain? Does he acknowledge that, if any of these were a reality, there would be a barrier to trade and Northern Ireland businesses would be at a competitive disadvantage in both the internal UK market and the EU? Additional bureaucracy will only add to the financial burden placed upon those small and medium-sized businesses that are least able to afford it. As the noble Lord, Lord Hain, said, they have been the backbone of the Northern Ireland economy.
Lord Murphy of Torfaen (Lab)
My Lords, it has been a very good debate, not least because this is the first time in decades that we have heard in this Chamber from both nationalist and unionist representatives in the House of Lords. It is also many years since they have agreed—and that is good. I am delighted to say that we will support the amendment in the name of the noble Baroness, Lady Ritchie, because it sums up the position of unanimity in Northern Ireland. It sums up the point referred to by the noble Lord, Lord Empey, that every single business organisation, commercial organisation, trade union and politician in Northern Ireland believes that the substance of these amendments is correct.
It is a matter of mere hours since the Northern Ireland Assembly—happily back again this week—this afternoon passed a Motion declining legislative consent to this Bill, largely because of the issues that we are now debating. That is very unfortunate. On the points made by noble Lords regarding the decision of the Prime Minister and the Government not to accept any amendments at all, I suspect that this has caused the Northern Ireland Assembly to do what it has done. I am sure that that is not the Minister’s view, but he has to do what he has to do. The Government have a majority of 80 and the power to do what they want; but whether they have the right to do that is quite another thing, certainly with regard to Northern Ireland.
However, should we find that the amendment is not agreed to, Annexe A to the New Decade, New Approach agreement published last week says that the British Government commits that
“we will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.”
So, we hope that the Government will revisit this. We will look at the strength of feeling in Northern Ireland. We will be able to look again in the course of the next nine months or more; indeed, when the trade deal is being negotiated, we will look very carefully at the implications for Northern Ireland as they have been outlined today.
Before concluding, I will make one final point in relation to the previous debate on devolution. We now have three functioning devolved Administrations in the United Kingdom. I am not convinced that the Government have understood the significance of that change in the political landscape. Yes, of course we have to implement this Bill, because the people have agreed by referendum, and now by election, for it to happen. But, at the same time, the Government should do this in co-operation with the devolved Administrations and Parliaments.
There is no evidence that this is happening. Worse, if the Welsh Senedd, or Assembly, decides soon not to give legislative consent to this Bill, as is likely, then Edinburgh, Cardiff and Belfast will all have declined to support it. That is not good. It is not good for democracy or for our leaving of the European Union. So I look forward to some interesting comments from the Minister on how he can assuage the concerns that have been raised at this afternoon. This is one of the most important issues affecting Northern Ireland—its economic, commercial and business future. We all look forward to listening to him.
Lord Duncan of Springbank
My Lords, noble Lords may be looking forward to hearing my response rather more than I am looking forward to giving it, if that helps. I will try to address some of the specific points raised but will also make some of the more generic points that I must make; that is something I need to be clear on.
I will start by saying where I believe we are in agreement. We do not want to see a hard border on the island of Ireland; we are in clear agreement on that. We also recognise that Northern Ireland is, and must remain, an integral part of the UK internal market. It is important to stress that this means that there shall be no impediments to the trade between Northern Ireland and Great Britain. The noble Baroness, Lady Ritchie, asked about fishermen, and gave the example of Northern Irish fishermen fishing in British waters, landing on the coast of England and then returning to Northern Ireland. There should be no tariffs at all at any one of those process stages; it is important for me to stress that. If the noble Baroness permits, I would be very happy to sit down with representatives of the fishermen of Northern Ireland to discuss this further. I will reach out to Alan McCulla of the ANIFPO body to try to make that happen. I should say “I or my successor,” depending on the outcome of the reshuffle.
It is important to recognise also that there is a new kid on the block; that is true. There is now an Assembly in Northern Ireland and an Executive. It will be important in the calendar year ahead that the voices there are heard loud and clear in the ongoing negotiations that will take place under the arrangements with the joint committee. That will be absolutely essential.
I am also very aware that the business bodies that have written have come together across almost every aspect of the wider economic sectors of Northern Ireland to write as one. It is important that we do not lose sight of what that means. The noble Baroness, Lady Ritchie, asked when we would be engaging with these bodies. To a large degree, we have been doing so under a different guise, because there were different elements pre last weekend. But it is now time to say that we need to turbocharge that dialogue. There needs to be a serious dialogue with everybody affected by this reality going forward. It should be not a one-off chat but a dialogue that recognises the evolving situation in the ongoing negotiations as they impact on Northern Ireland.
The important thing to stress in this instance is that our commitment as a Government to Northern Ireland’s place in the union is absolutely unwavering. As I said the last time that I addressed these matters, both the manifesto of my party, which was endorsed by the people, and the personal remarks of my right honourable friend the Prime Minister, have given a very strong commitment that we shall ensure unfettered access in the calendar year ahead. It is important also—
Lord Reid of Cardowan (Lab)
With the leave of the House—as I was called away just after the speech by the noble Baroness, Lady Ritchie, and therefore missed part of the debate—I want to put a simple question to the Minister. Does he not yet realise that he is the unfortunate victim of the Prime Minister’s propensity to promise people that they can have their cake and eat it? In short, he promised that there would be unfettered access between the British mainland and Northern Ireland and that there would be unfettered access between Northern Ireland and the Republic of Ireland. It does not take a genius to work out that that promise means that there will be unfettered access between the United Kingdom and Europe—which is impossible to achieve if we leave Europe. Would it not be better now to admit that, however hard they try, this will not happen? Otherwise, the disappointment in Northern Ireland will grow into disillusion and the disillusion will grow to bitterness, and that is where our problems will start.
Lord Duncan of Springbank
I welcome the noble Lord’s introduction where he said he was making a simple point. In a sense, he has made a very specific point. The commitments that we have made to the internal market of the UK are strong, and the ongoing negotiations that will deliver the reality of both our free-trade arrangement with the EU and, specifically, the protocol for its delivery are yet to be had. What will be important is that the negotiation is conducted in good faith and, I hope, delivered as the expectations have been set out. If it is not so delivered then I think there will be disappointment and disillusionment, but I have faith and confidence that we will deliver them as we have said we will try to, and that is important to stress.
The noble Baroness who moved her amendment asked about the timetable of what will happen and how it will be done. It is important to stress that this will be done not by Orders in Council but by regulation. It is also important to stress that the—I almost used the word “backstop”; let us not use that word—end point in this scenario, which will be the end of this year, sets the point at which we must have on our statute book each of the functioning elements in order to deliver this particular commitment. Again, in this place and the other place there will be full engagement in those elements to deliver that particular legislative commitment and there will be full scrutiny, using all the normal procedures to achieve that.
I am aware, as I look at the reality, that I need to go into more detail about the specifics of the amendments. I need to stress the purpose here. That is difficult, in the light of the speeches made today and last week by the noble and right reverend Lord, Lord Eames, because it is very easy to get caught up in the technicalities. While my speech is not quite warm words and elegant waffle—although I admire the fact that the noble Lord, Lord Hain, put the word “elegant” into the waffle description; that was very much welcomed—there are some technical parts that we have to emphasise in this regard to ensure that the protocol and the issue that we are discussing actually work in practice. However, to return to the noble and right reverend Lord’s notion of the reality of reassurance, I am also aware that there is a reason why technocrats do not write poetry. When you are trying to talk about technical issues, it is very difficult to in any way soar to the heights of explaining a noble cause or a noble adventure. It is almost impossible for me to do that today, and I am quite sad that I cannot, but the notion of the reality of reassurance will be vital.
I will briefly interject a small aside: the noble Lord, Lord Bruce, mentioned “The Nutcracker”, one of my favourite ballets. The story has been described thus:
“The nutcracker sits under the holiday tree, a guardian of childhood stories. Feed him walnuts and he will crack open a tale.”
I am trying to work out whether I am the nutcracker or the nut. I have a suspicion that I am probably the nut in this analogy.
The challenge that we face is therefore to move forward on the specifics, so I am afraid I will have to divorce myself from any of the poetry available to me in order to look at that. First, Article 1 states that its provisions do not undermine the constitutional status of Northern Ireland within the UK. That goes to the point raised by the noble Lords, Lord McCrea and Lord Morrow. Article 4 is explicit that Northern Ireland remains within the customs territory. It is important to emphasise that Article 6 makes it clear that
“Nothing in the Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to the rest of the United Kingdom’s internal market.”
Importantly, New Decade, New Approach, which the noble Lord, Lord Murphy, referred to, sets in place the timescale, timetable and dates by which we must be able to legislate to guarantee the delivery—again, 1 January 2021. The protocol itself also contains the outstanding decisions that the UK/EU joint committee will need to take. I touched on this in the earlier discussion that I had: although we can set out in some regards what we intend to achieve, it is a negotiation and it will be required to move forward on that basis.
As I said previously, it will be vital that the Northern Ireland Executive are invited to be part of the UK delegation in any meetings of the UK/EU specialised or joint committees discussing Northern Ireland-specific matters that are also being attended by the Irish Government as part of the EU’s delegation. That is to ensure not just that the voice of the UK Government is heard there in a loud and booming tone but that the people who are affected by this are part of that open dialogue and discussion. It will be important for businesses in Northern Ireland to have trust not just in the UK Government in that process but in the Northern Ireland Executive.
Baroness Ritchie of Downpatrick
My Lords, there has been striking unanimity on the issue of unfettered access to the GB internal market for businesses in Northern Ireland. The Minister raised certain issues which will require further investigation and monitoring. I add this by way of caution: noble Lords will do this, to ensure that that piece of legislation is in place and meets the requirements of businesses in Northern Ireland to allow them to grow, develop and be nurtured. Due to the time this evening, rather sadly, reluctantly and under protest, I beg leave to withdraw the amendment.
Lord Beith
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.
Lord Beith
My Lords, I rise to move Amendment 12. This amendment will not delay Brexit. It will not even delay this Bill, which is going to the Commons in any case. However, it will avoid a great deal of legal confusion and safeguard the independence of the judiciary. It reflects concerns held by the Constitution Committee, several members of which have taken part in the debates, including of course our chair, the noble Baroness, Lady Taylor. The background is that European Court of Justice case law will be relevant in interpreting retained European law. We recognised that in the 2018 withdrawal Act and made provision for it to be dealt with, so that the Supreme Court and the High Court of the Justiciary would be able to depart from EU case law when they thought it right to do so.
Clause 26 of this Bill gives Ministers very wide regulation-making powers to decide which courts can depart from CJEU case law. It could be any court, right down to the magistrates’ court, the county court or the sheriff court. Through unamendable statutory instruments, Ministers could decide what test the courts should apply when considering whether to depart from EU case law. Ministers could effectively direct the courts to disapply case law in specified circumstances. Bear in mind that lower courts cannot bind other courts, so we will have conflicting interpretations and a lot more litigation as a result.
These are not appropriate powers to be exercised by regulation. They open the way to ministerial interference with the courts. If any of this needs to be done, it should be done in primary legislation. I would have been happy to see provision in the Bill to extend the powers in the 2018 Act to the Appeal Court and the Inner House of the Court of Session, for example. However, I have tabled these amendments on Report because last week’s proceedings in Committee were inconclusive. I said then that when such serious concerns are raised by so many noble and learned Lords, including those with a lifetime of experience in interpreting the law, Ministers need to think again and respond.
I encouraged the noble and learned Lord, Lord Mackay of Clashfern, to use his skills when he spoke in the debate to think of ways in which we could get through this and to encourage Ministers to do so, which he certainly has. Amendment 14, his valuable amendment in this group, would be very helpful. It does not do all the things I sought to do by deleting some of these powers, but it would very much clarify the situation I am worried about, of lower courts making rulings which conflict with those of other courts. If the noble and learned Lord decides that he wants to press his amendment to a vote, in circumstances which I will refer to in a moment, I would be happy to make way by withdrawing mine in due course to enable him to do so. I hope he can make it clear to us when he explains his amendment whether that is the course of action he wishes to take.
I said that reconsideration was necessary. I believe that such reconsideration had taken place and that the noble and learned Lord, Lord Keen of Elie, was ready to move an amendment at Third Reading which would have met all our concerns. I have a copy of that draft amendment. The noble and learned Lord was expected to wind up this debate, but is no longer doing so. That seems very significant to me. I think he knows full well that the Bill as it stands would be a source of legal confusion and would lead to this danger of Ministers having the power to impose an unspecified new legal test on the courts, a test which could not be amended by Parliament. Parliament is about to make bad law which Ministers know to be bad. I am afraid that my conclusion is that No. 10 Downing Street is in a sulk because this House carried an earlier amendment to the Bill. The noble and learned Lord, Lord Keen, is an entirely honourable man who serves the House very well and is always a man of his word. I think his absence from the debate at this stage indicates that some exchanges in the Government have led to this House being asked to make law that it knows to be bad. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, when we debated this clause in Committee, we looked at two key provisions: which courts should be able to look at this matter, and what the test should be. I was particularly concerned about saying what the test should be, because I regarded that as an interference with judicial independence—and I still regard it as such. If Parliament sets out the test, as it did in the 2018 Act, for the Supreme Court and the High Court of the Justiciary, that is the law and the courts can therefore take it and act on it. However, it seemed to me and a number of your Lordships that it was not proper for a Minister to deal with the judiciary in these circumstances. Having the Minister set what the test should be by regulation really should not happen. That was the conclusion of the debate in Committee, generally speaking.
When I thought over that, I concluded that we were blocking altogether what the Government were seeking to achieve. I therefore felt strongly that it was my responsibility, along with others, to see whether there was some other way of dealing with this problem. I have thought about it a good deal and, as I understand it, the Prime Minister said that he was in favour of every court being able to deal with this matter. I was anxious that my proposal should achieve that, if at all possible, because he had said that in good faith as part of his election campaign. Therefore, I felt that I should try to think up an amendment which gave that power. Amendment 14 does that because it allows any court in the United Kingdom to consider this matter and make a judgment on it. However, because of the nature of the judgment, there is a requirement that it be referred to the Supreme Court, which should have a power to grant the result, on condition that it has a power not to hear it if it feels that the application was not very substantial or very good, as it has for many appeals in the ordinary course of events.
I can see that having that sort of burden on the Supreme Court might be rather disagreeable. Therefore, it was quite reasonable to think of giving that power, the result of the reporting power, to the Court of Appeal in England—I think Wales and Northern Ireland would also be covered by that—and to the Inner House of the Court of Session in Scotland, which is its equivalent. The High Court of Justiciary would of course also have that responsibility in criminal cases. I am very open to negotiating how this should happen, but I venture to think it important that we consider this issue carefully. I hope that your Lordships may feel that we should pass this amendment.
Lord Pannick (CB)
My Lords, I declare an interest as a practising barrister. I have signed Amendments 12 and 13, tabled in the name of the noble Lord, Lord Beith, but I am very happy to support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern. The reason is that Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply. These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.
Perhaps I may briefly respond to the points made by the noble and learned Lord, Lord Keen, the Minister in Committee, because I anticipate that the noble Lord, Lord Callanan, will make the same points as his substitute today, as we have heard from the noble Lord, Lord Beith. The first point that the noble and learned Lord, Lord Keen, made was that we are not, as he put it, in “novel territory”, because Section 6 of the 2018 Act has already looked at which courts should have this power. The simple answer is that what is novel is a delegated power for Ministers, which I have described.
The noble and learned Lord’s second point was that there are safeguards because Clause 26 requires Ministers to consult the judiciary. That does not reassure me; it is still Ministers who will decide these important matters. His third point was that the power would, as he put it,
“be employed in a way that is consistent with our own constitutional norms and traditions”.—[Official Report, 15/1/20; col. 691.]
I suggest that it is no answer to the conferral of unacceptably broad powers to have Ministers assure us that they will exercise those powers reasonably. The objection is to the powers being conferred on Ministers, because once they are conferred the political and legal constraints if they decide to act unreasonably are limited.
The noble and learned Lord’s fourth point was that there are diverse views on the question of which courts should be able to depart from Court of Justice decisions, but this is not a new issue. We debated it at length on the 2018 legislation. Ministers have had plenty of time to consider whether the solution adopted in 2018 requires amendment. If Ministers want more time, and want to consult, the answer is not for them to take unacceptably broad powers. The answer is to bring a short Bill before Parliament, in a month or so, proposing such amendments—and then Parliament can decide.
These amendments raise issues of considerable constitutional concern and importance. As the noble Lord, Lord Beith, said, they have absolutely nothing to do with the merits of Brexit, the terms on which we leave the EU or the timetable for Brexit. It is, I suggest, our constitutional responsibility, when a Government bring forward a provision as constitutionally objectionable as Clause 26, to ask the House of Commons to think again. That is particularly so when, as the noble Lord mentioned, the Government have been in two minds—to put it politely—on this issue today.
Lord Howarth of Newport
The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.
The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.
Lord Carlile of Berriew
My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.
I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.
My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.
The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.
Lord Goldsmith (Lab)
My Lords, I did not have the privilege of attending the House when Committee took place, but I have read every word of the debate on this clause. It is so powerful to see, I think, three former Lord Chief Justices, a former Lord Chancellor, a former Law Lord, the chairman of our Constitution Committee and other distinguished people speak perhaps not unanimously as to the right outcome but certainly unanimously condemning what the Government seek to do. We have heard it again today; I fully agree with what was said by the noble Lord, Lord Pannick, by my noble friend Lord Howarth and, of course, by the noble and learned Lord, Lord Mackay of Clashfern.
Lord Callanan
My Lords, I shall speak to Amendments 12 and 13 in the name of the noble Lord, Lord Beith, and Amendment 14 in that of my noble and learned friend Lord Mackay of Clashfern. We debated this matter at length in Committee and the Government have noted the strength of feeling across the House about both a power in principle and the different uses to which it might be put. However, I regret to inform the House that the amendments cannot be accepted.
The clause provides for an important principle: UK courts should be able to interpret UK laws. After the implementation period, that is a matter for us to decide. My noble and learned friend Lord Keen and I have had significant engagement on this issue with noble Lords across the House during the past few days. I can say on behalf of both of us that we are grateful to those noble Lords who met us. While I know that it has not been possible to allay noble Lords’ concerns, I hope that it has become clear that the Government will implement this policy sensibly and in a way that works for courts across the whole United Kingdom.
As my noble and learned friend Lord Keen noted when we debated the matter in Committee, two vital safeguards are built into the Bill. First, we must consult the senior judiciary. The Government are also happy to make it clear that, where the clause requires us to consult other appropriate persons, we also intend to engage with the devolved Administrations.
Secondly, this power can only be used before the end of the implementation period—a critical issue. There is no way in which a Minister can interfere with a live case, nor seek to unpick a single historic judgment which the Government have taken a dislike to. This is a power to allow the Government time to consult, consider and soberly extend the jurisdiction of UK courts to the historic case law of the Court of Justice of the European Union, properly reflecting that, after the end of the IP, such case law will form part of our domestic legal order. The way in which courts are to do this will be made clear. At all times, there will be legal clarity on the rules of interpretation when any cases concerning the body of retained EU law come before those courts. Again, I thank noble Lords for their contributions to this debate and their constructive engagement with our proposals.
Amendments 12 and 13, in the name of the noble Lord, Lord Beith, would mean that retained EU case law would continue to bind our courts, other than the highest courts of appeal, long after the end of the implementation period. For this reason, those amendments are not acceptable to the Government. Amendment 14, in the name of my noble and learned friend Lord Mackay, is an interesting suggestion but, as drafted, it would create a reference process and confer a role upon the Supreme Court that would be novel in a domestic context and could have unintended consequences, including serious implications for the role and case load of the Supreme Court. We look forward to continuing to work closely with noble Lords in the development of these regulations and will continue to listen to the many constructive ideas that have been put forward on this subject. With our commitment to work closely across the House and consult on this issue over the coming months, I hope that the noble Lord will be able to withdraw his amendment.
Lord Beith
My Lords we are no further forward at all on which courts it is intended shall acquire the power; on what the test they will be required to carry out is; or on any reliable process by which we can ensure that Ministers do not get involved in specifying the circumstances in which courts, at any level, can depart from existing case law. The beauty of the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, is, as he explained, that it seeks to satisfy the Government’s objective—as restated now by the noble Lord, Lord Callanan—that any court in the land should be able to engage in this process. This is not a very wise thing to do but, if it is going to be done, it should be done with the protection suggested by the noble and learned Lord: that it should involve a reference process which the Supreme Court can take up if it sees reason to do so. On that basis, and knowing in what high regard the noble and learned Lord is held, I am content to seek the leave of the House to withdraw my amendment, so as to facilitate him pressing his.
Lord Mackay of Clashfern
It would be right for the noble Lord, Lord Beith, to continue with his two amendments, because I am proposing the option in my amendment in the event of his disappearing. I think I am right in saying that. I may be wrong; I stand to be corrected. I understood from the Public Bill Office that I did not need to put my name to Amendments 12 and 13—in fact I could not, because there were four there already. It may be that those amendments should just stand.
Lord Beith
The consequence of my amendment, if it was carried, would be that the amendment in the name of the noble and learned, Lord, Lord Mackay, could not then be taken, because the words upon which it bites would have been removed. I would be content to divide on my amendment, to test the opinion of the House.
Baroness Taylor of Bolton (Lab)
My Lords, it would be possible for the Government to bring back something along the lines suggested by the noble and learned Lord, Lord Mackay, should this amendment be carried. It would be foolish not to allow the House to make a clear decision about what it thinks on Clause 26(1)(b). As has been said, time and again, this is a serious and constitutionally significant move. It would, therefore, be wise to test the opinion of the House.
Lord Beith
I have received advice from two quarters for which I have particular respect, including my own committee chairman. It being the case that if my amendment were carried there would be no need for the amendment in the name of the noble and learned Lord, Lord Mackay, but if it were not then we could still press for a division on his, I will test the opinion of the House.
Lord Mackay of Clashfern
“(d) after subsection (5) insert—“(5A) Where a court or tribunal other than the Supreme Court or the High Court of Justiciary is of the opinion that any retained EU case law that is relevant to an issue before it should be departed from, that court or tribunal must—(i) in its judgment set out the reasons for that opinion, and(ii) refer the case to the Supreme Court or, as appropriate, the High Court of Justiciary,and if the Supreme Court or High Court of Justiciary grants leave for the case to proceed, it must decide whether to depart from the EU case law on the issue before it.”, and”Member’s explanatory statement
This amendment would introduce a procedure which could be initiated in any court of the United Kingdom and result in a decision which is authoritative in the United Kingdom without any interference with the independence of the judiciary.
Lord Mackay of Clashfern
My Lords, I have spoken to and certainly want to move the amendment. It is with great regret that I am voting against the Government, but that is what I want to do.
“Parliamentary oversight of progress in negotiations on the future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Parliamentary oversight of progress in negotiations on the future relationship (1) A Minister of the Crown must, within the period of 30 days beginning with the day on which this Act is passed, make a statement setting out Her Majesty’s Government’s objectives for the future relationship negotiations with the EU.(2) A Minister of the Crown must, before 15 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s future relationship negotiations with the EU.(3) A statement under subsection (2) must include—(a) a report of the negotiations carried out to date or since the last statement, and(b) a declaration of whether, in the Minister’s opinion, agreements on trade and security which are consistent with the contents of Parts II and III of the Political Declaration setting out the framework for the future relationship between the EU and the United Kingdom can be concluded and ratified before IP completion day. (4) The requirement to make statements under subsection (2) lapses if—(a) agreements on trade and security are concluded and ratified before IP completion day, or(b) a Minister of the Crown makes a statement to the effect that the United Kingdom will not conclude or ratify agreements on trade and security before IP completion day.(5) A statement under subsection (4)(b) must contain details of Her Majesty’s Government’s proposals for mitigating the absence of trade and security agreements with the EU.””Member’s explanatory statement
This amendment requires a Minister to make an initial statement setting out the Government’s objectives for the future relationship negotiations and then provide regular updates on the progress being made. If no future relationship can be negotiated before the end of the implementation period, the amendment would require a further statement to outline proposed mitigations.
Baroness Hayter of Kentish Town
My Lords, this is perhaps one of the most significant amendments before your Lordships’ House. It deals with a major constitutional issue—the accountability of the Executive to Parliament —and with matters of prime concern to our country’s future: that is, the trading, security, diplomatic and cultural links that we build with our close allies and close neighbours across the continent.
The trade talks in particular will have major implications for the regions and nations of our country, and for different sectors of our economy. Despite this, the Government seem to want to listen to no one. Business has been pleading with Ministers to involve the relevant businesses in the trade talks, with alarmed reactions over the weekend, as we have all seen, to the Chancellor’s statement that there will be no alignment on EU regulations going forward, diminishing any chance of frictionless trade.
We have heard from the food and drink industry about its fears, both for particular parts of the industry but also with wider implications of likely food price increases. Indeed, it even talks of the death knell of the concept of frictionless trade with the EU. Agriculture, the motor industry and manufacturing are all worried about jobs, investment and their competitiveness in their vital EU markets. Despite that, they feel excluded from the Government’s thinking. As the CBI says, businesses need to be brought into trade talks with both the EU and the US, and it calls on government to work with business
“closely, comprehensively and transparently throughout every stage of negotiations, from mandate setting through to implementation.”
It is right—as are consumers and farmers, whose futures are at stake.
Shutting Parliament out of the discussions on the objectives of, as well as the progress on, negotiating talks, means that it is almost impossible for MPs to represent and answer external concerns that are brought to them on a daily basis. It seems clear that that is exactly what Ministers want to shut out: any voices that conflict with their ideology or which bring them practical problems about the implementation of new rules and checks, and tariffs or indeed non-tariff barriers. No wonder that some think that this is about allowing for a final no-deal relationship at the end of December: a free-for-all, WTO basis for our trading, with immense risks to part of our industry and regions.
In the election, the future of UK plc was voted into the hands of the Government. However, in our system of democracy, that does not mean that the Government should not be accountable to Parliament and should not get its plans approved by Parliament, as all their other plans are, via debate, a vote on the Queen’s Speech, and votes on their Bills, which are enacted only with the agreement of Parliament. Here we are talking about something else: the preparations for a treaty which will affect our living, working, trading, policing, security and environmental relationship with those close friends and near neighbours—decisions which will, one way or another, affect every citizen now and in the future.
So it is perfectly normal to say that, just because the treaty will not be a Bill, that is no reason not to have the equivalent of Second Reading and Committee before we arrive at the final Third Reading equivalent—that is, the final treaty, which will come to Parliament for approval only at the end via the CRaG. At that ratification stage, it is basically too late to say, “Well, actually no, not really—this bit doesn’t work”, “This affects our industry” or “That affects a particular region”. It will be too late then to make changes to the treaty.
So, without this amendment, which gives Parliament a say, Parliament will be shut out of these crucial talks, other than through the odd take-note debate or response to a Statement. That is not enough for your Lordships’ House, and it is certainly not enough for the elected House of Commons. We must ensure that the Commons has some real input throughout the process and, crucially—something that is allowed for in the amendment —if a December deal looks unlikely, the Commons must have some ability to make the Government explain their plans for that eventuality. That is what Amendment 15 would provide. I beg to move.
Lord Hannay of Chiswick (CB)
My Lords, I support the amendment moved by the noble Baroness, Lady Hayter. I point out that the amendment on the Order Paper on Report is a considerably reduced text from the one that was discussed in Committee. That is to say, those of us who have put our name to it have listened to some of the Government’s objections—in particular, to their wish to avoid any appearance of a formal mandate—and we have gone for a much lighter procedure, which is now on the Order Paper. So attention has been paid to what was said from the government side.
However, the case for this amendment has been hugely strengthened since Committee last week by the interview that was given by the Chancellor of the Exchequer to the Financial Times last Thursday. In that interview, he made policy that had not hitherto been set out, without, as far as one can see, the agreement of Cabinet, certainly of the House of Commons, or of this House, or even knowledge of what he was about to say. So the case for setting down some process by which the Government need to come to both Houses and explain what they are doing at various stages in what will be an extremely complex negotiation has been greatly strengthened by that action by the Chancellor of the Exchequer.
The position he took on the question of no regulatory alignment is akin to the decisions that were taken by the previous Prime Minister when she went to the party conference in the autumn of 2016 and, in one breath, ruled out the single market, the customs union or any jurisdiction of the European Court of Justice. That did not end terribly well, and I rather doubt whether what the Chancellor of the Exchequer now said will end terribly well either. What he said sounded—and is, if you read the wording—extraordinarily categorical. He did not say that there will not be alignment on all matters—that we will not, as it were, remain in total alignment with European regulations—but that we will not be in alignment on anything.
He is effectively ruling out the possibility for example of the motor industry being put on a system of alignment. That would not be a ridiculous thing to happen, since it has been working to the same standards with its continental counterparts for something like 25 years. However, he has ruled all of that out, so the case for requiring that from now on the Government should at least tell and consult both Houses about what they are planning to do and how they are getting on seems to have been greatly strengthened in the interim by the Chancellor of the Exchequer.
Lord Howarth of Newport
The noble Lord, Lord Hannay, has remarked on the fact that the ambition and scope of this amendment are quite modest compared to the amendment that we debated last week in Committee. The redrafting has been wise. Gone is the requirement that Parliament should approve the negotiating mandate and stance of the Government and in effect give them their marching orders in the negotiations. The Executive must be allowed to do their job and in turn Parliament should do its job, and we should respect the separation of powers. It is for the Executive to negotiate the future relationship and it is for Parliament to hold the Executive to account. Parliament has numerous means of holding the Executive to account in the form of Questions, debates, Select Committee inquiries and many other procedural resources, and I anticipate that it will use that array of resources very extensively in the months to come.
I would add that I do not think that it is appropriate for parliamentary procedure to be prescribed in statute, and it is particularly inappropriate that this unelected House should make proposals of this nature to the House of Commons, which I suspect will not take very kindly to being told how to do its job.
All in all, I welcome the modification of the approach that is reflected in the amendment and I congratulate my noble friend and her colleagues who have thought it wiser to proceed on this basis rather than the one proposed the other day.
Lord Wallace of Saltaire (LD)
My Lords, this is an unusual Bill in a number of ways. We were debating in Committee that it has a clause which restates that parliamentary sovereignty has been established, so we are talking about some fairly fundamental constitutional issues. The relationship between Parliament and the Government is one about which I have heard Ministers make a number of self-contradictory comments in the days and weeks since the election in the rather triumphalist tone they have adopted. One Minister referred during the Committee stage to restoring the “normal relationship” between Parliament and the Government, by which I think he meant a nice safe majority in the Commons so that it does not criticise too much what the Government want to do.
The noble and learned Lord, Lord Keen, talked about the dualist approach to international negotiations whereby treaties, once they have been agreed, have to be transposed into domestic law and thus Parliament comes in, as it were, after the event. Given the importance of this negotiation, if one does believe in the principle of parliamentary sovereignty, the Government need to carry Parliament with them. That is the constitutional set of issues here, and we look forward to further discussions on what the constitution commission the Government are going to set up will be about. If it has the sort of forethought and consideration which was shown in the suggestion thrown out this weekend that the House of Lords might move to York, I have to say that it is not going to be a very good commission because it is quite clear that there was no thought behind that whatever.
