House of Lords
Deaths of Members
The Lord Speaker (Lord Fowler)
My Lords, I very much regret to inform the House of the death of my friend, the noble Lord, Lord Crickhowell, on 17 March. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.
I also regret to inform the House of the death of the former Leader of the House, the noble Lord, Lord Richard, on 18 March. On behalf of the House, I extend our condolences to the noble Lord’s family and friends. I understand from the usual channels that noble Lords will have the opportunity to pay tribute to the noble Lord, Lord Richard, tomorrow after Prayers.
Trafficked Children: Asylum
(6 years, 8 months ago)
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Baroness Kennedy of Cradley
To ask Her Majesty’s Government, over the last 10 years, how many children trafficked into the United Kingdom who have subsequently applied for asylum have had their applications approved.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Home Office does not publish data on the number of child victims of modern slavery who subsequently successfully claim asylum. To maintain the highest standards of accuracy, the Home Office prefers to refer to published data, as these have been subject to vigorous quality assurance prior to publication. The Home Office publishes data on the number of asylum claims from unaccompanied children. The latest published statistics can be found in the quarterly immigration statistics published on GOV.UK. These show that, in 2017, 1,212 children were granted leave; in 2016, this figure was 1,396.
Baroness Kennedy of Cradley (Lab)
I thank the Minister for that reply. Since the Court of Appeal’s decision in PK (Ghana) was handed down, the Government have had to issue interim guidance on discretionary leave to remain for victims of modern slavery, but this is a policy of no policy. It just puts decisions on hold, leaving vulnerable adults and children in limbo and in fear of losing their NRM support, as the waiting time for decisions now extends beyond the time for support afforded to them. What is the Government’s timetable for consideration of this judgment? Can they guarantee that all victims waiting for a decision on discretionary leave to remain will remain in receipt of NRM support until they receive a decision?
Baroness Williams of Trafford
We are considering the implications of the judgment. While we consider the next steps, interim guidance has been issued to caseworkers to put on hold any refusals of discretionary leave to remain for confirmed victims of modern slavery. Grants of discretionary leave are continuing. Clearly, we will come to a view as quickly as possible.
Lord McColl of Dulwich (Con)
What percentage of victims of modern slavery who apply for discretionary leave to remain following a positive NRM conclusive- grounds decision actually receive a decision about the discretionary leave within 45 days?
Baroness Williams of Trafford
I can tell my noble friend that in 2016 1,278 children were referred to the NRM for consideration of whether they had been a victim of modern slavery, a 30% increase on 2015. We will be publishing figures for 2017 in March and, if available for disclosure, they will be provided.
Baroness Hamwee (LD)
My Lords, does the Minister agree that the longer the delay in reaching a decision in respect of a trafficked child, the greater the risk of that child going missing and being retrafficked?
Baroness Williams of Trafford
It is certainly the Government’s intention to make decisions as quickly as possible. I totally concur with the noble Baroness that if we have a vulnerable child in our care, we should make decisions about them as quickly as possible.
Baroness Butler-Sloss (CB)
My Lords, I wonder whether the Minister can get the Government, particularly the Home Office, to reconsider the removal of children who are victims of trafficking at the age of 18.
Baroness Williams of Trafford
As the noble and learned Baroness will know, victims of trafficking are not necessarily coming into this country for an asylum route. Indeed, many of the children who are trafficked are from the UK, so it is correct that when a child reaches the age of 18, should they be from another country, their immigration status is reconsidered.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I refer to my relevant interests in the register. Does the noble Baroness think that the national referral mechanism takes proper account of children’s needs? Can she tell the House what the Government are doing to prevent children, as referred to by the noble Baroness, Lady Hamwee, who arrive in this country and go missing after a few days becoming repeat victims of trafficking?
Baroness Williams of Trafford
I am clear that the national referral mechanism meets the needs of children. As the noble Lord may know, the Minister for Crime, Safeguarding and Vulnerability announced the Government’s proposals to reform the NRM. For children, this ensures that support for child victims is improved by continuing with the rollout of the independent child trafficking advocates. We are trying new and innovative ways to give money to NGOs as part of the child trafficking protection fund.
The Lord Bishop of Derby
My Lords, I declare an interest as chairman of the advisory panel of the Independent Anti-slavery Commissioner. I ask the Minister about the role of the modern slavery unit in the Home Office, in this area to do with children and more generally. How does the modern slavery unit help those of us working in this area of children and care for victims? How do we know what its priorities and practices are so that we can best co-operate?
Baroness Williams of Trafford
The role of the commissioner should be to assess how the system is working. As I said in answer to the previous question, children should receive the specialist support and assistance that they need according to their circumstances. The role of the NRM is to ensure that a trafficked child is given the appropriate support they need from all the agencies involved to be able to move on from that traumatic experience.
Lord Kirkhope of Harrogate (Con)
Does my noble friend agree that it is very important, while exercising discretion on the basis of humanity for right to remain, that we do not move away from the basic principles of the 1951 United Nations convention, which are undoubtedly tough but nevertheless important, when we choose to grant asylum to this country?
Baroness Williams of Trafford
My noble friend is absolutely correct. We have an incredibly good record of granting asylum not just to adults but to children. Together with the various agencies we provide the maximum level of care that we possibly can to children who have been trafficked or who need our protection.
Baroness Afshar (CB)
My Lords, how many of the “shoulds” and the “woulds” are actually in place? The Minister has kindly explained that there are many provisions: which ones are actually being pursued so that those kids do not immediately disappear?
Baroness Williams of Trafford
I apologise to the noble Baroness: I did not hear the first part of her question.
Baroness Afshar
I was just asking how many of the “shoulds” and the “woulds” are actually in place, rather than statements of intention.
Baroness Williams of Trafford
The Modern Slavery Act is now in place and therefore its provisions are being implemented.
Prescription Drugs: Dependence
(6 years, 8 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government whether they have plans to provide a network of support, nationally and locally, for people affected by dependence on prescribed drugs.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O’Shaughnessy) (Con)
The Government take seriously the issue of dependence on prescription drugs. The Public Health Minister has commissioned Public Health England to review the evidence on the scale and nature of the problems with some prescription medicines, and how those problems can be prevented and treated. The review is due to report in spring 2019.
Lord Hunt of Kings Heath (Lab)
My Lords, I very much welcome the review, but there is a real problem: many, many patients are suffering huge damage as a result of overdependence, often because they have been prescribed a particular medicine for too long a period. There appears to be woeful ignorance among many people in the health service about this impact of dependence. There are no national programmes for supporting people. Instead, people rely on local charities, which are grossly underfunded. Does the Minister not think it is time for a national action plan, a national helpline and support for local charities, and to get the NHS to start taking this seriously?
Lord O'Shaughnessy
I agree with the noble Lord that it is a serious issue. A NatCen study found that there has been a doubling of the use of serious painkillers. Indeed, deaths due to opiates of all kinds have risen by about two-thirds in the past five years; of course, that is illegal as well as legally procured drugs. We agree that there is a problem. That is why the review is taking place. It is premature to say what the outcomes of that review will be, but undoubtedly we need a comprehensive approach to dealing with this problem, because it is getting worse.
Baroness Redfern (Con)
My Lords, I welcome this major review of prescription drug addiction. Does the Minister agree that the review must also look at the provision of alternatives to prescription drugs and the culture change needed to make that happen?
Lord O'Shaughnessy
My noble friend is absolutely right. It is not just about getting people off these drugs who are wrongly on them, it is about making sure that they do not go on them in the first place unless that is absolutely necessary for their treatment.
The Earl of Sandwich (CB)
Is the Minister aware that there is a dispute between the Royal College of Psychiatrists and a significant group of academics, doctors and patients over the length of antidepressant withdrawal? Does the Minister agree that substantial research is needed quite urgently, including on withdrawal protocols, to ensure that patients can withdraw safely and slowly? I declare an interest, having experience of this in my own family.
Lord O'Shaughnessy
The noble Earl highlights a very important issue, and I reassure him that the review will look not only at the nature and causes of dependence on the drugs in scope, which include antidepressants, but at the correct and most evidence-based treatments for withdrawal.
Lord Rennard (LD)
Will the review by Public Health England be able to look specifically at alternatives to prescribing drugs, such as acupuncture, which is shown to be very effective in the relief of pain and reducing symptoms of anxiety, and perhaps also mindfulness, which has been shown to improve the mental health of very many people?
Lord O'Shaughnessy
I can attest to the benefits of both those courses of treatment. The review will look at prevention of dependency in the first place and in doing so will look at alternative courses of treatment. Of course, in the end there is a balance to be struck between the clinical needs of the patient and the right course of treatment. It is about making sure that clinicians are as informed as possible.
Baroness Pitkeathley (Lab)
My noble friend mentioned that many of the services for people who are addicted to prescribed drugs are provided by the charitable sector. He also mentioned that many of those services are under threat or have closed down because of a lack of local authority funding. Will the Minister consider what can be done to replace those vital services? Will the charitable sector, which is doing such good work in this area, be consulted in the course of the review?
Lord O'Shaughnessy
I completely echo the noble Baroness’s praise for the charitable sector. We have some very high-quality treatment centres in this country, provided both by the state and by charities. They do a fantastic job. In the most recently published figures, local authorities’ actual spend on funding for adults for drug misuse was about £490 million a year, so a substantial amount of money is going in. Of course, we need to make sure that it is getting to the people who are addicted to prescription drugs as well as illegal drugs.
Baroness Gardner of Parkes (Con)
My Lords, can the Minister explain the difference between dependence and addiction, as anyone who is on life-saving drugs is dependent upon them? Where does the definition come between that and addiction?
Lord O'Shaughnessy
My noble friend has just given a much better and more incisive answer than I could have given. There is a distinction; the point here is that these are drugs that people have started to take because they have needed them. I should point out one area that is not included in the review; it is not looking at cancer and terminal pain, because we need to make sure that there is appropriate pain relief for people who are in the last stages of their life.
Baroness Meacher (CB)
My Lords, is the Minister aware of the very powerful evidence from the United States that one of the most effective ways of reducing dependency on opioids is to legalise cannabis for the relief of pain? Cannabis is far less addictive and far less dangerous, yet it is incredibly effective for large numbers of patients.
Lord O'Shaughnessy
I would definitely be straying into Home Office territory by commenting on that. I would point out that cannabis remains illegal in this country and that the PHE review’s scope is to work within the drug strategy set out by the Home Office.
Lord Watts (Lab)
My Lords, does the shortage of mental health services in the NHS and the cuts to local authorities not mean that GPs often have no alternative but to prescribe drugs? Should the Government not address the shortages in both those areas?
Lord O'Shaughnessy
I think the link between mental illness and GP prescribing will be investigated in the review. We know that we need to do better in mental health services in this country, but it is worth pointing out that we are increasing investment and introducing new waiting-time standards, so services are getting better.
Lord Brooke of Alverthorpe (Lab)
My Lords, is there not a case for a wider review of addictions in general? Public Health England did a review of alcohol and the Government ignored the report. A public health review in this area may be ignored entirely and there is nothing to make the Government do anything about it. We have just heard about what is happening with gambling; the Government have succumbed to the blandishments of the gambling industry and are not doing what many people in this House wanted on it. It is another addiction. Should we not have a review right across the board on addictions?
Lord O'Shaughnessy
The Government are taking steps to deal with addiction in a number of areas. We are obviously focusing on prescription drugs and the dependence on them. I hope the noble Lord will welcome the review and have the opportunity to contribute to it, as I know he feels strongly about these issues.
Broadband: Universal Service Obligation
(6 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, the Government have considered different options for the design of the broadband universal service obligation and have carried out a public consultation on its proposed design. Having completed their consideration of the many responses received, the Government will shortly be laying secondary legislation setting out the scope of the broadband USO. The Government’s response to the consultation and the impact assessment will be published at the same time. Ofcom will be responsible for implementing the USO, which is expected to take up to two years.
