European Union (Withdrawal) Bill

(Limited Text - Ministerial Extracts only)

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

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

My Lords, the nature of the debate that has taken place over the past two days has shown the value of the expertise that this House brings to the legislative process. I totally agree with the noble Baroness, Lady Hayter, on this.

The legislation we have been debating is of great consequence for the country and is key to delivering a functioning statute book on 29 March 2019. It is therefore not only politically and constitutionally significant but practically essential, as many noble Lords have acknowledged. It is in recognition of the essential nature of the Bill that I want to emphasise my gratitude to all noble Lords who have contributed to this debate. The sheer number of noble Lords who took the time to attend and participate in the debate is a tribute to this House. Peers have excelled in their contributions, which have been—mostly—constructive and wholly befitting to the role of this House as a scrutinising Chamber.

I am sure noble Lords will understand that the late hour and time do not allow me to respond to each speaker individually—I am sure that noble Lords will be delighted to know that. However, it is clear that this debate has benefited from the extensive personal knowledge and professional experience in this place. Indeed, as the noble Baroness, Lady Smith, set out in her opening address, this Bill presents an opportunity for the Government to avail themselves of the genuine expertise on offer in this place.

I know that the noble Lord, Lord Adonis, has tabled an amendment, to which I will respond shortly. I should like to acknowledge at the outset the frustration and regret which many of your Lordships have expressed in this debate over the outcome of the referendum. But we are not here today to revisit the question of having a referendum, or to examine the reasons why people voted the way that they did. The withdrawal agreement and implementation Bill, which will come before Parliament, will be the opportunity to debate and scrutinise the domestic legislation implementing the final agreement we strike with the EU. Therefore, again in the interests of time, I will not address all those points today. Before I come to the noble Lord’s Motion, I will address the contributions made by other noble Lords on the subject of this Bill over the last two days. I will attempt to cover the main points but will also place a letter in the Library answering questions about the Bill that I have not covered in my answer.

There has been much discussion of the delegated powers within this Bill. I pay tribute to the noble Lords, Lord Newby, Lord Lisvane, Lord Strathclyde, Lord Bridges and Lord Tugendhat, the noble and learned Lord, Lord Falconer, the noble Baronesses, Lady Mallalieu and Lady Taylor, and many others who have spoken eloquently on this issue. I hope that noble Lords will agree that the power to correct deficiencies in retained EU law arising in consequence of the UK’s withdrawal from the EU is essential to achieving the core purposes of this Bill: to ensure that our statute book continues to function on exit, providing certainty and continuity for both businesses and individuals. The Government do not propose delegated powers lightly. We are committed to avoiding the twin spectres of permissions to do too much and permissions to do too little. The power is broad but limited and is, crucially, a time-limited solution to a unique problem. We want to strike the right balance between scrutiny and speed, and to ensure that the Government can complete this exceptional task in time for exit while tailoring the powers as tightly to their purpose as possible. It is important that there is no slack in a power of the exceptional type needed here. The Government do not ask noble Lords to accept on trust how they will be used. The correcting power was already adjusted in the other place to limit the scope and put the Government’s policy even more firmly in the heart of the power.

I have heard the concerns raised in this House. Be in no doubt that the Government are in listening mode and are willing to consider constructive suggestions for change. Many noble Lords have already made useful suggestions, including the noble Lord, Lord Lisvane, the noble Baroness, Lady Taylor, my noble friend Lord Hodgson, the noble Lord, Lord Butler, the noble and learned Lord, Lord Falconer, and many others, and I am confident that there will be further helpful suggestions to come in Committee.

I now come to the scrutiny procedures for the secondary legislation which will be made using the powers in the Bill. I of course recognise that the House has a strong record of scrutiny of secondary legislation under the auspices of the Secondary Legislation Scrutiny Committee. The Government have always wanted to ensure that there is sufficient scrutiny of the secondary legislation to come. While major policy change is for other Bills, the Government introduced this Bill with triggers for the affirmative procedure on all the key powers. There will be many SIs under the Bill which contain small and technical amendments which will not substantially change how the law operates for firms or individuals in practice. The affirmative procedure would be disproportionate in those cases.

To provide greater clarity on this point, the Government have published draft SIs to show the types of legislative changes that would be made under each procedure. We have always said that we would listen to Members of both Houses in the passage of this Bill. In that vein, the Government were pleased to accept the recommendation of the Procedure Committee in the other place. Those amendments ensured that Ministers must submit SIs that they are proposing to make under the negative procedure under the three principal powers in the Bill—Clauses 7, 8 and 9—to a sifting committee, which will consider the appropriateness of the procedure.