It is not just the constitution; it is also about wisdom. Some of us heard the noble Lord, Lord Wilson of Dinton, remark in Committee that in his long career he had noted that it is when Governments are most self-confident and convinced that they can survive criticism that they are most likely to make mistakes. Here we are after an election in which the Government have established a majority on less than 45% of the vote, but it is a majority in the Commons according to our current antiquated rules. The wisdom of carrying the public and Parliament with them as they negotiate—particularly if they are going to negotiate for as hard a break with the European Union as the Chancellor has suggested—seems to me very powerful.
While I was at Chatham House, I was much involved in the various discussions about establishing the single market, and I remember all the talk then about why the Prime Minister was persuaded that the single market was in Britain’s interest and the extent to which we were taking our regulations for a large number of industrial and other standards from the United States extraterritorially. The Government are now suggesting that we will establish our own independent standards. An editorial in the Times this morning said that maybe we should not exclude chlorinated chicken, so we can begin to see that, if we move away from European standards, we will move under American standards, and that will be part of what emerges from the US/UK trade agreement.
I support this amendment on constitutional grounds and on the grounds of political wisdom. Parliament deserves to be carried along with the Government and the Government need to explain and justify their objectives as they proceed.
Lord Bowness (Con)
My Lords, I have added my name to this simplified amendment. In Committee, I appealed to the Government to recognise that many people remain concerned about the nature of our future arrangements with the European Union. This is not about for or against Brexit but about the future. The Government appear to want us to take everything on trust, but we need to know in advance not the details of their negotiation but the approach they will take in negotiations.
This is not a novel idea. I know that in the United Kingdom we are not keen on adopting approaches taken by other countries, but—without going into the details—I refer Ministers to the working of the grand committee of the Finnish parliament. It is a good start to learn how other parliaments reconcile coming to an agreement with their Governments about their approach to European Union matters and the attitude we seem to be taking. That approach, with modifications, is to be found in the proceedings—and indeed, so far as Finland is concerned, in the constitutions—of member states. It is not a novel idea.
Statements, Questions and take-note Motions in arrears of events are no substitute for the kind of procedures to which we refer. The citizens who accept Brexit but want to ensure that we try to keep as many of the benefits of the last 40 years as possible need to be listened to. If the Government do not bring forward any amendment at Third Reading to deal with this, I am afraid many people will feel that the Government, in the name of an ideological pursuit of a hard Brexit and possibly no deal, have no intention of healing the divisions in the country. The Government need to establish some trust among the rest of us.
Lord Bridges of Headley (Con)
My Lords, I will speak very briefly on this, largely echoing a lot of what the noble Lord, Lord Howarth, said. In Committee, much was said about how the Government are “deliberately cutting” Parliament
“out of any meaningful role”, [Official Report, 15/1/20; col. 719.]
to quote the noble Baroness, Lady Hayter. We heard it again just a moment ago, when she said the Government are shutting out voices from the debate.
I concede entirely that—as the noble Lord, Lord Hannay, rightly put it—this amendment is a watered-down version of the one debated in Committee, but my objections to it remain the same. I will not overstate the case; it is important not to do so. For example, I would not claim that this amendment will bind the hands of Government, and of course it will not thwart Brexit. I will make just two simple points.
The first is that the amendment creates what I see as a legislative straitjacket that binds us into an inflexible parliamentary process that cannot really take account of the diplomatic and political reality of the negotiations, which—as we all know—by their very nature will not abide by the bi-monthly reporting cycle that the amendment sets out.
The second and much more profound point—this is what the noble Lord, Lord Howarth, was referring to—is that Parliament already has considerable powers of scrutiny to hold the Government to account. I know my noble friend slightly dismisses them; I do not. I see them as absolutely intrinsic to the way that this House and the other place work. I am not talking here about the shenanigans we saw in the last Parliament, with MPs taking control of parliamentary business, but those traditional means of scrutiny—the other means that Parliament has, in this House and the other place, to interrogate and scrutinise.
I asked the Library to do some research for me. I asked how many PNQs, Urgent Questions, Oral Statements, Select Committee reports, Written Statements, Oral Questions and Written Questions have touched on Brexit since the day of the referendum. The noble Baroness, Lady Hayter, may say that this is nothing or is irrelevant; I totally disagree. In the calculation the Library made, it excluded the Bills we have debated, including the 650 hours this House has spent on debating EU-related issues. Let me give your Lordships the results of this exercise. Since the referendum, there have been, in Parliament as a whole: 10 Private Notice Questions related to Brexit; 32 Urgent Questions; 116 Oral Statements; 179 Select Committee reports; 743 Written Statements; 6,241 Oral Questions and supplementaries; and 15,366 Written Questions. I do not think this can be just waved away as nothing; I see it as fundamental. This is 22,687 items that drive a coach and horses through the need for this amendment, 22,687 ways in which Parliament has had a meaningful role. It can interrogate Ministers on the points that the noble Lord, Lord Hannay, made, and I believe this is 22,687 reasons why we do not need the amendment.
Lord Hannay of Chiswick
If the noble Lord’s research had gone a little further back, he might have been quite startled by what he found. He would have found that the procedures laid down in this amendment are almost precisely those that the Conservative Government applied in 1970 when negotiating our accession. Regular reports to Parliament, regular Questions by all in both Houses—they are all there, and there is nothing wrong with it.
Lord Bridges of Headley
I totally take that point, but I do not believe we should be setting this out in statute—as the noble Lord, Lord Howarth, said. There is nothing to prevent the Government and Ministers coming to this House and the other place to make that point, nothing to prevent MPs calling for Urgent Questions and so on and so forth, so I am sorry to say that I disagree with the noble Lord.
Lord Barwell (Con)
My Lords, I had not planned to take part in this debate, but I wish to make three brief points. First, in response to my noble friend Lord Bowness, it is very clear what the Government seek to negotiate in this next phase of the negotiations; it is set out in the political declaration. For example, in relation to level playing field provisions, the political declaration goes into quite some detail about the kinds of level playing field provisions that will be required as part of the future trading relationship.
Where I certainly have sympathy with the proposers of this amendment is that, of course, it is important that Parliament has the ability to hold the Government to account as these negotiations progress, but there is no doubt at all in the other place that that will happen. If the Government do not voluntarily come forward after major moments in the negotiating process and offer a Statement, I suspect the Speaker in the other place will grant Urgent Questions; there will be accountability.
The arguments about setting out in detail the negotiating objectives in public and having them approved by Parliament are balanced on either side. There is a case to be made that getting broad-based parliamentary support for certain negotiating positions, beyond just the Government’s majority in the other place, may strengthen the hands of Ministers in those negotiations. It is certainly my experience that the Article 50 team on behalf of the European Union often referred to the fact that the European Council had endorsed the negotiating mandate it was pursuing, and that therefore its room for manoeuvre was limited. On the other hand—I think my noble friend Lord Bridges alluded to this—if at the outset both sides set out in detail what their positions are and there is no common ground, there is a danger of driving these negotiations into a bad place. Indeed, in my maiden speech in this place last week, my one lesson to the European Union from what happened in the first phase of these negotiations was that, while it may feel tempted to repeat the trick —it may feel that it worked well to set out its negotiating position in detail and that it got most of what it wanted —if it repeats that trick this time and in February publishes a detailed negotiating mandate that rules out lots of the options, there is a real danger that any possibility of a compromise will be eliminated.
Baroness Ludford (LD)
The noble Lord talked first about the amendment requiring Parliament to approve the negotiating objectives. I think that has changed; it is not in the current version at this stage but was in the Committee stage version.
Secondly, he said it is very clear what the objectives are because the political declaration sets out the level playing field provisions. The problem is that the Chancellor, in a very prominent interview at the weekend, completely threw that aside and said we will not have any level playing field provisions or converge at all; we will completely diverge. So what is the Government’s position? Is it what is in the political declaration or what the Chancellor has said? Surely the noble Lord can understand the puzzlement, the bewilderment—I am sure it shared by some on his Benches—as to what the Government’s policy is. This is why we want to see the colour of their money. What are the negotiating objectives? Are they what is in the political declaration or what the Chancellor is saying in an interview to the FT?
Lord Barwell
It is not for me to speak for the Government, not least because I do not sit on the Government Front Bench. Indeed, noble Lords who have followed the debate closely will know that I do not entirely agree with the position that the Chancellor set out; the previous Government believed that there was a case for aligning with certain EU rules and regulations. But, having said those things, I do not think that the Chancellor of the Exchequer has done what the noble Baroness suggests. If one looks at the slides that the European Commission has published on the level playing field, one will see that, on the vast majority of issues, it is not suggesting that dynamic alignment is required; it is effectively asking for non-regression from existing commitments. There are some areas where there may well be a problem in the negotiation, particularly state aid—I read what it has said as looking for an ongoing commitment to align with EU state aid rules—but I certainly do not think the Chancellor has gone as far as the noble Baroness suggests.
I was interested in remarks that several of your Lordships made: the Chancellor’s comments to the FT came as no surprise to me at all. That has been the clear policy of this Government from the point at which they were formed.
Lord Liddle (Lab)
Has not there been a fundamental change in government policy without any putting of that change to Parliament for discussion? There has been a fundamental change from the policy that the noble Lord, Lord Barwell, pursued with the Prime Minister, which was to secure as close a relationship as possible on trade and, if possible, to make it frictionless. The noble Lord and the then Prime Minister thought it very important to try to protect manufacturing jobs with complex cross-border supply chains. Now, it is quite clear from what the Chancellor has said that the Government have chosen something completely different —that it is worth paying a high economic price to secure sovereignty. That is the choice it appears that Mr Javid is announcing, but he does not have parliamentary approval for it and it has never been properly debated. Is that not scandalous?
Lord Barwell
I do not intend to get into this debate in detail; I wished to speak briefly. All I will say is that that approach has been clear for some time, and the Government got a clear endorsement for it in the general election. I say that as someone who had a different view.
I conclude my remarks by simply saying this. There is a case in some circumstances for the Government seeking approval for particular positions; it may strengthen their hand in negotiations. But there is also a real danger, as my noble friend said, that if both sides set out their positions in detail at the outset, you rule out possible negotiating solutions.
Lord Callanan
My Lords, Amendment 15 would introduce a new clause that would require the Government to publish their negotiation objectives and provide regular reports on the progress of negotiations. As a number of noble Lords observed, this is a different amendment from that which your Lordships considered in Committee, as it no longer contains any formal role for Parliament in approving objectives before negotiations begin. I personally am pleased that the Opposition have accepted that the negotiation of international trade agreements is rightly a function of the Executive. However, this amendment still seeks to impose statutory reporting requirements which, in our view, are simply unnecessary.
The noble Baroness set out what those requirements are, but for the benefit of the House, the amendment would require publication of the negotiation objectives and two-monthly reports on the progress of negotiations, beginning no later than 15 June. The interest in the objectives is somewhat surprising, as the Government’s vision for the future relationship with the EU is already set out in detail in the political declaration; and this is the answer to the point made by the noble Lord, Lord Liddle, in his intervention on my noble friend Lord Barwell. The House has already had ample time to consider this document. It was laid before each House on 19 October last year, and many committees of your Lordships’ House have already opined on it.
As to the two-monthly reporting requirements, beginning no later than 15 June, this could mean a maximum of four reports before 31 December this year. I remind the House that the Prime Minister has already committed that
“Parliament will be kept fully informed of the progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]
I agree with the point made by the noble Lord, Lord Howarth, that the setting out of reporting requirements in statute, as proposed by this amendment, would be a mistake. The Government will of course, as always, support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations, in line with the PM’s commitment. As my noble friend Lord Bridges pointed out, both Houses will have all the usual tools of scrutiny at their disposal.
I listened with interest to the numbers quoted by my noble friend Lord Bridges; he somewhat pre-empted me. I hope he will forgive me, but my numbers are slightly different from his. I pointed out in Committee that Ministers have spent over 760 hours to date addressing these issues in the House. I personally have spent over 230 hours—sometimes it feels a little longer—answering questions and responding to debates in your Lordships’ House. Officials tell me that I am one overnight sitting away from clocking 250 hours by 31 January, which I hope will make me eligible for a medal. Over its lifetime, DExEU has made over 100 individual Written Statements to each House and responded to 23 Select Committee reports, two of them just yesterday. By my calculation, that is an average of one publication every 10 days, not one every two months, and all without any statutory reporting requirements. That, of course, is without counting the various position papers and other publications also made by the department.
I have no doubt that the situation would be the same in the House of Commons. The Speaker heard very clearly the Prime Minister’s commitment to provide information. He has the powers at his disposal to ensure that Parliament can hold the Government to their commitments. Select Committees will continue to question Ministers. They also have the right to request papers. Opposition day debates and the Backbench Business Committee will continue to provide many opportunities for both Houses to consider all these issues.
I remind the House, as I did in Committee, of the risks in creating fixed points to report before knowing anything of the negotiating schedule. At worst, this could mean that Ministers would be required to provide public commentary at a critical point where confidentiality is paramount, thus potentially undermining the UK’s negotiating position. Alternatively, the reporting deadline might fall when there is nothing to say, since progress would already have been reported by other means, in line with the Prime Minister’s commitment. I pointed out in Committee that I saw this just two weeks ago, where a reporting date set in advance by the Benn Act resulted in a grand attendance of three Members—me and the noble Baronesses, Lady Hayter and Lady Ludford —speaking in that particular debate, which we had to hold by virtue of the Benn Act that you were all so enthusiastic to pass.
These reports are at the mercy of events and they can very often end up being completely worthless, failing to assist Parliament in holding the Government to account. The long-standing mechanisms of both Houses to hold the Government to account will work well because they are flexible and can respond to events, unlike statutorily set out reporting requirements. This House is rightly keen to ensure that it will be kept up-to-date on negotiations, but legislating for it in this way is a very blunt and inflexible approach. During our exit negotiations, Parliament has demonstrated clearly that, where a majority feels that it is receiving unsatisfactory information or is concerned by the direction of travel, it has the tools and the will to secure this information. Nothing has changed on that front as we look to the future negotiations. This Parliament already has a lot of power and this amendment adds nothing to it. I therefore hope that the noble Baroness will feel able to withdraw it.
Baroness Hayter of Kentish Town
I am quite surprised by the Minister’s response. I thought he really enjoyed discussions with just the noble Baroness, Lady Ludford, and me late at night, that his 230 hours here were just the foothills and he was looking forward to more.
We have had an interesting discussion, including my noble friends Lord Howarth and Lord Liddle, and the noble Lords, Lord Wallace, Lord Bowness and Lord Barwell. I apologise, I did not mean to include the noble Lord, Lord Barwell, in that, because the interesting thing is that in addition to those noble Lords we have our experienced negotiators. The noble Lord, Lord Hannay, has probably put more than 230 hours into negotiating. The noble Lord, Lord Bridges, before he took off—he is back three rows from where he was—negotiated on this, and obviously the noble Lord, Lord Barwell, did too. The lessons that they have pulled from this are different. Of course, two of them were part of the Executive, so it is no wonder that they do not want this extra parliamentary scrutiny.
Lord Storey
“Parliamentary oversight: Erasmus
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement), insert—“13D Parliamentary oversight: ErasmusAny arrangements for Parliamentary oversight of progress in negotiations on the future relationship must include negotiations on UK participation in Erasmus 2021–27.””
Lord Storey (LD)
My Lords, this amendment would ensure that there is parliamentary oversight of the UK’s participation in the next Erasmus programme. In Committee, I was taken with the strength of feeling from Members across the House about this jewel in our education system. I think the noble Earl, Lord Clancarty, made the point that it is really important to young people from disadvantaged backgrounds, but it is also important for volunteering, studying, apprentices and so forth.
There was concern that there seemed to be mixed messages coming from the Government. On the one hand, we had a comment I think in Schools Week from the Secretary of State for Education, Gavin Williamson; on the other, we heard from our Prime Minister that there was no threat to the Erasmus programme. The Minister himself, in the wind-up to the debate, played a very straight bat in that he acknowledged the importance of this programme. He reminded us that those students who are engaged spent some time abroad as part of this programme; they are more likely to achieve better degree outcomes, to enhance their language skills and to improve their employment prospects. That is not something to throw away lightly.
The Minister also made the point that while we are committed to the current Erasmus programme, the next Erasmus programme will be part of negotiations. He reminded me recently that we are net contributors to the programme and so have some leverage in this. We understand that there are going to be discussions, that the Government support this programme and that they want to get the best possible deal for young people. We also understand that there are other programmes involving not just European countries but countries throughout the world. However, it would be helpful if the Minister indicated that your Lordships would give some sort of oversight to the work that goes on in securing the successor to the Erasmus programme. I beg to move.
Baroness Coussins (CB)
My Lords, this is a very slimmed down amendment compared to what we debated in Committee last week. Nevertheless, it provides some degree of certainty that Erasmus would at least be a prominent and visible issue on the Government’s agenda as we negotiate the details of our departure from the EU over the next year. That should provide some comfort, especially to universities and all the young people aspiring and hoping to become students or apprentices over the next few years.
In Committee, the Minister put forward a couple of specific reasons for his caution about signing up as full members to the next stage of Erasmus+. One was that not enough information was yet available about what the next phase of Erasmus+ would look like, between 2021 and 2027. However, in my contribution to that debate I set out detailed information about exactly what the budget for the next phase would be. There is already an agreed budget with minute details of exactly how much would be allocated to specific areas of education and training, and to vocational activities. This is good enough for the 27 EU member states and for the six other countries that have signed up as non-EU members of Erasmus+, so I am still rather puzzled as to why it is not good enough for us, when we know that Erasmus has been so beneficial up to now.
The second reason advanced by the Minister was that the Government want to expand their mindset from being just Europe-focused to being more global. Absolutely right, but again, as I said in Committee, Erasmus+ does precisely that. The “plus” refers to the fact that the programme now enables students and other young people to take up placements, activities and projects across the world, not just within the EU. Erasmus+ is already completely in line with the policies and statements of Her Majesty’s Government as expressed in the last week by the Department for Education and the Prime Minister. Conversely, without Erasmus, we will do measurable and serious damage to education, trade, diplomacy, defence and security over the longer term. These are all areas where language skills are increasingly vital.
Erasmus+ and this amendment do absolutely nothing to frustrate this Bill or our departure from the European Union. Again, I ask the Government to be consistent with their own statements, and to be magnanimous and adopt this very modest amendment.
Lord Wigley
My Lords, I will not repeat what I said in Committee, but I support the amendment. More than that, I want to ask the Minister whether he can give a firm assurance that if a reasonable deal can be reached in the negotiations—I realise that no Government can give the ultimate commitment until the ink is dry—it would be the Government’s ambition to make the maximum possible part of Erasmus+ available to young people in the United Kingdom and to welcome young people from other parts of Europe and the rest of the world to the United Kingdom under the auspices of Erasmus+. It would reassure the House if a fairly firm indicator could be given tonight, and it would give us some comfort as we move ahead.
Lord Smith of Finsbury (Non-Afl)
My Lords, I declare my interest as Master of Pembroke College, Cambridge. I support the amendment for the principal reason that parliamentary oversight will be a constant reminder to the Government of the importance of participation in the Erasmus programme. Over its 30 years, Erasmus has helped some 3 million students across Europe in all. It is enormously valuable. For our students who have the opportunity to take part in exchanges across Europe, it enriches their education and fulfils their desire to have the best possible experience of life and the world.
One of the things that distresses me most about the Brexit process we have embarked upon is that it fundamentally undermines what I thought our country was all about: having an international spirit and opening our arms to the rest of the world. We are abandoning that. If our politics abandon it, please do not remove that spirit from our students—who are, after all, the hope for a better future than the one we are currently imposing on them.
The Earl of Clancarty (CB)
My Lords, I want to address a few of the things said by the Minister, the noble Lord, Lord Agnew, in his reply to last week’s debate on Erasmus in Committee.
First, he spent some time talking about the UK’s global programme. Great; let us have more such partnerships. But those partnerships are irrelevant to this debate for the simple reason that Erasmus does not affect those independent programmes in any way. Erasmus does not stop us having such partnerships, so I hope that the Minister does not go down that route again in his reply.
Secondly, perhaps the most worrying thing that the Minister said was that
“it is not realistic for the Government to commit ahead to participation in a programme yet to be defined.”
I agree with what my noble friend Lady Coussins and the noble Lord, Lord Smith, said: just on the basis of its proven record over 33 years, we can be 100% sure that the next iteration of Erasmus will also provide immense opportunities for British students. So why the doubt? Perhaps the Minister can tell us. He said:
“We do not need just an EU university scheme but a much wider one.”—[Official Report, 16/1/20; col. 872.]
That is fine, but does the Minister not believe that that is what we already have—and, indeed, that it can continue to expand on a global basis without losing Erasmus? Erasmus should be part of that global network.
Lastly, I stress again that it is the misconception of some that Erasmus is for richer students. As I said in the debate last week, former participants in the programme testify to how important Erasmus was for them as students from poorer backgrounds. It is clearly a great privilege to be an Erasmus student, but you do not have to be from a privileged background to be one.
In last week’s debate, the noble Duke, the Duke of Somerset, summed up perfectly what the loss of the programme would mean, saying that it would be a
“kick in the teeth for so many aspiring young people.”—[Official Report, 16/1/20; col. 870.]
I hope that the Minister can assure us that negotiations on Erasmus will be backed on our part by a serious intent to stay a member of a programme that opens up horizons for so many of our young people.
Lord Bassam of Brighton (Lab)
My Lords, in Committee my noble friend Lord McNicol joined in the general support for the amendment moved by the noble Lord, Lord Storey. That support remains today from these Benches.
I shall not repeat the arguments that noble Lords have more ably made in this short debate, but I read the debate on the amendment carefully. The Minister probably feels he went as far as he could in trying to reassure the Committee that the Government were not about to pull the plug on support for Erasmus+. I am not sure that he has. First, the Prime Minister made a commitment that:
“UK students will continue to be able to enjoy the benefits of exchanges.”—[Official Report, Commons, 15/1/20; col. 1021.]
However, that commitment seems qualified by the comments made by the Secretary of State for Education, who has talked of developing
“our own alternative arrangements should they be needed.”—[Official Report, Commons, 14/1/20; col. 912.]
That rather suggests that our participation is still very much in flux, a point that the Minister underlined when he said that participation would be
“subject to our negotiations on the future UK-EU relationship.”—[Official Report, 16/1/20; col. 871.]
The Minister also repeatedly reminded us that the outline of Erasmus+ for 2021 to 2027 has yet to be finalised, so that there is not yet a programme to sign up to, but we know that the programme is set to double its expansiveness and cost over that period. In Committee, the Minister set out the Government’s ambition that by 2030 the UK would be hosting 600,000 international students and that the value of educational exports would by that point reach £35 billion a year.
Exactly how does the Minister expect to achieve those objectives and that ambition if we are not participants in the Erasmus+ programme? The start date for the next programme is 2021. We are now less than 12 months away from it kicking off. This is precisely when institutions make programme commitments and students begin to plan their study schedules. Both my daughters began to plan well in advance of their university exchange schemes. I hasten to add that they were not Erasmus+, but were programmes involving US universities. I know from experience that these things take time to set up and carry through and that the last thing that participants, whether they are institutions or students, want is uncertainty. It is the same with business: business wants certainty.
I think the Minister could this evening give a firmer commitment without compromising the Government’s negotiating position, not least because we are net beneficiaries from the scheme overall. Can he at least advise the House whether the Government have made financial provision for the next Erasmus programme and, if not, whether it will be included in the upcoming Budget? Can he at least give the House an outline of the Erasmus negotiation timetable so that universities and students have some idea of when these issues will be resolved?
Finally I take this opportunity to tweak the Minister on a point which my noble friend Lord McNicol raised in the previous debate about the Horizon 2020 research programme. To my way of looking at things, it is in a similar state of limbo with a fast- approaching cliff edge. Can we please have some news on progress on that programme? It is in many ways part of Erasmus+, because research and study travel are very much linked. I think the House deserves to know exactly where we are heading with both those policies.
The Parliamentary Under-Secretary of State, Department for Education (Lord Agnew of Oulton) (Con)
My Lords, I am pleased to respond to the amendment moved by the noble Lord, Lord Storey. Amendment 16 seeks to introduce parliamentary oversight requirements that the Government feel are unnecessary. I will try not to go over all the points we discussed last week in Committee.
I reassure the noble Lord, Lord Bassam, that the Prime Minister has already given a strong commitment at Second Reading in the Commons on 20 December. He said:
“Parliament will be kept fully informed of progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]
That is extremely important.
I shall address the concerns of the noble Lord, Lord Smith, about oversight. In the past few years both Houses have demonstrated that they have a wide range of tools at their disposal to scrutinise the Government, including through Ministerial Questions and debates. Indeed, as I am relatively new to these procedures, I asked my office to tell me how many tools were available for the oversight of a Government by Parliament and I was given a list of over 20. They might not all be applicable here but we heard some useful statistics on Amendment 15 from my noble friend Lord Bridges, and the noble Lord, Lord Howarth, made a similar comment—that there is a tremendous ability for oversight. I am sure that both Houses will continue to use these scrutiny tools to hold our Government to account and will pay close attention to the negotiation process, not least as the Government’s vision for the future relationship with the EU is already set out in the political declaration. There is therefore no need to set out in this Bill bespoke oversight requirements specifically for Erasmus+.
The Government have already been clear about their position on Erasmus+ and have stated that they remain open to future participation in the next programme. However, there are a number of important uncertainties that prevent them making firm commitments at this stage—not least that, until we see the final substance and text of the Erasmus+ programme and the regulations that are still under discussion in Brussels, we cannot be sure what the next stage of the programme will look like.
I am afraid that I cannot give the noble Lord, Lord Bassam, a timetable because the cake is still in the oven—there is still a lot of uncertainty. Several noble Lords mentioned the sum of money involved. I was briefed that the amount could be anywhere between double and treble, and that is in the context that some €14.5 billion has been spent on the current scheme in the last seven years. Therefore, these are colossal sums of money.
I fully recognise that the UK’s potential participation in the next programme is of particular interest and importance to noble Lords. I assure the House that its voice and views are being, and will continue to be, heard. I reiterate our reassurance that this Government strongly value international exchange and collaboration in education as part of our vision for global Britain. We believe that the UK and European countries should continue to give young people and students opportunities to benefit from each other’s world-leading universities. I mentioned last week the increase in the number of foreign students coming here over the last three years. However, as mentioned, we are waiting to see the full details of the new arrangements.
On a personal level, my son attends a foreign university and is looking at his own exchange arrangements as we speak. We discussed last week the power of these exchange programmes for young people. I do not think that we are arguing about very much. The difference in the debate is that noble Lords are seeking stronger commitments to bind the Government than we believe we can agree to.
I trust that that explanation and our wider reassurance demonstrate why the amendment is not necessary at this time. I therefore ask the noble Lord, Lord Storey, to withdraw it.
Lord Bassam of Brighton
Can the noble Lord address my budget question? Is money in the current Budget committed to the future Erasmus+ programme, and is this something that the Chancellor will address in the upcoming Budget?
Lord Agnew of Oulton
I am sure that noble Lords will not be surprised to hear me say that that is a matter for the spending review, which will take place in the summer. However, I would be very surprised if there were not a commitment to that kind of expenditure.
Lord Bassam of Brighton
In that case, perhaps the noble Lord would care to write to me on the budget that is currently set aside for Erasmus+ in the next financial year.
Lord Agnew of Oulton
I am certainly very happy to share with the noble Lord any information that I get on the spending review when it is available, but I suspect that I will not be privy to that any sooner that he will be.
Lord Storey
My Lords, as Universities UK, or UK universities, have said, it would be impossible for a replacement for Erasmus to match the reputation, brand awareness and sheer scale of the current programme. Therefore, we lose Erasmus at our peril. I hear what the Minister says and understand that his hands are tied to some extent, but I do not think that young people in particular will forgive us if we lose Erasmus. I was interested to hear about the oversight tools and scrutiny, and the Minister can rest assured that your Lordships will use them to the full. I hope that he can keep us up to date and informed of progress. I beg leave to withdraw the amendment.
European Union (Withdrawal Agreement) Bill
Tuesday 21st January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
Lord Thomas of Cwmgiedd
“Involvement of the devolved administrations
After section 10 of the European Union (Withdrawal) Act 2018 insert—“10A Involvement of the devolved administrationsThe Joint Ministerial Committee (EU Negotiations) is to be a forum that meets regularly—(a) for discussing—(i) the United Kingdom’s future relationship with the European Union,(ii) the economic and security impacts of that envisaged future relationship on the constituent parts of the United Kingdom, and(iii) means of mitigating the impacts mentioned in subparagraph (ii); and(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.”Member’s explanatory statement
This amendment would place the Joint Ministerial Committee (EU Negotiations) on a statutory footing, requiring the Committee to seek consensus on the way forward in terms of the negotiations with the EU.
Lord Thomas of Cwmgiedd (CB)
My Lords, in moving this amendment, we seek to insert a new clause after Clause 35. We are doing this in a much slimmed-down version of the clause that was before the House in Committee as Amendment 29. We do this in furtherance of the objective of strengthening the union, in this instance through the second means to which I referred yesterday, by ensuring proper consultation. We seek to set out the short principle that the Joint Ministerial Committee for EU Negotiations should be a statutory committee with clear purposes. Nowhere does the amendment seek to prescribe how the committee is to work. Neither does it require the making of Statements, or anything else at all that might be thought to impede the proper conduct of the negotiations with the European Union. It is there simply to ensure that the principle is accepted on the statute that this committee has a clear and defined purpose.
I would have hoped that, in the light of the many speeches made in Committee, it is clear that statutory recognition of this committee is required, given the way, as so many described, in which it has operated. If that was not the case in Committee, I would have thought that the debates yesterday in relation to Clause 21 would have demonstrated to Her Majesty’s Government how important it is to deal with the position of the devolved Governments and legislatures.
It is a simple fact that our constitution has changed during the period in which we have been in the European Union. We must therefore achieve a workable set of constitutional provisions to make that constitution work with the Governments and legislatures in Wales, Scotland and Northern Ireland, and not simply with this legislature and the Government in London—otherwise the union will be imperilled. This is a small step towards that end.
The conduct of international relations and negotiations is clearly a reserved matter and, as I said yesterday, there are plenty of powers not only in the existing legislation but in the clause carried yesterday to enable Ministers to ensure that in the devolved Administrations the international obligations incurred by Her Majesty’s Government are observed. But surely the United Kingdom must recognise that those are powers of last resort, and that the proper approach is to involve the devolved Governments fully in the negotiations by consulting them and trying to reach a consensus.
As this very modest amendment makes clear, it is not in any way intended to impose a veto. It is simply a way of trying to persuade and ensure that the Government will act in such a way that they strengthen the union. It takes into account, and is seen to take into account, the interests of Wales, Scotland and Northern Ireland as expressed through their constitutional institutions. This question of perception is extremely important if the union is to be strengthened.