Lord Fox (LD)
My Lords, I thank the Minister for his Answer. As he knows, there is an awful lot of concentration on download speeds but for the digital economy, upload is very important too. It is particularly poor in rural areas, and your Lordships do not have to take my word for it. The Secretary of State for Defra, Michael Gove, speaking to the NFU, recently said:
“It is unjustifiable … that broadband provision is so patchy and poor in so many areas”.
Can the Minister explain how a new approach will do away with this patchiness and poverty of connection in the countryside?
Lord Ashton of Hyde
The noble Lord is right that it is very important, as the rural economy as well as the urban economy depends on broadband. We have done a number of things to support the rural economy. Delivering the USO is one thing; we have also increased broadband availability from 45% to 95% in seven years, as we promised to do. But looking forward, we are working with Defra to implement the £30 million of extra funding through the rural development programme; the local full-fibre network programme will invest £190 million for locally led projects and the Chancellor announced £95 million in the Spring Statement as part of that; the future telecoms infrastructure review will also look at what the Government can do and report in the summer. Noble Lords will also have noticed that in February we signed an accord with the Church of England to make many more churches available, which principally helps rural areas. Lastly, Ofcom launched a consultation on 9 March on potential new licence obligations for rural coverage as part of a forthcoming 700 megahertz spectrum auction.
Baroness McIntosh of Pickering (Con)
My Lords, I welcome the £15 million that the DCMS has given to North Yorkshire in recognition of the woefully slow connection times and poor connectivity there. But will the department and my noble friend ensure that this money will be used to make the remaining 5% faster and give them better access, rather than to enable the fast speeds that people already have in places such as Harrogate, Knaresborough and York to become even faster than they already are?
Lord Ashton of Hyde
My Lords, we want to do both. We want to make sure that everyone has at least a minimum speed, and we are also investing very large amounts in full-fibre network, because it is on fibre-optic cable that everything depends in terms of mobile communications and higher speeds throughout the country, including rural areas.
The Countess of Mar (CB)
My Lords, can the Minister explain why remote parts of mountainous Norway and even remoter villages in China can have high-speed broadband but we in the United Kingdom cannot?
Lord Ashton of Hyde
There are mountainous parts of this country that have high-speed broadband. It is a question of getting the infrastructure in place. Broadband availability has gone up from 45% to 95% in seven years because the Government and local authorities, together with private industry, have invested a substantial amount of money.
Lord Clement-Jones (LD)
My Lords, the Minister mentioned full-fibre networks, which could of course deliver ultra-fast broadband but only 3% of consumers have access to them. Eighteen months ago, the Chancellor promised £400 million towards full-fibre networks. How much of that has been spent and how much is expected to be spent in the coming months?
Lord Ashton of Hyde
My Lords, the Chancellor announced in November that the local full-fibre network challenge fund was in place, which is part of the Government’s £740 million national productivity investment fund. As I said, the Chancellor announced in the Spring Statement that £95 million has been allocated for 13 different areas. We plan to open the next wave of the challenge fund during this summer.
Lord Naseby (Con)
Is my noble friend aware that his plethora of proposals is greatly welcomed? Nevertheless, would he include in this the servicing of broadband? Is he aware that following the great chill of 1 March, certain parts of Bedfordshire still are not back on broadband? Unhappily, that includes me.
Lord Ashton of Hyde
I am sure noble Lords will commiserate with my noble friend. I am not aware of particularly why the cold weather should affect broadband. The whole point of developing the infrastructure for fibre-optic cables is that they are buried underground, well below the frost, for example. I would have to look at specifically what is happening near Naseby.
Lord Stevenson of Balmacara (Lab)
Is the problem here not the completely hopeless, unambitious target of 10 megabits per second when compared with what is happening today? As reported in the papers yesterday, York City Council has managed to install a system throughout the city that operates at 1,000 megabits per second. There is no competition, no drive forward, and nothing seems to be happening.
Lord Ashton of Hyde
I have said in my answers so far that quite a lot is happening. A lot of money is being spent on infrastructure. The 10 megabits per second speed of the universal service obligation is meant to be a safety net, which is there under the universal service directive. It is not meant to be the future of digital infrastructure, which is why we are spending so much money on the latest fibre-optic cables. Ten megabits per second will be very good for people who have one or one and a half today. They will be very grateful for that, but we certainly do not accept that it is the future. It is very much a safety net.
Foreign Policy: Parliamentary Participation
(6 years, 8 months ago)
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Viscount Waverley
To ask Her Majesty’s Government what consideration they have given to Parliament being offered a more meaningful participation in foreign policy, including by restricting the extent of the royal prerogative.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the FCO attaches great importance to engaging with Parliament on foreign policy issues through Statements, Questions, debates, evidence to Select Committees and, indeed, informal discussion. The Government observe the convention that there is a debate in Parliament before UK military action is taken except where there is an emergency and such action would not be appropriate. In relation to treaty-making, the Constitutional Reform and Governance Act 2010 requires treaties to be laid before Parliament before ratification.
Viscount Waverley (CB)
I thank the Minister for that response. With many more issues and challenges on the global stage than current mechanisms can properly undertake, would the Government, including a diminished Foreign Office, keep an open mind and encourage the Foreign Affairs Select Committee and the International Relations Committee to jointly consider revamping foreign policy decision-making processes, with necessary discretions factored in, knowing that the combined wisdom and shared responsibilities of Parliament as a whole should be made better use of by assisting in the creation of visionary policies and addressing the multiple challenges, including our country’s position in and future contribution to tomorrow’s world?
Lord Ahmad of Wimbledon
My Lords, it is the Foreign and Commonwealth Office. Far from it being diminished, the fact that I have used the word “Commonwealth” underlines the importance of the broad nature of its foreign and Commonwealth responsibilities. We look forward, as I am sure does the noble Viscount and the rest of the House, to welcoming leaders from across the 52 nations of the Commonwealth—the 53rd of course being the United Kingdom—in the next few weeks. As for parliamentary contributions, I alluded in my original Answer to the importance the Government attach to parliamentary debates, and I respect the wisdom of Parliament in that regard. I draw to the noble Viscount’s attention that only this morning, in my capacity as the Prime Minister’s special representative on preventing sexual violence, we had a very good engagement on that issue with many different voices. I am delighted to report back with my noble friend Lady Hodgson, who leads the All-Party Parliamentary Group on Women, Peace and Security, and my noble friend Lady Nicholson, who leads the All-Party Parliamentary Group on the Prevention of Sexual Violence in Conflict. I believe the Government work constructively with all parliamentarians on the issues that matter in foreign policy.
Baroness Northover (LD)
My Lords, has the Minister seen the Foreign Affairs Select Committee’s recent report entitled Global Britain, which asks the FCO to produce a,
“coherent strategic direction, supported by adequate resources”,
and notes that resources are now being moved from embassies in fast-growing Asia to Europe? Given the decisions about going to war or even leaving major trading blocs, would it not be wise to include Parliament far more in working out a foreign policy that is multilateral and realistic?
Lord Ahmad of Wimbledon
I have of course seen the report from the Foreign Affairs Committee. Having been before the committee on three occasions over the last month, I was asked about Britain’s position in the global world. Look at our leadership in the area of development—at how we are working hand-in-glove with Commonwealth countries on preventing sexual violence and ensuring reforms in the United Nations. Our membership of NATO underlines Britain’s global position in the world. Of course we will continue to work with parliamentarians. I say to all colleagues across your Lordships’ House and in the other place that it is on all of us to ensure that the voice of global Britain is heard in all corners across the world.
Lord Anderson of Swansea (Lab)
Does the Minister agree that post-Brexit it will be even more important that parliamentarians are encouraged to build relationships with their counterparts in EU countries? To that end, does he agree that the parliamentary scheme should be such that it does not disadvantage parliamentarians who participate in it, so it should be put on a par with the emoluments for those who go to international parliamentary conferences?
Lord Ahmad of Wimbledon
I am sure all those who are involved with the various committees and bodies will listen carefully to the noble Lord’s suggestion. From the Government’s perspective, I reiterate that we have bolstered many of our positions in European capitals in preparedness for the post-Brexit world. As for parliamentary support, I am sure that the extra support within our different missions across Europe will also assist. If I may say so as Minister for the UN, we are also adding to our support in our missions in New York and in Geneva, which will also assist parliamentary colleagues when they visit those offices.
Lord Collins of Highbury (Lab)
My Lords, something of great concern to many noble Lords is the EU withdrawal Bill going through the House, which represents the biggest power grab by the Executive. This Question relates to Parliament and its right to scrutinise legislation. The Minister may not have heard it, but last week at 2.30 in the morning I moved an amendment. It was a shame it was so late, but I had a good audience on his side. That amendment sought to empower Parliament to do its job to scrutinise international treaties. Will the Minister ensure that he is present at 2.30 tomorrow morning when we debate these issues to ensure that Parliament can keep its power to scrutinise?
Lord Ahmad of Wimbledon
I would not be as brave as the noble Lord and predict how long Parliament will sit tomorrow but, as he conceded, on the government side, we listen carefully to his words, as was demonstrated only last week.
In terms of ensuring parliamentary scrutiny, this is about taking back control and ensuring that every piece of legislation is scrutinised by Parliament. Indeed, when we discussed the EU sanctions Bill, I responded positively, I hope, on ensuring the affirmative nature of secondary legislation. As for parliamentary scrutiny of the EU withdrawal Bill specifically, look at the number of hours it was debated in the House of Commons. I turn to my noble friend who sits not too distant from me to consider the hours he and his team and other noble friends on the Front Bench are spending on this issue. I am sure the noble Lord would acknowledge that the Government are ensuring that there is full scrutiny of all legislation, including the EU withdrawal Bill.
Lord Grabiner (CB)
Reverting to the form of the Question from the noble Viscount, Lord Waverley, is it not an established constitutional convention that where legislation trespasses into the territory of the royal prerogative, the royal prerogative simply falls away? If that is right, it is not an exercise in making fresh legislation to determine when, how and why the royal prerogative should have status in any particular context; it is simply a question of whether the new legislation traverses the territory of the royal prerogative. Does the Minister agree?
Lord Ahmad of Wimbledon
The issue of the royal prerogative is well understood. EU legislation is currently scrutinised by different committees within Parliament but, as I alluded to in my Answer, where the UK is directly a party to a particular treaty, the Constitutional Reform and Governance Act 2010 requires treaties to be laid before Parliament, which includes their scrutiny, before ratification.
European Union (Withdrawal) Bill
(6 years, 8 months ago)
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Lord Haskel
“Governance and institutional arrangements
(1) Before exit day, a Minister of the Crown must make provision that all powers and functions which form part of retained EU law, which relate to any right, freedom or protection that any person might reasonably expect to exercise, which were carried out by EU entities or other public authorities anywhere in the United Kingdom before exit day, and which do not cease as a result of the withdrawal agreement (“relevant powers and functions”), will—(a) continue to be carried out by an EU entity or public authority;(b) be carried out by an appropriate existing or newly established entity or public authority in the United Kingdom; or(c) be carried out by an appropriate international entity or public authority.(2) For the purposes of this section, relevant powers and functions include, but are not limited to—(a) monitoring and measuring compliance with legal requirements;(b) reviewing and reporting on compliance with legal requirements;(c) enforcement of legal requirements;(d) setting standards or targets;(e) co-ordinating action;(f) publicising information. (3) Responsibility for any powers and functions as defined in subsection (1) for which no specific provision has been made immediately after commencement of this Act will belong to a relevant Minister until such a time as specific provision has been made.”