I know that noble Lords will want to ensure that the expertise of this House is properly brought to bear on secondary legislation. I share this view. As my noble friend the Leader of the House set out yesterday, we will bring forward proposals in due course following appropriate consultations.

I will briefly address the points raised by the noble Lords, Lord Wilson of Dinton, Lord Brown of Eaton-under-Heywood, Lord Howell and Lord Storey, the noble Baronesses, Lady Hamwee and Lady D’Souza, and many others regarding the Charter of Fundamental Rights. The UK has a proud tradition of respecting human rights. Leaving the EU does not and will not change this commitment. This includes children’s rights, which will of course continue to be protected under the Children Act 1989 and through our remaining party to the United Nations Convention on the Rights of the Child. I hope that this reassurance will aid the noble Lords, Lord Russell, Lord McConnell and Lord Storey, and the noble Baroness, Lady Massey, and I thank them for raising this important issue.

The Government have been unequivocal about this. Our intention has always been that, in itself, not incorporating the charter should not result in a significant loss of substantive rights. This is because the charter only reaffirmed the rights which were already protected under EU law, which will now be brought into UK law by this Bill. It is not, and never was, the source of those rights. The Government have also published a non-exhaustive memorandum setting out for each provision of the charter where the underlying rights will continue to exist as part of retained EU law or domestic law or the common law, but the simple fact is that leaving the EU will inevitably result in a change to the current arrangements. Therefore, it just does not make sense to retain the Charter of Fundamental Rights of the European Union. The clue is in the title; the charter applies to EU institutions and member states, but it applies to member states only when they are acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law once we leave the EU. As such, the charter itself will not be converted into UK law, and I agree with the remarks made on the subject earlier in the debate by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Deech.

We have heard several contributions concerning the interpretation of retained EU law in Clause 6. This is not surprising, given the exemplary legal minds in this House, and I will endeavour here to speak to the concerns raised by the noble and learned Lords, Lord Judge, Lord Brown of Eaton-under-Heywood and Lord Falconer, and the noble Lord, Lord Kakkar.

I also extend my thanks to the Constitution Committee for its report, which many noble Lords have made reference to in this debate. This is a long and detailed report, and the Government will consider it carefully. From the beginning we have been committed to working collaboratively with parliamentarians to improve the Bill wherever possible.

The Government have heard the concerns raised in relation to whether and to what extent our UK domestic courts and tribunals should have regard to post-exit decisions made by the Court of Justice of the European Union, or to anything done by the EU and its other entities, when interpreting retained EU law. The UK is leaving the EU. This will end the direct jurisdiction of the CJEU. For our courts to remain bound to the future case law of the CJEU would be to undermine the clear position and ignore the reality of our withdrawal. It would also limit the discretion and independence of our courts, whose judicial authority we had sought to return.

We have a world-renowned judiciary, many of whose former members, I am pleased to say, are now in this House, and the Bill’s position in Clause 6(2) reflects the Government’s confidence in the judiciary’s independence and expertise. With this in mind, I emphasise that Clause 6(2) is intended to reflect in statute our strong belief that the courts are best placed to determine the right approach to questions of interpretation concerning retained EU law.

Clause 6 therefore provides that our domestic courts are not bound by post-exit decisions made by that court, as well as anything done by an EU entity or the EU itself, on or after exit day. The courts, however, may take such things into account if they consider it appropriate to do so.

We believe this provides a clear and certain position for our courts following our departure from the EU. Again, however, the Government have heard the concerns raised in this House over the last two days, and from other sources previously. I know that my noble and learned friend Lord Keen is eager to engage with your Lordships on these provisions over the coming months.

[Noble Lords]

Oh!

[Lord Callanan]

He told me to say that. The wealth of expertise and experience in this House is ideally suited to the task of considering and agreeing an approach which can command the broadest possible confidence. I hope that this leaves your Lordships in no doubt as to how seriously we take these questions, and I hope that we can continue to engage constructively throughout.

I know that devolution, perhaps more than any other issue, has featured in your Lordships’ contributions over the past two days. I pay particular tribute to the noble and learned Lord, Lord Hope, for his constructive remarks, of which I have taken careful note. I also thank my noble friends Lord Dunlop and Lord McInnes, the noble Lord, Lord Kilclooney, and many other noble Lords for their contributions.