There is a further consideration. The effect of the arrangements relating to the Northern Ireland protocol is to give the Northern Ireland Government attendance at some of the meetings of the joint committee: that is, the joint committee for the negotiations between Europe and the United Kingdom. This amendment, relating to the Joint Ministerial Committee—it is unfortunate that we have two committees with very similar names—is designed to ensure that the other two nations have, and are seen to have, the opportunity of expressing their interests so that the UK Government can go forward, with everyone knowing that those have been heard. It is a striking fact that countries such as Germany and Canada manage to conduct international relations while respecting the competences of their states and the other institutions that make up their countries. Indeed, the EU itself has conducted its negotiations successfully by taking into account the interests of the 27 other member states.
I fear, however, that the United Kingdom Government have not caught up with the impact of devolution on our constitution. They really ought to be doing all they can to help those who seek to strengthen the union, by ensuring that devolved Governments are consulted in accordance with not only the spirit of the constitution but its letter. It is surely not too much to ask of the United Kingdom Government, as today the Welsh Government are considering the legislative consent Motion, to think again about doing something to put on the statute book a clear commitment to the Joint Ministerial Committee. This is a critical issue and, if a difference could be made here, it would be far better to see the union go forward to this important stage in the development of our nation with the consent of all the devolved Governments, and not to risk the Welsh legislature taking a different view.
Might I suggest that, if possible, the Government think again now and look at this proposed new clause? It does nothing more than embody what should be clear. I very much hope that, when the Minister comes to deal with this issue, he will give a possible commitment to this clause, but also a clear assurance that this committee is going to work as it should work—given that, as was so ably explained in Committee, it is not working. This is not a lot to ask; it asks to strengthen the union, and it is important that the Government should try to help those who wish to strengthen the union, because there are many who do not. I beg to move.
Lord Howarth of Newport (Lab)
My Lords, I fully support the desire expressed by the noble and learned Lord, Lord Thomas, that there should be full consultation between the Government and the devolved Administrations and, indeed, the Assemblies in the devolved countries. I also fully support his plea for mutual courtesy and respect, but I question whether this new clause is appropriate. I doubt whether it is appropriate to lay down in statute the procedures for consultation between the Government and the devolved Administrations—to so formalise, as it were, the agenda that it is placed in a Procrustean bed. That could be too rigid and inflexible. Of course, as he urges, all concerned should seek consensus, which will be extremely important in ensuring that what emerges from the negotiations on the future relationship between the United Kingdom and the EU is viable in each of the devolved territories.
However, the achievement of consensus must be a matter of culture. I do not think that you can legislate for consensus. If you legislate and there is still not the good will and the willingness to give and take, along with the willingness to achieve mutual understanding, it will not work. So, strongly as I support the noble and learned Lord’s objectives in this amendment, the means that he proposes to achieve what we all desire may not be the right ones.
Lord Morris of Aberavon (Lab)
My Lords, I support the amendment moved by the noble and learned Lord. I do not know from whom I am quoting, but the Joint Ministerial Committee is a “poor thing, but our own.” It has not worked very well, because it has not met very frequently. There has been no programme, its membership has varied, and it has not been a particularly effective arrangement so far. Hence, in my view, it is important that it should be put on to a statutory basis, in which case a report would be made to both Houses of Parliament and we would know where we stood. So far, we do not know.
The devolved Administrations never know when the current Joint Ministerial Committee will meet. It is important, for the sake of the union, to achieve a consensus where possible. In our discussion yesterday on another amendment in the name of the noble and learned Lord, it was obvious that there had been no discussion with the Welsh Assembly. I fear that the Minister’s reply to our debate was less than persuasive. There is an alternative arrangement that could have been used under Section 109 for an Order in Council that would result in a consensual as opposed to an imposed change. Hence, I very much support the amendment in the hope that there will be a change of heart in Westminster.
I fear that there is still a denial in the Westminster establishment that devolution has taken place at all. It has been there for a long time now and it is part of our establishment. Legislators, particularly those who draft Bills for the Government, should recognise that the devolved Administrations have been set up within the United Kingdom and are there to further the union. I would hope that if this amendment is accepted, it would strengthen the union and put the committee on a proper basis, and then there would be an expectation of regular, frequent meetings with serious and senior representation of the Westminster Government.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his words in support of this amendment, which has my name attached to it. I reiterate the words of my noble and learned friend Lord Thomas of Cwmgiedd, who has made it clear that we are seeking to persuade the Government to think again.
I want to respond to some of the comments made by the noble Lord, Lord Howarth of Newport. Our amendment is not prescriptive; it simply requires that if there is a forum, it should meet regularly, but it does not stipulate how often it should meet. Meeting means face-to-face discussion, and the forum is there to discuss the means of mitigating the impact on the constituent parts of the United Kingdom of the economic and security aspects envisaged in the future relationship. It is to avoid problems arising in the future.
We have already heard that negotiations with the EU are likely to result in agreements that have a very direct impact on many aspects of devolved competence. I would like to highlight just a few of these, some of which are very close to my heart.
The first is the capacity of Welsh universities to access EU research funds and collaborative projects in the future. Over the last 20 years, access to these funds, and to the networks they have generated, has proved critical to boosting the research capacity of Welsh higher education institutions, including medical research. Indeed, a finding from Cardiff University made headlines yesterday about new ways to manage cancers. We have been reliant on, and have built on, the funds we have accessed. The interaction between projects funded by research and development framework programmes and those funded by structural funds has been particularly important, as the Welsh Government have demonstrated in their publication on research and development after Brexit. Whether and how the UK, and therefore Wales, can access these funds will be determined by the negotiations with the EU.
The second aspect—whether there will be any reciprocal arrangements in future between the EU and the UK to access health services—is again a matter for the negotiations. I would support such arrangements, but it needs to be recognised that if such commitments are made by the UK Government, it is the Welsh NHS that will have to pick up the cost of treatment provided in Wales.
The third issue is procurement rules. Procurement is a devolved matter, and the Welsh Government are certainly interested in strengthening the way in which procurement can support, rather than undermine, local purchasing. But we know that the EU, as part of the insistence on maintaining a level playing field, will start from the position that its approach to procurement must continue even post Brexit. Wales needs to have a voice in the discussion within the UK negotiating team about any trade-off between flexibility on procurement and unfettered access to the EU market.
I could give many more examples: the future of state aid rules governing the assistance which the Welsh Government may give to Welsh businesses; access to European markets for Welsh agri-food products, such as lamb, beef and seafood; and whether or not Welsh students and pupils will have access to the Erasmus+ programme of student exchanges—to name but a few.
The key point is that the Welsh Government and the Senedd will be bound by the outcomes of the negotiations, which will begin in only a few weeks. We have already heard that Ministers of the Crown have the powers to force the devolved institutions to comply if they disagree with these outcomes. In these circumstances, it surely makes sense for the Government to start from the position where the default is to reach agreement with the devolved Administrations in the approach to negotiations. Otherwise, I fear that the result will be bitter and very prolonged conflict between the devolved institutions and the Government, which would seriously threaten the union itself.
Baroness Randerson (LD)
My Lords, I support the amendment and respectfully disagree with some of the sentiments expressed by the noble Lord, Lord Howarth. The Government can no longer afford the luxury of an underdeveloped and informal arrangement with the devolved Administrations. The proposed JMC needs to function properly and to meet regularly—ideally, frequently—to deal with the details of EU negotiations and future relationships with the EU.
If the Government want to maintain the union, which I believe they strongly do, they will need to treat the devolved Administrations with the respect that they deserve. Not least it is an issue of common sense. It is often not obvious to civil servants and Ministers here what impact their negotiations will have on the devolved Administrations. Very often it is simply a sin of omission: a failure to understand the full detail and significance of devolved powers and their impact on the countries concerned. That is understandable; after all, no one can be an expert in everything.
I have argued for years that the EU, as the origin of many rules and regulations and a source of funding, has taken the party-political edge off decisions it makes. As they are made on an EU-wide basis, they are not regarded as having party-political significance. Once that ends, I believe that the party politics will become quite vicious if we do not provide for proper channels of negotiation and discussion. The noble Baroness, Lady Finlay, has laid out that issue very ably. She also talked about the impact on many aspects of life in Wales. She referred in some detail to universities. I declare an interest as chancellor of Cardiff University, but I am aware that it looks constantly and in detail at the impact of each negotiation on the life of that university, on research funding and on research partnerships with institutions in Europe.
There is also the impact on Wales of the proposed, and rather confused, arrangements for Northern Ireland. As that agreement works its way through—I point out to noble Lords that the Government seem to have no understanding of what it means—it is bound to have a strong impact on Wales. The Minister will know that I am not given to flights of nationalist fantasy, nor is there any sympathy on these Benches for independence, either in Scotland or in Wales. However, bearing in mind again the words of the noble Baroness, Lady Finlay, I urge the Government to be careful what they wish for. I am well aware that there are many, both at official and at ministerial level, who still regard devolution as a bit of nuisance, yet another hurdle to be overcome and an unnecessary level of complexity, but it is well established and in Scotland nationalist sympathies are very strong. They could grow stronger in Wales if this is not sorted neatly and effectively.
At the very least, officials and Ministers here often do not understand the full implications of the decisions they make. That is what is behind this attempt by the Government to write the devolved Administrations out of the picture. It is easier to ignore them than to pay them particular attention. I say to the Government that if they succeed in ignoring the devolved Administrations, they may well live to regret it.
Lord Hamilton of Epsom (Con)
My Lords, the noble Baroness, Lady Finlay, put her finger on the nub of all this when she talked about trade-offs. Any agreement that we reach with the EU will be a series of compromises. If we have individual delegated bodies taking hard stands on one position or another, or indeed one industry doing that, we are never going to get the compromises that we need to get our deal through. That is why the noble Lord, Lord Howarth, is right: we cannot bind the Government’s hands on this issue. The noble Baroness, Lady Randerson, acknowledges that the union is very important to this Government; indeed, it is to all of us in this House, I think. Are we really going to sacrifice the union by reaching arbitrary decisions that discriminate against one part of the union or another? No, of course we are not, but we need to make compromises and the Government should not have their hands tied by individual bodies or regions of this country taking a hard line on one position or another.
Lord Wigley (PC)
My Lords, I have my name to this amendment, but I rise with some trepidation. I will try not to have a flight of nationalist fantasy, as the noble Baroness, Lady Randerson, put it a moment ago. I hesitate to bring a discordant note. We hear a lot about the strengthening of the union. We must ask ourselves exactly what we mean by that. If it is to make the union work more effectively and harmoniously, be more sensitive to the needs outside Westminster and Whitehall and have greater empathy, of course that is highly desirable. However, I wonder if that is the case. If it is to strengthen the grip of Westminster and Whitehall and impose policies that are not in the best interests of Wales, Scotland and Northern Ireland, that clearly will cause a lot of bitterness. The mechanisms that we are talking about here are to avoid that sort of bitterness arising.
I would have thought that it was patently in the interest of those who want to hold the United Kingdom together in its present form that at least some movement is made to ensure that clashes do not arise from differences of aspiration or even a misunderstanding between the Governments of the various nations of these islands. We need Westminster to be sensitive when there are universally accepted reports on changes in the relationship, such as in Wales in relation to the legal systems. The noble and learned Lord, Lord Thomas, brought up an excellent report, the Silk report, which suggested changes for the police and prisons. When those are universally accepted in Wales and totally ignored year after year here, it is hardly surprising that there is some feeling that the system from the centre fails to work in the interests of every area.
It is very relevant that this issue arises in the context of European legislation. Noble Lords will remember that in 1979, very shortly after we joined the European Union, there was a referendum in Wales in which the vote went 4:1 against having a devolved Government. The noble and learned Lord, Lord Morris, was very much involved in that. Several factors led to the changes between 1979 and 1997 when there was a very small majority, but still a majority, in favour of establishing a national assembly. One of the factors was the advent and development of the European dimension. With this came acceptance of a multilayered system of democracy and that the principle of subsidiarity that runs through the European vision was relevant within these islands. Some things within the strictures that we have are appropriate to be discussed and decided at Westminster, some—until the end of next week—on a European level and some that are more appropriate on a Welsh, Scottish or Northern Irish basis.
It seems there is a possibility now of turning the clock back from the vision that had developed over the last 40 years to what existed before 1979. If that is the case, that is the most likely thing that will drive a change, forced from the periphery, in the structures of these islands. It is the sort of change that many noble Lords have mentioned and are fearful about.
In the context of this specific amendment, all that is being asked for is a provision for a systematic approach that takes into account the needs of the devolved nations. That is not an unreasonable thing to look for. The fact that Northern Ireland yesterday, Scotland before, and probably Wales this afternoon will refuse the orders that are being requested in the context of this Bill is surely an indication that something has been got wrong from the centre.
I urge the Government to look at this amendment in that context and to see it as an opportunity to build a better, more harmonious relationship, rather than just stamp on it and hope that the feelings in Wales, Scotland and Northern Ireland will just go away.
Lord Wallace of Saltaire (LD)
My Lords, may I raise a short constitutional question that came up last week and which relates to this? In our debate on Clause 38 last Thursday, the noble and learned Lord, Lord Keen, from the Government Front Bench said that Dicey is the absolute authority on parliamentary sovereignty. Dicey’s view on parliamentary sovereignty was that it was indivisible, that it cannot be shared upwards or downwards. His views were strengthened by his bitter opposition to the whole idea of home rule either for Ireland or for Scotland. He believed strongly that the imperial Parliament was therefore the only authority of British imperial law.
That doctrine of parliamentary sovereignty, strongly held, is of course one reason why those who wish us to leave the European Union have objected to the whole principle of European law interfering with the sovereignty of British law as defined by Parliament. It seems to me, therefore, that as part of the process we go through as we leave the European Union, and as we proceed towards some sort of constitutional convention, we will have to redefine the doctrine of parliamentary sovereignty so as to accept that these devolved Assemblies —these devolved nations—have more than the occasional permission of the Westminster Parliament to do as they wish, and that they have certain entrenched rights that are not compatible with the doctrine of parliamentary sovereignty as defined by this rather prejudiced, late-Victorian lawyer.
Lord Griffiths of Burry Port (Lab)
My Lords, some of the speeches have painted on a large canvas. I would like to focus on the amendment itself. I am reminded of a discussion here yesterday about the possibility—perhaps fatuous—of moving this Chamber to York in the name of reaching out to the population of this country. I mention that because, 20 years ago, in the name of reaching out to the country at large, the devolved Administrations came into being. The 20 years in between have offered enough evidence of the fact that you do not just bring things into being; you support and sustain them by developing a relationship that enhances partnership between the devolved bodies and the United Kingdom Parliament. I wish that people on other Benches would realise just how disappointed people in the devolved areas are about what has happened over the last 20 years and the way in which—begrudgingly, as it seems to them—some concessions and developments have come into being. I just wish people could feel that.
I have three children. When they were growing up, as teenagers, the most important aspect of parenthood that we had to learn was the moment when you establish trust. You move away from authoritarian modes of existence with your own children, and you trust them, even when sometimes they make mistakes. It seems to me that, in this amendment, we are asking simply to give visibility to a stance that we could describe as trust; that is the heart of it. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, it does not seek to change the provisions of the Bill; it just says that we should trust each other as we go along.
I would be surprised if I am the only one who has had to educate myself, because the new clause proposed by the amendment would, if accepted, go in after clauses that describe the UK-EU joint committee, and it is terribly confusing to talk about the Joint Ministerial Committee in the context of movements that bring that joint UK-EU committee into being. It does not end there, because we are talking about the Joint Ministerial Committee European Union sub-committee. The action we are trying to establish good relations for is what will happen in the discussions with Europe to bring about our ongoing relationship, in the period following the enactment of the Bill. We should therefore remember that we are looking to have these things written into the Bill to apply for a limited period.
My noble friend Lord Howarth is quite right: of course you cannot legislate for the processes of consultation. He went on to say that willingness cannot be legislated for, but unwillingness might necessitate legislation—and there has been unwillingness. There is a lack of empathy. Even the noble Lord opposite spoke about hardness and refusing to accept a position that will create difficulties. That is never in anyone’s mind at all.
I go back to discussions in Committee and the intervention made by the noble Lord, Lord Kerr, who said:
“The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations.”—[Official Report, 15/1/20; col. 672.]
If they are going to discuss the competence of the devolved Administrations, is it not fair and proper that those from the devolved Administrations most affected might be there to add their voice to the discussions? Is that not reasonable? Are we not talking about common sense?
We are looking at this in a binary way, thinking that everybody who has a different view is somehow invested with animosity towards the Government. We are talking about bringing out of all this something that stands up and appeals to people on the basis of common decency and fair play. I am happy to rest my case there.
Baroness Hayter of Kentish Town (Lab)
My Lords, we strongly support Amendment 17, without which the whole nation of Wales could be excluded from preparing for input into the UK-EU negotiations. As the noble and learned Lord, Lord Thomas, said, and as the letter of 16 January from the noble Lord, Lord Duncan, to your Lordships sets out—I hope people have now got it—the Government have promised that representatives of the Northern Ireland Executive will be invited to be part of the UK delegation and to take part in any meetings of the joint committee discussing Northern Ireland where the Irish Government are involved.
That guarantee is welcome; I do not undermine that at all. But where is the equivalent recognition that, where the specific issues of other constituent parts of the UK are discussed, they too can be at the table, or at the very least be assured that the JMC on EU Negotiations has been briefed and will feed into Her Majesty’s Government’s negotiating position with the EU? The Government are seen as giving scant regard to the devolved authorities’ interests and legitimate role in the negotiation, which is why a statutory role is needed. As my noble and learned friend Lord Morris of Aberavon said, the voluntary way has not worked sufficiently well.
Earl Howe (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Thomas, and indeed all noble Lords who have spoken on the amendment. I feel that it is appropriate for me to start by saying something with a degree of emphasis about the Joint Ministerial Committee, which, I have to say, has received an undeservedly negative press from some noble Lords, both in Committee and today.
The Government have a high regard for the Joint Ministerial Committee structure and have engaged with the devolved Administrations through it, and indeed through numerous other means, throughout the EU exit process. The Joint Ministerial Committee on EU Negotiations, which I will call the JMC (EN), was established in the months following the UK’s decision to leave the EU, and it has met 21 times since November 2016. From the Government’s point of view—and, I hope, from everyone’s—it has proved an invaluable forum for the exchange of information and views between the UK and the devolved Administrations.
Proposals for intergovernmental engagement on the next stage of negotiations formed a large part of the most recent meeting of the Joint Ministerial Committee on EU Negotiations earlier this month, and are due to be discussed again at the next meeting of the JMC (EN) next week—chaired, if my memory serves me right, by the Welsh Government.
I hope that I can give a sense of how effective a forum the JMC (EN) has been for discussions on the Bill. The Bill was first discussed at the JMC (EN) in the summer of 2018, when we gave the devolved Administrations the opportunity to feed into the White Paper. We then used the forum to share our thinking on policy development through the autumn and winter of 2018, sharing iterative drafting on the Bill. It was through these discussions that we made changes to the Bill to address the concerns of the devolved Administrations. This included providing them with an important role in appointments to the board of the IMA, both in the Bill itself and through ministerial commitments.
I therefore do not accept that the JMC (EN) has been either inactive or ineffectual. On the contrary, it has contributed significantly to both ministerial and official engagement between the UK Government and the devolved Administrations, and that is exactly the way we mean to continue.
The amendment seeks essentially to set the joint ministerial arrangements in concrete. It remains the Government’s firm view that it is not in the interests of the UK Government or the devolved Administrations to place the terms of reference of the JMC (EN), or the memorandum of understanding on devolution, on a statutory footing. The noble Lord, Lord Howarth, and my noble friend Lord Hamilton of Epsom were absolutely right in what they said.
Lord Howarth of Newport
The noble Lord has heard serious warnings about the potentially dangerous consequences of a failure by the Government to consult adequately and work closely with the devolved Administrations. He will know that, in Wales, his rather upbeat assessment of the achievements and benefits of the Joint Ministerial Committee is not widely shared. If he will commit the Government, on their honour, to consult and work closely with the devolved institutions, along the lines laid out in this amendment, that would do a very great deal to improve trust and confidence and ensure good, practical outcomes. Will he do that?
Earl Howe
My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.
Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.
I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to
“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”
This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.
The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.
Lord Thomas of Cwmgiedd
My Lords, I am grateful for what the Minister has said, but I fear that we have to address the issues of devolution and our changed constitution, and the sooner we do that the better. Looking to put matters on the statute book seems to me inevitable. However, in the light of what has been said, disappointed though I am that the noble Earl, Lord Howe, would not give the commitment that I asked for, I beg leave to withdraw the amendment.
Member’s explanatory statement
Omitting Clause 37 would ensure the continuation of the refugee children and family reunification provisions of the European Union (Withdrawal) Act 2018.
Lord Dubs (Lab)
My Lords, I have had a chance to read again the detailed debate at Committee on this issue. What I have to say is influenced by what I heard then and what I have read. I repeat my gratitude to the Ministers for the time they have given me on these three occasions, once on the phone and twice in meetings, to give me their point of view on the issue. I am also grateful for the support I received from many parts of the House, including from Members on the Conservative side. No names, of course, but I appreciate those words of encouragement.
I refer to the Salisbury convention, which came up last time. The Minister justified the position by quoting from the Conservative manifesto:
“We will continue to grant asylum and support to refugees fleeing persecution”.
I do not believe that that is an argument against this amendment. This amendment is very specific indeed. It is about family reunion, and much too specific to be covered by this blanket provision in the Conservative manifesto. I believe that we have an entirely new issue, which could not have been foreseen when the Conservative manifesto was published or during the election campaign.
May I remind your Lordships of the history behind this amendment. In 2018, I moved an amendment, to a previous Bill, to provide that the existing provisions of the Dublin treaty, of which we are members as an EU country, for family reunion should be carried through in the negotiations for when we leave the EU. We have an arrangement whereby a child in one EU country who has a relative in another can apply to join those relatives.
It is a very simple and basic matter of family reunion. We want to be sure that this will be part of the negotiation and that the provision would be retained even after leaving the EU. Through a large majority in this House, that became part of the Bill, was then endorsed by the Government and became part of the 2018 Act, although there was no vote in the Commons. It is that provision which the Government are seeking to delete in this Bill, and my wish is to retain the 2018 Act as it stood. It is a very simple point: I would have thought that family reunion is one of the basic things that we all have to believe in.
If there are young people who have worked their way half way across the world, sometimes in hazardous conditions, from war and conflict in Syria or Afghanistan, and their incentive is that they have family here, surely it right that we take note of that and not close the door on them. We all know how awful the conditions are for refugees in northern France and on the Greek islands. I have been there a few times, as have other Members of this House. It is shocking that young people, and others of course, are sleeping under tarpaulins near Calais or on the Greek islands in dangerous conditions where the children are liable to be sexually assaulted at night because there is not enough security. All these things are simply dreadful.
It is not surprising that those who have reached northern France seek to come across illegally, in dinghies or often in the back of lorries. The traffickers take full advantage of that. That is why, by giving young people legal routes to safety, we are thwarting the traffickers as well as being humane in giving them an opportunity to join family members here. Unfortunately, the sort of debate that we have had sends a dangerous signal to young people, particularly in Calais and on the Greek islands if they can get away from there, and they will seek to do what we would all do, which is to say, “Well, if we can’t join our relatives legally, we’ll find another way of doing it if we can afford to pay the trafficker.” Surely that is not a resort that we wish to impose on young people. Family reunion is one of the safe legal routes.
Lord Alton of Liverpool (CB)
My Lords, just before the noble Lord concludes his very persuasive remarks, can he put into context for the House the numbers of unaccompanied children we are talking about? In the context of World Refugee Day last year, with 70.8 million displaced people or refugees in the world and a further 37,000 becoming displaced every day, the modesty of what was incorporated by your Lordships’ House and put into law should speak for itself. Will the noble Lord remind the House of the small numbers of the most vulnerable people of all that the amendment deals with?
Lord Dubs
I am grateful to the noble Lord. I am not sure that I have every figure at my fingertips, but let me do my best. Section 67 of the 2016 Act covered children being able to come to Britain without having family here. The Government capped the total at 480. I understand that we are quite well short of that, even today. The Government said the number of 480 was limited by the ability of local authorities to find foster families. That is not the case with children joining their relatives here, where clearly local authorities do not have to find foster places. I think, to date, several hundred children—the Minister may correct the figure—have come under the family reunion provisions in the Dublin treaty. We might be talking about 800. Without having the exact figures, we are probably talking about 1,000 or 1,000-plus in the Greek islands and in northern France. In the context of the international situation, that is very few.
The Minister said that we have taken a certain percentage of the EU total. Yes, we have, but probably only in relation to the size of our country. I do not dispute the figure from the Minister. However, refugees in a wider sense are going to be the most challenging issue to the whole world, and certainly to Europe and ourselves, over many years. But what we are talking about here is a very small number of children, who will be positively affected by this measure. That is why I am pretty keen on it. We had a small demo in Parliament Square yesterday, with a lot of people supporting it. We have had more than 200,000 signatures on a petition supporting the provision. I believe that we are essentially on the side of public opinion. I believe that we are essentially on the side of humanity. I beg to move.
Lord Kerr of Kinlochard (CB)
My Lords, I supported the noble Lord, Lord Dubs, in Committee and I support him now. I need to declare an interest as a trustee of the Refugee Council. I also need to declare total bafflement; I have absolutely no idea why Clause 37 is in this Bill. I do not understand what the Government are planning to do. I took part in Committee and, after speaking on this, I listened to the Minister at Second Reading and am still none the wiser as to why it is here.
What is on the statute book now in the 2018 Act is a commitment that the Government will seek to negotiate a reciprocal arrangement for these poor children. This clause repeals that requirement and replaces it with a commitment, in almost exactly the same terms, to make a statement to Parliament, which is not a very strong commitment. Why do the Government want to repeal the 2018 Act in this respect? We have heard three possible explanations: first, that it is unnecessary to keep this on the statute book because the Government intend to negotiate on this matter, and the Minister told us that a letter had been written; secondly, that it was always inappropriate to the 2018 Act; thirdly, that it is important not to tie the Government’s hands.
I do not find the first explanation very easy to understand. If the Government are seeking to negotiate and have written a letter designed to open negotiations on this matter, why should they want to repeal the commitment to negotiate? It does not make any obvious sense. On the second argument, regarding inappropriate positioning in the 2018 Act, they say it is much better to put it in the new immigration Bill. But there is no new immigration Bill as yet, and these negotiations are about to start. Also, the Government are not removing from the statute book any reference to this issue; they are replacing it with the language we see in Clause 37. If the 2018 provision was inappropriately placed, the 2020 provision that the Government seek is inappropriately placed. I do not understand that one.
Moreover, it is not a matter appropriate to an immigration Act, because what we have in the 2018 Act and in this Bill is a reciprocal requirement. The idea is that the Government would negotiate to ensure that the 27 would be willing to take poor children in this country who are in this plight and enable them to join their family elsewhere in the 27. The provision for the emigration of small children would be highly inappropriate to an immigration Act or immigration regulations. I believe it follows that the argument about it being inappropriately placed falls.
The third argument is still more difficult and slightly awkward. I am sorry not to see him in his place, but at Second Reading the noble and learned Lord, Lord Keen, said:
“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]
The noble Baroness, Lady Williams, said that the Government do not wish to see their hands tied. However, nothing in the 2018 Act would tie their hands; they must seek to negotiate. We are not saying that they cannot conclude a deal unless they have successfully negotiated. For myself, I do not think it likely that the negotiation on this point would fail, but we are not saying that if it did, everything would be off. We are simply saying that the Government should have a go. I do not see how that would tie anyone’s hands.
The Lord Bishop of Durham
My Lords, I speak once more from these Benches, recognising that the argument has been made again and again. I am honoured to follow the noble Lord, Lord Kerr, and to concur with all that he said. As my right reverend friend the Bishop of Worcester reminded the House last week—he kindly spoke for me because I could not be present in Committee—this debate resonates with the nativity story, the story of a child fleeing persecution. The voices of these children are too often drowned out by conflict and violence, by traffickers and by political leaders. Let this House speak on their behalf by voting for the amendment.
I shall try to explain again why the Government’s change is proving to be so difficult for those who work with migrant children to accept, and thus why many in this House find it difficult too. As the noble Lord, Lord Dubs, reminded the Committee and then the House just now, the Government opposed his amendments on previous occasions. The law as it stands was hard fought for; it was not easily won. Thus, the proposed removal appears to be the Government saying, “Well, we never really wanted the Dubs amendments, so now here is a chance to remove them.” I note that in the Conservative Party manifesto there is a reference to welcoming refugees, but the lack of a specific reference to child refugees and family reunion simply adds to public concern.
I fully accept the Minister’s personal commitment to migrant children. I also accept that there is every intention to offer a welcome and maintain family reunion, but what the Government’s proposals have conveyed is quite the opposite. I wrote to the Minister with a suggested compromise, accepting in my letter that it might not work as a proposal, but I am struggling to understand why the Government cannot see that the message they are conveying at present is a negative one, whatever their good intent.
From these Benches, my right reverend colleagues and I view this issue as a moral bell-wether for the future of our country. We want to be known as a country that is welcoming, compassionate and committed to playing our full part in responding to the deep issues that arise from the reality of refugees around the world. I believe that the Minister and the Government want to act with compassion; it is simply that what is proposed does not convey this.
The noble Lord, Lord Dubs, mentioned that, for some, this is cast as an issue of trust. Do we trust that the Government will deliver their promises to vulnerable children without legislative assurance in the EU withdrawal Bill? However, to my mind, this is a matter not simply of trust but of priority. Where do the Government’s priorities lie? It is important that they can negotiate a good deal for this country with our European neighbours, but we cannot set this against our responsibility to protect vulnerable children. That is what Clause 37 suggests: that the Government’s priorities necessarily mean that we cannot give legislative assurance that we, as a nation, will provide for vulnerable children to be reunited with their families in safety. I am sure that that is not the Government’s intention, but our actions testify to our values. The action of including Clause 37, removing the family reunion obligation from primary legislation, speaks louder and will be heard further beyond this place than promises of other legislation yet to be enacted.
Ensuring that there are safe, legal, effective and managed routes for child refugees to be reunited with their families in this country must remain an imperative. Schemes such as community sponsorship—here I declare my interest as a trustee of Reset—are an international gold standard for how to welcome refugees and provide new opportunities for those who have lost so much. We can hold our heads high because of the Government’s work in recent years to support refugee resettlement here. Now is not the time to contradict this good work with the consequences of Clause 37. Will we be open, sharing our prosperity and opportunity with children who deserve so much more than the precarious life of a refugee and have so much more to offer, or will we be closed to them, shut off from the world and our responsibilities as a global power? I believe the choice is clear, which is why I have added my name to this amendment. I urge others to support it and the Government to accept it.
Baroness Hamwee (LD)
My Lords, I too have added my name to this amendment, as I did at the previous stage. Like others, I thank the noble Lord, Lord Dubs, who is in danger of becoming a noun. I have been wondering whether and actually hoping that Clause 37 might be the result of the attentions of—if I can put it this way—an overly diligent draftsman who has failed to see the wider picture of how this looks; in modern parlance one would say the optics. We were told that a statutory negotiating objective is neither necessary nor the constitutional norm. It might not be necessary but it is not unnecessary either, and is the constitutional norm such a straitjacket of a convention that we cannot say what we mean in legislation?