Lord Haskel (Lab)
My Lords, Amendment 214 is about retaining our standards after we leave the EU. These are the standards of the goods and services we consume, the standards that maintain protections for individual and consumer rights, the environment, employment and a whole host of things. These standards underpin what ordinary citizens have come to regard as normal in their everyday life. Quite simply, many of the standards that we have come to accept as normal are set, and enforced, by EU institutions. When the UK leaves the EU, we will lose the benefits of these EU governance institutions, and it is not clear that they will be replaced. The amendment would create a duty to ensure that any governance or regulatory function relating to this that is currently exercised by an EU institution would be transposed into UK law.
It may be impossible to replicate the highly expert and specialised institutions which the EU has built over many years, but if a governance function is to be abolished, or just not replaced, there should be a proper debate and the Government should go about it in the proper way, through the parliamentary process. The amendment would ensure that these standards can be enforced, with clear options for redress should disputes arise and with clear dispute resolution procedures if the European Court of Justice is not involved.
In addition, these institutions would have to be independent. The European Environment Agency can threaten to take a British Government to court for not maintaining air quality standards. This is why the Government are busily making proposals to satisfy those standards. If the enforcement agency was just another branch of government, that would undoubtedly compromise the enforcement.
Why is it important to do this now? Surely we can leave it for later. No, we cannot. These institutions ensure that day-to-day decisions made by national and local government, and in public agencies, do not undermine these important standards and protections. That is why the principle has to be in place from day one. It also has to be in place then because, as the debate on amendments to Clause 6 made clear, where there is regulatory alignment on standards it is unclear how courts will interpret EU decisions in the event of disputes.
This amendment would ensure that, even with its lack of clarity on enforcement, our standards must not drop. Indeed, in the debate on Amendment 144, several noble Lords were concerned about the lack of clarity and certainty in the mutual recognition of standards in food, transport, professional qualifications and communications. In his response, the Minister spoke of the Government being,
“committed to maintaining high standards”,
but in a manner,
“still to be determined.—[Official Report, 14/3/18; col.1602.]
Presumably, this is because negotiations are taking place. I suppose we all have to live with that, but this amendment would help us to do so. It would deal with our concerns so that, whatever the outcome of these negotiations, the standards that are so important in our way of life will not be sacrificed. The article by the noble Lord, Lord Pannick, in the Times also touches on this. For instance, we all need to be assured that we will not alter or lower the standards of the general protection rules on data, because these govern the transfer and exchange of data. Doing so would have an absolutely devastating effect on data moving freely, impacting on the lives of millions of people.
Baroness Ludford (LD)
My Lords, I support this excellent amendment, because it would create a duty to ensure that any governance or regulatory function currently exercised by an EU institution is transposed into UK law. It is not good enough to retain EU law that protects standards and protections if we lack the complementary functions of monitoring and measuring compliance with the requirements, of reporting on compliance, of enforcement, of setting standards and targets and of publicising information, all of which is cited in the amendment.
These rights will be empty of meaning unless they are monitored and enforced. One of the concerns is where we will find the capacity to fulfil these functions to match what the EU has built up by highly expert and specialised institutions such as the Food Standards Agency, the Environment Agency, the European Chemicals Agency, the European Medicines Agency and Euratom.
The 2017 White Paper on legislating for withdrawal gives an example that raises considerable concerns. It says:
“There will be law which will, upon leaving the EU, no longer work at all and which will need to be corrected to continue to work. An example of this”—
we might not all be familiar with these regulations—
“would be the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. These domestic regulations contain a requirement to obtain an opinion from the European Commission on particular projects relating to offshore oil and gas activities. Once we leave the EU, the Commission will no longer provide such opinions to the UK”,
which is true.
“However, this requirement in the existing regulations would prevent certain projects from taking place unless we correct it”.
The Government were positing, in what is now this draft legislation, to allow the Government to amend our domestic legislation either to replace the reference to the Commission with a UK body or to remove this requirement entirely. It is the removal of the requirement entirely that is worrying. This is about when a company wishes to build an oil pipeline in a protected habitat, so it is not a negligible issue. So there is a series of regulatory hurdles at the moment. The Government argued that abolishing this reference to the Commission would be a mere “technical” change. However, protecting habitats from potential oil spills is not a technical change. Therefore, there needs to be some substitute for the European Commission.
The powers in the Bill, including in Clause 8, which contains powers that could allow the Government to reduce the level of regulatory protection in the UK to align with international trade partners without consulting Parliament, could be of great concern. We have heard from Wilbur Ross, the US Commerce Secretary, who has specifically described the regulation and documentation of chemical exports, food safety geographical indicators—the things that protect Cornish pasties and Melton Mowbray pork pies, and so on—as presenting “key impediments” to expanded trade between the UK and the US. So this kind of thing will be very much at risk.
We have talked before in Committee about how we cannot implement things unilaterally; we have to be able to have some reciprocal enforcement. The Business Minister, Andrew Griffiths, told MPs last week that there is no,
“cast-iron assurance … that UK products will remain protected”.—[Official Report, Commons, 13/3/18; col. 711.]
They might in the UK but they will not elsewhere in the world. We need an infrastructure of regulatory enforcement, obviously on a reciprocal cross-border basis, to uphold the protection that the Government say they will give to retained EU law standards. The answers that we are supposed to understand that the Government cannot discuss this in any detail because it is part of negotiations, or that no plans are yet in place, are wearing pretty thin.
I therefore share the concerns of the noble Lord, Lord Haskel, and I would like to hear an assurance from the Minister that similarly high standards of regulation as well as of protective law will be guaranteed. Otherwise, if you have the law without the regulatory enforcement, it is not a lot of use.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 214, to which I have attached my name. I am not sure whether attaching my name to an amendment makes it more or less likely to be considered—perhaps it is less likely. This is an important amendment and I hope that your Lordships’ House will forgive me if I restate things slightly differently. In my political life, I have found that it pays to repeat things, because people do not always hear them the first, second or even 100th time. Repetition is not a bad thing.
The amendment is all the more important when considered in the light of the Prime Minister’s “hard truths” Brexit speech, where she committed to,
“bring our country back together, taking into account the views of everyone who cares about”,
Brexit,
“from both sides of the debate”.
That is laudable, because we all know that this country is deeply divided over Brexit and we have at some point to start some healing. I have not seen any sign of it yet. This amendment is therefore a chance to start that healing process and to reassure those people who are anxious about the prospect of leaving the EU—the number seems to mount every day.
Amendment 214 sets out a legal responsibility for Ministers to ensure that public authorities continue to protect all rights, freedoms and protections that any person might reasonably expect as a member of the EU. Ministers are claiming a whole load of lawmaking powers in the Bill, but the amendment would require them to use those powers for good. We are retaining this whole body of EU law, with certain rather crucial gaps, but we do not want a governance gap, where many of our rights could be contingent on some power or function exercised by an EU authority or entity that we do not have a copy of. As one example, many of our environmental protections and the protection of our health, which stems from them, are currently governed by EU entities. The retained EU laws will be absolutely worthless if there is no organisation or entity through which they can take effect and be held to account. While Ministers will have legal powers under the Bill—far more than we want them to, if they get their way—they have no legal obligation to ensure that those powers are used to protect our rights, so there is a big gap through which much retained EU law could fall without this amendment. As worrying as the Henry VIII powers are, the potential to lose rights by omission is just as worrying.
As someone who voted for Brexit, I know that no one voted to lose their rights, protections and freedoms. With this amendment in place, I would certainly sleep better at night, and many more people, be they Brexiters, remainers, “don’t carers”—I am not sure how many of those are left, but perhaps there are some—or whoever else, would feel reassured about the path down which Brexit is taking us. We all know that Brexit is a leap in the dark. None of us can say how it will work out. This amendment is our opportunity to put some certainty in place by requiring the Government to ensure that all rights, freedoms and protections that we enjoy under the EU will continue to be protected by a public authority once we leave.
I wish to take a moment to pre-empt the Minister, who will probably say lots of things with which I do not agree, and briefly explain what this amendment is not. In case the response is to refer to a list of rights such as voting in EU elections and standing for election to the European Parliament, the amendment pre-empts this by referring only to those rights,
“which do not cease as a result of the withdrawal agreement”,
so we can save ourselves from that response. The withdrawal agreement will be voted on by this Parliament, so there will at least be some democratic basis on which those rights are withdrawn. This is in contrast to rights withdrawn by omission, which has no democratic mandate, scrutiny or oversight. Therefore, I beg the Minister to give real thought to the intent of this amendment. As I said, no one voted to lose their rights. I think that the majority of people in this country would support this amendment and not see it as a measure that would block Brexit. It is about protection for us all. It is our chance to put things right and to start the healing process that is not just necessary but urgent.
Lord Liddle (Lab)
In supporting this amendment, I wish to emphasise an aspect on which noble Lords who have spoken have not focused but which is a vital part of our EU membership, as I see it, that will probably be lost unless we continue to think of ourselves as a European country. This is not about being in the EU but about thinking of ourselves as a European country.
In those far-off days when Labour was in government, I was involved in establishing policy co-ordination under what was called the Lisbon strategy, which covered a range of areas such as early school leavers, which is a problem in many of our member states, child poverty, the extent to which arrangements were in place to achieve a work/life balance and enable families and women to access good childcare, research targets, monitoring how much member states were spending on research and innovation, and the best policies for promoting research and innovation. A range of soft co-ordination is carried out by the EU in areas that are not strict EU competences, which will be lost.
This is important in terms of the policy community—for civil servants, for academics involved in these issues and for people who think about education, social, poverty and innovation policy. If we detach ourselves from this, we will not be a European country any more. Involvement in agencies or bodies such as the Dublin-based European Foundation for the Improvement of Living and Working Conditions is important to people who think about policy in these areas. Therefore, I support the amendment.
Lord Spicer (Con)
I would like to question that intervention. I think that common standards can be a bad thing for free trade. They can be the most effective of all anti-trade policies and, when it comes to the European Union, in many cases they are. They are used, particularly by Germany, to restrict trade in a far more effective way than tariffs might do. Therefore, it is precisely the kind of vague, if I may put it that way, standards to which the noble Lord has just referred that one should be wary of in this amendment.
Lord Liddle
If I may say so, the noble Lord has just shown the real objective of people who support Brexit. It is basically to weaken common standards and to turn us into some kind of mid-Atlantic regulatory free market tax haven, which is a horrific prospect for the British people. The fact is that the people who support that, with the exception of the noble Lord, do not have the courage to tell the British people that that is what they want.
Baroness Jones of Moulsecoomb
My Lords, I object strongly to that comment about people who support Brexit supporting a lowering of standards. That is absolutely not true.
Lord Cormack (Con)
My Lords, I had not intended to intervene on this amendment but I am slightly provoked by my noble friend Lord Spicer. There is a fundamental point here which was touched on both by the mover of the amendment and by the noble Lord, Lord Liddle. In fact, they have unwittingly or otherwise echoed what the Government have been saying from the word go—that they want us to remain a European power. There is no question of our not remaining in Europe; we are just detaching ourselves from the European Union. That does not bear too close an examination, because of course we are a European power and a European country.
If we are to remain an essential part of Europe—a nation that truly pulls its weight within Europe—we have to have standards that are similar to those accepted throughout Europe. Whether in the area of environmental control or the quality of sea water, which we touched on a couple of weeks ago, or other things, such as the medical issues that we have debated, we have to have rigorously upheld standards that are similar to and commensurate with those of our great neighbours, France, Germany and the rest of the European Union. Therefore, when my noble friend responds to this brief debate, it is important that he underlines the Government’s commitment to standards that are comparable with those enforced by our European neighbours. Although they will have to be enforced in a different and more domestic way, enforced they must be.