Our priority is to ensure that our withdrawal from the EU is as smooth and orderly as possible for the whole of the UK. The Government remain committed to the devolution settlements. I agree with the noble and learned Lord, Lord Wallace of Tankerness, that this presents an opportunity—which the Government have seized—for sincere and mature co-operation to find consensus. The Scottish and Welsh Governments agree that there are areas where common frameworks are necessary. The Government agree that in areas where they are not necessary, those powers should and will be a devolved responsibility. I agree with the noble Lord, Lord McConnell of Glenscorrodale, that after we leave the EU they will continue to be able to do anything that is now within the competence of the devolved Administrations. There will of course be a need for common frameworks in some areas, as the noble Lord recognised, but the outcome of the UK leaving the EU means that more decision-making powers will be with the devolved Administrations.

As your Lordships are aware, we have made a commitment to bring forward changes to Clause 11, and this commitment remains absolute. We are engaging in intensive discussions with the Scottish and Welsh Governments on what those amendments will look like, and we are making good progress towards the right outcome. The Chancellor of the Duchy of Lancaster will travel to Edinburgh and Cardiff this week to further discuss our proposed amendments to Clause 11, which I hope will reassure the noble Lady, Baroness Finlay, and others, on her point about proper consultation with the devolved Administrations. Any such amendments to Clause 11 will of course need to speak to the concerns of the Scottish and Welsh Governments, while ensuring maximum certainty once we have left the EU. In the absence of a Northern Ireland Executive, we are working closely with the Northern Ireland Civil Service, and we are doing all we can to restore devolved government to Stormont.

Closely linked to these discussions is the work being carried out on future frameworks, guided by the principles agreed with the Scottish and Welsh Governments at the Joint Ministerial Committee. We will publish our analysis of where we expect there to be a need for legislative frameworks in whole or in part, for informal arrangements, and where we expect that no additional cross-UK mechanisms are required.

I also thank the noble Lords, Lord Luce, Lord Hoyle, Lord Kilclooney and the noble Earl, Lord Sandwich, for their remarks concerning Gibraltar. The Government are clear that Gibraltar is covered by our exit negotiations, and we have committed to fully involve it as we exit the EU. We will negotiate as one United Kingdom and will leave as one United Kingdom.

I turn to the Motion tabled by the noble Lord, Lord Adonis, for another referendum to be held. On this point, let me be completely clear. The result of the referendum held on 23 June 2016 saw a clear majority of people vote to leave the European Union. On this subject, as on so many others, I can do no better than to advise noble Lords to look at the comments of my noble friend Lord Hague, who wisely said that it cannot be in the national interest to participate in a referendum merry-go-round. In the European Union (Notification of Withdrawal) Act this Parliament overwhelmingly confirmed the result of the referendum by voting with clear and convincing majorities for that legislation. In the general election last year, both parties campaigned to take us out of the EU, as my noble friend Lady Pidding reminded us yesterday. Only last weekend I watched the leader of the Labour Party say that “that ship has sailed” and confirm that, “We are not asking for a second referendum”. You cannot go back to the people time and again in the vain hope that eventually they will give you the result that you wanted.

The British people can trust the Government to honour the referendum result. This does not mean that the process will be without scrutiny, and of course we will consult Parliament further. There will be a vote in both Houses on the final agreement reached with the EU. Then there will be a withdrawal agreement and implementation Bill that will give Parliament further time to debate and scrutinise the domestic legislation implementing the final agreement that we strike.

Any commitment to a second referendum would actively undermine our ongoing negotiating position. As the Secretary of State for Exiting the European Union noted:

“The consequence of putting a second referendum at the end of the negotiation is to invite every single member of the European Union who does not want us to leave to propose the worst possible deal, in the hope that we will change our mind”.—[Official Report, Commons, 24/1/17; col 176.]


This point was reinforced by many noble Lords, including the noble Lord, Lord Leigh of Hurley. We are not going to do that. We are seeking to get the best deal for the UK and we intend to negotiate under the best possible conditions. To do otherwise would be irresponsible in the extreme.

This debate has served to highlight the weight of the matter at hand and the importance of this House’s scrutiny. I look forward to the forthcoming Committee stage where we can enter into proper scrutiny and debate on the issues that have been raised over the past two days. I echo the words of noble Lords who have spoken of our constitutional duty to scrutinise this historic legislation. This place benefits from a wealth of experience and expertise, and I am confident that your Lordships will bring this to bear over the coming months.

Amidst some of the more colourful and entertaining rhetoric, metaphor and simile, a recurring theme has emerged in this debate: the Bill is necessary, the Bill is not perfect, and the Bill should be improved and strengthened but not obstructed. There was a visible and tangible consensus around these sentiments.

The people have spoken and this Government now have a duty to deliver a smooth exit. We owe this not only to those who voted to leave but to those who voted to remain. Regardless of how people voted, it is in the collective national interest to have a functioning statute book on the day we leave. This Bill delivers that by providing certainty and stability to businesses, consumers and citizens across the United Kingdom and I commend it to the House.