As ever, the noble and learned Lord, Lord Mackay, put the constitutional point very clearly at the previous stage. He said that Clause 17 of the 2018 Act is
“an instruction to the Executive to open negotiations in a certain way”,—[Official Report, 15/1/20; col. 760.]
and that it is not up to Parliament to give instructions; I hope I have represented him properly. But as noble Lords will recognise, and as the noble Lord, Lord Kerr, has said, Section 17 is only about opening the negotiations and seeking to negotiate. Without even getting into the relationship between Parliament and the Executive, where is the harm? Even if it is not how it is normally done and even if it is not terribly elegant, it makes Parliament’s view clear and it was accepted by the Executive in 2018.
I am on the same page as the noble Lord, Lord Kerr. I am puzzled and a bit suspicious, because when there is a rather technical point or amendment—we are being told that this is a technical point—on a sensitive issue, my antennae naturally twitch. The more the Government tell us that they are not making any real changes, although they have changed the words, the more my antennae wave around, trying to catch hold of what this is all about. I am not surprised that the phrase in the Minister’s letter about carrying out negotiations
“with full flexibility and in an appropriate manner across all policy areas”
was much referred to. Section 17 does not restrict that, although it does not mention reciprocity, as the Government did—but I do not think that that is material.
I raised a point last week about the differences in the wording for the child’s “best interests.” Under the existing provision, the child’s best interests are referred to in the context of coming to the UK. Clause 37 applies the best interests to joining a relative. I think that both of those are important. The Government assured us that there was no significance in that, but I do not want to let something that might be important go unchallenged. The Minister referred me to the term “equivalent circumstances”—she is nodding at that—but it is not in the same part of the clause. It is in subsection 1(b) rather than 1(a), so I do not think that that answers my “best interests” question. I also asked the Minister last week if she could make available a copy of the letter sent last October to the Commission which she said should reassure noble Lords, but she was not sure whether she could. As she has not been able to pursue that, I assume that it is not available, but perhaps she could confirm that.
I come back to the proposed change. It must mean something. It does not make the very modest objective of Section 17 any more achievable—certainly not to most noble Lords who have spoken. Noble Lords will understand that given the subject matter of the clause and the relatively few individuals subject to it, there is a strong feeling that Parliament should not reduce our commitment to these children to safe and legal routes or–this was a point made by the right reverend Prelate—to be thought to be doing so.
Lord Hamilton of Epsom
My Lords, as the noble Lord, Lord Dubs, made clear in his opening remarks, this is a question of trust. He seemed to suggest that he trusted my noble friend the Minister but did not trust the Government. I am not sure how happy my noble friend is about being described as a sort of semi-detached member of the Government—but let us ignore that. Actions speak louder than words. The Government have a very credible record in allowing child refugees into this country. I think we run third among EU countries that have allowed in child refugees. Given that, the only basis on which this amendment can be supported is the belief that, if it is defeated, the Government will then stop taking in any further child refugees. I think that that defies all credibility; I do not think that there is any possible basis to support that thesis and I take the view that we have done very well on the question of child refugees and that if it’s not broke, don’t mend it.
Baroness Butler-Sloss (CB)
My Lords, in listening with interest to what the noble Lord has just said, I entirely accept that the Government have done some very good work. We heard of it from the Minister last week and we ought not to undervalue the extent to which the Government have brought children to this country, but we are talking about a very small group. The noble Lord, Lord Alton, asked the noble Lord, Lord Dubs, about this and it might be 1,000. Among the children about whom we are speaking, this is a small group who have rights only under Dubs III.
I may have unintentionally misled the House last week, for which I apologise, by making a comment when I felt so strongly about this matter that I got carried away. I did not read my notes and led the House to believe that there was some English law providing a right for children. I was wrong and was rightly corrected by the noble and learned Lord, Lord Mackay, who kindly did not refer to me when he set out the existing position, which is that Dubs III—I am sorry, it is Dublin III, although one really ought to call it Dubs III—comes to an end in January 2021. Of course I trust the Minister and have huge respect for her genuine commitment to children, but what I am concerned about is urgency.
Given everything else that goes along with Brexit, it would be very easy for this Government, intentionally or unintentionally, not to have a priority regarding these children, a point made by the right reverend Prelate. What we need is to retain the sense of urgency. We do not find that in Clause 37, but we have it to a greater extent in Section 17 of the 2018 Act. It does not take us all the way, but it includes the requirement for things to happen. I am not happy, with everything that has been said today and everything that I fear may be thought behind the scenes, that this will be dealt with having a proper regard for urgency. From January next year these children, who have a right to come to this country and are among the most deprived and vulnerable children in the world, will lose the right to do so unless a degree of realism and urgency is injected into the Government.
Lord Roberts of Llandudno (LD)
My Lords, I agree entirely about the lack of urgency. I also feel that there is a lack of enthusiasm for any sort of legislation that would mean more possibilities for people to come to the United Kingdom for sanctuary.
I remember with great sadness the day some years ago when we voted on the amendment of the noble Lord, Lord Dubs, and I saw the Tory Benches trooping through the Not-Content Lobby. I really felt so sad then. In the years since, I have been quite assiduous in dealing with these matters and the Minister must be tired of my contributions. But in 12 years, the only change I have managed to make is that the Azure card has been changed for the Aspen card. It is just a card giving £35 in one way or another. Asylum seekers still have no right to work until 12 months are up, and even then only from a restricted list. We still have indeterminate detention. In 2005, 17% of Home Office decisions were overturned on appeal, while last year and in the previous years it was about 40%. We still see a tremendous reluctance on the part of the Government to move, which is why I am totally opposed to removing any sort of legislation in the European agreements to protect child asylum seekers.
I will not speak for long because I have talked about this a great deal over the years, but I will make a plea to the Government. There are so many decent people on their Benches and yet, when we had the previous vote on the amendment of the noble Lord, Lord Dubs, some years ago, they voted against the rights of children. There is now an opportunity to strike a new chord: to offer hospitality rather than hostility to arrivals seeking sanctuary in the United Kingdom.
Lord Taylor of Holbeach (Con)
My Lords, I share an admiration for the noble Lord, Lord Dubs, with almost every Member of this House. He has been determined and dogged on this issue. Perhaps I speak more as a former Home Office Minister in this House than as a former Chief Whip when I say I understand the arguments. I can see where the noble Lord, Lord Dubs, is coming from, but this Bill is about providing a framework under which the Government can enter negotiations and withdraw from the European Union on the 31st of this month.
We know what the Government have said all through the period of negotiations: Dublin III will apply. We will be doing what has already put into action. The figures show that since the start of 2010, 41,000 children have found homes in this country. There is a category that the amendment of the noble Lord, Lord Dubs, is particularly concerned with: maintaining the rights of unaccompanied children. There too, the numbers have been shared by this Government. I was a Home Office Minister in the coalition Government where noble Lords sitting on the Lib Dem Benches were my partners in maintaining this policy throughout that period. It is important to understand that within this House there is some unanimity of purpose about this Act.
What is worrying to me as former member of this Government, and sitting on these Benches, is the lack of trust that noble Lords have shown in the commitments made by my successor in the Home Office, my noble friend Lady Williams of Trafford. Nobody has worked harder to convince people of the intentions of this Government. Nobody has spoken with greater authority on the subject than her. As my noble friend Lord Hamilton of Epsom said, it is distressing that this House is not prepared to believe what is said on behalf of the Government by a Minister on this issue. This is a problem that this House is going to have to come to terms with. I went to the briefing meeting in room 10A last week, as did an awful lot of people. I think that the truth of the matter is that the room was convinced of the intentions of my noble friend, and by the responses she was able to give.
This withdrawal agreement Bill is not about providing specific negotiating instructions to the Government. It is about providing the Government the authority to enter negotiations. The Government made a manifesto commitment on this matter. It may not be as specific as the noble Lord, Lord Dubs, would have liked, but its general application applies. The Government will be not be negotiating in bad faith and trying not to find a long-term solution. We all know that this area of joint activity with our European colleagues needs agreement. It needs to be understood how we are all going to deal with these difficult cases of individual children and migrant refugees in general. The noble Lord, Lord Dubs, may well be making a point but is he being effective in helping the Government achieve that objective by seeking to promote his amendment? I think not and that is why I will oppose his amendment and I urge other noble Lords to do the same.
Lord Woolf (CB)
Will the noble Lord be good enough to explain to me—who has just been listening to what has been said in this debate—why the Government put this in the Bill if it has nothing to do with what the Government should be doing in the negotiations?
Lord Taylor of Holbeach
My Lords, the Government are not seeking to put in this Bill instructions as to the sort of negotiations they will undertake. That is not the purpose of this Bill. The agreement that the noble Lord, Lord Dubs, forced on the Government created that situation.
Lord Scriven (LD)
My Lords, the reason why the House is so nervous is not that we in any way do not trust the word of the Minister, but because the Prime Minister has a habit of saying one thing on Europe and then doing another. It is not the Minister but the person at the top of the Government that the trust may not emanate from. Let us be clear and go through what this is about logically, as some noble Lords have done.
The first issue, following what the noble Lord, Lord Taylor, has said, is that Section 17 of the 2018 Act is an instruction to negotiate. It gives absolutely no conditions for those negotiations. It is same as Clause 37 before us now. The difference is that Clause 37 gives a two-month period before a new policy will be laid before Parliament. We have no idea what is going to be in that policy. There could be changes so that it may not be as clear, watertight and concise as what the noble Lord, Lord Dubs, sought to do with his previous amendments and what he is trying to do in this clause.
Noble Lords—particularly on the Government Benches and some on the Cross Benches—have said the Government have a good track record on this. Let us be clear. The Government have a track record of trying to stop amendments on this from the noble Lord, Lord Dubs, in 2016 and 2018. The only reason that the British Government have a good record is because the noble Lord has forced both Houses to make sure that we carry out the obligations that we are now carrying out. As the noble Lord, Lord Dubs, has said, on many occasions, Home Secretaries have pulled him in and asked him to withdraw the very obligations that the Government are now trying to claim credit for. That is why trust is not great on this issue as well. Logically, no one’s hands are going to be tied behind their backs if we take the Minister at her word. On 15 January, on day two of Committee, she said:
“Our policy on this has not changed”.—[Official Report, 15/1/20; col. 764.]
Therefore, the policy can be laid before the House now. Why the two-month wait? Is the Minister giving an absolute guarantee that not one word in the policy will change? If it has not changed, those whom we are negotiating with in Europe will have already been told exactly what the policy of the Government will be, in more detail than what the noble Lord, Lord Dubs, is trying to achieve by making sure that Clause 37 does not go through.
The real issue here is that if Section 17 of the 2018 Act was not in place the only difference is that the Government would negotiate—which the Minister has said they are going to do because they have sent a letter—but there would not be the two-month wait while policy was laid before this House, during which things could change and the guarantees in the policy could be watered down, leaving the most vulnerable children of all more vulnerable than they are now. Those of us who support the noble Lord, Lord Dubs, are doing so because of the potential for watering down the policy during the two-month delay. As I say, the trust issue is not with the Minister, but the Prime Minister says one thing about leaving the European Union to gain favour, and then when he has the chance, he changes his view.
Baroness Blower (Lab)
My Lords, I will be brief but I am moved to speak on this issue, particularly as the speeches have piled up. First, though, I commend the right reverend Prelate on talking about this as a moral bell-wether. In my earlier speech on this matter, I also said that this is as much a moral and ethical issue as it is a political and legal one. I genuinely believe that. The issue of trust that we are now getting into is difficult for us, but it is not just about trust; as the noble and learned Baroness opposite and the right reverend Prelate said, it is a matter of priority and of urgency. Why do we need a two-month delay, as the noble Lord who has just spoken asked, if there is a commitment from the Government to maintain the position?
In the manifesto on which this newly elected Government went to the country, there were commitments on refugees but not specifically on child refugees, and not beyond what was set out in the 2018 Act. It seems to a number of us on these Benches, both those who have spoken and many who have not, that this is not only a moral issue but an extremely urgent one that must have priority. Those who heard the remarks made in this debate by the noble Baroness, Lady Hamwee, where she read the words of a child in a classroom in this country, will know that it is important to understand the profound sense among British people that we must do our utmost to deal properly with child refugees. I believe that there is a profound commitment to make sure that these children, who have come through some of the most difficult circumstances that can possibly be imagined and have the prospect of being reunited with members of their families—that is the group of children we are dealing with in this amendment—can look forward to a much better life. It seems to those of us on these Benches, along with the Cross Benches and I am sure among some Members opposite, that we cannot let go of this lightly. I therefore urge us all to vote for the amendment.
Baroness Ludford (LD)
My Lords, to sum up briefly, the Minister will have heard the strength of feeling in this House and the state of perplexity and bewilderment at the legislative record on this: the section is in the 2018 Act and there was no provision in the first version of this Bill to delete it. Therefore, in terms of continuity, the position would point to the Government accepting the amendment from the noble Lord, Lord Dubs, which would surely be the graceful and gracious thing for the Government to do. The strength of feeling no doubt indicates to the Government that they might otherwise have to deal with a vote in this House. There is a way out for them, and I very much hope that the Minister will be able to take it.
Lord Griffiths of Burry Port
My Lords, the debate has been eloquent and emotion has played its part. I must begin by paying yet another tribute, for the second time today, to the noble Lord, Lord Kerr, who has proved to have an expertise in the area of bafflement as much as anything else. The clever way in which he unpicked the strands from the balls of wool that had got tangled up and pulled them out for us to look at just left us totally bewildered, so that when it all settled back again we understood as little as we did before he began.
I have listened to the arguments, and the noble Lord, Lord Taylor of Holbeach, for whom I have nothing but respect, will need to listen a little harder on the nature of the lack of trust, which is dependent not on political, adverserial positions but on a genuine feeling that we are at a moment in our parliamentary history where we have lost the art of building consensus and taking an argument forward with the respect and even affection we have for each other when we are outside the debating Chamber. It seems to me that in this debate we have reached that sort of point.
It is a source of great wonderment to me that something put in an Act just 18 months ago is now not in it and that arguments are being put forward to justify taking it out. I certainly do not understand it, but it is a long time since I took my bachelor of arts degree and perhaps I am getting addled in my old age. But it is for a small group of children—children with relatives, which limits the number even further—on the part of a Government who have already done so well in the area looking after the interests of children. It is not an instruction to the Government to do this or that which we are seeking to put into this amendment. It is not about outcomes. It is to start or keep alive a process of negotiation on this issue.
The right reverend Prelate is quite right that this has a moral dimension. We must never forget that. The noble and learned Baroness, Lady Butler-Sloss, mentioning “urgency”, “two months” and all the rest of it reminds us that we have a chance here to put this into the Bill in a way that gets things started at once, for an objective which I cannot believe a single person in this House would refuse to want and desire. I do not know. I am new to this game of politics. I try my best, I really do.
The noble Baroness, Lady Hamwee, quoting the noble and learned Lord, Lord Mackay of Clashfern, emphasised that point; nobody is seeking to tell the Government what to do or what point to reach in what they do. There is a difference between outcomes and process. All we want in the Bill is that a process be entered into. Outcomes will depend on the negotiations. That is the desire here. Other people have spoken eloquently. I hope that, in a spirit of generosity, there will be no riding of high horses because “We’ve won an election”. As the noble Lord, Lord Dubs, said, it is in the school of humanity that we will be judged, not on our party, partisan positions.
The noble Baroness, Lady Williams, is another person to whom I have listened with enormous respect in the short time that I have been doing this work, and I hold her in that respect now. Yesterday, an agreement was forged via the usual channels on a stance on an issue that would arise later in the evening. During the afternoon, that stance was totally modified, and we had to take our people through the Lobbies in an entirely different way. If that can happen in an afternoon, perhaps there is some justification for trust needing to be earned.
So, the matter is before us. I am quite sure that we will be asked to vote on it, but it is a terribly serious issue about the body politic in this country. This is an admirable debate where we can learn the art of constructive engagement and putting together a better tomorrow.
Lord Ashton of Hyde (Con)
My Lords, this is an important stage in the debate. With the agreement of the usual channels, we are going to put off the rest of the debate until after lunch to allow noble Lords to think about this. The Minister will wind up after lunch.
European Union (Withdrawal Agreement) Bill
Tuesday 21st January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
15:18 - Division on Amendment 18 - Ayes: 300 / Noes: 220 - Amendment 18 agreed.
16:52 - Division on Amendment 20 - Ayes: 239 / Noes: 235 - Amendment 20 agreed.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who spoke before lunch. As the noble Lord, Lord Dubs, and my noble friend Lord Taylor of Holbeach have said, the British public rightly support our need to help the vulnerable children who most require our refuge. Parliament and Government feel this too. No one group or party has a monopoly on humanitarianism.
I must first correct some statements that noble Lords made this morning. The first was by the noble Lord, Lord Scriven, who said that if it were not for the noble Lord, Lord Dubs, the Government would not have done anything. I will outline why that is not the case—without, of course, diminishing the efforts of the noble Lord, Lord Dubs, over the years. As my noble friend Lord Hamilton of Epsom pointed out this morning, our record over the last 10 years clearly demonstrates that the Government are committed to protecting vulnerable children.
I reiterate our proud record, much of which goes back before the 2018 Act. More than 41,000 children have been granted protection in the UK since 2010, most of them under obligations through the refugee convention and wider commitment to resettlement, rather than through EU structures. More than 5,000 unaccompanied children are being cared for in England alone—a 146% increase since 2014—and we received more than 3,000 asylum claims from unaccompanied children in 2018. That, as my noble friend Lord Hamilton also pointed out, was the third-highest intake of any EU member state, and accounts for 15% of all asylum claims from unaccompanied children across the EU. There is also our commitment to resettle 5,000 people from the wider region in the next year alone.
Our refugee family reunion Immigration Rules provide an existing route for children to join refugee family members granted protection in the UK, with more than 27,000 family reunion visas issued over the last five years. Three thousand were issued to children, enabling them to reunite with family members under this route, in the last year alone.
The second point I must correct is what was said by the noble Lord, Lord Kerr—that in the end we agreed to “let in” only 480 children, rather than 3,500, as demanded by the noble Lord, Lord Dubs, in his previous amendment. I think the noble Lord, Lord Kerr, might be confusing our obligations under Section 67 with the clause that the amendment before us would delete, which considers only unaccompanied asylum-seeking children family reunion, on which I hope that I have demonstrated our commitment over the years. I reiterate that that policy, in relation to UASC family reunion, has not changed.
This Government were elected on a manifesto which includes a commitment to
“continue to grant asylum and support to refugees fleeing persecution”.
I think the noble Lord, Lord Dubs, might be dancing on the head of a pin—
Baroness Williams of Trafford
If noble Lords will hear me through—when he says that it excludes children. I suggest that if that were challenged in court, the court might come to a different view.
Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, which means that unaccompanied children in the EU and the UK will continue to be able to reunite with family members during 2020. We will continue to process family reunion cases referred before the end of the implementation period.
Our record reflects the unique importance of protecting unaccompanied children and preserving the principle of family reunion, and that policy has not changed. My noble and learned friend Lord Mackay provided some clarity on the effect of both Clause 37 and Section 17 of the European Union (Withdrawal) Act 2018. Section 17 does not grant family reunion rights to unaccompanied children but concerns only negotiations on this matter, although I noted that the noble Lord, Lord Kerr, expressed disgust at the notion of negotiating. As per the amendment by the noble Lord, Lord Dubs, which became Section 17, the Government remain committed to seeking a reciprocal agreement for the family reunion of unaccompanied children seeking international protection in either the EU or the UK—that is, to ensure that these vulnerable children can reunite with family members in the UK or the EU.
Clause 37 concerns only the removal of the statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state and who have family in the UK, and vice versa. This debate is not on wider issues relating to refugees, asylum or family unity. Indeed, the Home Secretary wrote to the European Commission on 22 October, as I outlined in Committee, to commence negotiations on this issue, seeking to negotiate, as Section 17 set out. I assure noble Lords that the Government are intent on pursuing an agreement no less than that which we would have pursued under the original Section 17, as the noble Baroness, Lady Hamwee, posited earlier, although I confirm that I am unable to share the letter.
However, a statutory negotiating objective in primary legislation is not necessary nor the constitutional norm. We are restoring the traditional division of competences between Parliament and Government when it comes to negotiations, and similar changes have been made to negotiating obligations across the Bill. Furthermore, rather than removing Section 17, we have gone beyond the original amendment by the noble Lord, Lord Dubs, and provided a statutory guarantee that the Government will provide a statement of policy within two months of the withdrawal agreement Bill’s passage into law. This demonstrates our commitment to report in a timely manner and guarantees Parliament the opportunity to provide scrutiny. As I have said, we have already commenced negotiations. We will continue to deliver this negotiating commitment while removing an unnecessary statutory negotiating obligation, restoring those traditional divisions of competencies and going above and beyond to provide Parliament with an additional opportunity for scrutiny with Clause 37.
The noble Baroness, Lady Hamwee, raised the point about best interests. There is no intended or actual legal difference between the phrasing about how and when the best interests of the child should be considered for child family reunion transfers from the UK to the EU and vice versa. Both in the original Section 17 and in Section 17 as amended by Clause 37, there will be a consideration of whether it is in the best interests of the child to transfer from the EU to the UK in order to reunite with a family member, and vice versa. Neither Section 17 nor Clause 37 ever intended to consider whether it was in the child’s best interests to transfer to or from the UK separately from the consideration of whether it was in their best interests to join a family member. In addition to that, our existing statutory obligation in Section 55—
Lord Kerr of Kinlochard (CB)
The noble Baroness makes a characteristically careful and conscientious speech—I learned a lot and for that I am very grateful. Could she just tell us why Clause 37 is in this Bill?
Baroness Williams of Trafford
As I explained in Committee, Clause 37 is in this Bill because the Government wished to reiterate their commitment. It is similar in almost every way to Section 17, except that it does not instruct the Government to do something—it merely states the Government’s intention to do something.
Lord Kerr of Kinlochard
With respect, it waters down that commitment by making a completely different commitment to make a Statement to the House rather than seek to negotiate a deal in Brussels.
Baroness Williams of Trafford
That is correct. If the noble Lord has finished his intervention, I ask noble Lords to reconsider their intention to divide the House because I hope that I have provided the clarity necessary.
Lord Dubs (Lab)
My Lords, I am grateful to the Minister for at least having stated, again, the Government’s position, but I still do not understand it. The noble Lord, Lord Kerr, explains why it was difficult to follow. For all the time we spent on it, it is not clear to me or many noble Lords, including on the Government Benches, why the Government are doing what they are doing. Part of the Minister’s speech could have ended up with her saying yes, and that she supported the amendment—part of it led to that conclusion. Somehow, she changed course and said no. She talked about an unnecessary statutory obligation. By that, I believe she means the provision in the 2018 Act—an obligation accepted by the Government in the Commons after we passed it in this House. I do not know why it was okay then but unnecessary today; that has not been explained.
Above all, it seems to me that there is a very clear proposition on family reunion: unaccompanied child refugees should be able to join family members here. All we ask is for the Government to take that and negotiate on that basis with the EU. We cannot predict the outcome; it could not be more modest. All we are saying is, “Please do it”. But the converse, by the Government saying, “We are not going to do it”, sends a very difficult signal. Some people have called the Government mean and nasty. If the Government want to disprove that accusation, surely they should accept this amendment. It is very simple: we do that and then we are in line with what we decided in 2016.
Lord Hamilton of Epsom (Con)
Does the Government’s track record on admitting child refugees completely rule out the idea that they have been mean and nasty?
Lord Dubs
I do not think so, partly because the majority of the 41,000 children that the Minister referred to came to this country by illegal means because there were no legal means for them. We estimate that about 90% of them came on the back of lorries, in dinghies and so on. Surely that is the very thing we wish to discourage, so I am not convinced by that. I welcome what the Government have done for refugees of course, but we are talking about what we will do in the future. I regret that the signal the Government are sending by this is a very negative one. It is not a humanitarian signal and there is no downside for the Government if they accept the amendment; I do not understand what the problem is. Nobody has yet explained why the world will come to an end or something. It seems fairly straightforward: the House decided in 2018 on a simple humanitarian proposition. The Government have tried to find a way of arguing against that. I am sorry, but it has not persuaded me and I hope it has not persuaded the House. I would like to test the opinion of the House.
Lord Goldsmith
“Non-regression of EU-derived rights and protections
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) animal welfare,(b) biodiversity and the environment,(c) chemical safety,(d) data protection,(e) disability access,(f) employment and social rights,(g) food safety,(h) public health, and (i) transport safety.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a minimum technical standard or level of protection provided for in retained EU law, or(b) weakens governance processes associated with that standard or protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish standards or protections in retained EU law relating to a series of ‘protected matters’.
Lord Goldsmith (Lab)
My Lords, Amendment 19 is in the name of my noble friend Lady Hayter of Kentish Town. One of the key issues in our debates has been the extent to which the United Kingdom will continue to safeguard the protections of certain rights that derive from EU law. The previous Bill, and assurances by the Government, indicated that protections would remain. The Government have repeatedly stated that, while they do not intend to undercut EU regulations, they want to retain the option of divergence and will therefore now refuse to sign up to level playing field provisions in a free trade agreement. It is time to know, if we can, what that actually means and just what the Government intend.
Just last Friday, the Chancellor, Sajid Javid, told the Financial Times that Britain would never accept ongoing regulatory alignment with Brussels. Ministers are arguing that it is not necessary to sign up to minimum standards, because in most cases the UK already exceeds what is required by EU directives or regulations, but we all know that that is not true in all areas.
The Government are telling us to trust them, even though they stripped out their previous commitments on workers’ rights and parliamentary oversight. As we saw in Committee, they cannot yet define the future relationship they want with a range of the EU’s executive agencies. We have, of course, been promised a ground-breaking new employment Bill, but Ministers will not tell us what its contents will be or set the timescales. We are not certain what engagement has taken place with trade unions and, while there is a need to regulate the gig economy, we need to be certain that this will not water down protections for other workers.
Yesterday, the European Commission briefed EU 27 diplomats on its preparations for the next round of Brexit negotiations. The presentation suggested that the EU will continue to advocate level playing field measures, with future co-operation to be underpinned by a single set of strong enforcement rules. It has been suggested that if the UK breaches any of its commitments under the future trade agreement, it could be fined or lose its preferential access to certain sectors. In response to the comments made by Mr Javid last week, one EU diplomat is quoted as saying:
“In the end it is all rather simple: If Britain wants to diverge from EU rules, it will diverge. Such an approach would obviously lead to new trade hurdles between Britain and the EU and in consequence less trade, less investment, less jobs.”
The Government need to be clear about their intentions. If they want a Canada-style deal, they should be honest with the public about the limitations of that approach. If they want Canada-plus-plus-plus or similar, and the economic and security benefits that a closer relationship would bring, Ministers need to be honest with the public that this will require a greater degree of alignment.
As we know, time is tight. The EU has been clear that it will not even adopt its negotiating mandate until the UK has departed at the end of this month. There needs to be sufficient time left for the ratification of any agreements by national and regional parliaments across the continent. My party has always been clear that it wants a close economic relationship with the EU and that regulatory alignment is not only a price worth paying but would bring benefits to UK citizens. The Government might disagree but, having won the election by promising to get Brexit done, they must now get on with the job of telling people what post-Brexit Britain will actually look like. The purpose of this amendment is to set out the protections that we believe ought to be continued. I look forward to hearing what the Minister has to say about the extent to which assurance will be given on to those protections. For those reasons, I beg to move.
Lord Fox (LD)
My Lords, I support this amendment and associate myself fully with the words of the noble and learned Lord, Lord Goldsmith. As such, I can be brief.
Until last weekend, the Government had resolutely maintained a twin-track narrative. Yes, they said, we will have an independent trading policy; yes, they said, we will have frictionless trading with the European Union. Many of us in Committee tried to point out that these would, in effect, be mutually exclusive, and at the heart of this were regulatory standards. Many of us tried to explain that for frictionless trade to take place, a level playing field with the EU 27 means just that: a level playing field with no divergence. The Minister, at his obdurate best, shrugged off those Committee- stage comments.
As the noble and learned Lord, Lord Goldsmith, outlined, the Chancellor, Sajid Javid, broke cover in his interview with the Financial Times at the weekend. He quashed any prospect of the Treasury lending its support to our country’s leading manufacturing sectors. He was very clear, saying:
“There will not be alignment”
and he urged companies to adjust to the new reality, for our automotive, aerospace, pharmaceutical, chemical and food and drink industries, all of which have been clear on the vital need for alignment with EU regulations. Mr Javid added
“we will do this by the end of the year”
which is not long to wait.
Therefore, at least one member of the Government has told the truth and told us where the Government are headed. However, it is simply amazing that any Administration, never mind a Conservative one, should turn their back on these important providers of jobs and prosperity. This amendment would prevent Ministers using regulation-making powers under the Bill to diminish standards or protections related to series of protected matters. That sounds very dry and cold, but those protected matters, specified in the amendment, affect everyone. They include the environment, employment, social rights, animal welfare and public health—really important aspects of the everyday lives of people in this country.
The amendment, so ably moved by the noble and learned Lord, Lord Goldsmith, in essence sets out in writing the aspirations that the political agreement purported to set out. We now know that those aspirations have come to naught. Will the Minister tell us where the Government are headed and what will happen to standards?
Lord Hannay of Chiswick (CB)
My Lords, I lend my support to the amendment, to which I have put my name, and I will add a couple of points which have not previously been made. We are of course going over ground which we pretty thoroughly discussed yesterday with regard to Amendment 15. The ground is a bit different but the issue is the same: a level playing field, maintenance of EU standards and so on.
First—I hope the Minister will reply to this—this is not an onerous obligation because, as I think he will find if he looks at the record, we voted for every single one of these EU measures, which we will not regress from if this amendment is adopted. Therefore, if we voted for them, why do we now want to diverge from them?
Another important point is that anyone who knows anything about Brussels knows that this will be an absolutely crucial factor in the political declaration implementation—the whole level playing field issue, and so on. I would honestly wager that, if we accept this amendment, we will get a much better deal than the one we will get if we insist on diverging. It is worth remembering that the cost to this country’s trade of insisting on the right to diverge will hit us long before we diverge. It will affect the terms we get in the deal we do, and the way in which inward investors and traders assess the chances of trade between the UK and the 27 not becoming more frictional. Therefore, the costs will be up front; they will not be somewhere down the road and perhaps avoidable if we never diverge. I would not be a bit surprised that, having beaten the tom-toms in this way in favour of divergence, the Government found that diverging was not as brilliant as all that.
Thirdly, noble Lords have probably not paid a huge amount of attention to what has been going on in the internal deliberations in Brussels. One of the Commission’s main proposals in the context of its green deal, which I am sure it will follow up, is to put tariffs on goods coming from countries which do not observe the same environmental conditions as those observed in the European Union. That could be us if we diverged, as the Government, in the form of the Chancellor of the Exchequer, suggested we would. Noble Lords may or may not think that the Commission’s proposal is a good idea; I do not, on the grounds of world trade policy. What noble Lords cannot disagree with, however, is that we are not going to influence greatly what the EU 27 decide to do: they will decide on the basis of their own inward dynamic, and strong forces are pushing for that.