Lord Goldsmith (Lab)
My Lords, my noble friend Lord Haskel has raised some important issues, which we should carefully consider—I hope that the Government will do so. He is plainly right that one of the consequences of our departure from the European Union will be the loss of the benefit of EU governance institutions and the standards that they set and enforce. It is worth underlining the word “enforce”, as the noble Baroness, Lady Ludford, did. This is not just about having the standards; it is also about having institutions that are capable of enforcing them.
Of course, the Government will say that we can and we should take over ourselves the setting and enforcement of appropriate standards. But there are challenges in doing that, to some of which the noble Lord, Lord Cormack, has referred. If we are going to have standards in which people have confidence, they need to be delivered by institutions in which there is demonstrable independence. That then gives rise to credibility: the standards and the institutions that set them must be seen to have a distance from Ministers and not be subject to expedient ministerial policy-making. We have so far become used to—indeed, perhaps taken for granted—the fact that there are standards that are set by the current EU institutions which have rigorously debated and taken into account national standards. However, as my noble friend said, we need to be assured that standards—he mentioned in particular general data protection rules, but other standards as well—are not lowered.
That raises an important point. In this Bill, the Government have taken the view, in my view quite rightly, that the fundamental rights that are protected by the European Convention on Human Rights, now by our own Human Rights Act, cannot be changed without parliamentary scrutiny—indeed, only by primary legislation. That is not the position that is proposed in relation to other rights or standards that are, in many people’s eyes, as important. We need clarity on these issues. It is not enough for the Government to say that they recognise the need to maintain high standards of protection; they need to explain how those high standards of protection are in fact to be achieved, and to do that in a way that gives rise to confidence.
My noble friend Lord Liddle raised a further important point—and, if I may say so, he played an important part in this himself in previous years—about the conversations and co-ordinations that have taken place between European countries in setting policy and the standards that go with policy. It would be good to hear from the noble and learned Lord the Minister whether those will be continued and in what way.
There is much to support in this amendment and in the principle that my noble friend has put forward. It is supported by the noble Baroness, Lady Jones of Moulsecoomb, and I do not think for one moment that the fact that she has added her name to it means that the amendment will be looked at less—quite the opposite, I suggest. We look forward to hearing what the noble and learned Lord has to say in response to this amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank the noble Lord, Lord Haskel, for tabling this amendment. I believe the intention behind it is to ensure that United Kingdom law will continue to function effectively after our departure from the European Union. This is, of course, the aim of the Bill, and so I welcome his engagement on its content. However, despite these intentions, the Government cannot accept the amendment.
The Bill will take a snapshot of European Union law—including the rights, freedoms, protections and standards it brings—so far as it applies within the United Kingdom immediately before exit day, and seek to retain it in UK law, so far as is practical. It will then be our priority to ensure it will be able to operate consistently and without deficiency within our domestic law through the use of powers given in the Bill. This includes ensuring that there is suitable provision for the transfer of existing functions and roles carried out by the EU or its institutions while we are a member. It is of course right that the Bill is able to do this.
The United Kingdom has a long-standing tradition, one that predates 1972, of ensuring that our rights and standards are protected domestically, and of fulfilling our international obligations with regard to these matters. The decision to leave the European Union does not change this. Any regulation to correct a deficiency in retained EU law, within which such rights, freedoms, standards and protections will sit, will of course be subject to the overview of this Parliament: it will be subject to the established procedures of parliamentary scrutiny and, in addition, to the work of the sifting committee that the Leader has indicated will be constructed in this House.
The noble Lord, Lord Haskel, said that standards would be subject to Ministers. But standards, I suggest, will be subject to parliamentary scrutiny. I say the same in response to the noble Baroness, Lady Ludford. We will retain the law and it will not be empty of meaning because again, in so far as we implement it in domestic law, it will be the subject of parliamentary scrutiny. The noble Baroness, Lady Jones, suggested that retained EU law would be worthless if there were no body to oversee it, but that body will be Parliament. No body is better equipped for that task than Parliament.
On policy co-ordination, referred to by the noble Lord, Lord Liddell, of course, that is bound to be a matter of negotiation and not one for this particular Bill. We want to negotiate questions of the extent and depth to which we co-operate with members of the EU after we leave. As regards standards themselves, is it suggested that because we are in Europe—as the noble Lord, Lord Cormack, observed, we still are and still will be—but not in the European Union, somehow our standards are bound to fall? Is it supposed that Switzerland or indeed Norway do not maintain rigorous standards in regard to consumers, the environment and so on?
Baroness Ludford
Norway is in the single market. That is why it has to uphold the same standards, and Switzerland is de facto in the single market.
Lord Keen of Elie
Switzerland is not de facto in the single market. Switzerland has a multiplicity of agreements with the EU that have been negotiated on a bilateral basis, which is the form of negotiation that we intend to carry out in due course. Membership of the EU is not, as I say, the touchstone of rigorous standards either in Europe or beyond.
With regard to the points raised by the noble and learned Lord, Lord Goldsmith—
Baroness McIntosh of Pickering (Con)
Is my noble and learned friend saying that we are now seeking an EU/Swiss-style agreement?
Lord Keen of Elie
I am not suggesting that for a moment. I was saying that these matters will be the subject of negotiation going forward; they are not ones for this Bill. What one cannot suggest is that, because we are taking the step of leaving the EU, we are determined somehow to see any diminution in the standards and obligations that we maintain at the present time. As this House will be well aware, the Bill is not designed to legislate for the major elements of any future agreement between the United Kingdom and the EU. Indeed, we cannot unilaterally legislate for our future relationship with the EU without the withdrawal agreement, or seek pre-emptively to provide for the possibility of maintaining particular functions or powers within the UK after we leave the EU.
This Bill instead aims to provide a stable and certain domestic statute book on exit day—a platform—irrespective of the result of the negotiations in any final agreement with the EU. The proposed amendments, therefore, do not assist in that process, but would potentially disrupt any negotiating process that is to be carried on. At the end of the day, I respectfully suggest that the amendment would not benefit the task we have in hand and I therefore urge the noble Lord to withdraw it.
Lord Goldsmith
Before my noble friend responds, will the Minister give an assurance as to this? He has talked about the legal difficulties involved and the legal freedom that the Government want, but is he able to give an assurance that whatever protections and standards we leave the European Union with will not thereafter be diminished, save with the decision of Parliament through primary legislation?
Lord Keen of Elie
Clearly, the noble and learned Lord has misrepresented to an extent what I just said to the House, because I did not refer to primary legislation—those words slipped into his observation. However, I did point out that, of course, under the process that we have and will have in place, there will be parliamentary scrutiny of the steps we take to implement these provisions in respect of EU retained law after we leave.
Baroness Young of Old Scone (Lab)
Can the noble and learned Lord clarify the position on the provisions, which the Government will consult on imminently, concerning the “governance gap” that will open up on environmental issues after the withdrawal Bill has been enacted? At least a proportion of the powers and functions listed in subsection (2)(a) to (f) of the proposed new clause will be ascribed to a body whose nature is not yet known but is soon to be subject to consultation. It will deal with reviewing and reporting on compliance with legal requirements, monitoring and measuring, and certainly publicising information. Can the noble and learned Lord tell us what the difference is between the body that is going to fill the environmental governance gap and the same sort of governance gap that will open up with respect to other functions outside the environmental field?
Lord Keen of Elie
My Lords, with respect, I fear that I do not properly understand the question posed by the noble Baroness, but I will read Hansard, and in so far as I do understand it, I will write to her.
Lord Haskel
My Lords, I thank all noble Lords for their support for the amendment and I thank the noble Baroness, Lady Jones, for adding her name to it. I do not think that her doing so has diminished it in any way at all. In response to the noble Lord, Lord Spicer, standards do help free trade because without them we enter into a race to the bottom. I thank my noble and learned friend Lord Goldsmith for making the point about parliamentary scrutiny, and I would say to the Minister that I do think this is a matter for the Bill. As I said, we are not seeking to affect the negotiations that are under way; what we seek is an assurance that our standards will not drop. It is in the Government’s hands to give that assurance. I shall study carefully what noble Lords have said and I beg leave to withdraw the amendment.
“Maintenance of rights in the area of insolvency and restructuring law
(1) Within the period of six months of the passing of this Act, a Minister of the Crown must publish a report outlining the extent to which the benefits afforded by EU insolvency and restructuring law will continue to exist in domestic law after exit day.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of insolvency and restructuring law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the UK’s insolvency and restructuring framework has been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 220 seeks to draw the Minister’s attention to what we risk losing if the Government fail to negotiate the reciprocal arrangements we currently have in place by virtue of the EU insolvency regulation and the recast Brussels regulation. They provide a speedy and efficient procedure that determines which member state has jurisdiction to open insolvency proceedings as well as ensuring appropriate recognition of proceedings within the Union. Of course, I am referring to our long-term relationship with the EU, not just the transition period. However, I welcome today’s progress in that, in particular the realistic replacement at last of implementation with transition. I am also grateful for article, clause or paragraph 63 in the report released today—I do not yet know which it is—because it provides for the regulations to continue to apply to insolvency proceedings where these commence before the end of the transition period, but that is not enough. We are looking to the future.
The current rules allow for judgments made in the UK to be enforced across other member states. This recognition, whether of appointments or judgments, is key to investors, pensioners, employees, consumers, creditors and businesses. Without the rules, a liquidator or receiver here could lose the ability to freeze and ultimately return to the UK assets that have been squirrelled away across the EU but which rightfully belong to the bankrupt firm’s creditors, be they the staff, consumers who have paid for yet undelivered goods, investors, a pension scheme, landlords or even our blessed HMRC.
The UK has a renowned insolvency regime with one of the highest rates of return to creditors in the world. It gives confidence to investors and traders that their money will not disappear offshore because it enables a receiver to rapidly get hold of that Lamborghini, hidden away in an Italian garage, houses in sunny European climes, bank accounts in Frankfurt or even paintings in Paris, if they are rightly due to creditors here.
There are many examples; I will not go into detail. The purpose of the amendment is to ensure that the Government prioritise this in negotiating our long-term relationship with the EU. The Minister is well aware of my concerns; I set them out last year in writing to the then Minister, the noble Baroness, Lady Anelay. She replied to me on 26 October last year, offering a meeting with the BEIS Minister, Margot James. However, I got a letter from Margot James on 9 January saying that she could not meet me, but Insolvency Service officials could. The problem is, I know that various bodies, such as R3 or the City of London Law Society, who feel that the Government are not taking this seriously enough, have met with the IS and feel that they are not getting traction in the Brexit negotiations. Hence, I would argue the need for a political meeting.
My ask today is a very easy one: will the Government agree to meet me and representatives from the field—perhaps the noble Baroness, Lady Burt, as well—so that we do not have to bring this back on Report but can make progress? I beg to move.
Baroness Burt of Solihull (LD)
My Lords, I support the amendment of the noble Baroness, Lady Hayter, from these Benches. I would very much appreciate it if such a meeting could be arranged; I would love to be included.
I want to emphasise the importance of the UK’s insolvency framework to British trade and investment, especially where cross-border insolvencies between the UK and EU are concerned. We need to ensure that the benefits of our existing arrangements can continue, post Brexit, and we need an agreement in place before we exit the EU. We have a strong insolvency framework in the UK, as the noble Baroness, Lady Hayter, mentioned, and some good reforms to corporate insolvency in the pipeline. They would make our rules fit for purpose for both domestic and international markets, as well as underpin the UK’s attractiveness as a place to do business by supporting trade, investment, lending, productivity and entrepreneurship.
Brexit risks creating barriers to resolving cross-border insolvencies between the UK and the EU. We cannot allow that to happen. We need to ensure automatic reciprocal recognition for insolvency judgments and appointments, post Brexit. Unfortunately, we have slipped down the World Bank rankings in resolving insolvency from 13th to 14th; frankly, now is the worst time to be heading in the wrong direction. Life will be tough enough, post Brexit, so let us not risk losing out on the international investment our robust insolvency framework currently attracts. The amendment’s reporting requirements would ensure that no one is allowed to take their eye off the ball.
