European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateFriday 20th December 2019
(4 years, 11 months ago)
Commons ChamberRead Hansard Text
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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 7th January 2020
(4 years, 10 months ago)
Commons ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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.
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 8th January 2020
(4 years, 10 months ago)
Commons ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 9th January 2020
(4 years, 10 months ago)
Commons ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 13th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-I Marshalled list for Committee - (13 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 14th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-II Second marshalled list for Committee - (14 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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.
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 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
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 14th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-II Second marshalled list for Committee - (14 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 15th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 15th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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 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.
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.
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.
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 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.
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.
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.”
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 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
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 16th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
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.
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.
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 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.
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.
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 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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 20th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 (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 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.
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.
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 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 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
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 21st January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 21st January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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 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.
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 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 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
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 21st January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-R-II Second marshalled list for Report - (20 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.”
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 22nd January 2020
(4 years, 10 months ago)
Commons ChamberRead Hansard Text 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.
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
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.
European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 22nd January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2020 - (22 Jan 2020)
This text is a record of ministerial contributions to a debate held as part of the European Union (Withdrawal Agreement) Act 2020 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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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 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