Baroness McIntosh of Pickering (Con)
My Lords, I support in principle, as I did in previous European Union withdrawal Bill debates, the sentiments that underlie this amendment. I ask the Minister to clarify in his summing up a point about animal welfare. Does he recall when we diverged from the rest of the European Union—I think it was in the early 1990s—by introducing a unilateral sow stall and tether ban, which we believed would pander to the animal welfare lobby and ensure overnight that the Conservatives appealed to a group that was not in the habit of voting Conservative? The outcome at that time was not what we had hoped: it was to push many of our pig producers out of business and to encourage more imports from countries such as Denmark and Poland. That was because the consumer tended to buy their meat not from local butchers but from supermarkets, on the basis of price. While it may therefore be appealing to introduce food into this country from countries that do not meet our high standards, it is highly undesirable for a number of reasons.
In this regard, will the Minister clarify the Government’s position on the introduction of a standards commission? Great progress was made in the last Parliament between the National Farmers’ Union, other farm organisations and the Department for Environment, Food and Rural Affairs. It was generally understood that a standards commission would be introduced to ensure that our home-produced foods and farm products would not meet unfair competition. The usual examples, with which we are all too familiar, are hormone-produced beef and chlorinated chicken, but there is also poultry and other products from Brazil, Argentina and other countries. Will my noble friend confirm that the Government are minded to introduce such a standards commission before the end of December?
I do not see it on today’s list, but I understand that potential problems are looming with the Audiovisual Media Services Directive, which I am not familiar with, but, having attended a conference this morning, I am more familiar with than I was yesterday. The Commission is due to introduce guidelines that we will be obliged to follow, although it has not yet done so. We will not have a regulator in place immediately, although I understand that the Government are going to announce an interim regulator imminently. Will the Minister confirm what the status of this directive will be as part of retained EU law, as it has already been adopted but not yet implemented? It would be very helpful if he could outline to the House today what that will be.
The noble and learned Lord, Lord Goldsmith, who so eloquently introduced this amendment, referred among other things to chemical safety, biodiversity, the environment, animal welfare and food safety. What is the situation regarding new chemicals that will be introduced in this country and that we would hope to export to the European market in the run-up to December this year, given that we will have an office for environmental protection fully in place only by 1 January 2021?
Lord Hendy (Lab)
My Lords, I am no thespian, and my abilities as a scriptwriter are minimal. However, I have prepared a 60-second play to entertain your Lordships this afternoon.
Imagine the scene: a chance encounter between the Prime Minister and one of those voters from the “red wall” constituencies who lent his or her vote to the Conservatives on the basis that they would “Get Brexit done”. I thought we might stage it in the National Railway Museum in York. I have to tell noble Lords that this play is not a comedy. I am going to call my protagonist “Billy” for the sake of argument:
“Billy: The Withdrawal Bill before the election had protections for my EU workers rights, but those protections have been removed from the current Withdrawal Bill. Why?
The Prime Minister: No problem. The protections will be in an Employment Bill later this year.
Billy: Ah yes, I saw you stated in the Queen’s Speech briefing that the Employment Bill would ‘Enhance and protect workers’ rights – as the UK leaves the EU … making Britain the best place in the world to work’, and I noted that your manifesto said that you will ‘Raise standards in areas like workers’ rights’.
The Prime Minister: There you are then.
Billy: But Ministers have said that there will be no dynamic alignment, and yesterday the Chancellor of the Exchequer said no regulatory alignment either.
The Prime Minister: Correct.
Billy: But that means you could cut my rights: you could reduce my EU right to paid holiday from four weeks to two.
The Prime Minister: That’s not our intention, but you must understand that we can’t have our hands tied in negotiations with the EU.
Billy: Ah! Now I understand. The EU might want to cut the rights of British workers, and you want the freedom to defend them.
The Prime Minister: Not quite. The EU will be seeking to defend your rights. It’s the British Government who might need to threaten to reduce them.
Billy: But I thought, when I voted to take back control, that the British Government would stand up for British workers’ rights.
The Prime Minister: Not quite.
[Dramatic pause.]
Billy: I’ve been conned. You’ve done me up like a—[expletive deleted]—kipper.
THE END.”
Will the Government give an assurance that they will not permit workers in the United Kingdom to have fewer rights now or in the future than those of their counterparts in the EU, the US or any other country with which a free trade agreement is sought? If that assurance is given, this amendment will be unnecessary. If that assurance is not given, the Minister should not mince words and should state clearly that in these negotiations the British Government will not defend the rights of British workers.
Lord Howell of Guildford (Con)
My Lords, after that rather enjoyable contribution, and despite the very distinguished movers of this amendment, I find the whole thing a little bit puzzling. First, surely it is obvious that we are a responsible trading nation seeking the highest gold standards of regulation, standards and welfare and that, if we want to trade with and to expand our trade in the great markets of Asia, Africa and America as well as in our neighbours in Europe, we must rigorously observe the best international standards. That is a must. Even if we had a choice in the matter, which we do not, we would have to pursue that course.
Secondly, is it not obvious that in exporting, as we must, not only to the great European market but to all the countries of the Americas, Asia—where all the major growth in consumer markets will be over the next 10 years—Africa and Latin America, we will have to conform strictly to their standards as customers? If we are measuring the design and thickness of windscreens in motor cars, the windscreen provisions laid down in the European Common Market will have to be observed or we will not sell cars into the European Union. The same goes for America, India and China, each with its own quite different standards. We will have to be very flexible in all our patterns of standards and regulations governing health and safety, conditions, durability and all the other conformities required in these new markets. That will happen anyway.
Thirdly, the EU standards in some areas are excellent, and no doubt we will parallel and continue with them as we have before, but some are a little out of date. We are now moving into a world in which the predominant pattern of our European economies is services; we are a service economy. Frankly, job security is not what it was for anybody, so we need to redesign rights, benefits and support for millions of workers in a world where the old guarantees of a job for life and so on—the security that the great trade unions battled for in the past—will no longer be there. A totally new pattern of work has emerged, in which businesses will be operated in completely different ways. This requires a completely fresh approach to the pattern of benefits, security, protection and support; we must pioneer it in this country.
With all the variety of the markets, standards and regulations that we will have to meet—to be a successful exporter into China and so on—why we should want to be tied solely to, and aligned solely with, the pattern of our neighbours in the remains of the European Union is, frankly, a puzzle. I see the motive and concern behind it, the worry that there may be a sliding away of standards, but the reality is that we have no choice but to maintain very high standards indeed. Varied export markets demand standards of a whole variety, and there is no choice in this matter at all.
A great deal of this level playing field stuff is not driven by those concerns—of protecting workers in the new environment and new working conditions of the digital age—as it should be. I think it is driven by something else. I say to the very noble and distinguished movers of this amendment that that is something worth considering before they press it, because I do not think it fits into the modern world into which we are moving.
Lord Judd (Lab)
My Lords, the importance of this amendment cannot be overstated. At a time when the Government like to tell us repeatedly how well they are doing on employment in this country, this always overlooks the growing anxiety in the country about the conditions in which many people are working and the exploitation, sometimes quite ruthless, that goes on. There is a real anticipated anxiety that there is a driving force, wherever it is coming from—within No. 10 or wherever—behind so much of this legislation and that its real objective is about reaching a situation in which we can have a deregulated society and a free-for-all. That is the belief, the conviction, that many people believe is behind it all. That is why what is said about employment and social rights is so important in this protections list.
I care about the whole protections list but, if I were to pick one other item on it, it is that we are living in an acute and immediate crisis with the environment and biodiversity. Unless we take this seriously, the kinds of problems that will overtake our society in future could dwarf any of the preoccupations which take up so much of our time in Parliament at the moment. It is imperative to ensure that we do not just have good intentions and great aspirations but that we have the means to deliver what we are aspiring to in this context. We must insist on the standards which have so far been achieved—not as an end in themselves but as a platform from which we can move forward to still stronger, more imaginative action. I cannot say how much I welcome this amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, I offer the Green group’s support for this amendment. Noble Lords will have noticed that your Lordships’ House is not quite as crowded as it was when we were debating the amendment in the name of the noble Lord, Lord Dubs. I invite your Lordships to consider all the people who are not here—the people in our supermarkets, streets, workplaces and wilderness areas. We have been talking about EU standards, but I would call them the people’s standards. These standards were won by campaigns and struggles—by people in the UK and across the EU who stood up against the lobbyists and corporate interests. They stood up against those who had so much power in deciding what kinds of standards there should be in places such as the United States of America. They stood up for something better.
The Government keep saying that they want to have higher standards than the people’s standards that we have had to fight so hard to get. I entirely accept the need for much higher standards. In this hugely nature-depleted country, each year we are collectively consuming the resources of our share of three planets—although we have only one. We are pumping out so much greenhouse gas. As the noble Lord, Lord Hendy, so eloquently outlined, we have people in really desperate workplace situations. We need better standards, but these people’s standards are a foundation.
I am sure that we will hear from the Benches opposite about the UK’s crucial place in the UN climate talks as part of COP 26 this year. If the Government do not incorporate this amendment into the withdrawal agreement Bill, what kind of message will this send about us as the chair of COP 26?
Lord Howarth of Newport (Lab)
My Lords, this amendment proposes that we should not regress from the existing EU-derived rights and practices in relation to the protected matters specified in the amendment. I see no difficulty in principle about that. There may be much merit in it in terms of continuity of public policy and of reassuring the public that we will maintain the standards that have so far been established by the EU and continue to conform with them.
But it is surely essential that we retain the right to diverge. The noble Lord, Lord Howell, gave some very important reasons for this. The world is changing, and our country and economy need to be alert to all the changes that will provide opportunity for us in the future, as we seek our fortune in a wider world. The eurozone economy is a relatively inert and sluggish region of the global economy. While much has been achieved and very important protections have been established for workers’ rights and environmental issues, as the noble Baroness has just mentioned, and we do not want to lose that acquis—those achievements and benefits—we have got to be flexible and be able to be innovative.
The essential principle of Brexit is that we take back control of our laws. It is an entirely reasonable proposition that this Parliament should legislate to perpetuate our conformance with certain particular laws that have already been enacted. It is a very different proposition that we should commit ourselves to the proverbial level playing field and the principle of non-divergence following the end of the implementation period. That is not what is envisaged in the amendment, but it seems to have been contemplated by a number of noble Lords in their speeches. If taking back control of our laws means anything, it means that we must reserve the right to diverge. Indeed, we will need to have the right to diverge even from what has already been established and achieved when it proves in some sense obsolescent, as new reasons and new horizons emerge for the kind of changes and developments that we would seek to achieve in our economy.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
I thank all noble Lords who took part in this debate. I thank the noble and learned Lord, Lord Goldsmith, for so eloquently introducing the subject. The amendment is very much like proposed new Clause 31, tabled by the noble Baroness, Lady Jones of Whitchurch, in Committee. I am grateful to the noble Baroness and the other noble Lords who took part in the debate on that amendment as well. Noble Lords will be completely unsurprised to discover that the Government’s position on this matter remains unchanged.
The amendment fundamentally mistakes the nature of the Bill before us. The amendment is about our domestic policy post exit in a number of extremely important areas. However, by contrast, the Bill is about implementing the withdrawal agreement into domestic law. It is not about our post-exit domestic policy, important though that is. Therefore, we believe that the amendment is wholly inappropriate for this Bill. However, since the amendment has drawn us into a debate, even though it is beyond the scope and purpose of the Bill, it might be useful for me to reiterate how we will take decisions about issues such as environmental standards and other matters once we have left the EU.
As I set out in Committee, these matters were debated extensively during the passage of the 2018 EU withdrawal Act. I remember replying to that debate; I think that many of the same noble Lords who contributed today took part in that debate as well. Noble Lords will remember that, back then, the concern raised was that the Section 8 power in that Act would be used to regress from EU standards. I reiterate that the Section 8 power can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal. That is what we said then, and I think that our record has proven that to be the case.
The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit, and the Government cannot use the powers for the purposes of rolling back standards and protections merely because we wish to do so. Instead, where we seek to depart substantively from retained EU law, separate legislation will be brought forward, as indeed it already has been in certain areas. At that point, Parliament will, as normal, have its opportunity to scrutinise the Government’s actions. This would allow for tailored and intense scrutiny. I have no doubt whatever that this House and the other place will fulfil their duties in this regard with great vigour. Once again, I reiterate our view that these debates are for that future legislation.
In any case, I can reassure noble Lords that the Government have no plans to introduce legislation that would have a regressive effect. We will not weaken protections in these areas when we leave the European Union; rather, we will maintain and enhance our already high standards.
We spoke at length in Committee about the Government’s record on the environment, chemicals, food standards and animal welfare. For the sake of clarity, I will again set out some of our commitments. First, the UK has a long and proud history with regard to the environment and it is of the utmost importance that this is maintained when we leave the EU. There are areas where we are already planning to go further than EU legislation permits, such as single-use plastics. The Government will shortly be introducing the environment Bill, which we promised during the 2018 debates. It will strengthen environmental protections and enshrine environmental principles in law.
I will take this opportunity to reply to the point made by my noble friend Lady McIntosh on the subject of sow stalls, a debate which I remember well from my time in the European Parliament. That is an example of the UK going beyond EU rules in the full knowledge of the likely consequences. We chose to go further. We may decide—I am not committing us—to go further on live animal exports and in other areas, enhancing what protections are currently provided under EU law. If we do, we should consider the consequences. However, as the noble Lord, Lord Howarth, correctly pointed out, the whole point of Brexit is to take back control. These are decisions which we can make for ourselves in this Parliament in future. We do not need an external power dictating what we do in these regards.
On employment rights, I reassure the noble and learned Lord, Lord Goldsmith, that we are committed to ensuring that workers’ rights are protected as the UK leaves the EU. We are legislating in areas where the EU is only just starting to catch up. It is the UK that has been shaping the agenda on tackling abuses in the gig economy, a point well made by my noble friend Lord Howell of Guildford. As we announced in the Queen’s Speech, we will be bringing forward legislation to continue delivering and building on the Good Work Plan. This will give workers in the UK the protections they need in a changing world of work. Much as I greatly enjoyed the entertaining vignette from the noble Lord, Lord Hendy, I remind him that in a number of these areas—including holiday pay and maternity pay—the UK already goes much further than EU minimum standards permit. That is something that we should be proud of, and it is something that we are going to build on.
I have set out the Government’s view that this amendment is not appropriate for this Bill. I have also, I hope, provided some reassurance about the Government’s intentions regarding some of the issues raised by the amendment. I will close by noting that the effect of the amendment is unclear. The proposed new clause before us makes government action with a “regressive effect” unlawful, but it leaves many of the key terms unworkably vague. It is somewhat surprising that the noble and learned Lord, Lord Goldsmith, does not appreciate the poor wording of the amendment. First, the failure to define “protected matters” makes the scope of the amendment unclear. Secondly, the uncertainties in the definition of a “regressive effect” would create a great deal of legal uncertainty. Perhaps he is hoping for some legal uncertainties, as they would provide more work for lawyers. That was a joke, by the way. “Regressive effect” is defined as an effect that
“reduces a minimum technical standard … or … weakens governance processes associated with that standard or protection.”
The meaning of a reduction or a weakening, in this context, is not at all straightforward. Making this regressive effect unlawful without a clear definition carries significant legal risks, and may restrict policy with a progressive design, as the Government may avoid making policy changes for fear of acting unlawfully. This could impede delivery of post-Brexit government policy intended to deliver improvements in these areas.
To give an example, the waste framework directive sets targets for preparing for reuse and recycling of waste to achieve the EU’s ambition to move to a circular economy. I think that we would all support that. The targets are set on weight, so the directive obliges member states to ensure that a minimum of 55% by weight of municipal waste is reused and recycled by 2025, 60% by 2030 and 65% by 2035. However, weight-based targets may not lead to the optimal environmental outcome. If the UK were to remove this target and replace it with a target set on a different metric—on carbon, for example—while the UK could have improved standards, we could still be held to have regressed on environmental protections, were this amendment to become law. This kind of legal uncertainty has been decried in other debates.
This Bill is the vehicle to implement the withdrawal agreement in domestic law; it is not to legislate for our post-exit domestic policy in these areas. That is for separate debates in separate fora. We will no doubt have them with great vigour, as we do in all these policy areas. The amendment is neither necessary nor appropriate for the Bill. The Bill will ensure that we move forward and focus on our domestic priorities. Noble Lords can already scrutinise any changes that regulations might make to retained EU law under the Section 8 power. As I said earlier, and say again for the benefit of clarity, the Government are committed to maintaining and enhancing our already high standards, including through legislation where appropriate. I hope, given the reassurances I have provided, that the noble and learned Lord is able to withdraw his amendment.
Baroness McIntosh of Pickering
I followed my noble friend’s arguments closely and understood him to say that Section 8 can be used only to correct deficiencies following the EU withdrawal Bill. His summing up was comprehensive, but he did not respond to the potential obvious deficiencies in the audio-visual media services directive. This may not be the only directive that falls into this category, but it is a category that I banged on about ad nauseam during the first EU withdrawal Bill and it has still not been resolved. If my noble friend is not able to answer today, could he write and tell me, and everyone else who has spoken in this debate, what the legal position is? We have not implemented the directive, but we are now leaving the European Union and it becomes part of retained law, I would argue, in a very deficient way.
Lord Callanan
If it becomes part of retained EU law before the end of the implementation period, it will be transferred into British law by snapshotting the procedure. I do not know the details of that directive, so I undertake to write to the noble Baroness about it.
Lord Goldsmith
I thank the Minister for his reply and thank all noble Lords who have taken part in this debate, particularly those—and it is the majority—who supported this amendment. I will just clear one or two matters out the way, from what the Minister said. The first is on the scope of the Bill. There was no problem including protections of this sort in the Bill before the election. It has been revised now, but I do not follow that point.
Secondly, he sees imperfections in the Bill. I have been in government too, and we always have the ability to improve amendments that have been tabled, the substance of which we agree with, to cure that problem. That is not the reason the Government are resisting this amendment. We all know that. The Government are resisting this amendment because they do not want, despite what has been said before, to be committed to non-regression. The point is about non-regression; the clue is in the title. It is about standards being lowered. Of course, they can be improved or changed, as long as, under this amendment, they are not reduced. That is the concern. For some reason—it appears to be ideological purity—the Government are not prepared to give that guarantee.
I was taken by the vignette—the play—of my noble friend Lord Hendy. I have heard him in court before, but it was the first time I have heard him in Parliament. He was as persuasive here as he is in court. But ideological purity risks damaging this country and the people in it. The point made by the noble Lord, Lord Hannay, is that the Government’s insistence on this divergence has caused damage already. We have given the Government the opportunity to give assurances about this. Everyone will read what the noble Lord said in Hansard very closely. We have given them the opportunity to give stronger assurances to the outside world and the workers in it, and the invitation was not accepted. If, as many think, the result will be damage to the country and the people within it, and the rights that people believed were going to be protected, we know at whose door the fault will lie.
I will not press the amendment because there is no point in doing so with the position that the Government are in in the other place. It is clear that they will not accept this proposal or anything like it, but we will continue to hold them to their warm words and will carefully define and interpret them to see how far they go. I beg leave to withdraw the amendment.
(a) section 28(8) of the Scotland Act 1998, and(b) section 107(6) of the Government of Wales Act 2006,”Member’s explanatory statement
This amendment alters the statement on parliamentary sovereignty to take note of the Sewel Convention, as enshrined in the Scotland Act 1998 and Government of Wales Act 2006.
Baroness Hayter of Kentish Town (Lab)
The intention behind this amendment is to provide a key reassurance to Scotland and Wales. As we know, Clause 38 as it stands is pretty meaningless. As we said in Committee, it was added basically as a sop to the European Reform Group. However, as the Explanatory Notes make clear, the clause makes no material difference to the scope of Parliament’s powers.
The problem with it is more what it does not say in that it fails to refer to the Sewel convention—the convention that the UK Parliament will not normally use its powers to legislate on devolved matters without the agreement of the National Assembly and the Scottish Parliament. Therefore, this stand-alone restatement of what I would call the bleeding obvious in regard to Parliament, without even a nod to the conventions, appears to backtrack on the devolution settlements.
The Welsh Government will therefore wish the Sewel convention to be restated. The noble and learned Lord the Minister said last week that that was not necessary because the settlements are already written into law. Perhaps they are but, for the same reason, there is also no need to restate parliamentary sovereignty. The problem is that doing one without the other gives the impression that the convention is being downplayed, and that is not helpful. I think I am right in saying that the Welsh Assembly, even at this moment, is debating legislative consent, and the rejection of this amendment will not be taken well by that gathering. For all sorts of reasons, it would be a poor precedent for this Bill to be the first to be passed without legislative consent from the Welsh Assembly.
The Government could decide to do what the noble Lord, Lord Newby, urged in Committee and take out Clause 38 altogether. That certainly would not detract from the Bill. They could still do that or they could accept this amendment. Either move would offer comfort to each of the devolved authorities that our departure from the EU was not being used to take back any powers or activities from their purview. Such reassurance, I know, would be welcome. The clock in Wales is ticking. I hope that the Minister can accept the amendment. I beg to move.
Lord Bruce of Bennachie (LD)
My Lords, I have added my name to the amendment and shall explain why. The noble Baroness, Lady Hayter, has made it clear that in a sense this clause is superfluous, but it is superfluous in a slightly sinister way. It asserts the sovereignty of Parliament and effectively says, “Therefore, this Parliament can always overrule the devolved legislatures.” We know that to be sovereign law but putting it in a Bill rubs salt into open wounds. Scotland and Northern Ireland have already refused consent and it is expected that Wales will vote today to do the same.
Over the last 20 years we have developed what is described as a quasi-federal constitution, but it is not federal; it is unitary, and Parliament, or Westminster, is sovereign. That is a fact. However, the whole point of the Sewel convention was to try to give comfort and reassurance to the devolved legislatures that they have a standing and a status that Westminster will take into account and acknowledge, and in all circumstances do its best to accommodate. It is a convention, not a law. That is obviously the argument as to why we should maybe move towards a federal constitution, which would effectively confer these conventions into law. I welcome the fact that the Labour Party is now engaged in serious consideration of federalism, which has been a long-standing policy aspiration of the Liberal Democrats. Quite genuinely, we should work together on a cross-party basis to develop the thinking behind this.
The Minister’s words may matter—not just the terms of the legislation. There should be a sense of concern that, as powers come back from Brussels to the UK, those powers that do not return directly to the devolved legislatures and Administrations will come to the central UK Government and effectively weaken the existing devolution settlement, unless there is a genuine spirit of co-operation where the devolved Administration’s views are properly weighed and taken into account. If the Government simply say, “We brought back control to a sovereign Parliament. Whether you like it or not, this Parliament can do what it likes and we intend to do so”, that is not a good way to take the UK forward.
I do not necessarily subscribe to the view that Brexit makes the break-up of the United Kingdom more or less likely. The pain and disruption of Brexit might well discourage people in Scotland and Ireland from wanting to add other disruptions to it; I do not think it is as clear and simple as that. It behoves the Government to show a genuine engagement with the devolved Administrations; not just to use sweet words but to look for practical solutions that will ensure that the devolved Administrations are taken into account.
If the Government turn around and say, “We hear how you voted but we are carrying on regardless”, that will not provide comfort and confidence that devolution is here for real and will develop. It requires the Government to show a lot more accommodation. I agree with the noble Baroness, Lady Hayter, that there are two ways to resolve this. The Government could simply repeal the clause and leave the Bill vacant on this, or they could accept the amendment. To do neither of those things would leave people in all the devolved areas very suspicious of the Government’s intentions.
Baroness Bryan of Partick (Lab)
My Lords, I think it is fair to say that, had we not been in the EU when devolution occurred, we would most certainly have moved towards a more federal arrangement in this country. The fact that our regulations were shared across the UK, even in devolved areas, covered the need for a federal arrangement where the different Assemblies and Parliaments could come together. Now that we will be out of the EU, there is a fair degree of urgency to address this. How are we going to devise regulations in the future? If we start that process by not including the Sewel convention, we start from a point where levels of disagreement are such that it will be hard to have that debate in a calm, careful way. We should accept this amendment, but also go on to explore the ways in which, where devolved matters intercept, we will work together in future across territorial areas. I hope that we can accept this amendment.
Lord Thomas of Cwmgiedd (CB)
My Lords, I rise briefly in support of this amendment, to which I have added my name. I explained earlier today, and yesterday, why it is vital for this Government to recognise the importance of devolution as we go forward. This is a purely symbolic clause which does not make any difference. It could be left out. But, if it is to go in, can it please acknowledge that we live in a United Kingdom that has changed and where we must recognise the devolved legislatures? Conventions are of the utmost importance in this respect and should be recognised in the Bill.
The Duke of Montrose (Con)
My Lords, I try to follow all the arguments that are put forward about devolution and where it all stands. The puzzle to me is that the logic of the people supporting this amendment seems to be that the Parliament here at Westminster is not entirely sovereign. That may be an issue that we wish to take up at some point in the future, but it is not something that we should be dealing with in the withdrawal Bill. I am not a lawyer, but the way the amendment is phrased seems to make justiciable anything that comes up between the devolved Administrations and Westminster. At this point, I think I would oppose the amendment on the ground that it would detract from the sovereignty of Westminster without all the implications having been thought through.
Lord Griffiths of Burry Port (Lab)
My Lords, I cannot really think that that is how things will play out. Yesterday I heard that an agreement had been made, meaning that there would be no vote that evening. On the strength of that, I arranged to take my wife out for dinner at last. Then everything changed, and there was to be a vote— indeed, there were to be two votes. I slipped out before any of that happened to phone my wife and say, “Dinner’s off.” I simply make the plea that we distinguish between what is in the marriage contract and the conventions that we create for ourselves that help marriages, and other relationships, to flourish.
This is a convention; it is not a law. But in granting this convention and incorporating it in the Bill, we will improve the relationship between us and the people in the devolved Administrations. It is so simple. We have heard arguments about things being set in stone, and about the thin end of the wedge. Who remembers reading FM Cornford’s Microcosmographia Academica? One or two—these are the educated people. It was an argument about what happens in academic circles, where there is always a body of people who are resistant to change. They resist change on the grounds that it may be the thin end of the wedge, or set things in concrete, and all the other things I have been hearing in these wretched debates. Please let us realise that the softer acknowledgements of relationships, as well as the hard ones, help the debate, and the relationships, forward.
Baroness Butler-Sloss (CB)
My Lords, I had not intended to speak, but over the last week I have listened to the various representatives of the devolved Administrations in this union of ours. Speaking as a totally English person, without any relationships in any of the three devolved areas—other than being married to an Ulsterman—I think that we English ought to be very careful and listen to what the devolved areas are saying to us. It was said earlier that the Government, and indeed many English people, might not really appreciate what devolution has meant. Perhaps it is time we did.
Lord Morris of Aberavon (Lab)
My Lords, I support the amendment, which would put in statutory form what has grown into an important convention. I would like clarification, which I failed to get in yesterday’s debate, regarding the breadth of the convention. I asked a specific question:
“will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act?”—[Official Report, 20/1/20; col. 958.]
I was referring in particular to Clause 21.
As I did not get satisfaction from the Minister’s reply, I repeated my question later, saying:
“I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.”
A Section 109 order would be a consensual matter, as opposed to one imposed from Westminster. The Minister replied:
“I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.”—[Official Report, 20/1/20; col. 964.]
Perhaps now, after some more thought, the Front Bench can give the clarification that I required on how, from the viewpoint of Her Majesty’s Government, the convention would be implemented.
Baroness Finlay of Llandaff (CB)
My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.
The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.
Lord Hope of Craighead (CB)
My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.
For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.
Lord Morgan (Lab)
My Lords, points have been admirably made by many other distinguished speakers. I will just make one: this whole issue unfortunately shows the frailty of devolution as a basis for keeping our partnership of nations together. Devolution had weaknesses built into it, admirable change though it was. As many of us said, the regulatory relationships between the nations were left extremely unregulated, if you like, and in a very imperfect condition, depending, as the noble and learned Lord, Lord Thomas, said, on the power of the word “convention”, which hovers over the English constitution in a very dangerous way.
The other thing to be said about devolution as a frail basis for a settlement is that it is deliberately asymmetrical, and an asymmetrical devolution means unequal distribution. Wales has always been treated as a poorer relation in the partnership. When there are possibilities of strain, as we see in the case of the Bill, the thing is liable to crumble. The whole basic weakness of the settlement is, alas, likely to continue and to weaken the United Kingdom. It is perhaps appropriate that these aspects are implications of the work of King Henry VIII, who, despite his background, was the master voice of English nationalism. He adopted a colonial attitude to Wales and that is reflected in our current difficulties.
Baroness Humphreys (LD)
My Lords, I have not added my name to this amendment but would like to register my support for it. Twelve months ago, to this week, Vaughan Gething, the Welsh Cabinet Secretary for Health and Social Services was asked: if the Senedd refused to grant consent to an Act of Parliament, could it be overruled by Westminster? His reply was interesting. He said that the ability of the UK Parliament to override a measure made in any part of the UK is one of the mischiefs in the UK’s constitution that needs fixing. I do not for a moment suggest that we begin the fixing process today, but I cite his words merely as a fairly accurate summing up of the situation in which we find ourselves today.
The exclusion of a reference to the status of the devolved Administrations from Clause 38 appears deliberate. It seems designed to ensure that the devolved Administrations have no role to play in the UK’s withdrawal from the EU. It enshrines, by this omission, the inequality of the power between the nations of the UK. The inclusion of Amendment 20 in Clause 38 would go some way to redress the balance and ensure that the devolved Administrations could represent the views of their respective nations in this massively important process.
I am a passionate advocate for the Senedd. I strongly believe in the principles of devolution, as do my colleagues on these Benches. The Senedd has given Wales a voice and a feeling of nationhood. The exclusion of this amendment could lead to the perception of both being taken away. Accepting this amendment would go some way to preventing those losses.
Baroness Hayter of Kentish Town
I know it is not normal for me to speak at this moment, but I thought the Minister might want to reflect on this: having heard and followed this debate, the Welsh parliament has just voted not to give consent to the Bill.
Lord Callanan
I thank all noble Lords who have contributed to this debate. It is obvious that I have spent so long debating across this Chamber with the noble Baroness, Lady Hayter, that she is now able to predict my replies to these questions, because the Government do feel that this amendment is an unnecessary restatement of the Sewel principles, which are already enshrined in statute. However, I accept the points made both by the noble Baroness and by the noble Lord, Lord Murphy, in Committee last week that it is not the justiciability of the Sewel convention that matters most in these cases. What matters is that the Government continue to uphold the Sewel convention and make sure that the interests of the devolved Administrations and of the people in Scotland, Wales and Northern Ireland are fully taken account of as we leave the European Union. I am happy to make that commitment and demonstrate that we have done so in the passage of this Bill as well. I can reassure the noble Lord, Lord Bruce, and the noble Baroness, Lady Bryan, that the Government have engaged constructively with the devolved Administrations—and the Northern Ireland Civil Service when there was no Executive—throughout the development of this Bill. I am sure noble Lords will join me in welcoming the restoration of the institutions in Northern Ireland—we will now have an Assembly to engage with as well.