Baroness Kramer (LD)
My Lords, does the Minister agree that this particular set of issues is absolutely crucial to small businesses? He will know that many small businesses are happy to export to the European Union because they have protection in case of insolvency; it is as solid as if there were an insolvency from a customer or supplier literally round the corner or down the street.
There are many reasons why those companies choose not to export to many of the markets where we so often hear there are such extraordinary opportunities. It is because—especially for small businesses, I am afraid—there are long histories of non-payment. Large businesses can afford to retain international lawyers in different locations across the globe and across borders. Large companies—especially multinationals—frequently have contacts in governments, at the appropriate level, to make sure that their interests are protected, but that very rarely applies to small businesses, so this protection is crucial.
Lord Keen of Elie
My Lords, I share the concerns that the amendment raises about the consequences of failing to maintain our co-operation with the EU in matters of civil justice, in particular, in this present context, matters of insolvency. On the matter of meetings with officials and others, the noble Baroness, Lady Hayter, may recollect that we discussed this topic when we met last week, albeit briefly. It might be that I am not the appropriate individual with whom more specialist bodies would wish to take this matter forward, but I would be content to pass on her request for a meeting to BEIS. I am confident that it will have no difficulty arranging that for the convenience of all parties.
Clearly, should we fail to agree a replacement for our current arrangements when we leave the EU the impact will be felt by both the UK and EU member states. I therefore believe that it is in our mutual interest to agree a close and comprehensive arrangement regarding insolvency, as well as other matters of civil judicial co-operation.
I do not think I can accept the suggestion from the noble Baroness, Lady Kramer, that a small company in the UK can trade as if it is as solid as a domestic supplier that it was supplying in the context of the insolvency regulations. They do not work quite as simply as that. The insolvency regulations as restated in 2015 determine that the insolvency regime for each country stands alone. Each member has its own rules, but the recast 2015 regulations identify the debtor’s centre of main interest and treat that as the principal proceedings for the purposes of insolvency. For example, if we have a centre of interest for a company in the United Kingdom and a liquidator is appointed in the United Kingdom, that appointment would generally be recognised throughout the EU. That is certainly a step better than the insolvency regimes that operate internationally beyond the EU, such as the UNCITRAL rules, where there is not that element of recognition and it is necessary to take further steps if judicial co-operation is secured by way of litigation in each individual country. I recognise the benefits and advantages of the EU regime, although some would say that it is far from perfect or uniform.
There is a clear need for effective dispute resolution and effective jurisdictional recognition when a company enters insolvency or needs to restructure. Indeed, in its absence those who suffer will be the creditors of the company, because the cost of carrying out the insolvency process will be increased. The UK has already said in its position paper, Providing a Cross-Border Civil Judicial Cooperation Framework, published last August, that we wish to continue with substantively the same principles of co-operation as we already have in civil judicial co-operation, including insolvency. As the noble Baroness, Lady Hayter, observed regarding the implementation period, the transition agreement from the EU referred at paragraph 63 to at least a starting point for that for insolvency processes which commenced before the exit date. We wish to build on that and ensure that we can maintain a suitable regime. We have no difficulty with that and we believe that the EU 27 will also recognise the importance, relevance and advantages of maintaining a single insolvency regime with the United Kingdom after our exit date. As I said, that would be based, as we hope it is at present, on identifying any debtor’s centre of main interest and treating it as the primary place from which insolvency proceedings should emanate and be recognised in the other EU states.
Of course, all of this involves a degree of reciprocity. That is why it will have to be the subject of the ongoing negotiation. We consider that at the end of the day we will have the means to persuade the EU 27 that it is in everyone’s interest that, in general, civil judicial co-operation should be maintained. In the context of the present amendment, that should include the insolvency regime. I hope that what I have said will reassure the Committee and the noble Baroness, Lady Hayter, that we are committed to seek and retain current co-operation with the EU on cross-border restructuring and insolvency following our exit from the EU. In that context, I invite the noble Baroness to withdraw her amendment.
Baroness Hayter of Kentish Town
My Lords, I do not think that I have ever called the noble and learned Lord “not the appropriate individual”. Actually, that was a very appropriate and helpful response. I thank the noble Baronesses, Lady Kramer and Lady Burt, for their support. The Minister’s emphasis on it being in everyone’s interest that co-operation be maintained is the right way forward. Despite his warm words, a meeting with the relevant sponsoring department, BEIS, would nevertheless be of use. If he can set that up, I am more than content to withdraw the amendment.
“Co-operation with the European Union on tackling violence against women and girls
(1) Within one month of the passing of this Act, and then once in every subsequent calendar year, the Secretary of State must lay before both Houses of Parliament a report on continued co-operation with the EU after exit day on tackling violence against women and girls.(2) That report must include, in particular, an assessment of how co-operation with the EU will replicate mechanisms which exist within the EU before exit day to—(a) maintain common rights for victims of domestic and sexual abuse when moving across borders,(b) reduce female genital mutilation,(c) reduce human trafficking,(d) reduce child sexual exploitation, and(e) enable data sharing relating to paragraphs (a) to (d).”
Baroness Kennedy of The Shaws (Lab)
My Lords, the amendment would insert a new clause that required the Government to report to Parliament on how co-operation with the European Union on tackling violence against women and girls will continue post Brexit. Importantly, it would require government to report to Parliament on progress rather than to make legal provision. It is hoped that violence against women and girls post Brexit will be pushed up the agenda in the negotiations if the Government are encouraged to report on it.
After exit day, women subject to violence could lose significant legal rights and protections such as European protection orders as well as a whole host of other measures aimed at tackling human trafficking, female genital mutilation and other crimes that disproportionately affect women. When similar amendments were considered in the other House, the Government responded by saying that they are already required to report on progress towards ratification of the Istanbul convention—I imagine I might be treated to that argument today.
However, the first Istanbul report was published by us last November and it made no reference to the European Union, European protection orders, the European arrest warrant or other forms of cross-border co-operation with the European Union. The amendment asks the Government to report on the action they are taking to continue co-operating with the European Union in the fight against violence towards women and girls and to ensure access to justice for victims. I therefore hope the Government do not give a similar response to that given in the other place, because it was demonstrably unsatisfactory. Given the gravity of what we are discussing—namely, how to protect abused women fleeing the country in which they live to escape an abuser—I hope to hear how the Government expect to continue protection for such women and girls post Brexit.
Amendment 222 is coupled with Amendment 224, which is on a related but distinct issue, around funding. As it stands, European Commission funding through streams such as the Daphne fund, the rights, equality and citizenship fund and the European Social Fund supports a wide range of research and service delivery aimed at tackling violence towards women and girls in the United Kingdom. Of the 140 projects supported by the €364 million included in the rights, equality and citizenship programme since 2014, just over a third had a UK lead or partner—so we do very well out of that. I shall mention one organisation that I know rather well: the Iranian and Kurdish Women’s Rights Organisation, a national charity which started by dealing simply with Iranian and Kurdish women but has expanded to support Middle Eastern and Afghan women and women from Africa who have been victims of violence, forced marriage, female genital mutilation and domestic abuse. That organisation currently receives up to 40% of its funding from European Union sources. It will no longer be eligible to apply for such funds once we have left. It will create an astonishing funding gap.
The Government have partially recognised the problem. They have committed to replacing some of the EU funding that goes to UK organisations and they have said that they will certainly try to replace a large part of the European Social Fund. However, no such announcements have been made regarding the Rights, Equality and Citizenship Programme fund, which has an explicit target of dealing with violence towards women and girls. Surely, by now the Home Office has set about quantifying the funding received by anti-violence and women’s rights groups and other women’s organisations from the European Union: we ought to have calculated some sums by now.
Part of what Amendment 224 entails is for the Government to report to Parliament on just how much funding is received by these organisations from the EU and, once we have that information, to consider how it will be remedied in the future and how organisations doing incredibly important work can receive reassurance about what will happen. Those are the matters that I raise here. Again, I mention the crises that we have seen publicised recently around women’s refuge beds and the absence of funding from local authorities to the refuge movement: many of those absences of money are already causing real problems for women’s organisations. The loss, on top of that, of money from Europe will have a significant impact, so I should like to hear what the Government are going to do about it.
Some £80 million of funding is already committed by the Government to existing projects and the shock of Brexit on the funding streams is not being addressed at the moment. I hope the Minister will not respond by highlighting funding that has already been promised: it will not be enough. We are talking about a different aspect of the fragmented funding sources here and I would like to hear what will happen in the future. I want to hear a commitment to reporting regularly to this House. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I support both amendments but my brief remarks will mainly concern Amendment 224. There is great concern among civil society groups about the future of EU funding that currently supports those working to support survivors of violence against women and girls. As my noble friend Lady Kennedy has said, the Government have given an assurance that they will honour some European structural fund commitments up to 2020, but so long as they represent value for money and align with “domestic priorities”. What criteria will be used to decide whether projects meet these conditions? Will the Minister give an assurance about the Rights, Equality and Citizenship Programme, to which my noble friend referred, which supports progress on equality and human rights, including through front-line services for people experiencing domestic abuse?
I have just read the Government’s very welcome consultation document on their proposed strategy on transforming the response to domestic abuse, but I did not spot anything on this matter—on neither EU co-operation post Brexit nor funding. It is possible that I missed it—I would be very glad if the Minister drew my attention to where it was—but, as far as I can see, there is a disconnect between our deliberations today and this very important new strategy that the Government have brought forward. If the Minister is not willing to accept two very modest amendments that simply ask for reporting, it can only reinforce anxieties among civil society groups which are doing so much to make a reality of the Government’s own aspirations to transform the response to domestic abuse.
Baroness Burt of Solihull
I support these two amendments. As the noble Baroness, Lady Kennedy, pointed out, after exit day, European protection orders, plus other measures which give victims of violence equivalent protections across the EU, will be lost to UK citizens. But violence against women and girls has not featured in any Brexit-related papers. Can the Minister please tell us what provisions are being made to continue co-operation and data sharing on known and suspected perpetrators of human trafficking, FGM and sexual exploitation of children, and the whole host of benefits which cross-EU co-operation has brought us until now?
As has been said, Amendment 224 talks about the funding we have received hitherto and the value of the support we have enjoyed by virtue of being a member of the EU. If the Government are serious about ensuring that we continue to give vulnerable women and children the protections they have enjoyed so far, they know that this has to be properly funded. According to the Fawcett Society, many millions of pounds’ worth of funding—for research and service delivery support—are potentially at stake, as the noble Baroness, Lady Kennedy, said. Will the Minister commit to sustaining this funding post Brexit?
Baroness Butler-Sloss (CB)
My Lords, I support the amendment moved by the noble Baroness, Lady Kennedy. I am concerned about a number of matters, particularly the European protection order and the European arrest warrant, both of which are important weapons in relation to domestic violence.
I work with IKWRO, which the noble Baroness, Lady Kennedy, referred to: the Iranian-Kurdish organisation that does a great deal of good. It has really substantial funding from the EU and requires continued funding for the very valuable work it does in this country. I also ask the Minister to bear in mind that domestic violence includes forced marriage. Many women in forced marriage situations also suffer domestic violence. I declare that I am chairman of the National Commission on Forced Marriage.
Baroness Stroud (Con)
My Lords, I will speak to Amendment 222. Human trafficking is one of the great global scourges of our generation. Globally, 66,520 people were identified as victims of human trafficking in 2016—a 40% increase from 2012. Even this number may represent less than 1% of the real scale of the problem.
Identifying and assisting victims of human trafficking is complex because their situations are complex and hidden. Someone may start their journey as a migrant but end up being exploited because of their vulnerability, and become a victim of human trafficking. The situation of a person who has been trafficked is desperate—stripped of agency, power and dignity, often in an unfamiliar country, with little way out.
This issue significantly affects women and girls. Of all the victims of human trafficking in Europe, 70% are women and 11% are girls, so a focus on tackling violence against women rightly seeks to address human trafficking. Many of these women will be victims of sexual exploitation, which makes up 76% of all human trafficking cases in the EU.
Human trafficking is predominantly a cross-border crime. Trafficking networks can often span several countries or continents as victims are recruited and transported from one country to another, so collaboration is key to identification and assistance. In 2016 only 326 of the 3,805 potential victims referred to the UK’s national referral mechanism were UK nationals—over 90% of potential victims of modern slavery were foreign nationals.
Across the EU, from 2010 to 2012, 5,611 EU citizens were prosecuted for trafficking, and almost a quarter of these were prosecuted in a different EU country. This demonstrates the need for strong collaboration, information sharing and co-operation between law enforcement and justice systems to protect vulnerable people from being trafficked.
This country has a proud history as a world leader in tackling modern slavery and human trafficking, supported by the commitment of our Prime Minister. Our Modern Slavery Act is at the forefront of legislation to ensure that we are equipped to properly tackle this issue. We have this moment in history to define the country we want to be. We should seek to maintain our proud record, and build on it, to ensure that we remain at the forefront of the fight against trafficking and the oppression of women and girls.
Lord Russell of Liverpool (CB)
My Lords, I want to say one or two words, not least because I thought it might be appropriate to have at least one male voice speaking in this debate about violence against women and girls. I declare my trusteeship of Coram, which contains the Coram Children’s Legal Centre. The centre often gives advice and tries to help the victims of domestic abuse—particularly children, including girls and boys.
As ever, these are probing amendments and we do not expect the Minister to come up with a list of magic solutions. However, we are concerned with two key areas. One is to seek reassurance that the levels and types of co-operation currently in place will, to the best of the Government’s ability, continue to be as effective—and even more effective in the future. The second is to seek reassurance that the sources of funding, some of which are plugging important gaps that we have been unable to fill domestically in the recent past, will not be unwittingly left behind.
Nobody suggests for a moment that Her Majesty’s Government do not care about these things. When I googled what the Prime Minister said about violence against women and girls, I saw that one of her first speeches when she became Home Secretary in 2010 was at a Women’s Aid conference, when she said:
“As both Home Secretary and minister for women and equalities I believe I have a unique opportunity to bring about real change to the lives and the status of women in this country and my ambition is nothing less than ending violence against women and girls”.
I am sure the Minister would agree with that.
We are not looking for chapter, book and verse. The Government have put a huge amount of effort into this. I returned to Google and looked at the Home Office website on violence against women and girls. It has no fewer than seven pages full of a whole variety of initiatives and policy statements that the coalition Government and now the current Government have undertaken and made, so it is not for lack of activity or lack of trying. We are concerned to try to ensure that that momentum continues. We are really trying to make three points. I think we know the answer to the first, which is whether the Government are aware of our concerns. Secondly, are they actively reviewing the content and looking at how to try to sort some of these out? Thirdly, to the best of their ability, can they remedy any of the unintended consequences?
Lastly, I put on the record an apology to the House. Two weeks ago, I fell an unwitting victim to what I believe the President of another country calls fake news. After googling some contributions by the noble Lord, Lord Callanan, I inadvertently attributed to him a mildly scurrilous article that appeared to be in his name in the Sun newspaper—a well-known and respectable organ. However, it turned out not to be the case. I have apologised to him in person, and I am now apologising to the House. My comments at cols. 924 and 925 of Hansard on Monday 5 March were not entirely correct.
Baroness Thornton (Lab)
That was a very nicely put apology.
It is important to remind ourselves that European policy currently ensures that victims escaping violence are able to access basic provisions and that restraining orders put on abusive partners apply across the whole EU. Those fleeing domestic violence across borders within the EU have the European protection order—as mentioned by several noble Lords—which is recognised across the EU. There is no guarantee we can see at the moment that this will continue to include the UK. As for women with insecure immigration status, a female migrant worker escaping violence in the UK would need to rely on the social security system, putting them in a weak position. We have to ensure these vulnerable women are protected and safeguarded. If we do not, they almost certainly will not be.
These two amendments are about issues that we have generally addressed in the House, which is that we do not want to see any gaps. We do not want to see Brexit happening and gaps in the provision of protection—in this case, for women and girls facing violence. My noble friend Lady Kennedy explained very ably what assurances we need from the Minister. They are about policy, funding and implementation. I think that every single person who has spoken in this debate has in some way or other mentioned policy, implementation, continuity and assurance. The noble and learned Baroness, Lady Butler-Sloss, is completely right that the EU protection order and the EU arrest warrant are absolutely vital in this context.
I thank the Fawcett Society and Her Future, which includes 25 organisations that are intimately and actively involved in the protection of women and girls. They are very concerned about the fact that some of them will fall off a cliff if European funding is removed. They are very concerned about the implications that that will have for women and girls across Europe. From these Benches, I echo that we very much support these amendments and that we are seeking the assurance that many—I think all—noble Lords have raised today.
Baroness Goldie (Con)
My Lords, I thank the noble Lord, Lord Russell, for his very gracious apology, and I am sure that if my noble friend Lord Callanan were present he would wish to acknowledge it in person.
The noble Baroness, Lady Kennedy, has raised an issue of great importance, and I thank her for tabling this amendment. It touches on issues that invite concern and lead people, not just across this House but universally, to seek reassurance. It may assist the House if I explain that the Government are taking forward a range of work to tackle violence against women and girls and if I set out the Government’s position on current and future international co-operation on these issues. I appreciate that, as far as the noble Baroness is concerned, I am probably teaching a very young grandmother how to suck eggs, and I apologise for that in advance. However, I hope that in giving this further explanation I will reassure her that, while her amendments are undoubtedly well-intended, at this stage they are unnecessary.
Ending violence against women and girls, and protecting and supporting victims, remain a key priority for this Government. The UK continues to be a global leader in its efforts to tackle violence against women and girls, and it is our reforms to domestic law that in turn help to support a stronger international framework; that is something that it is very important to acknowledge. Our cross-government violence against women and girls strategy outlines our ambition that no victim of abuse should be turned away from the support that she needs, and is underpinned by increased funding of £100 million through to 2020. We have put in place a range of measures to tackle violence against women and girls, including the criminalisation of forced marriage, two new stalking laws, the national rollout of domestic violence protection orders and the domestic violence disclosure scheme, and a new offence of domestic abuse covering controlling and coercive behaviour, which I think many will acknowledge is a very welcome extension of the law. We have also introduced new guidance on domestic homicide reviews and a new domestic abuse statistical tool and dataset that brings together comprehensive data on domestic abuse at a local level.
We are proud of the progress that we have led, but we know that there is more to do. The prevalence of these crimes continues to be unacceptable, with violence or the threat of it, sadly and appallingly, a daily reality for millions of women and girls in the UK and internationally. That is why we will continue to build on this work, driving forward our agenda to further address these injustices. We have committed to publishing a landmark draft domestic abuse Bill and are supporting the introduction of a new civil stalking protection Bill to protect victims at the earliest possible stage. The domestic abuse Bill will protect and support victims, recognise the lifelong impact that domestic abuse can have on children, make sure that agencies effectively respond to domestic abuse and extend our extraterritorial jurisdiction over violence against women and girls-related offences in England and Wales.
We have clear mechanisms for reporting on our progress. I know that the noble Baroness, Lady Kennedy, said that she hoped I was not going to give the stock response that had been given in the other place—but I am the mere obedient servant of my masters, so I have to say that I am not permitted or authorised to stray beyond what the Government have already indicated is their position. However, I will point out that we are already required to lay annual reports in Parliament on this issue in the context of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence—the Istanbul convention to which the noble Baroness referred.
It was the coalition Government who signed the Istanbul convention in 2012 to demonstrate their strong commitment to tackling violence against women and girls, and this Government have made absolutely clear our commitment to ratifying it. The convention sets forth obligations on parties to take a co-ordinated, coherent and cross-border approach to tackling violence against women and girls, and it is the first pan-European and legally binding instrument to provide a comprehensive set of standards. The convention highlights the need for more effective international and regional co-operation and, while there is no one-size-fits-all model in our approach, I suggest that the measures within the convention will ensure that more robust action is taken through legally binding and harmonised standards.
Baroness Thornton
Does the Minister mean to say that the safeguards contained in the European protection order will be continued? Is that what will happen?
Baroness Goldie
I am merely saying that we are committed to that convention and the provisions contained within it. I will come in a moment to the more specific issues about which a number of your Lordships were concerned: namely, the particular framework of law enforcement and mutual recognition of legal systems.
The noble Baroness, Lady Kennedy, will be aware that the Government supported the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017, which places a duty on the Government to provide annual reports to Parliament on progress towards ratification. The first of these was published on 1 November 2017, and sets out the steps which the Government and, interestingly, the UK’s devolved Administrations are taking to tackle violence against women since signing the convention, and the remaining steps required as we progress toward ratification. In addition, once the UK has ratified the convention, we will be required to provide updates to the Council of Europe on compliance. This will not only further stimulate international co-operation but enable international benchmarking in tackling all forms of violence against women and girls.
I make clear that we are determined to ensure that victims can get the help they need when they need it, and we value the EU’s contribution to funding violence against women and girls services. Our future co-operation with the EU—I think this goes to the heart of the requirement of the noble Baroness, Lady Kennedy—will of course be subject to negotiation, but we are wholly committed to working with local commissioners to deliver a secure future for violence against women and girls services. As part of the negotiations, we will discuss with the EU and member states how best to continue co-operation on a range of issues, including the European arrest warrant and Europol. Several noble Lords expressed concern about how all this will link and dovetail post Brexit. It goes without saying that recognising the need for a workable and, as I said earlier, mutually respected framework of law enforcement is vital, and that will be at the heart of what we seek in the withdrawal agreement.
I have listened with interest to the contributions from across the Chamber. I undertake to look at Hansard. Some very good points were made and I shall see if the Government can provide any further comfort on the back of what I think has been a very well-informed and helpful debate.
I hope that I have made clear to the noble Baroness, Lady Kennedy, and other noble Lords who participated in the debate this Government’s absolute commitment to tackling violence against women in all its forms. Given our wider legal duties to update Parliament on the steps we are taking to tackle violence against women and girls, I invite her to withdraw her amendment.
Baroness Butler-Sloss
One word that has not been used at all in this debate is “reciprocity”. It is crucial in this area and that covered by the next amendment that there is reciprocity between the United Kingdom Government and the Governments of the EU on areas such as the protection order and the other orders that are so important in relation to domestic violence.
Baroness Lister of Burtersett
When the noble Baroness looks at Hansard, I should be very grateful if she could address the specific questions that I asked about the future of funds that we will no longer be part of and perhaps write to those of us who spoke in the debate.
Baroness Goldie
I must say that I listened to both noble Baronesses with great care.
Baroness Kennedy of The Shaws
My Lords, I will of course withdraw my amendment. I was rather disappointed not to have more from the Minister. I pay tribute to her. She is one of the most gracious and charming Ministers in this House, and that is why she is so popular with us all. I know that she, too, is a lawyer, and I remember how ferocious she could be in the Scottish Parliament. So I want her to commit to chewing the ankles of the negotiators to make sure that these issues do not fall off the agenda. The point of these amendments is that too often women’s issues are seen as second-order issues and not what the central negotiations are about—namely, having a good trade deal in the future.