We have been discussing this Bill with the Scottish and Welsh Governments, as well as the Northern Ireland Civil Service, since July 2018 and we have incorporated suggestions from those Administrations into the White Paper. We discussed its contents with them in the following months. Following those discussions, the UK Government made significant changes to the Bill, including ensuring that devolved Ministers will have a clear role in the functioning of the independent monitoring authority that will monitor the citizens’ rights provisions in the Bill, restricting the powers in Clauses 18 and 19 from amending the devolution statutes and strictly limiting the number of provisions protected from modification by the devolved institutions to those of a constitutional nature.
Lord Wallace of Saltaire (LD)
My Lords, as unamended, the clause we are debating restates the principle of parliamentary sovereignty. Many of us considered that the devolution settlement had modified the Victorian concept of unitary sovereignty. In Committee, the noble and learned Lord, Lord Keen, went out of his way to reassert that AV Dicey’s views on parliamentary sovereignty—that the imperial Parliament is supreme and cannot share legislative power with other Assemblies—is what this clause means. Does the Minister not therefore recognise that the inclusion of this clause as it stands undermines the conventions established by the devolution settlement?
Lord Callanan
I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.
We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.
Lord Kerr of Kinlochard
There was much wisdom from the noble Lord, Lord Griffiths of Burry Port. It would help the atmospherics a great deal if the Minister could reassure the Scots and the Welsh—I think the Northern Irish are reassured already—that they will be included in the United Kingdom team negotiating in the joint committee. I say that because I think it is right to try to improve the atmosphere and because, after all these years, the Lady Griffiths is entitled to a dinner out.
Lord Callanan
She is indeed. I hope that at some stage in the future the noble Lord, Lord Griffiths, will repeat the endeavour which failed last night. The noble Lord, Lord Kerr, made a good point. We have already started discussions with Scottish and Welsh Ministers, and I hope that those with Northern Ireland Ministers are to come. I was present at some of the discussions in London a couple of weeks ago. A frame- work was put in place for joint ministerial committees; one on EU negotiations and one on ongoing EU business, which I chair. We will develop those consultations as we go into the next phase, and we are working on proposals to involve them in future negotiations. We will, of course, take that point on board.
We understand the importance of preserving both the spirit and the letter of the devolution settlements and the principles of the Sewel convention as the UK exits the EU. In response to the noble and learned Lord, Lord Morris, I say that international relations are indeed a reserved matter. However, the devolved Administrations do have an important role in implementing these agreements. Any devolved provisions made under the Act will normally be made only with the agreement of the devolved Administrations and we will engage with them on this, as we have always done in the past. The Government are committed to upholding these principles, but this is not changed by restating them in the Bill. Given what I have said, and the reassurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hayter of Kentish Town
I thank the Minister, though I am obviously saddened by his response. My noble friend Lord Griffiths clearly abides by the conventions laid down by Lady Griffiths and we would do well to listen to the noble and learned Baroness, Lady Butler-Sloss, who said that we need to listen to what devolved areas are saying. The Government are not doing this: the devolved regions have come to us and said that they are not getting enough of a hearing. I will not repeat what all noble Lords said, but the comments are general. We need to give respect; we need to respect the convention which offers, as the noble Lord, Lord Bruce, said, “comfort and reassurance” and, in the words of my noble friend Lady Bryan, “confidence”. This is all about recognising the convention as part and parcel of our parliamentary system. It does not override parliamentary sovereignty; it is a part of the way we are. It is a terrible shame that the Government cannot see that this detracts nothing from the Bill, but I seek to add it to the Bill. I therefore beg leave to test the opinion of the House.
Baroness Jolly
“( ) Subsection (2) does not apply to the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, nor to any regulations made under that Act.”
Baroness Jolly (LD)
My Lords, I will be brief. Clause 41 allows Ministers to make regulations that could alter any primary legislation that has been passed prior to the Bill. Such regulations will be made by the negative procedure, effectively giving Ministers carte blanche to do what they will to legislation that is already in statute. Many of us in the health community in your Lordships’ House were recently involved with the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which, noble Lords will remember, started life as the Healthcare (International Arrangements) Bill. A number of significant changes were made to that Bill by this House and then approved by the Commons. However, this clause could allow Ministers to revert the Bill to the original, thereby thwarting the will of Parliament, or they could at any time change any component of it, or any other Bill, with the minimum amount of scrutiny. When you think about it, its scope is really quite breathtaking.
In Committee, my noble friend Lady Brinton asked the Minister about a letter that she had left with the Government Whips’ Office and which the Minister had not seen and so was unable to answer in as much detail as usual. Since then the Minister has sent noble Lords a letter outlining the situation, for which we were all very grateful. As well as responding to the amendment, I am sure that other noble Lords will want to press the Minister on the detail of the letter, so that the Government’s intentions are on the record about any proposed changes to legislation relating to healthcare and the EU. I do not intend to press this amendment. I beg to move.
Baroness Brinton (LD)
My Lords, the European Union Committee report on Brexit, referring to the revised withdrawal agreement and political agreement, notes the lack of any mention of reciprocal health arrangements and says, in a section on mobility on pages 56 and 57, in paragraphs 252 to 257, that clarity was needed on how this would work. This is one of the reasons that I questioned the Minister in Committee. I am sorry, on both our parts, that the message with that question did not get through, and I thank her for the letter that she sent over the weekend. This is important because the European Union Committee says:
“There is no reference in this section of the Declaration to reciprocal healthcare, including the European Health Insurance Card (EHIC), as a means of facilitating mobility.”
It was that “means of facilitating mobility” that was absolutely critical for the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. With your Lordships’ permission I will shorten that to “healthcare arrangements Act” rather than repeating the whole thing every time. Can the Minister explain why there was no mention of this reciprocal healthcare, and say explicitly to the House that these arrangements will stand?
Parts of the Minister’s letter were very helpful on specific points relating to those EU citizens living and working in the UK at the moment and UK citizens living and working in the EU. But that is not as broad as the provisions of the healthcare arrangements Act. That is why the committee raised its concerns, specifically using the phrase “means of facilitating mobility”.
The Minister’s letter made a rather odd assertion: that healthcare arrangements are protected by Clause 13 of the European Union (Withdrawal Agreement) Bill, which covers social security systems. Nowhere in Clause 13 is there any reference to healthcare, nor is there any such reference in the healthcare arrangements Act. More worryingly, if she is right and I am wrong, the decision to change arrangements under Clause 13 is at complete odds with the decision arrangements in the healthcare arrangements Act. Clause 13 reinserts the Henry VIII powers that were in the original healthcare arrangements Bill, and both your Lordships’ House and then the Government decided that this was inappropriate. That is why that Bill was changed. It became an Act in April.
Sections 6 and 7 of the healthcare arrangements Act set out clear routes for changes via statutory instruments and reports to Parliament. That Act is transparent and accountable, unlike Clause 13, where responsibility for such decisions is given to the Minister of the Crown and/or a devolved authority. Can the Minister confirm that any arrangements relating to healthcare would fall under Sections 6 and 7 of the healthcare arrangements Act given that they do not relate to social security? This amendment tries to make sure that we have that protection for reciprocal healthcare. I beg to move.
Baroness Kramer (LD)
My Lords, I had not expected to speak to this amendment, and I will be exceedingly brief. I do not want to take attention away from the healthcare issues that have been raised by my colleagues.
In this House we all know that when legislation is passed it is later used as a precedent. We have here a clause that effectively permits the Government by negative statutory instrument to change a huge raft of primary legislation passed by both Houses of this Parliament. If I had described that to a neutral person without mentioning that it was a move by the UK Government I think they would have assumed that it was being moved by Putin, Erdoğan or someone else who sees a democratic structure as a mechanism that they can reshape to assert government control over the general democratic process.
I am extremely concerned by this precedent and its extraordinary scope. It fits in with a pattern of a government approach to this Parliament that is diminishing the other House even more than this House. I think we can see in this, in the attitude towards negotiations, in the Government’s position on devolved assemblies, which we just heard, and in their attitude towards future trade negotiations that they are in a sense patterning themselves after local government, where an executive cabinet can make all the rules, the assembly can scrutinise—scrutiny only: that is its role, and I refer to the other House as well—and raise issues, but the executive can simply ignore it. I think this is an exceedingly dangerous road. This legislation and this cause advance that process, and everyone in this House, regardless of the party to which they are affiliated and which they support, needs to take on board that pattern which is being developed and which Clause 41 underpins. It requires a very serious rethink before we lose what we have had and it is too late to regret it.
Lord Warner (CB)
My Lords, I have added my name to this amendment for a reason which keeps coming up in our debates: they are all about trust and whether we can trust the Government to behave in a reasonable way. A lot of the amendments that have been put down have been about trying to ensure that—if I may put it as crudely as this—the Government behave well in carrying out these negotiations. We have seen a kind of emotional blindness, if I may put it that way, in the discussions we have had on immigration systems and physical documents that people who have a right to live here can use. This seems to be another piece of work in which we have to table an amendment to try to ensure that the Government behave properly and well in these negotiations.
It is quite extraordinary. Having agreed these reciprocal healthcare arrangements with the EU countries and Switzerland so recently, I cannot understand why we should not just be able to use this amendment to ensure that there are no rapid changes. The Government almost seem to forget the huge number of people who in their daily living move for holidays between the other 27 EU countries and Switzerland, as though that does not matter. This is an important part of people’s lives. They book their holidays assuming the system will not change. Particularly after this recent piece of legislation, no one has told them there is a risk that something may change.
The Government are bringing on themselves a mood in which people will be suspicious of what they are up to. They will raise a lot of anxieties totally unnecessarily. In my experience of government, if you allow rumours to be fostered they spread around quite quickly. What we are trying to do with this amendment is to remove the temptation. The Government would be wise to listen, unless the Minister can give a level of assurance that will remove any suspicion that somehow, because of the way they behave, the Government are up to something.
Baroness Thornton (Lab)
I thank the noble Baronesses, Lady Jolly and Lady Brinton, for introducing this. As they said, we are basically picking up where we left off in Committee. I was not satisfied with the answer the Minister gave about reciprocal healthcare. As noble Lords have now said, nobody really understands why, when we already have legislation that we considered and passed last March, that does not form part of the negotiation that will take place. I read the letter that the Minister sent to the noble Baroness, Lady Brinton, and it is very confusing.
I will take a more cynical view of this. A year ago, when we had in front of us the Healthcare (International Arrangements) Bill, it had in it five or six Henry VIII powers. It gave the Secretary of State the power to make a deal about healthcare with anybody in the world they might choose, without any recourse to this Parliament or any accountability. This House wisely changed that into the Bill we passed, now the Act, which does what the Government had said they would do. They said they would not add to the policy arrangements in any area. They would take up the European Union policy and translate it into a way that worked post Brexit. That Bill we had before us a year ago did not do that; it extended the powers incredibly.
I fear that we are seeing a repeat of what the Government tried to do a year ago, so I really need to know from the Minister what powers the Government may take—not what will happen between now and December, but what will happen in a year. What will it look like? Will there be any reciprocal healthcare arrangements? Will there be 27 agreements, which is what the Minister was talking to us about a year ago when we were discussing international healthcare and looking at crashing out of the European Union? What has happened to those 27 agreements? Where have they gone?
As my previous noble friend Lord Warner said—he is still my friend—it is only a matter of time until people become very anxious about this, because not only are people working all the way across Europe, but they are going on holiday all the way across Europe. At the moment, the Department of Health and Social Care’s website is really opaque. It does not give us any clarity at all about what might happen.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, it is always a pleasure to speak to the really important issue of reciprocal healthcare, which touches on a lot of UK and EU citizens’ lives. This House has rightly tested this issue robustly and it is right that we consider it today.
The withdrawal agreement Bill guarantees that reciprocal healthcare arrangements, including for pensioners, workers, students, tourists and other temporary EEA or Swiss visitors, will not be affected during the implementation period. During this time, there will be no change to reciprocal healthcare schemes, such as S1 and EHIC, nor to the S2 route which enables planned treatment. Importantly, I can provide assurance that the European Union (Withdrawal Agreement) Bill also guarantees lifelong, reciprocal healthcare entitlements for people so long as they remain within the scope of the citizens’ rights agreements. This includes UK nationals who will have moved to the EU before 31 December 2020, as well as EU citizens who will have become resident in the UK before this time. I hope that that explanation is clearer than my letter.
Last year, as has been mentioned, this House spent a considerable amount of time holding informed and important debates scrutinising the provisions of the then Healthcare (European Economic Area and Switzerland Arrangements) Bill. With the permission of the noble Baroness, Lady Brinton, I will call it HESA. We agreed that this was a key piece of legislation, providing the UK with options to implement any future reciprocal healthcare arrangements, subject to negotiation with the EEA states or with Switzerland after the UK leaves the EU. I understand the desire to know the outcome of these negotiations but, as they are obviously in the future, I am not able to give exact details, other than to say we want to ensure the best possible outcomes.
Following that scrutiny and the assent of Parliament…
Baroness Altmann (Con)
I thank my noble friend for giving way. A number of us on these Benches are deeply uncomfortable with what we are being told, as she well knows. We are willing to give the Government the benefit of the doubt and we hope that this trust will be repaid. We are talking about people’s health and lives: there really is nothing much more important. Will my noble friend take this back to the department, or can she assure us that there will be full information available to all citizens so that they know about this risk at the end of 2020 and can make the appropriate decisions? None of us knows what is going to happen after the end of this year.
Baroness Blackwood of North Oxford
My noble friend Lady Altmann makes a very important point. We have tried to ensure that the information is available and communicated. I am happy to review the clarity of this information and to do everything we can to improve it. My noble friend is absolutely right. We need for anxiety to be at the lowest level and for people to be prepared as possible. I can assure the House that we are doing everything we can to work in the best interests of UK citizens. We understand that there are many in European countries, as well as in the UK, who are looking at this issue with great concern.
I want to get back to the process of scrutinising HESA. As the noble Baroness, Lady Brinton, said, this established a legal basis for the Secretary of State for Health and Social Care to fund and give effect to future reciprocal healthcare schemes through its provisions for data sharing and making regulations. It is important to cast our minds back to that debate. This is an implementation Bill; it does not concern the status of the arrangements. In addition, the Government are committed to the effective implementation of the citizens’ rights agreement and the healthcare protections that it provides.
Questions have arisen as a result of my letter, including those raised by the noble Baroness, Lady Brinton, last week. I have been asked why there is no mention of reciprocal healthcare in the Bill. This is because individuals within the scope of the withdrawal agreement are entitled to reciprocal healthcare cover from their competent country for as long as they remain so. The rights of EU citizens, EEA, EFTA and Swiss nationals and their family members who reside in the UK before the implementation period, are brought into UK law through Clauses 5 and 6 of the Bill.
I was also asked about Clause 30. This is limited to implementing parts of the agreement on social security co-ordination and to including reciprocal healthcare and EHIC, so it cannot operate in the way in which the noble Baroness was concerned that it might.
Finally, I was asked whether the consequential powers could be used to revert HESA to the original form—with global scope—that it came to this House in. It cannot. The consequential power does not allow for substantive changes to legislation. It will allow the Government to make only smaller, technical amendments for good housekeeping to ensure that legislation is consistent and functions well. It could not be used in the underhand manner that I think the noble Baroness, Lady Thornton, thinks we intend. This would be much too substantial a use of the power; it would not be considered an appropriate use of it.
Baroness Jolly
My Lords, we have had an interesting debate that has not, for the most part, been about Clause 41 or the legislation itself, but about health. I guess that that was always what would happen. I am quite happy to withdraw the amendment.
Lord Howarth of Newport
Lord Howarth of Newport
My Lords, this is the grand finale of Report stage. If the Chamber is not packed then I am not personally dismayed because we prefer quality to quantity in our debates, do we not?
Subsections (1) and (2) of Clause 41, as the noble Baroness, Lady Jolly, explained just now in the preceding debate, contain “breathtaking” powers, to use her word. The very valuable report of the Delegated Powers and Regulatory Reform Committee says that
“clause 41 … contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.”
That provision for the negative procedure is set out in Schedule 4 on page 68, line 9. It is that point of the Bill that I seek to amend.
Clause 41 and Schedule 4 provide a portmanteau Henry VIII power. It is the ultimate set of Henry VIII powers; you can go no further with such powers than the Government seek to go with these. The Government might seek to defend themselves on the basis that these powers are provided in the context of consequential and transitional provisions, but if the Minister seeks, in the pursuit of the policy set out in the Bill as a whole, to amend primary legislation there is nothing at all in the legislation to inhibit him in any way from doing so.
The Government might also seek to defend themselves on the basis that the courts in practice would construe pretty strictly what powers the Government sought to exercise under these provisions, but we do not want these matters going to the courts. If they do, it takes the courts and judges into political terrain that it would be much better they kept out of.
The Government take powers in Clause 41 to amend or, indeed, repeal any previous enactment up until the end of this year. The noble and learned Lord, Lord Judge, pointed out to us yesterday that a certain provision of Magna Carta was vulnerable under the policy adumbrated in the Bill. I am sure that when he comes to respond, the Minister will explain that he has no intention of repealing Magna Carta. Indeed, we have already been reassured in previous debates that the Government do not intend to use the Henry VIII powers with which they have peppered the Bill to undo the devolution settlements or to pursue other draconian purposes.
However, the Government really have written a constitutional monstrosity into the Bill. As the noble Baroness, Lady Kramer, said just now, this is a bad and improper precedent. Unless the Government can produce a justification, which I find unimaginable, for the taking of these extravagant powers they should not write them into the Bill at all. As the noble Baroness suggested, in an age of populism it is particularly undesirable that extreme powers be taken casually. It is a proper responsibility of your Lordships’ House to keep an eye on what is going on and, where legislative practice becomes unacceptable, to point it out to the other place.
If Members of Parliament perused the Bill and informed themselves in close detail about it, they might consider that they had been rather insulted. We should certainly give them the opportunity to consider that possibility. Members of Parliament on the Conservative side of the House of Commons might be uneasy about what appears to be in conflict with the Conservative Party’s manifesto. I have taken the precaution of looking at it. In the section entitled “Protect our democracy”, it is asserted:
“As Conservatives, we stand for democracy and the rule of law.”
It goes on to say:
“Once we get Brexit done, Britain will take back control of its laws.”
I do not think that, when voters studied the Conservative Party’s manifesto and Conservative parliamentary candidates took it as their oath of prospective office, they actually thought that taking back control of our laws following Brexit would mean a power grab on the part of the Executive, which is potentially happening.
Ministers have already sought to reassure us. In the debates we held on Clauses 21 and 26, it was insisted that there were no such malign intentions as the legislation would make possible. They wanted to reassure us by pointing out that the regulation-making powers so extensively set out in Clauses 21 and 26 could be exercised only under the affirmative resolution procedure. That is a mitigating circumstance, but it by no means undoes the mischief of taking the Henry VIII powers in the first place.
However, in the letter that he wrote to us, the noble Lord, Lord Duncan of Springbank, acknowledged that the regulation-making powers it is proposed that the Government should have under Clause 41 would be exercisable under the negative resolution procedure. He gave no explanation or justification for that. I do not know whether this inconsistency in approach and resort to extensive regulation-making powers under the negative procedure at Clause 41 is the result of a drafting error and a mistake, but if it was there will be an opportunity for the Government to amend it.
Following the amendments made by your Lordships’ House, the Bill will go back to the House of Commons. It would be quite easy for the Government to amend it in this regard, and they could do so with no loss of face or dignity. When Governments are flush with electoral success, they have a tendency to swagger. The bigger the majority and the higher the euphoria of electoral success that they feel, the more important it is that they act soberly when legislating and proceed with humility and magnanimity in their dealings with Parliament. Magnanimity is a Latinate word, which I hope will appeal to the Prime Minister, but if humility and magnanimity are too difficult, the Government should at least conduct themselves in relation to Parliament with respect and courtesy. Macho attitudes to legislation make for bad law.
The manifesto goes on to say that
“we… need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”.
Indeed, our scrutiny of the Bill thus far has indicated that there is a great deal for the Government—and the commission it proposes—to consider in the relationship between the Government, Parliament and the courts.
The manifesto then goes on to say that the new Government and their commission will want to look at the role of the House of Lords. I hope that Ministers in the other place and Members of Parliament will understand that the traditional constitutional role of your Lordships’ House is to act as an advisory and revising Chamber. The principal way in which the House of Lords offers its advice and proffers its revisions is by way of amendments to legislation. In doing so, your Lordships’ House poses no threat to the Government. There is no lese-majesty. In all the debates we have had on this Bill, it is clear that this House accepts that the Government have a mandate for Brexit. There is no attempt by your Lordships to subvert Brexit and thwart the Government in their purpose of enacting this withdrawal legislation.
Lord Hamilton of Epsom
It is probably true that since the election and the outstanding victory of the Prime Minister, this House has finally accepted that a Government are in power who want to deliver Brexit. However, that certainly was not true before the election; a very large number of amendments passed by your Lordships’ House then were intended precisely to stop us leaving the EU. They were wrecking amendments which went completely in the face of the decision taken by the people in the referendum.
Lord Howarth of Newport
As the noble Lord knows, I shared some of his frustrations about the last Parliament. However, in the last Parliament this House did not subvert the authority of the elected House but sought to be in consonance with its wishes. I therefore do not think that Members of Parliament need to be concerned —nor did they need to be concerned during the last Parliament—that the House of Lords is a threat to the House of Commons. That plainly is not the case in this Parliament.
Amendment 29 is a moderate amendment. There are two issues. One is the Government’s propensity to take excessive Henry VIII powers. The other is procedure—the manner in which Parliament should approve the regulation-making powers that would be brought forward under this legislation. My amendment does not seek to remove the Henry VIII powers. It does not say that Clause 41 should not stand part. I do not know what the consequences would be for the proper functioning of the legislation if I had sought to achieve that. I have sought to amend the aspect of the Bill dealing with the procedure for adopting regulation-making powers. I hope that the Government accept that it would be appropriate to substitute the affirmative resolution procedure for the negative one. Even then the amendment would not be ideal, because if your Lordships’ House rejected regulation-making powers under the affirmative procedure, there would be howls of protest, as my noble friend Lady Hayter observed earlier in our debates. It would be regarded as a constitutional outrage on the part of your Lordships’ House. At any rate, if the Government are willing to accept this amendment, it will enable Parliament as a whole—both Houses—to express its view on the legislation and, if necessary, for either House to reject any attempt that the Government might make, by way of regulations, to alter the principles of law or to rewrite primary legislation. I beg to move.
Baroness Butler-Sloss
My Lords, I have put my name to this amendment. A few days ago, we discussed Clauses 21 and 26, as referred to by the noble Lord, Lord Howarth, which people called a constitutional outrage. This is far, far worse. As a constitutional issue, Clause 41(1) takes the Government into realms which, in the years that I have been in this House, I have never seen before.
The noble Baroness, Lady Kramer, set out most of what I wanted to say, putting it rather better than I would have. There is not a great deal else to say, but if the Government are going to say, as I am sure they will, that they do not propose to use these powers, other than to a very limited extent, the short answer to that, speaking as a lawyer, is, “Why have them here?” Why put something so unbelievably wide, which could apply to any law enacted in the past until the end of this year, into the withdrawal Bill if they do not intend to use it?
As the noble Lord, Lord Howarth, said, it is not his—or my—intention to get rid of this objectionable clause but purely to alleviate it, so that if the Government require to make such provision in consequence of the Bill, at least we can look at it. If the Commons can get over its majority of 80, it could look more critically at the legislation to see whether it is really what is wanted and look, with the affirmative resolution, at what is being offered by the Government. Therefore, I support the amendment. It needs to be brought forward to both this House and the other place, because this Clause 41 really is beyond belief.
Lord Callanan
My Lords, we have reached the final amendment. I thank the noble Lord, Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, for their comments and for setting out their positions. I understand the concern of noble Lords about the parliamentary procedure attached to the consequential power in Clause 41. We have already noted these concerns; noble Lords in other debates have raised them and we all read closely the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I addressed many of these points last week, when I spoke to the amendment in the name of the noble Lord, Lord Tope. I hope today to provide similar reassurances to the noble Lord, Lord Howarth. I agree with so many of his points on EU withdrawal, although perhaps not this one.
As noble Lords are aware, consequential powers are standard provisions in legislation, even legislation of great constitutional significance, such as the Scotland Act. If noble Lords look at Schedule 5 to the Bill, they will see that we have already included many of the consequential amendments required as a result of the Act. However, we also believe that we need a power to make further consequential provisions to the statute book.
I am aware that the noble Lord, Lord Howarth, yesterday asked for assurance about why the consequential power in Clause 41 is subject to the negative procedure. I understand the noble Lord’s concern but reiterate that the power is limited to making amendments that are consequential to the contents of the Act. Its scope is very different from the powers discussed over the last 10 days by my noble friends Lady Williams and Lord Duncan, which will be used to implement the withdrawal agreement. It is in everyone’s interest that the statute book functions effectively. Moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make the necessary consequential changes before exit day and could lead to legal uncertainty. I hope noble Lords agree with me that this is not the appropriate course of action.
This procedure is limited to giving Ministers the power to make regulations that are in consequence of the Act, like consequential powers in many other pieces of primary legislation. This power will be construed strictly by the courts. It can be used only to make amendments that are appropriate to legislation in consequence of something that the Act does. I am sure noble Lords agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members of this House will still have the opportunity to pray against regulations, should they consider them inappropriate, as is usual for regulations of this kind. I hope I have provided the necessary reassurances to the noble Lord and that, as a consequence, he is able to withdraw his amendment.
Lord Howarth of Newport
The noble Lord, Lord Callanan, has not provided me with the reassurance I seek. In my earlier remarks, I anticipated the arguments that he would offer about why we can be relaxed about these powers being taken and believe him when he says that the scope would be minimal. That is not the case. I am extremely grateful to the noble and learned Baroness, Lady Butler-Sloss, for speaking as a most distinguished lawyer. She encourages me, in my legal amateurism, to believe that I am on the right track. I think I am. I hope that, even overnight, the Minister may be willing to reflect further on this, and that the Government will accept the amendment. It would be in earnest to the magnanimity on the part of the Government that I venture to hope might manifest.
Lord Callanan
For the avoidance of doubt, this is not a matter that we will reflect on further. Therefore, if the noble Lord wishes to pursue his amendment, he needs to test the opinion of the House.
Lord Howarth of Newport
I also hoped that the Government might want to demonstrate their good intentions towards their future constitutional behaviour, but there it is; we cannot win every battle. Maybe, in the watches of the night, the Minister will repent and reconsider. On that basis, I beg leave to withdraw the amendment.
European Union (Withdrawal Agreement) Bill
Tuesday 21st January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
Lord Ashton of Hyde (Con)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the European Union (Withdrawal Agreement) Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Motion
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, in moving this Motion, I hope that the House will forgive me if I say a few words. I am delighted to say that we are now in the final stretch of our withdrawal from the European Union. Over the past days and weeks, your Lordships have debated the merits of the Bill and I thank the vast majority who have engaged so constructively in this process. It is a testament to the importance of what we do and the experience and expertise that noble Lords have to offer.
I particularly thank my colleagues on the Front Bench—in particular, the Leader of the House and the Chief Whip for their unstinting support, generally—and I thank all my ministerial colleagues. Perhaps I may be impolite and single out two in particular who have done a sterling job: my noble and learned friend Lord Keen and my noble friend Lady Williams, whose support, guidance and efforts in this House have been unstinting. Many other colleagues have helped as well.
I also pay tribute to my opposition counterparts, the two formidable noble Baronesses, Lady Ludford and Lady Hayter. They have worked so hard and kept us on our toes throughout the Bill’s progress.
I also note in particular the valuable work of the Select Committees of this House, so ably chaired by the noble Lord, Lord Blencathra, the noble Earl, Lord Kinnoull, and the noble Baroness, Lady Taylor. As I noted during my Second Reading speech, their scrutiny and insight are most valuable, and their ability to report on the Bill so quickly in order to aid debate is to be commended.
Finally, I pay tribute to those working in my private office—to Bianca Russo and Joe Moore, who have generally exceeded all their hours, even in excess of what the working time directive would permit them to do. I pay tribute, too, to officials across government who have worked tirelessly on the Bill for many months and years, particularly the Bill managers, Oliver Ilott and Hugo Gillibrand. Personally, I particularly thank the government lawyers who have patiently briefed me on everything from glossing, which apparently has nothing to do with paint, to consequential amendments and all the legal technicalities in between.
I would like to take a moment to note that we are disappointed that the devolved legislatures have not consented to those parts of the Bill for which we sought their consent. I want to be clear that the Government recognise the significance of proceeding with the Bill without the consent of those legislatures. Nevertheless, we find ourselves in exceptional circumstances. The Bill must proceed so that we can deliver on the referendum result and leave the EU at the end of the month with a deal in place. However, I want to make it clear that we will continue to uphold and abide by the spirit of the Sewel convention. As I made clear earlier today, I look forward to continuing to work with the devolved Administrations and the legislatures on future legislation.
Tomorrow the other place will consider the amendments made in our House. It is, of course, your Lordships’ right and duty to rigorously scrutinise legislation, to hold the Government to account and, if necessary, to ask the other place to think again when noble Lords believe that is appropriate. However, I take this opportunity to remind noble Lords that we received a clear message from the elected House on 9 January. We have had important debates, noble Lords have made their views known and we must now see what the elected House thinks of those amendments. All noble Lords must bear this in mind that, as we prepare to leave the EU on 31 January, and deliver the Brexit that the people voted for. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, this is a time for both thanks and regrets. Both are heartfelt and serious. We have a lot for which to thank the Ministers—all five of them, I think—as well as their Whips. They have kept to their script, given us no surprises and worked with courtesy and information to enable the process to proceed smoothly.
The Bill team has performed above and beyond normal expectations. Second Reading and three days in Committee in one week, and two consecutive days on Report, is not what they are taught when they go to the “managing a Bill” lecture. We thank them.
On our side, the team has been stellar. It includes my noble friends Lord Tunnicliffe—near silent but businesslike—Lord McNicol, Lord Murphy, Lord Bassam, Lady Smith, Lady Thornton and Lady Jones and my noble and learned friend Lord Goldsmith, with, as ever, Dan Stevens and Ben Coffman behind the scenes. They are a magnificent troop.
However, our regrets are also sincere. Despite the arguments set out across the House, not simply on these Benches, the Government have turned a deaf ear to improvements to the processes in the Bill; to safeguarding the independence of the courts; to pleas for reassurance from EU citizens; to requests from the devolved authorities—we have heard the results of not listening there; and, indeed, to the needs of refugee children. And now we hear that the Government will use their majority to overturn all four of our reasonable, and reasoned, amendments.
We do not lay that on the Ministers in this House but on their masters—or perhaps even their servant—elsewhere. For the moment, as Ed Murrow would say, “Good night, and good luck.”
Baroness Ludford (LD)
My Lords, I too thank everyone involved in the Bill: Ministers, the Opposition, the Cross-Benches, the Bill team and other officials, the clerks and other staff of the House and, as the Minister mentioned, the committees of the House, which provided us with such useful and timely reports. Of course, I also thank the many colleagues on my own Liberal Democrat Benches—too numerous to mention—who have taken part in the Bill’s proceedings, as well as my leader and noble friend Lord Newby, my Chief Whip and noble friend Lord Stoneham, and our adviser Elizabeth Plummer who is, quite frankly, indispensable to us.