I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for using the word “reciprocity”. Mutual recognition does not mean the same as reciprocity. We are concerned about enforcement: having the kind of collaborative arrangement whereby we can be sure that police forces and law enforcement agencies in other parts of Europe will act alongside our own agencies to protect women and girls who are facing violence. Those arrangements have been hard in the making, over many decades. We are not asking very much—just that this remains on the agenda and that there is reporting back to Parliament. Even with the good will of a Prime Minister who has been good on women’s issues and people like the Minister herself, I am concerned that this might end up forgotten about until it is too late. That is why I wanted to hear what the Government had to say.
Secondly, we have not really heard about the money. There is going to be a huge funding gap and organisations dealing with this really tough stuff are living in a state of anxiety about what is going to take place as of March next year. I think we might revisit this issue—but, at this stage, I beg leave to withdraw the amendment.
“Co-operation with the European Union on child maintenance claims
Within one month of the passing of this Act, and then once in every subsequent calendar year, the Secretary of State must lay before both Houses of Parliament a report containing an assessment of how, following exit day, co-operation between the United Kingdom and the EU will replicate mechanisms which exist within the EU to enforce cross-border child maintenance claims, and enable data sharing in relation to such matters.”
Baroness Kennedy of The Shaws
My Lords, Amendment 223 is about the enforcement arrangements, which rely on reciprocity, whereby a woman who has a child maintenance claim against an ex-partner can apply for an enforcement order in a court in the United Kingdom, which can then be enforced in another court in the European Union. An example which I have given a number of times in this House is a woman married to an Italian who shoves off, returns to Italy and does not pay maintenance for his children. Women being able to apply for an order which can be enforced across national borders saves time, money and stress and, ultimately, benefits mother and child. As I keep saying, if you have this problem and you are married to an American you have to get the money, go off to an American court and see what you can do over there. It is not easy, whereas it is very simple across the European Union.
This issue has not been commented on by the Government, so we can only infer that it is not yet on the agenda for any negotiations. We need to know what the Government plan to do on issues, like this one, where reciprocity is required and where mutuality makes it all work.
Baroness Burt of Solihull
My Lords, I support the amendment. Anyone who has been an MP in the other place will know from their caseload that child maintenance is a huge, complex and emotive issue. When I was in the other place I learned about this and the challenges for parents with care. Chasing recalcitrant dads, or mums, across national borders without co-operative and reciprocal—that word again—arrangements would be nigh on impossible. Will the Minister commit to ensuring that parents with care are not left high and dry post Brexit, and that we have arrangements in place before we actually leave?
Baroness Butler-Sloss
My Lords, from bitter experience as a family judge, I am aware how difficult it is for the mother of children—and occasionally the father; it is not always one-way—to get an effective maintenance order. I am not talking about Brexit at all, but one of the current benefits of the EU is the ability to follow an order made in an English court in another EU country, and the equal ability of the other 26 countries to follow an order into an English court. This is the absolute ultimate of good reciprocity. That is at enormous risk as we leave the EU. It is one issue that the Government must address alongside the reciprocity on divorce and other issues that we discussed earlier, and see that the good of this very good interchange between the 27 countries of the EU is not lost post Brexit.
Baroness Deech (CB)
Will the existing Hague convention on maintenance cover the situation? From what I have learned there are dozens, if not hundreds, of other states with which we have reciprocal arrangements for enforcing child maintenance. Some say that once we leave Europe, and leave the Brussels conventions, it will be simpler. We will simply have one international regime. There are those who say that it is actually better than the Brussels regime. All we need to do is sign up as an individual member—not as an EU member—of the Hague maintenance convention with its advantages stretching all around the world. I would like to be reassured that that will be just as good as the situation that we have at the moment.
I also support other Members in pointing out how very bad child maintenance law is at the moment in this country. It is very difficult to enforce in England, let alone elsewhere, but this is not the time to go into the great failings of that particular area of the law. We need to know whether the Hague convention will do, and whether we will sign up with the necessary three months’ notice before we exit from the Brussels conventions.
Baroness Thornton
I say to the noble Baroness, Lady Deech, that her neighbour, the noble and learned Baroness, Lady Butler-Sloss, was shaking her head during her remarks about the Hague convention and its applicability in this case. We are again talking about reciprocity and gaps. This is a theme that noble Lords will recognise has run throughout this Bill. My noble friend Lady Sherlock spoke about it at Second Reading and at an earlier stage in Committee, painting some very vivid and moving pictures about all of these issues to do with divorce, maintenance and safeguarding children. This is yet another step along that road.
These are issues that affect ordinary people who happen to marry people from another country and have children with them. These are everyday issues—not the gigantic ones to do with human rights that we have come to recognise as part of this discussion—and will affect people because they will not be able to afford to go to law without the reciprocity that exists at the moment. The Minister needs to assure the House that the reciprocity that we have now is going to continue.
Baroness Goldie
My Lords, I again thank the noble Baroness, Lady Kennedy, for raising a very important issue, the whole area of child maintenance. We recognise that it has a significant impact for many families in the UK and in the other EU member states. The reciprocal enforcement of maintenance decisions has a long history. Establishing procedures to enable decisions made in one country to be enforced in another helps to ensure that children receive appropriate financial support after the parents have separated and when one parent is living in another country. The noble and learned Baroness, Lady Butler-Sloss, interestingly observed that even with the structures, there are still challenges. We all have to be cognisant of that.
Baroness Kennedy of The Shaws
My Lords, I thank the Minister again for her sensitive response to this matter. The reason for asking for there to be reporting within a month of the passing of the Bill is to ensure that it is part of the negotiations—purely that. Its purpose is to put a flag in the sand, making sure that in the progress of the negotiations what is seen as the daily bread-and-butter stuff of people’s lives does not get lost. Thereafter, it would be an annual thing, to make sure that progress is maintained as we go forward once we are out of the European Union. That was the reason for the choosing of the dates. I hear what the Minister says, and of course at this stage I beg leave to withdraw the amendment, but we may revisit it at a later stage.
Lord Wigley
“Referendum on terms of the United Kingdom’s withdrawal from the European Union
(1) Prior to the enactment of the statute referred to in section 9(1), a Minister of the Crown must by regulations made by statutory instrument provide for a referendum to determine whether the terms of the United Kingdom’s withdrawal from the EU are acceptable.(2) In subsection (1) “the terms of the United Kingdom’s withdrawal” includes any proposed agreement or framework agreement regarding future relations between the United Kingdom and the EU and any proposal about how to conduct future relations in the absence of such an agreement or framework agreement.(3) The regulations under subsection (1) must also make provision for—(a) the conduct of the referendum, including the eligible franchise;(b) the question to be posed in the referendum; and(c) only two possible answers, one being acceptance of the recommendation made by the Government and the other the pursuit of the maintenance of the status quo regarding United Kingdom's membership of the EU.(4) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Wigley (PC)
My Lords, this amendment standing in my name seeks to introduce a new clause to enable a confirmatory referendum to be held to indicate that the terms of the Brexit negotiated by the Government are acceptable to the people of these islands. I also support very much the objectives of other amendments coupled with mine in this group.
Earlier in our Committee deliberations, I spoke of the need for MPs to have the right to a meaningful vote on the outcome of the Government’s negotiations, and for that vote to include provision for returning to the status quo if the negotiated package was unacceptable to Parliament. In his response, the Minister refused to give that undertaking. In these circumstances, it makes it even more important to build into the Bill a provision for the people to be allowed to endorse or reject the final negotiated outcome.
If the Government fail to come to an understanding with the EU on a negotiated Brexit package, which they may well not, and have to recommend quitting the EU on a no deal basis, the argument for a referendum is irrefutable. People were promised a new arrangement with the EU and voted to leave on that basis. They did not vote to quit the EU with no arrangement at all. Had that been the proposition put to them in the referendum in 2016, I am convinced that the outcome would have been very different indeed. In fact, the 2016 referendum gave the Government a mandate for entering into negotiations and other preparations for Brexit. Once we know what Brexit actually means, the time will come for the Government to report back to the people for a decision on whether to go ahead with it or not on the terms available. That will not be a wishy-washy Brexit which tries to mean everything to everybody, pandering to populist wishful thinking—
Lord Garel-Jones (Con)
Has not the Supreme Court confirmed in a ruling precisely what the noble Lord is saying: that while Parliament authorised the referendum, it has yet to authorise, or have the authority to authorise, the outcome of that negotiation?
Lord Wigley
Yes indeed; it is of course finally a matter for Parliament to decide what should happen. The process we are going through in Committee, and later on Report, in particular, will enable MPs to have the appropriate pegs on which to hang the questions that then need to be decided in the light of the information that will be available to them at that stage. That is why I feel it is important that we give them this option, particularly given that they will not have the opportunity to have a meaningful vote if the outcome of the negotiations is no deal. We have had it confirmed that there will be no meaningful vote of MPs or of this House in those circumstances. That must stress and underline the logic of putting the question back to the people in those circumstances. It would not be a rerun of the 2016 referendum. It would be a new confirmatory vote conducted with much fuller information available, and would be a far fairer test of the public’s will than the last referendum, carried out with very limited available information.
A whole series of issues were not foreseen at the time of the 2016 “in principle” referendum, or, at the very least, were not drawn to the attention of the voters by either campaign or by the media. These include the significance of the Irish border question, the loss of EU citizens’ rights, the crisis facing Gibraltar, chemicals and medical testing, customs logistics at ports, the extreme uncertainty for business during negotiation periods—and not least the fact that Mr Trump had not then become US President, casting doubt on whether the UK could get an acceptable trade deal with the US following Brexit.
It would, I believe, be perfectly honourable and credible if Mrs May now said something along these lines: “We pursued Brexit in good faith, believing it was the will of the people. We have explored it thoroughly and discovered a whole series of unforeseen consequences. I now believe that it is my duty to ask the people whether this was really what they wanted when they voted and to give them the final word on the outcome of the negotiations”. I beg to move.
Lord Newby (LD)
My Lords, I speak primarily to Amendment 227BH. It is identical to Amendment 181, which we agreed, in the interests of time, not to debate last Wednesday. This amendment seeks to give Parliament the opportunity to consider whether a referendum should be held on whether the UK should accept the outcome of the negotiations between the EU and the UK or seek to remain in the EU by revoking Article 50 —that is, it provides for a public vote on the deal.
The reasoning behind the amendment is simple. There is now near unanimous agreement that Parliament must have a meaningful vote on the outcome of the Brexit negotiations. Clause 9 provides one mechanism for a vote to be held. As we discussed when we debated Amendment 150 and other amendments last week, there are potentially more satisfactory mechanisms for doing this, and we will revert to those on Report. In any event, there will be such a vote. By definition, it could result in Parliament, and the Commons in particular, voting not to accept the negotiated terms. In those circumstances, what should happen?
It is our contention that in those circumstances Parliament should ask the people for their view and give them the final say. There are two principal reasons for that. The first is the in-principle argument that, the people having been asked to vote on the principle of Brexit, they should also be asked whether they approve of the concrete provisions of any Brexit deal. The second is the political reality that Parliament, having ceded the original decision to the people, does not have the moral and political legitimacy to override the earlier expressed will of the people on its own authority. This might be called the “Hamilton” argument in deference to the noble Lord, Lord Hamilton of Epsom, who I am extremely sorry to see is not in his place. At Second Reading, he said that if Parliament voted against a deal:
“I have no option then but to take to the streets because I cannot get representation in Parliament. All I can do is protest outside Parliament”.—[Official Report, 30/1/18; col. 1470.]
This amendment saves the noble Lord, Lord Hamilton, the necessity of becoming a street protestor—a role in which I struggle to see him; but more importantly, in an era when parliamentarians do not command universally high regard, it gives the people the final say on a process which they initiated. It is also what they clearly now want.
Recent polling shows that a clear majority of people now want a vote on the deal—even Conservative voters. Noble Lords no doubt saw the results of the Survation poll at the weekend which showed that a clear majority of Conservatives wanted such a vote—by 43% to 34% across the country and by a massive 61% to 25% in London.