Clearly, we would have preferred not to have had this Bill. We on these Benches continue to think that Brexit is a bad mistake and that the UK will, sooner or later, re-join the EU. We feel that this Bill has been improved by the detailed scrutiny and votes in this House that I believe we were entirely right to deliver. We have improved the Bill in two major areas: first, respect for people—the rights of EU citizens and child refugees—and, secondly, respect for the law and the constitution regarding the courts, judicial independence and the devolution settlement. We hope that the other place will consider those carefully, but I am bearing in mind what the noble Baroness, Lady Hayter, has just said. I strongly believe that we have given value for the many days of work we have done on the Bill. I just wish that the Government had been in listening mode.
Lord Hamilton of Epsom (Con)
My Lords, I shall not delay the House long—I know that we all want to go home—but I had a conversation with a distinguished noble friend of mine a few hours ago, and he said, “Of course, the Government will give way on a few small amendments on this to satisfy your Lordships’ House,” and I strongly disagreed with him. Indeed, the noble Baroness, Lady Hayter, has confirmed that the Government will use their majority to turn down all these amendments.
There could only be two reasons why the Government might not want to do that. One would be if there were a tremendous fault in the legislation, and some drafting were completely inconsistent and needed to be adjusted. There seems to be none of that: there have been no compelling arguments as to why the Bill should be adjusted in any way. The other reason would be to create good will in your Lordships’ House. But I have to say that there is no good will towards your Lordships’ House in the other place. We have lost all our friends, who ensured that we continued as an appointed House. Jesse Norman, who was key to all that, is a Minister, and we roughed up everybody else.
The noble Lord, Lord Howarth, described the Government as suffering from euphoria as a result of their majority. I think “euphoria” is a bit strong, but the Government do now have a great feeling of relief because they have a majority that will enable them to ensure that the people’s wish in the referendum of 2016 is fulfilled. The Government, and the other people I talk to in the other place, feel that there has been a conspiracy of remainers, both in this House and in the House of Commons, to ensure that we stayed in the EU.
The debate I have listened to here on this Bill gives me the impression that this House is now resigned to the fact that we are going to leave the EU, but will make those negotiations as difficult as possible for the Government, so that we will get a very bad deal and people can be justified in their view that we should never have left. The storm clouds are gathering, and there is constant speculation in the press on what will happen to this House—but we seem to be completely oblivious to it. We should be very careful about where we go over the coming months.
Lord Cormack
My Lords, I apologise for starting to speak from the Bishops’ Bench, and I hope I shall be forgiven. I just wanted to put it on record that the speech we have just heard is the most ill-judged I have heard for many long years. This House has behaved entirely properly. I think that it is a great pity that there were votes against this Bill, and I made that plain on Second Reading. The will of the people must, of course, prevail. But to pretend that this House has behaved improperly is wrong. We have a place in our constitution that we must honour, and my noble friend is entirely inaccurate in suggesting that what has happened in this place over the last two days has done great damage. I wish it had not proceeded as it did, but I believe behaviour has been right. The only thing that could jeopardise this place would be to return any amendments back to the other place—and that, I trust, we will not do.
European Union (Withdrawal Agreement) Bill
Wednesday 22nd January 2020
(4 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2020 - (22 Jan 2020)
14:05 - The House divided: - Ayes: 338 / Noes: 252 - Question accordingly agreed to.
14:27 - The House divided: - Ayes: 348 / Noes: 246 - Question accordingly agreed to.
14:43 - The House divided: - Ayes: 350 / Noes: 247 - Question accordingly agreed to.
14:59 - The House divided: - Ayes: 342 / Noes: 254 - Question accordingly agreed to.
15:15 - The House divided: - Ayes: 349 / Noes: 246 - Question accordingly agreed to.
Mr Speaker
I must draw the House’s attention to the fact that financial privilege is engaged in Lords amendment 1.
Clause 7
Rights related to residence: application deadline and temporary protection
The Secretary of State for Exiting the European Union (Steve Barclay)
I beg to move, That this House disagrees with Lords amendment 1.
Mr Speaker
With this we may take Lords amendments 2 to 5, and Government motions to disagree.
Steve Barclay
Less than a fortnight has passed since we last debated the Bill in this House. Since then the House of Lords has sat for nearly 40 hours to debate more than 100 amendments. The noble Lords in the other place have asked this House to think again on five matters and I will address each in turn.
Turning first to Lords amendment 1 on citizens’ rights tabled by the noble Lord Oates, I know that noble Lords share the Government’s commitment to putting the rights and welfare of citizens at the heart of our withdrawal negotiations. The first part of the amendment establishes a declaratory system and the second part requires Ministers to bring forward regulations making provisions for those with declaratory rights to apply for a document evidencing their rights. This amendment would mean the successful EU settlement scheme in its current form would need to be abandoned, because there would be no need to register if people could later rely on a declaration that they were already in the UK. This would make null and void the 2.8 million applications and the 2.5 million grants of status that have already been completed. The Government would, under this amendment, also be unable to issue digital status to EU citizens without also issuing physical documents, including to those already holding a digital status under the current scheme. That would increase the risk of fraud and raises costs to Government and citizens.
Anneliese Dodds (Oxford East) (Lab/Co-op)
Surely the Secretary of State is aware that his own Ministers have also been stating that it might be possible for people to print off emails, for example, to provide that confirmation. There seems to be a huge number of mixed messages here. He will also be aware that many of those citizens are already being asked for that proof by employers. Surely the Government should deal with the system as it is actually being used, rather than his imagined reality of it, which is rather different.
Steve Barclay
The hon. Lady anticipates my next point, which is on the interplay between a physical document and the digital status, because, as she knows, digital status is more secure than any physical document could ever be, and furthermore all successful applicants receive a confirmation letter and can download secure share codes which can be printed or sent to anybody an EU citizen might need to show their status to in the future. The key is the number that is there, and digital status is the most secure, but of course people can print off the email that they receive.
The vote to leave included a desire for greater control of our borders. We need to be able to differentiate between EU citizens who arrived pre-exit and have rights set out in this Bill and EU citizens who arrive after we leave, who will be treated the same as the rest of the world under the forthcoming immigration Bill. Despite the good intentions, a declaratory status does not allow for that differentiation, so I urge Members to reject this amendment.
Kate Green (Stretford and Urmston) (Lab)
The Secretary of State will understand that there are, of course, some people for whom the challenge of applying for status is considerable, and the Government have said they will give reasonable consideration to those who have reason not to have applied by the deadline. One group that I and other colleagues are particularly concerned about is children looked after in the care system by local authorities, which do not in many cases have either the resources or the expertise to pursue applications for those children to obtain settled status. Will the Secretary of State assure the House that they will be protected, as they would be under a declaratory system?
Steve Barclay
The hon. Lady makes a fair point, and I know that she has taken a close interest in the issue over many years. As she will be aware, we have committed £9 million to work with vulnerable groups and to help sectors, including the one to which she refers, with using the settlement scheme, and we have introduced a grace period to allow additional time if there are reasons why people need to apply late.
The fact is that the scheme has no charge and almost 3 million people have applied. It is working well, but we have an outreach programme, which includes 57 organisations and money to address the hon. Lady’s point.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Government have previously disputed estimates from respected think-tanks that tens—probably hundreds—of thousands of European economic area nationals will fail to apply by the deadline and therefore lose their rights. Do the Government have their own estimate of the numbers? If they do not, how on earth can the Secretary of State dispute those figures?
Steve Barclay
That is in part why the Government have put a grace period in place; that reflects many previous debates in this House that included concerns raised by the hon. Gentleman and others about whether people might miss the deadline. Almost 3 million people have applied, which is a reflection of the fact that the scheme is working very effectively.
Steve Barclay
I shall make a little progress before taking further interventions.
I turn to their lordships’ amendments 2 and 3, on the interpretation of retained European Union law. Amendment 2, tabled by Lord Beith, would remove the power to set which courts may diverge from retained Court of Justice of the European Union case law, and how. Amendment 3, tabled by Lord Mackay, would insert a mechanism whereby any court thinking that CJEU case law should be departed from may ask the Supreme Court to decide.
The other place has one of the greatest concentrations of legal talent in the world, and it is only right that the Government’s intentions on such a sensitive matter should be examined by their lordships, and that challenging alternatives should be proposed. The Bill ensures that time is built in to allow consultation of the senior judiciary in all jurisdictions. It is worth repeating what my noble Friends Lords Callanan and Keen said: we will, of course, also consult the devolved Administrations.
In proposing amendment 3, the noble and learned Lord Mackay has made an interesting proposal, but the Government cannot accept this recreation of the CJEU’s preliminary reference procedure.
Sir Robert Neill (Bromley and Chislehurst) (Con)
As a fellow lawyer, my right hon. Friend will know the importance of the doctrine of binding precedence—stare decisis—to our common law system. That was what the amendments sought to deal with.
Anyone looking at the Lords Hansard will see that we were clearly close to a compromise with Lord Mackay, in which the necessary scheme to disapply EU law would be dealt with not necessarily by the Supreme Court but by courts of appellate jurisdiction. If we do not accept this amendment as it currently stands, will the Government try again to find a compromise when the matter goes back to the Lords? This is a fundamental principle on which we ought to be able to find agreement.
Steve Barclay
My hon. Friend speaks with authority and constructively about how the issue could be addressed. Let me reassure him that the Government do intend to consider and consult rigorously to ensure that CJEU case law is properly domesticated after the end of the implementation period.
Let me set out to the House, especially hon. and learned Members, that the power in clause 26 is sunset until the end of the year—the point at which courts will start interpreting retained EU law. Any change to the rules of interpretation will come in time for litigants and the courts. We will ensure that there is legal clarity at all times on the rules of interpretation.
Mr David Davis (Haltemprice and Howden) (Con)
I rise to support the proposal of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), to go back to the Lords for a compromise on the matter. Of all the changes incorporated in the withdrawal Act in the past month or two, this is the weakest; it opens a swathe of problems for both Government and judiciary. Lord Mackay got very close to getting it right, and we should talk to him again.
Steve Barclay
I always listen intently to the constructive points put by my right hon. Friend, my predecessor but one. I draw his attention to the fact that we are committed to consulting the senior judiciary on our approach to this matter, which is my right hon. Friend’s underlying point.
Joanna Cherry (Edinburgh South West) (SNP)
The Secretary of State says that he is going to consult the devolved Administrations. However, the problem is that at present the Government speak to them without taking any cognisance of their answers. Will he give me an assurance that when he consults with the devolved Administrations on this matter, he will not only listen but actually take their advice on board?
Steve Barclay
There was a meeting between Ministers and devolved Government representatives yesterday about taking on board the input of the devolved Administrations during our discussions on the next phase of negotiations. There have been instances in which my counterpart in the Scottish Government has paid tribute to one of the Ministers in the Department, for example, in the early consultation on the withdrawal agreement Bill. I appreciate that the hon. and learned Lady’s position will always be to desire more consultation and for the UK Government to take further note, but we are consulting and will continue to do so.
Joanna Cherry
I am grateful to the Secretary of State for giving way again. It is not that I desire more consultation, but that I want the British Government to take on board what the Scottish Government say—
Joanna Cherry
Effective consultation, as the hon. Gentleman says.
As the Secretary of State will know well, the difficulty is that the Cabinet Secretary Michael Russell, the most senior Scottish Government official with whom the British Government deal, is clear: he is listened to if he is lucky, but they never take his advice on board.
Steve Barclay
To say “never” contradicts comments that Mr Russell has himself made, but the hon. and learned Lady has made her point about consultation.
Several hon. Members rose—
Steve Barclay
I shall make a little more progress before taking further interventions. I urge Members to reject both amendments.
I turn to Lords amendment 4, tabled by the noble Lord Dubs. Although the Government humbly disagree with the amendment, we recognise his sincerity about and dedication to this issue and the constructive scrutiny that he has provided on behalf of vulnerable children. The amendment would remove the provision that amends the European Union (Withdrawal) Act 2018 to require the Government to report on their policy on unaccompanied asylum-seeking children.
I can only say again, as I did in our previous debates, that the Government’s policy is unchanged. Delivering on it will not require legislation. The Government have a proud record on supporting the most vulnerable children. The UK has granted protection to more than 41,000 children since the start of 2010. In 2018, the UK received more than 3,000 asylum applications from unaccompanied children, and the UK deals with 15% of all claims in the EU, making us the country with the third highest intake in Europe. Indeed, in the year ending September 2019 the intake rose to more than 3,500.
Stephen Timms (East Ham) (Lab)
I am pleased that the policy has not changed, but why is the Secretary of State changing the legislation?
Steve Barclay
The right hon. Gentleman pre-empts the passage that I am just coming to.
As hon. Members will be aware, my right hon. Friend the Home Secretary wrote to the European Commission on 22 October on this very issue. The amendment in no way affects our commitment to seek an agreement with the EU. Primary legislation cannot deliver the best outcomes for these children, as it cannot guarantee that we will reach an agreement. That is why this is ultimately a matter that must be negotiated with the EU. The Government are committed to seeking the best possible outcome in those negotiations.
Christine Jardine
Over the past three and a half years, there have been many arguments and debates about European citizens’ rights and their protection. Refugee children are among the most vulnerable in the world—surely none of us, regardless of the side of the argument we were on, wants their safety or the possibility of their being reunited with their families to be undermined in any way. Why, then, are the Government so determined to take such provision out of the Bill rather than going with the amendment, which would offer a guarantee and reassure everyone in the House?
Steve Barclay
For the reasons that I have alluded to; this is an issue that the Home Secretary is addressing.
Several hon. Members rose—
Steve Barclay
I give way to the previous Chair of the Home Affairs Committee—I am conscious that that election is still to come.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Secretary of State has still given no reason. Why take the provision out of the 2018 Act? It is in previous legislation. There are loads of things in legislation through the decades that the Government say they disagree with, but amendments are not needed because they have said they disagree, and they do not remove those things from the statute book. That is what makes us suspect that he wants to remove it, because for some reason he thinks that it will restrict what he wants to do, and in the end, therefore, he will betray the commitments that have been made to the most vulnerable children. If not, he should keep the provision in the Act.
Steve Barclay
Let me address that head-on: the reason is that the purpose of the legislation is to implement in domestic law the international agreement that we have reached. That is what the withdrawal agreement Bill is doing and that is why we do not support the amendment. What drives the right hon. Lady’s concern is whether the protections will be in place for unaccompanied children. I draw her attention again to the Government’s record as one of the three best countries in the EU. The figures show that this country has the third highest intake and deals with 15% of all claims in the EU. That is the policy that the Government and the Prime Minister are committed to, and it is reflected in the Home Secretary’s approach.
Gavin Robinson (Belfast East) (DUP)
At this late stage in the Secretary of State’s comments, will he reflect again on Lords amendments 4 and 1? If what he says to the House is true, there is no principle at stake. If the policy and the determined will of the Government remain the same when it comes to unaccompanied child refugees, there is nothing to be lost. There was no strong defence of the Government position in the House of Lords. I urge him to consider this matter wholly and listen to voices across the House who believe that it would be better to see legislative provision than not.
Steve Barclay
I draw the hon. Gentleman’s attention to the comments that I have made: the policy has not changed and the Government’s commitment is reflected in the record, and that is why the amendment should be resisted.
Lords amendment 5 seeks to recognise the Sewel convention. The convention is already found in statute, in the Scotland Act 1998 and the Government of Wales Act 2006. However, the convention in no way limits parliamentary sovereignty. As hon. Members will recall from the Miller case, the Sewel convention is fundamentally political. It was found then not to be justiciable and to reflect it in this statute should not change that.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
The Prime Minister has made it clear that he thinks that the Union is important, as I do, but it is unprecedented that the Senedd, the Scottish Parliament and the Northern Ireland Assembly have refused consent for the Bill. The Welsh Government have made it very clear in refusing consent that it is because the UK Government can potentially force them to accept international obligations in the future relationship, which could impact on devolved competences. When we think about such things as the NHS, that will be absolutely crucial. Will the Secretary of State be clear whether he is going to work with—as well as just meeting and ticking the box—the devolved Administrations on the future negotiations, or is he going to impose this, generating further conflict and damage to the Union?
Steve Barclay
The hon. Gentleman and I both treasure the Union and want to work to ensure that it is preserved. To address his point, we had a meeting yesterday with devolved representatives, including the Welsh Government, to hear their input in the next phase. We are committed to working with the Welsh Government, among others, as we shape that negotiation.
As was noted in the other place, the issue that I was describing is not quite what the amendment turns on. As the noble Lord Callanan said when responding to this amendment yesterday:
“What matters is that the Government continue to uphold the Sewel convention”.—[Official Report, House of Lords, 21 January 2020; Vol. 801, c. 1074.]
We have done so in the passage of this Bill, including by ensuring that devolved Ministers will have a clear role in the functioning of the independent monitoring authority, particularly in their role in nominating to its board members with specialist devolved expertise.
On 17 January I wrote to Mike Russell and Jeremy Miles, my counterparts in the Scottish and Welsh Governments, to make clear the Government’s commitment to the legislative consent process and the enduring power and value of our historic partnerships. We are of course disappointed that the devolved legislatures have nevertheless not consented to the Bill.
Steve Barclay
I will take one more intervention, but the direction from the Chair is that I should allow other Members to speak in the debate and not take undue time.
Wayne David
Given the Secretary of State’s reference to the letter to the Welsh Government and the Welsh Minister, how does he square the circle of wanting, on the one hand, to reinforce the principles of Sewel and so on, but on the other, wanting to amend the legislation to withdraw the commitment?
Mr Speaker
Order. I am bit bothered about time. We have quite a few Members who want to make speeches. I remind Members that they cannot just walk in and put a question to the Minister—let us all work together for one another.
Steve Barclay
I was trying to be generous in taking interventions, but I will take your direction, Mr Speaker.
We very much respect the devolved Governments’ opposition to Brexit as a whole, but the legislative consent process should not be the place to show such disagreements; rather, it is for voicing concerns with parts of legislation that relate to devolved competences. The refusal of legislative consent in no way affects the Sewel convention or the Government’s dedication to it. However, as recognised by both Mike Russell and Lord Sewel, these are not normal times. Given those circumstances, I urge Members to reject this amendment.
We have covered significant ground in debating this Bill. Once passed, it will stand as an historic piece of legislation. I therefore hope that the House will respectfully disagree with their lordships’ amendments.
Thangam Debbonaire (Bristol West) (Lab)
I rise on behalf of the Opposition to explain why we oppose the Government on all five of their motions to disagree with their lordships.
On EU citizens’ rights, their lordships passed an amendment providing for, first, a declaratory system for gaining settled status and, secondly, for a physical document. The declaratory system would honour the previous Government’s pledges to EU citizens living here before we leave the EU that they would enjoy the exact same rights as before—we are just asking this Government to honour that. It would avoid the cliff edge of time limits—the grace period still means that there is a time limit—and pressures on people who have the legal right to be here but who, for various reasons, are being asked for yet more evidence or have only been given pre-settled and not yet settled status.
The Government talk of the 2.5 million people who have been granted status, but many of those who have applied for settled status and are entitled to it have been granted only pre-settled status, which does not give that promised certainty. Many people are not aware that they need to apply, particularly those who have been here since childhood. Others may not apply in time, for many good reasons. The Secretary of State says that late applications for good reasons will be considered, but we do not really know what good reasons will count. That does not give certainty.
The Minister in the other place argued that declaratory registration is not necessary because the current scheme addresses all problems, but it does not. The arbitrary time limit and the problems and delays in securing status all risk making some people who should be lawfully resident unlawfully resident past the time limit.
The physical document—the other part of the amendment—is vital. Surely we in this Chamber all know that internet signals are not reliable. People do not all have smartphones. Other categories of non-UK citizens have a physical document, so it is not surprising that the Residential Landlords Association say that it is deeply concerned about the lack of physical proof and that landlords are not, and should not be treated as, border police. In a perverse justification of the policy, Ministers have said that providing a physical document, as this amendment proposes, would make a future Windrush-style scandal more likely. On our understanding, it is the exact opposite.
Stephen Doughty
My hon. Friend is making an absolutely crucial point. That is very much what we heard in evidence from experts at the Home Affairs Committee during the Windrush inquiry in the last Parliament. They talked about the importance of physical documents and the declaratory system issue.
Thangam Debbonaire
My hon. Friend makes exactly the right point. Government Members should consider that the Joint Council for the Welfare of Immigrants, the3million and the Residential Landlords Association have all warned that there is a risk that landlords and employers will be reluctant, without that immediate physical proof that other Windrush citizens lacked, to let a home or offer a job to EU citizens.
Jamie Stone
The shadow Minister has referred to poor communications. As I have mentioned many times in this place, they are very bad indeed in my constituency. Broadband is at best indifferent. I suggest to the House therefore that many EU citizens are being disadvantaged when trying to get into the system at all because of where they live.
Hilary Benn (Leeds Central) (Lab)
My hon. Friend will be aware that the Brexit Select Committee in its former incarnation recommended a physical document. Many Members will have had this experience: constituents apply for further leave; employers say, “Prove you have leave”; they are told by the Home Office, “Apply to the checking service”; lots of employers refuse to do that, and as a result our constituents lose their jobs. Is that not precisely the kind of reason we need a physical document?
Thangam Debbonaire
My right hon. Friend is exactly right. I ask Government Members to imagine a future constituency surgery in which they are asked to explain to their constituents who are EU citizens why they have been denied a physical document or settled status or have experienced delays in getting that status changed, and have thus been refused a job or a home—because their MP refused to back this amendment. Their constituents will ask, “Why did you vote this way?” and they will need a good answer.
Stewart Hosie (Dundee East) (SNP)
The hon. Lady will have heard the Minister say that online status is more secure, but someone with leave to remain or who is here on a spouse visa gets a physical residents’ permit. If online status were more secure, the Government would have done away with that, but they have not. Is that not the point? The Minister’s point about security is no justification for opposing Lords amendment 1.
Thangam Debbonaire
That is spot on. It is why many EU citizens in my constituency say they feel singled out—because they do not have what other non-UK citizens have, which is a physical document.
I turn to the CJEU and Lords amendments 2 and 3. In clause 26, the Government signal their intention to create chaos and uncertainty in our legal system. I can do no better than quote from the noble Lord Pannick, who said he supported the amendment for the following reason:
“Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply.”
He went on:
“These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.”
Later he said—and he was absolutely right—that
“once they are conferred the political and legal constraints if they decide to act unreasonably are limited.”—[Official Report, House of Lords, 20 January 2020; Vol. 801, c. 984.]
The Government ask us to trust that they will not go beyond existing constraints, but that is not good enough. Clause 26 would lead to different interpretations of the law in higher and lower courts, greater uncertainty and therefore more litigation. That cannot be what the Government want. Amendment 2 therefore simply deletes the entire provision.
Amendment 3 was a compromise proposed by a Conservative former Lord Chancellor, Lord Mackay—surely a man whom Government Members would want to listen to. He tried to find a compromise whereby the ministerial right to make regulations would be removed. Instead, any court could consider the possibility of departing from case law but would have to set out its reasons and refer the case to a higher court. What on earth could be the problem with that?
Geraint Davies (Swansea West) (Lab/Co-op)
Surely my hon. Friend accepts that ultimately the test of when courts can diverge from EU law should be set in this Parliament and applied by our courts and that, if there is any question, it should be referred to the Supreme Court. That would maintain the division between Parliament and the courts.
Thangam Debbonaire
The problem is that we are allowing Ministers to set the terms and test, which is an unacceptable breach of the boundaries between the Executive and the judiciary.
The Government have had plenty of time to consider the provisions of the European Union (Withdrawal) Act 2018. If they want more time, just giving Ministers broad and sweeping powers is not the answer. They could, if they wanted, bring a short Bill before Parliament with proposed amendments that we could debate and scrutinise in the usual way. Every Government Member must understand—it seems that several possibly do, although they are no longer in their places—that if they pass the Government’s motions to disagree with amendments 2 and 3, the separation of powers will be blurred, there will be legal chaos and it will be impossible for Parliament to change. These are not powers that should be exercised through regulation. We should not risk ministerial interference in judicial processes. The Government should think again and withdraw their motions to disagree. If they do not, we will vote against them.
Thirdly, I turn to child refugees and Lords amendment 4, to leave out clause 37, which amends clause 17 of the 2018 Act and thus removes the obligation on the Government to negotiate future arrangements to protect unaccompanied child refugees. This is such a modest provision—it also reflects the Government’s own commitment—that it seems extraordinary and inexplicable that they are removing it. I have very dark and deep suspicions about why, though I want to be charitable and I am hoping there may be a good answer.
As Lord Dubs said, it is partly the scattergun of justifications that leads one to be suspicious. He was asked by Ministers to trust them, and he very generously said that as individuals he did trust them but that he did not trust them as a Government—because their predecessor Government had form on this. They promised to take 3,000 children on the Dubs scheme, as originally committed to, but took fewer than 500 in the end. The Government have boasted, as the Secretary of State has just done, about the number of children given refuge in this country, but have ignored the fact that most could not and did not come by the safe or legal routes that currently exist, even when entitled to them under the current law. They were often trafficked or took dangerous journeys in order to reach their family members, because they felt they had no other choice. We are talking about reuniting families, but removing the already restrictive access to safe and legal routes does not decrease the risk of trafficking; it increases the risk.
Stephen Kinnock (Aberavon) (Lab)
My hon. Friend is making an excellent statement. Does she think that the phrase “global Britain” means we stop supporting and giving sanctuary to some of the most vulnerable people in the world? [Interruption.]
Thangam Debbonaire
Of course not—hon. Members on the Government Benches seem to agree with my hon. Friend—but if so why remove the provision? Why not keep it in?
The Government say there is no change of policy, but the removal of clause 17 is a change of policy. They complain that leaving the provision in will act as a pull factor, but that rather indicates that what they want is a change of policy. They tell us that this is not the right Bill for the provision and that it should be in the immigration Bill, but clause 17 is context and time-specific: it directs the Government to a negotiating objective during the very time limited period—a matter of months—that they now have to agree the future relationship. As the Secretary of State has said, we cannot bind our neighbours to our national law, so that is not a valid argument against putting any other commitment in any other law. This provision only commits the Government to a negotiating aim. They say it can be done through rules, but a negotiating aim cannot be pursued through immigration rules. So which is it—is it law, is it rules, is it an aim, or is it no change at all, as they have also claimed?
The Government have said the provision would bind their hands in negotiations but then became offended at the accusation that they were using children as a bargaining chip. Again, which is it? Are children a limit on the negotiations or not? They have also justified their argument on the grounds of the election manifesto, but the only words in that manifesto were:
“we will continue to grant asylum and support to refugees fleeing persecution”.
There is not a word in that manifesto that implies this change of policy—and it is a change of policy—on child refugees. Just saying that it is not a change does not make it so. If it is not a change of policy, why does the provision need to be removed?
Mr Peter Bone (Wellingborough) (Con)
The shadow Minister brings up a hugely important area. As a former chairman of the all-party group on human trafficking and modern slavery, I consider it a very important issue. I hope the Government will commit to coming back to us, but separate from the Bill. I accept their argument that this Bill is the wrong place for this provision. It is much more important elsewhere.
Thangam Debbonaire
I thank the hon. Gentleman for that point and for his partial agreement—I think—but if it is not acceptable in this Bill, why would it be acceptable in another? It is a negotiating aim, and we are told by the Secretary of State that the negotiations have already started.
To my understanding, all that has happened is that the Home Secretary has written a letter. I think that was in November. We have not yet heard what reply there has been or about any negotiations. I do not want to believe that the Government think so little of our country that they are pulling back from protection for the very small number of children that this clause originally covered. I hope that we as a country are secure enough in ourselves to be generous to those fleeing persecution. I ask Government Members to consider that this motion demonstrates a lack of compassion. The Government’s reasons are contradictory and there are no justifications in the manifesto for removing this very modest, limited but necessary provision to protect some of the most vulnerable children we can imagine.
Alison Thewliss (Glasgow Central) (SNP)
Many of my constituents have been in touch with me, including Kirsty, who told me that her granddad was forced out of Czechoslovakia as a child after world war two and came to the UK as a refugee, where he was reunited with his parents. Many of my constituents have experience of that family reunion, and they, too, do not understand why the Government would want to row back on it. Does the hon. Lady agree that the Government really must change their mind?
Thangam Debbonaire
I thank the hon. Lady for that intervention. It is clearly important to put on the record again that we are talking about reuniting children with an adult relative who is here legally. We are not talking about people who have no right to be here; we are talking about protecting the requirement to negotiate that. We really, really ask the Government to think again, and if they do not, we will vote against the motion.
Alison McGovern (Wirral South) (Lab)
May I add, very briefly, to what my hon. Friend has said about family relationships? We also want the Government to stick to the principle that this should be an adult to whom the child is related, not just a parent.
Thangam Debbonaire
My hon. Friend is absolutely right. I do want the Government to stick to that commitment. For the Government to ask us simply to trust them because it will pop up in another bit of legislation is just not good enough.
Let me finally deal with Lords amendment 5, which relates to devolution. This will be the shortest part of my speech. The Sewel convention provides that when Parliament wants to legislate on a devolved matter, it will not normally do so without the relevant devolved institution being properly consulted. All we want to do is ensure that that happens. Our devolved nations need to know that Government assertions about UK sovereignty in clause 38 are properly and legally tempered by respect for the law, conventions, and practices on devolution. That seems completely reasonable to us.
Wayne David
Does my hon. Friend agree that despite what the Government are saying, the impression is being given that they wish to undermine the Sewel convention through their act of opposing this amendment?
Thangam Debbonaire
That is indeed the impression that seems to be being given. I suggest that Conservative Members, particularly those who are newly elected and represent constituencies in Scotland and Wales, should ask themselves whether this is what they told their voters back in November. Did they tell them that they would be voting against respecting devolution? Is that what they said to their constituents?
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
The hon. Lady will, of course, be aware that the Northern Ireland Assembly, the Welsh Senedd and the Scottish Parliament have refused consent. What does it say about the so-called partnership of equals if the three devolved Parliaments are completely ignored by the British Government?
Thangam Debbonaire
I think what it says is that the Government will consult, but they are not listening. I think it mighty suspicious that the refusal to respect the amendment comes after those devolved legislatures said that they did not consent.
Wera Hobhouse (Bath) (LD)
The Government talk so much about democracy during election campaigns, but is it not time they accepted that listening to our devolved communities is very much part of democracy? They cannot just go out and talk about democracy and forget that.
Thangam Debbonaire
The hon. Lady is quite right. That is one of the problems that we had during the previous iteration of the Bill, and even more in the case of this one.
Sir Bernard Jenkin (Harwich and North Essex) (Con)
Will the hon. Lady give way?
Sir Bernard Jenkin
I am the first to acknowledge that the hasty publication of the original European Union (Withdrawal) Bill, including clause 11, left a scar because of the lack of consultation, but the Sewel convention remains on the statute book. It is not being deleted. We do not repeat everything important in every Act simply to re-emphasise it. That is a kind of virtue signalling that it is not necessary to include in this legislation.
Thangam Debbonaire
If the hon. Gentleman thinks that the convention is already law and we should respect that, why not just accept the amendment? Clause 38, which it seeks to amend, makes the somewhat obvious statement that this Parliament is sovereign. Why does that need to be in the Bill? I should like the Secretary of State at some point to make a commitment, on the record, that the Government will not introduce legislation on devolved matters without proper consultation.
This was a bad Bill in October, and it is a worse Bill now. Amending it is not stopping Brexit; it is about the future, and our long-term relationship with our neighbours. Scrutinising and amending legislation and holding the Government to account—it seems odd that I have to remind the Government of this—is exactly what we are supposed to do in both Houses.
Again I ask Conservative Members, especially those who are newly elected, whether they really think that this is what their voters wanted. Their voters may well have voted for Brexit—the Opposition accept that—but did they vote for the Government to break trust with the country on child refugees? Did they vote for the separation of powers between the judiciary and the Executive to be blurred? Did they ask for Ministers to be given more ability to interfere with the independence of the courts? Did they really vote to treat people who have been here legally for years, who have the legal right to be here, who have families and jobs and live here, to be treated differently, as second-class citizens? Did they vote for central Government to be able to impose their will on the devolved legislatures?
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. Very short contributions are required, as there are only 20 minutes left. For two minutes, Sir William Cash.
Sir William Cash (Stone) (Con)
I simply want to say that I concur entirely with what the Secretary of State has said, and to refer very briefly to Lords amendments 2, 3 and 5.
Let me say first that the Government’s arguments about the question of the lower courts in relation to the Supreme Court are completely valid. I think that an enormous number of complicated problems will emerge from Lord Mackay’s amendment. The use of expressions such as “is of the opinion” and
“set out the reasons for that opinion”
will create a quagmire of interpretation.
As for Lords amendment 5, when I had the pleasure of advising on the Canadian constitution back in about 1982, I engaged in extensive discussions with Mr Geoffrey Marshall of The Queen’s College, Oxford, who is the greatest authority on the question of conventions. I entirely agree with the Government’s position on that, in the light of my own experience of what conventions actually mean, and I have to say that I have heard a lot of hogwash this afternoon in support of the alternative view.
Joanna Cherry
Should not the Scottish National party’s Front-Bench spokesman have been called?
Christine Jardine
My apologies. Let me just say that I fully support the statement by the hon. Member for Bristol West (Thangam Debbonaire) that this is not about trying to refight the argument over Brexit; it is about what is best for the future of the country. In their manifesto just last month, the Government promised voters that the rights of European citizens would be protected. I appeal to Conservative Members to stand by that, particularly when it comes to the vulnerable children whom we have already discussed, who are separated from their families, who are refugees, and whom we can reunite legally with their families in this country. Why are the Government so reluctant to put that back in the Bill and protect it by law?
May I end by saying one tiny thing about the Sewel convention? The Government say much about protecting the United Kingdom, but I would ask them to consider how often they undermine their own argument and tie the hands of those of us on the Opposition Benches who want to protect and work for the United Kingdom. I learned a long time ago that impact is intention, and regardless of the intention in respect of the Sewel convention, the impact of it is to damage our own argument. The Liberal Democrats will therefore oppose the Government, and will support all five amendments.
Sir Bernard Jenkin
The devolution question has been running ever since the publication of the European Union (Withdrawal) Bill in the summer of 2016—or 2017, I cannot remember—and there has been an erosion of trust. I plead for us to try to rebuild that trust between the different bits of the United Kingdom, because they will have to exist even if at some distant future date Scotland becomes an independent country. The question is: how are we going to rub along together?
I want to add a particular point about the supremacy of EU law. There is no power grab in any of this. The powers that are being held by the United Kingdom Government are simply the powers that were being held by the European Union since the inception of devolution. Some are arguing that the repeal of the European Communities Act 1972 means that there is an implied power grab from the devolved Assemblies and that these matters are not automatically being transferred back to the Assemblies. However, these are powers that the devolved Assemblies never held. In fact, the EU has the power to make international agreements that grab more power from the devolved Assemblies without any consultation whatever, so what we have is an improvement in the situation.
I understand why these matters become inflamed, but we should try not to inflame the division that exists between us on other matters by using this issue. That is not going to improve the harmony of the relations between this Parliament and the devolved Parliaments, or between this Government—any Government—in Westminster and the devolved Governments. I appreciate why some might take a different view because they have an agenda—which I completely respect, I really do—but this is not the time, in this Bill, to start fomenting those particular issues.
Dr Philippa Whitford (Central Ayrshire) (SNP)
The SNP group supports all five of the Lords amendments and will therefore be voting against the Government. With regard to a declaratory system, the Secretary of State keeps saying that it will make things more confusing, but it would make it a registration rather than an application. The difference is that under such a system, there would be a guarantee of acceptance, which does not exist at the moment. The Government say that between 85% and 90% of EU or EEA citizens will get settled status quite easily, but that means that between 300,000 and 450,000 people will not. We can see that the people who are struggling with this are those who have had career breaks or caring responsibilities, which is particularly affecting women. There has been no sign of an equality impact statement on this, but there simply should be. The elderly and frail who have been here for decades have been overlooked, including people in care homes or those with dementia. It is wrong to have even the slightest threat hanging over such people who have spent their whole lives here.
The question of a physical document is also really important, as other Members have explained, with regard to dealing with landlords and employers, particularly because the internet is not always accessible. The Secretary of State said that people could download the email that they are sent that explains their status, but that email explicitly states that it is not proof of status. It does not provide such a document, even if it is printed. I am sorry, but after Windrush, EEA citizens and others do not trust the Home Office not to lose, delete or change their records.
Amendments 2 and 3, relating to clause 26, would remove the delegated power of Ministers to decide which courts and which test should be used to set aside ECJ judgments. This power steps away from the principle of precedence and raises concerns about judicial independence. The Conservatives put in their manifesto that they wanted to rebalance power between the Executive, Parliament and the courts. That starts in this Bill, and we should be very wary of it.
Amendment 4 relates to Lord Dubs’ amendment to restate the Government’s commitment to unaccompanied child refugees. Removing this proposal was probably the thing that most shocked MPs on both sides of the House, who felt that the Government simply could not justify it. At the end of transition, the UK will be outside the Dublin system, and transferring an application for refugee status from one country to another will disappear. The problem is in paragraph 319X of the immigration rules, which is all about the cost of a child coming and the ability to accommodate them. It pays no attention whatever to what is best for the child. That is what the Dublin system does, and the original clause simply said that the Government had to negotiate on this. There is nothing in that for the Government to object to.
Amendment 5 relates to clause 38. We are in unprecedented territory when all three devolved Parliaments have voted against giving legislative consent for this Bill. This is not just Governments; this is not just people who have the same agenda. It is the Parliaments that have voted in this way, and this Government ignore that at their peril. People now feel that, after 20 years, devolution is threatened not just by this Bill but by the former changes. Devolution is precious to people, even to the people who do not support independence, and the Government riding rough- shod over it really sends a message of disrespect. The Prime Minister likes to define himself as the Minister of the Union, but he cannot maintain a relationship or a marriage through force. It has to be based on respect. If all of this leads to the crumbling of the precious Union, he will have only himself to blame.
Mr Mark Harper (Forest of Dean) (Con)
Given the shortness of time, I will limit my remarks to those subjects that have not been addressed at length today. On amendment 1, which deals with the declaratory system and the documents, I want to make two points as a former Immigration Minister. First, on the declaratory system, I think it is important that we should have the current system, which encourages people to establish their status and ensure that it is clear now. The lesson that I took from Windrush was that one of the problems was that people laboured for many years under the sometimes correct but often incorrect understanding that they had a legal right to be here and all the appropriate documents, only to discover many years down the line that they did not. Encouraging European Union citizens to register and establish that certainty now is sensible, and taking the existing system—which, as the Secretary of State says, has already had 2.5 million successful grants—and effectively having to restart it would not be a good way of delivering certainty.
On amendment 4, which deals with the so-called Dubs amendment, the Government are trying to establish an important principle. I have not heard this set out particularly clearly, but the question is whether Parliament should legislate for the Government’s negotiating objectives. That position was never taken by the Government in the last Parliament, but because the Government did not have a majority, that Parliament forced certain negotiating objectives on the Government. I think it is better to re-establish the traditional mechanism whereby Governments negotiate treaties and bring them to Parliament for ratification into law. That might sound like a minor point, but it is an important one to establish. The Minister in this House has made it clear, as has Lady Williams in the other place, that the Government’s policy has not changed. There is now a relatively short period of time until the end of this year, and it is worth saying that the European Union has committed in three separate paragraphs of the political declaration to agreeing our future relationship by the end of this year, as well as our having made that commitment. I am therefore confident that we will have re-established the Dublin regulation in practice by the end of this year, which is why I firmly support the Government in rejecting this amendment.
Finally, the Sewel convention is already enshrined in statute. I listened carefully to what the hon. and learned Member for Edinburgh South West (Joanna Cherry), who is no longer in her place, said about this. Consulting someone, listening to them and taking into account their views is not the same as doing as they say. The problem is that it seems to me that the three devolved legislatures are simply refighting the Brexit argument. In 2014, the people of Scotland decided, for a generation, that they wanted to be part of the United Kingdom, and in 2016, the United Kingdom voted to leave the European Union. If the devolved legislatures were accepting of that decision and were trying to help the Government to deliver it in a better way, that would be one thing, but they are trying to refight the battle that they lost.
Bambos Charalambous (Enfield, Southgate) (Lab)
Last year, I visited the camps in Calais. I met some refugee children, camped in the woods, who longed to be reunited with family members living in the UK. Those children have fled war and violence. It is only right that we uphold our moral duty and afford them the right to arrive in the UK safely. They are at risk of abuse and exploitation by traffickers. If safe routes are not provided, all this measure does is make dangerous channel crossings more likely.
Amendment 4 puts back provisions that were taken out of the previous withdrawal agreement, preserving the rights of refugee children to travel to the UK from an EU country after Brexit. The Conservatives claim to be the party of the family, yet this policy and their actions exacerbate divisions that cause harm and distress and put these children’s lives at risk. I have no faith in the Government to protect such rights in other legislation. Their track record on doing anything to support refugee children coming to the UK is appalling. Amendment 4 is in the right place; it should be in this Bill. The amendment speaks to our humanity as a country. If it is not agreed to, we will be failing in our moral duty.
Vicky Ford (Chelmsford) (Con)
I want to set this debate in the big picture. People voted for Brexit, and in December they voted to get Brexit done. It has taken us three and a bit years to reach this stage, and we will be leaving the EU in just a few days’ time. Then we will have to move quickly into negotiating the long-term deal. Time and again over the past few years, I have heard EU counterparts say, “The problem with the British Government negotiators is that we don’t know if they can carry Parliament with them.” It is so important that we send the message to the rest of Europe that what is agreed with the EU can be passed through this Parliament. That is why it is so important that we pass the withdrawal agreement that was agreed through this Parliament. Yes, there are important matters raised by these amendments. Of course we want to support child refugees; we always have done. Of course we must make sure that EU citizens’ rights—[Interruption.] And incidentally, we always will support child refugees. Of course we must also support EU citizens, but the right place to do that is in other legislation, not in this Bill.
Yvette Cooper
In the last Parliament, the Home Affairs Committee produced a report calling for a declaratory system and also a physical document. It is possible to have a declaratory system that protects rights, but also to ensure an incentive for people to apply and get the document. If all of us in this House were suddenly told that our rights to get healthcare, rent a house or get a job depended on the workings of a Home Office computer system, we would have no confidence in it. That is why people want to know that there is a permanent document. I urge the Secretary of State to think again, because this will go wrong, and also just to accept the Dubs amendment. Do not put at risk or cast any doubt on this country’s commitment to child refugees.
Mr Steve Baker (Wycombe) (Con)
I think we should be thankful that we have the opportunity to think again on these matters; I rather regret that we have so little time.
On the issue of a declaratory right, I am very open to the spirit of having a declaratory system. It would send a wonderful signal about how open we are and how welcome people are to stay, but the sheer truth of it—I say this as the former Minister responsible for domestic preparedness in the Department—is that it is way too late to be making this decision now. I am afraid the proposal shows rather an ignorance of how government systems work and of the whole business of delivering a system that can work for literally millions of people. If the proposal were accepted, we would have to abandon giving status to millions of people. It needs to be removed from the Bill, so that we can get on and deliver status for people in a system that is working.
On Lords amendment to clause 26, the power is sunsetted to the end of the year. On the amendment from the noble Lord Dubs, this is one of those areas where we should be thankful that we are thinking again, but, bearing in mind that it is not long since we heard a general acceptance in this House of the proposition that we are all here to pursue the common good in good faith, it is deeply regrettable that some Members have sought to suggest that there would be any lack of commitment on our part to family reunion for refugee children. It is quite wrong. [Interruption.] The hon. Member for Airdrie and Shotts (Neil Gray) says that actions speak louder than words. We will earn the respect of the public by delivering.
European Union (Withdrawal Agreement) Bill
Wednesday 22nd January 2020
(4 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2020 - (22 Jan 2020)
Lord Callanan
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, with the leave of the House I will speak also to Motions B to E.
We are at the end of what seems like a very long road. The final stages of this Bill represent something that many of us thought might never happen: Parliament passing the legislation necessary to implement a Brexit deal and finally to deliver on the 2016 referendum. It has been no mean feat, with nearly 40 hours of debate and over 100 amendments in this House in the past fortnight alone. Last night, I was able to give my thanks to officials, colleagues and friends across the House who have helped us to reach this point; let me thank them once again.
Of course, I know that many noble Lords on the Benches opposite are disappointed that the Commons has chosen to disagree with all of the amendments that noble Lords passed this week. However, I would like to reassure them that their expertise and contributions will continue to play a valuable role after Brexit. Following our exit, this House will see more legislation on a range of topics connected with our departure from the European Union, and in some cases it will be the first time in decades that the UK has legislated on some of these matters.
But today, the Motions before this House recommend that it should agree with the position that the elected House has taken this afternoon. As my right honourable friend the Secretary of State said earlier in the other place, the Government welcome and appreciate the rigorous scrutiny provided by this Chamber. He also set out in detail why the Government are unable to accept the amendments from this House. If noble Lords will indulge me, I will take a moment to touch on the amendment moved by the noble Lord, Lord Dubs.
The Government have been clear that we remain committed to seeking an agreement with the EU for the family reunion of unaccompanied asylum-seeking children and we have already written to the European Commission to commence negotiations. Furthermore, we have gone beyond the original amendment tabled by the noble Lord, Lord Dubs, to provide a policy statement to Parliament within two months of the withdrawal agreement Bill’s passage into law. This demonstrates our commitment to report in a timely manner and guarantees Parliament the opportunity to provide more scrutiny. We hope, of course, to have completed those negotiations as soon as possible in order to minimise any disruption to unaccompanied asylum-seeking children. We will also continue to process family reunion cases referred before the end of the implementation period.
I hope that I can also reassure the noble Lord, Lord Dubs, on behalf of my noble friend Lady Williams, that Clause 37 of the Bill does not amend the definition of relatives under the 2018 Act. A relative means
“a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or … a parent, grandparent, uncle, aunt, brother or sister of the child”.
Finally, as we have already explained, primary legislation is not necessary to deliver our commitment on unaccompanied asylum-seeking children. I hope this reassures the noble Lord that we take his concerns seriously.
As I come to a close, I hope noble Lords will forgive me if I take just a brief moment of self-indulgence, as this may well be my last outing at the Dispatch Box as a DExEU Minister—unless, of course, the noble Baroness, Lady Ludford, has some more plans for PNQs again next week. It has certainly been quite a journey. When I took on this role, I knew it would be a challenge—not least as a leaver in a predominantly remain House. After, by my rough calculations, two government Bills, more than 20 debates, 49 Oral Questions, 10 Statements, four PNQs, 10 Urgent Questions and around 250 hours at this Dispatch Box, I can honestly say that I have enjoyed almost every minute of it. Given the tremendous expertise of this House—with many ex-senior Ministers, ex-MEPs, the author of Article 50 and ex-EU Permanent Representatives, to name but a few—the sheer quality of debate, political sparring and questioning is always second to none. I can only apologise if the quality of the answers is sometimes not to the same high standard. I am honoured to be part of this House, and I thank the Leader in particular for having given me the opportunity to play my part in delivering the result of the 2016 referendum and finally getting Brexit done. That is it—the end. I beg to move.
Lord Dubs (Lab)
My Lords, perhaps I ought to congratulate the Minister on his stamina, as he has described it so well, but also my colleagues on the Front Bench, who have shown similar stamina and persistence. I thank the Minister for the assurances he has given me regarding the amendment I sought to introduce on unaccompanied child refugees. I wonder if I could just nudge him a little further.
Lord Dubs
It is very gentle. He has given the definition of a relative and that is fine; he has confirmed it. He referred to the Statement that will be made by a Minister in a couple of months, setting out the Government’s further plans on this. I hope that Statement will include the nature of the preparations that the Government will make to ensure that this process works in time for 1 January 2021, by which time we have to have something new in place—just an assurance on what the Government will do to make sure that is all in place.
Finally, a lot of people have written to their Members of Parliament and some of the replies have come my way, not surprisingly. It is interesting. Conservative Central Office ought just to make sure that it is in line with the Minister. For example, one of them talked about exiting the EU and so on and so forth, and said it is important that the legislation comes under the Home Office in the form of the immigration Bill. Another letter says it is sensible and pragmatic to legislatively include it in the immigration Bill. MPs are saying to their constituents that all this ought to be in the immigration Bill. I understood otherwise; I understood that the Government’s view was that it did not have to be in the immigration Bill. I think somebody is not listening to somebody else. I say that very gently, but I thank the Minister for the assurances he has given.
Lord Oates (LD)
My Lords, I regret the Government’s decision to reject all the amendments, in particular the amendment that the noble Lord, Lord Dubs, has just spoken to and the amendments that my noble friends moved.
I am sorry that in another place the Minister, when addressing the EU citizens amendment, failed to make any arguments at all. Indeed, so devoid of them was he that he resorted to a whole load of canards and non sequiturs. I could go through them at length, if I thought the Government were in any way moved by arguments on this, but it is clear to me that they are not. Sadly, and without any coherent reason at all, they have rejected an amendment which would have improved the Bill, alleviated the severe anxieties of EU citizens who are currently being refused documentary proof of their right to settled status, and ensured that the Prime Minister and the Home Secretary kept the promises they made to EU citizens during the 2016 referendum campaign.
Our amendment did not seek to interfere with any rights under the settled status scheme, nor did it do anything to thwart or delay Brexit. The proposals were not radical: the provision of documentary evidence of status is exactly the system that exists for non-EU holders of indefinite leave to remain. Our proposal for a declaratory system was simply aimed at preventing the Government and EU citizens becoming embroiled in a bureaucratic quagmire after June 2021.
As a result of the Commons’ failure to heed these modest requests, the conditions have been created for a great injustice to be visited on tens, perhaps even hundreds, of thousands of EU citizens. Millions of EU citizens will continue to face deep anxiety about their status as a result of the inexplicable decision to refuse to provide them with documentary proof. This is not an arcane debating point. This decision will have a real impact on people’s lives. Every member of the Government and every one of its supporters should, frankly, be ashamed that they are party to a casual abandonment of a solemn undertaking made by the Prime Minister and the Home Secretary to EU citizens during the course of the referendum. I am sorry that it has been abandoned so casually.
EU citizens in this country—and UK citizens in the EU, who are concerned about how the UK’s approach at home will impact their position in the EU—can be assured that, despite the set-back today, we will not give up the fight for good sense on this matter to prevail. Although our amendment has not gone through today, we will seek further legislative opportunities to ensure that it does so in future.
Lord Mackay of Clashfern (Con)
My Lords, I would like to say a word or two about the two amendments in which I had an interest. I am sorry that my voice is not quite up to it, but it is better than it was yesterday.
I am very glad that the situation now is that Parliament can act and get on with what is required. Clause 26 is the one I am interested in. Your Lordships will remember that the noble Lord, Lord Beith, moved an amendment to take out the provision which required a selection of courts to be made in a statutory instrument. I had understood that the Prime Minister had said that he wanted all courts to be able to deal with this matter in some way. By a majority of around 100, those in the House of Commons preferred that situation to what he said—that must be a matter of some interest. So far as I am concerned, I was extremely anxious to uphold what the Prime Minister said in his answer during the election.
Those in the Commons do not say that my amendment is unsuitable, but that it
“does not deal appropriately with the issue of domestic courts departing from the case law”.
But they do not say that their own provision is necessarily suitable either. I am sure that I, and all my noble and learned friends who spoke on these amendments, would be very willing to offer any help that may be required when it comes to promoting this statutory instrument.
Lord Beith (LD)
I wonder if I might be allowed to follow the noble and learned Lord, since we are discussing the amendments to Clause 26. He made such a bold and ingenious attempt to provide the Government with a reasonable platform on which they could deal with this problem.
I am faced with words from the House of Commons that my amendment would not leave an appropriate means of dealing with
“the issue of domestic courts departing from the case law of the European Court after IP completion day”—
but nor does the Bill as it stands. It relies on the use of a regulation-making power, under which any or all courts could be included, including lower courts which do not have the capacity to bind other courts and therefore can make many inconsistent decisions. It still leaves the Government with the power to, effectively, impose a different, unspecified test.
This is a very unsatisfactory situation, but the best thing that the Government can now do, since they have failed to accept either my amendment or that of the noble and learned Lord, Lord Mackay, is think very carefully before proceeding, because there is already sufficient statutory provision in place in the 2018 withdrawal Act, under which the Supreme Court and the High Court of Justiciary can do the job of deciding to depart from European case law. Should the Government wish to extend that to some other courts, perhaps to appeal courts, they will probably find sympathy and support in the House, but should they try to bring forward proposals by way of regulations of the kind that were widely discussed by very experienced colleagues around the House, they will meet resistance at that stage.
Baroness Deech (CB)
My Lords, we note, sadly, that the so-called Dubs amendment has been rejected, but I am sure that many of us feel, like me, that the noble Lord, Lord Dubs, will go down in history as a champion for refugee children and that he is an outstanding example of the contribution that can be made to British life by admitting a refugee child.
Baroness Bennett of Manor Castle (GP)
My Lords, I express the Green group’s very strong disappointment about the decisions made earlier today in the other place. We sent them constructive amendments that aimed to protect those whom the Government themselves recognise as the most vulnerable people in society; to retain our close ties with the continent of Europe after we Brexit; to keep hard-won protections; and to recognise the established conventions of the power of the devolved institutions. We spent five days presenting powerful arguments for those amendments. I do not intend to rehearse any of them here. Rather, I present to the House three practical arguments for a way forward that the House might not currently be planning to take.
My first practical argument is about the past five days. We have all worked very hard. We have presented the arguments and argued the case. As the noble Baroness said, the noble Lord, Lord Dubs, has worked astonishingly hard and deserves the highest levels of credit. But we are potentially looking at the coming five years. I am not one who believes that we will suddenly see an outbreak of stability in Britain that means we will see five years of stable government—but it is possible that we will. So I ask your Lordships’ House to consider what it will be like if we spend five years working like we just have for the past five days and then get to the point again and again of not being listened to. Do we want simply to bow down and allow that to happen again and again?
My second practical argument is that we are not going against the Salisbury convention. Nothing here reflects what was in the election that was just held—the election in which 44% of people voted for a Tory Government and 56% of people did not.
My third practical suggestion is not to be what might be described as recalcitrant, but to pick one of these amendments to say to the Commons, “Please listen to the powerful arguments and think about the impact of your actions.” I am of course referring to the amendment that the noble Lord, Lord Dubs, put forward. We could hold the line on that one amendment. I ask noble Lords to think about what the impact of that might be. We are talking about people whom the Government agree are the most vulnerable children on the planet.
As we have heard in the debates, we know that lots of those children have made their way to Britain through irregular, dangerous and sometimes deadly means. A couple of years ago, I went to a memorial service for a young man who died in the back of a lorry. He had the right to come to Britain, but felt that he could not exercise that right and died as a result. I ask noble Lords to think about the message that us bowing down on the Dubs amendment will send to children in Europe today. They need to know that there are people in Britain, in the Houses of Parliament, who are on their side. So I ask your Lordships to consider our way forward, and to consider standing up for those children.
Lord Cormack (Con)
My Lords, we should take an example from the noble Lord, Lord Dubs, who replied with great graciousness this afternoon, and move forward, jettisoning wherever we can the words “Brexit”, “remain” and “leave”. Wherever we stood in the past, we are now moving forward. I am very glad that there has been no contesting of the will of the elected House, which represents the will of the people. Let us now try to have some unity and some real healing across both Houses.
Lord Howarth of Newport (Lab)
My Lords, I would like to express my personal appreciation for the way in which the noble Lord, Lord Callanan, has handled his responsibilities at the Dispatch Box. Although I am somewhat anomalous on this side of the House in being—if the noble Lord Cormack, will allow me to say—in favour of leaving the European Union, none the less, I am sure that many of my colleagues have also respected the hard work and the gracious spirit in which the Minister has presented the case on behalf of the Government.
However, I cannot agree with his commendation of these so-called Commons reasons. It is disappointing for this House that the Commons has dismissed the amendments that your Lordships’ House sent to them, with no serious consideration whatever. That represents a failure to recognise and respect the proper constitutional role of this House. In the proceedings on this Bill, this House has not sought to obstruct the Government’s purpose in passing the withdrawal legislation. Everybody in this House accepts that the Government have a mandate to do so, and everybody understands the time constraints. None the less, this House sought to improve the legislation in important respects.
My noble friend Lord Dubs, and the noble Baroness, Lady Deech, have made the case very well indeed in respect of the issue raised in the Dubs amendment, but there were also important constitutional issues that arose from the Bill, and they are not negligible. They concern, for example, the formal processes and the spirit in which the Government seek to relate to the devolved institutions as we withdraw from the European Union and develop the new relationship. They concern the excessive Henry VIII powers that the Government have chosen to take in this Bill—one of them, very importantly, providing for the Government to take powers, by regulation, to intervene in the realm of the judges in determining how they should handle European retained law.
There are other areas, including Clause 41, which has provided a very large, very extravagant opportunity for the Government, by regulations, to abolish or amend, in substantial respects, primary legislation. It is not just legitimate but our duty to have considered these matters, and it is disappointing that in the other place, the Government, Ministers and Members of Parliament have not thought it worthwhile to give any significant consideration to these issues. Taking back control of our laws should represent a full restoration of parliamentary government, and a full restoration of parliamentary government should mean a proper working relationship between your Lordships’ House and the other place. It should not mean a new excrescence of, to use that memorable term coined by a very distinguished Conservative, Lord Hailsham, the “elective dictatorship.”
Baroness Hamwee (LD)
My Lords, I simply have one request for the Government. What will shortly become Section 37 provides for a statement of policy within two months. The Minister talked about reassuring noble Lords. Those who need reassurance are EU citizens—those covered by my noble friend’s amendment—and those affected by the child refugee situation. I hope that the Government, who have told us that they have been negotiating, can bring forward a statement of policy well before the end of the two months.
Baroness Ludford (LD)
My Lords, I am not quite sure why the noble Lord, Lord Callanan, singled me out for mention. I think that I must figure in his worst nightmares—which obviously delights me.
He referred to it taking three years to get the withdrawal agreement approved, but I remind him and the Benches opposite that the failure to approve it sooner was due largely to the refusal of Brexiters to support previous efforts. We remainers do not accept responsibility for Brexit or for the negative consequences that it will entail. We have played our part responsibly in trying to improve the process and the outcome of Brexit, as we have on this Bill.
I am glad that this House was not bullied or intimidated, and that it has improved the Bill. In better times, the thoughtful contributions that we made would have received a more respectful response from the Government—I agree, for once, with the noble Lord, Lord Howarth—but the Government were dogmatically determined to refuse any positive improvement to the Bill. So here we are, and we will see what happens in the months and years to come.
Baroness Hayter of Kentish Town (Lab)
Well, I am delighted that the noble Lord, Lord Callanan, has enjoyed this. He has certainly given us some fun on occasions.
The purpose of this debate is to handle Commons “consideration” of Lords amendments. However, as I watched the Commons—after just 60 minutes of debate on what this House had considered with such care—eventually overturn all our five amendments, it was hard to take the word “consideration” seriously. More accurate, as I watched, tweeting as I went, was the reply that I received to one of my tweets from someone who identified themselves only as DeepblueBoy. It read, “That’s democracy for ya!” I guess that it was his way of saying—in line with No. 10’s view, I imagine—“We’ve a majority of 80, so we simply don’t need to heed the House of Lords.”
I regret that. I regret it for the four vital issues that we had raised, covering safeguarding the union with the devolution settlement, safeguarding the independence of our courts and judiciary, safeguarding EU citizens’ residency by giving them a document, and of course safeguarding vulnerable, unaccompanied refugee children. Because we take our constitutional obligation seriously, and part of that is to offer MPs the opportunity to give serious consideration to the issues that we have raised. And the issues that we had raised and sent to the Commons would not have delayed Brexit by one second, would not have affected the working of the Bill or the withdrawal agreement, and did not run counter to any Conservative election promise.
So I regret the damage done in those four areas. But I also regret it, as I think I have just heard from my noble friend Lord Howarth, for what it says about the new Government—that No. 10 has decided not to listen, whether to the devolved authorities, to experienced judges and senior officeholders, or to other experienced Members of your Lordships’ House. I will just point out—my noble friend Lord Liddle told me this; I had not done the numbers—that in all the votes that we had, the Conservatives had a larger vote than the combined votes of the Liberal Democrats and the Labour Benches. So this was not a political divide; that side of the House still outnumbers us. It was, of course, with the all-important independent Peers that these results were won—an important consideration.
If this is to be the pattern of this Administration, breaking what I think are the conventions, including the recognition that in a bicameral system legislation is meant to be a dual responsibility, then I fear that we are in for an unfortunate time. Let us hope that this is a one-off as a result of the recent election and that normal service will shortly be resumed so that this House can play its full scrutiny role, secure in the understanding that all differing views will not simply be cast aside. As David Davis MP recognised in the other place, there was even a consensual way forward on the CJEU issue, crafted so carefully and expertly, as we would expect, by the noble and learned Lord, Lord Mackay of Clashfern. It would have made sense for the Government to have swept up that solution without even having to give credit to anyone but one of their own. It was not to be, but I hope that they will now take up his new, generous and learned offer.
For now, the Government will have their way. In future, I hope that dialogue and compromise will once again be possible, perhaps even—who knows?— with the noble Lord, Lord Callanan, perhaps in a different guise.
Lord Callanan
My Lords, I thank all noble Lords who have contributed to the discussion. We have debated all these matters at great length and our positions are well known, so I will not try the patience of the House by repeating those arguments.
I restrict myself to two comments. First, I concur completely with all the statements that have been made about the noble Lord, Lord Dubs: we hold him in the highest regard. I know that my noble friend Lady Williams has listened very carefully to his comments and will certainly take them on board. Secondly, we thank the noble Lord, Lord Beith, and the noble and learned Lord, Lord Mackay, for their help and assistance on these controversial clauses. My noble and learned friend Lord Keen will, I am sure, want to take those discussions forward with them both when these matters return to this House, as they probably will in the future.
Lord Callanan
Royal Assent
Thursday 23rd January 2020
(4 years, 10 months ago)
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