Viscount Ridley (Con)
Does the noble Lord agree that what he has just said is very different from this quote from September 2016:
“The public have voted and I do think it’s seriously disrespectful and politically utterly counterproductive to say: ‘Sorry guys, you’ve got it wrong, we’re going to try again’. I don’t think we can do that”?
That was the current leader of his party.
Lord Newby
We have had that quote umpteen times in your Lordships’ House. I will deal with it, but many people said many things many years ago which are not necessarily the principal subject of discussion today.
Given that a majority of people, including a very clear majority of Conservative voters, want a vote on the deal, how can anybody possibly oppose it? At Second Reading, no fewer than seven arguments were advanced against it. The first was that referenda are anathema to a parliamentary system of democracy. This view was forcefully set out by, for example, the noble Lord, Lord Higgins, and the noble Lord, Lord Patten of Barnes, who I am very pleased to see in his place, who called referenda,
“a sin against parliamentary democracy”.—[Official Report, 30/1/18; col. 1475.]
I understand that strength of feeling, but the question I must pose to them and to others, on all Benches, who could well vote to oppose a Brexit deal, is this: do you really believe that a House of Commons vote against a Brexit agreement and in favour of remaining in the EU, with no recourse to the people, would be politically sustainable? If not, what is more important: the “sin” of a referendum or the long-term impoverishment of the country? Many noble Lords might find that an unpalatable choice, but I am afraid it is the hard reality.
Lord Newby
Or whenever it appears.
The doctrine of an unripe time is one of the most pernicious of the comfort blankets of the irresolute. The truth is that we are now only months away from a decision on Brexit. If there is to be a referendum on the deal, people need to start planning for it and campaigning on it. Passing this amendment would send a signal to the Government, the Electoral Commission and all those concerned about the final outcome that a referendum is an option for which preparation should now be made. Delaying any decision until—
Baroness Deech
Will the noble Lord explain what is meant by revoking Article 50 or reverting to the status quo? How could the electorate know what conditions might be imposed by the other 27 if we were to revoke Article 50, assuming that that is allowed, and letting us back in? In other words, it would be yet another pig in a poke because for all one would know conditions would be applied such as having to join the eurozone, Schengen or other conditions that we have avoided so far. The electorate would have no idea what conditions might be imposed if we stopped the negotiations.
Lord Newby
If we stopped the negotiations we would not have left the EU, so we would be in in the EU then as we are now.
Lord Cavendish of Furness (Con)
I am not short of sight, but I think I saw the noble Lord, Lord Ashdown, leaving before this amendment was debated. If so, it is small wonder, because I have six quotations from him of which one would suffice. He said:
“I think you must accept the sovereign judgment of the British people. If we have to be out then let’s make the best of it”.
Lord Newby
My Lords, I really think that in this point in the debate it is best if people do not revert back to what people said in 2016 or I shall start talking about what people wrote on the side of a bus. It would be completely unproductive.
With the amendment in my name, we are also debating referendum amendments in the names of the noble Lords, Lord Wigley and Lord Foulkes. There are slight differences in emphasis between them, but on one thing we are all agreed: Brexit is the most important decision that this country will face for decades. Every person in the country will be profoundly affected by it and so every person should have their say on whether it is a future that they wish to embrace.
Lord Foulkes of Cumnock
My Lords, I beg leave to move Amendment 357 in my name.
The Deputy Chairman of Committees (The Countess of Mar) (CB)
My Lords, the noble Lord will not be moving his amendment at this stage: he will be speaking to it.
Lord Garel-Jones
One of the interesting aspects of our country is that, unlike almost every other country in the world, we do not have a written constitution. Britain’s unwritten constitution could be summed up in one sentence—Parliament is supreme. I myself take the Thatcherite view on referendums, as indeed does my noble friend Lord Patten, but since this particular referendum was approved by Parliament, like it or not, I have to accept it. However, I remind the House of the Supreme Court’s ruling on this matter, of which quite by chance I happen to have a copy in my pocket:
“The 2016 referendum is of great political significance. However, its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences. The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation”.
That means that the outcome of these discussions must be laid before Parliament, and given that our unwritten constitution gives that right to Parliament, I have no doubt whatever that Her Majesty’s Government will abide by our unwritten constitution—the supremacy of Parliament.
Lord Patten of Barnes (Con)
My Lords, perhaps I may put one point to my noble friend. Is he, as I am, mildly amused by the fact that so many of our noble friends seem particularly keen to quote the views of present and former leaders of the Liberal party but do not seem keen to remember what the most distinguished leader of the Conservative Party over the past few years said explicitly about the danger of referendums being an example of the worst sort of plebiscitary democracy?
Lord Garel-Jones
Indeed, I agree with my noble friend. What they are saying in fact could possibly mean that were the outcome of the deal to involve the killing of the firstborn child of every family in Britain, we would have to accept that.
Lord Adonis (Lab)
My Lords, is the noble Lord aware that Baroness Thatcher’s last vote in the House of Commons made in February 1992 was in favour of a referendum on the Maastricht treaty? She was nothing if not inconsistent on these matters.
Lord Foulkes of Cumnock
My Lords, is it okay to speak now? I must apologise to the noble Lord, Lord Garel-Jones, for whom I have the greatest respect. I am glad that he got in to speak because if he had not, we would not have had the pearls of wisdom not only from him but from the noble Lord, Lord Patten, all of which I agree with. They have contributed greatly to our debate.
I shall speak to Amendment 357 and in support of the amendments tabled by the noble Lords, Lord Wigley and Lord Newby, which reflects if not all-party support, at least cross-party support. I apologise too for being a couple of minutes late for the start of the debate on this group of amendments, but I had not realised that the Bill is going through at breakneck speed today. Something has gone wrong. However, I am not sure that all of my colleagues would have minded if I had not made it at all because my party, or at least some in it, has not yet come around to supporting a new referendum; that is, not a second one, but a new one on the terms. I will make a rash prediction: they will eventually come around to supporting a new referendum because the vast majority of Labour members and supporters are in favour of one. If the leadership of my party is at all wise, it will come around to realising that it is not sensible to go against the views of the majority of our supporters.
Like other speakers and those who have intervened, I have never been a fan of referenda. It is right to point out that from time to time they have been used by dictators to advance their causes. People vote on other issues and they can be easily manipulated. We saw how this referendum was manipulated. It now appears that some things were happening from outside the United Kingdom that we did not even know about. But we did see people within the United Kingdom manipulating it. I will not go over what was on the side of the bus again or the other things that were said which have turned out to be—I will not use the word “lies”—pieces of misinformation given to the British people. If for no other reason than that, the British people should be given the opportunity to think again, although of course there are a lot of other reasons.
It was an advisory referendum. As I have said in the House before, what I find is the most astonishing, disturbing and upsetting thing is that normally intelligent, bright, clever and able people know that we are heading towards a disaster, yet they continue to say, “But we must move in that direction because, ‘The British people said so’”, thus ignoring the fact that it was an advisory referendum and all the other problems associated with it.
As I have said before, the franchise in Scotland for the Scottish referendum allowed 16 and 17-year olds—I will come back to that later—and European Union citizens to vote. The European Union referendum did not. Is it not crazy that European Union citizens were able to vote on the future of Scotland but not on the future of the United Kingdom in Europe?
Lord Green of Deddington (CB)
The noble Lord mentioned the possibility of European Union citizens voting in a referendum—and, of course, the question of franchise is referred to in Amendment 226. Is he aware that there are approximately 3.7 million EU citizens in the UK—not all of them adults, but certainly a couple of million or so who could vote—who could very well swing it? Is there anything more absurd than imagining that the future of this country would be determined by people who are not even citizens of it?
Lord Foulkes of Cumnock
It is not absurd at all. It is sensible because those people are taxpayers—at least most of them are. The noble Lord sniggers; he is an expert sniggerer. These people are taxpayers who are contributing to our society. As I said on a couple of previous occasions, there used to be a phrase, “No taxation without representation”. Those people are being taxed and they deserve the opportunity to have their say.
Lord Foulkes of Cumnock
I was timing it to see how long it would be before the noble Lord, Lord Forsyth, rose.
Lord Forsyth of Drumlean
I am intrigued by the idea of the noble Lord that anyone who is a taxpayer should have a vote. Does he think that every American or Chinese person—or anyone from any part of the world—who lives here and pays taxes should have a vote? It is a ridiculous proposition.
Lord Foulkes of Cumnock
A lot of Commonwealth citizens are able to vote. A lot of people have a vote—but these are European Union citizens talking about our membership of the European Union. It seems to me to be a logical proposition.
Lord Forsyth of Drumlean
The noble Lord was advancing the proposition that if you pay taxes here, you should have a vote. Does he now recognise that that is a silly argument?
Lord Foulkes of Cumnock
I was answering a question. I was talking about European Union citizens who are taxpayers here—and I think most Members of this House understood that.
One of the blights of the referendum, apart from the facts of the flawed franchise and the misinformation, was the differential result. In replying to this, everyone tells me, “It was a referendum for the whole United Kingdom”. Nevertheless, some of the problems created were caused by that differential result. The noble Lord, Lord Forsyth, will know that in Scotland, this is fuelling nationalism and giving greater purchase to the SNP’s arguments. In Northern Ireland—I will not go into the problems because my noble friend Lord Hain articulated them brilliantly in a previous debate—there are real problems and absolutely no solutions put forward by the Government. It was a differential vote. London was overwhelmingly in favour of European Union membership, and one of the most insidious and difficult problems—which is not being talked about very much but will cause huge problems—is Gibraltar. It voted overwhelmingly—98% or 99%—to stay in the European Union, yet we will be dragging it out against its will if we go ahead. That will cause tremendous problems.
Like other noble Lords, I would argue—as I have done before—that this a parliamentary democracy and Parliament must make the decision. I did that in relation to this advisory referendum. As noble Lords—including the noble Lord, Lord Newby—said, Parliament should decide, but I accept the very strong argument that, since we went down this road on a referendum, we need to change tack by using one. I hope that the franchise will be better; I hope that European Union citizens and youngsters—16 and 17 year-olds—will be allowed to vote. On Friday, I went to George Heriot’s School in Edinburgh—a private school—and took part in a debate. I argued that the charitable status—I am nothing if not foolhardy—of private schools should be withdrawn. I was defeated, which will come as no surprise to Members. I did get 18 votes, by the way, which shows that there are some intelligent people in private schools—but I was overwhelmingly defeated. Afterwards, I said, “I think I should’ve come in and argued that we should remain in the European Union”—and I got overwhelming support. The youngsters know where their future lies. It is affecting them. I say with no disrespect, looking around the Chamber, that there are not many noble Lords here who will be affected for as long as those young people. So I hope they will be able to have a vote as well.
This argument is a very strong one. We are not talking about a second referendum; we are talking about a completely different thing. The noble Baroness opposite asked what the alternative would be if we rejected the negotiated deal. The alternative is very clear: the status quo. We are members of the European Union and we are doing well as a member of the European Union— although, day by day, with the prospect of Brexit, we are suffering some of the effects of it. The sooner we get out of this Brexit—
Lord Foulkes of Cumnock
Quagmire. I was trying to think of a word that implied rushing towards it like the lemmings I described the other day.
Lord Foulkes of Cumnock
I am grateful to my noble friend—this is a wonderful House, where you get so much support in so many ways. The sooner we get out of this and return to the status quo that has done this country proud for the past 40 years, the better.
Lord Butler of Brockwell (CB)
My Lords, I put my name to the amendment in the name of the noble Lord, Lord Newby, when it was Amendment 181. I would have put my name to his amendment today but I did not have the opportunity to do so over the weekend.
In my speech at Second Reading I agreed with others that this is not an appropriate vehicle to require a further referendum on our leaving the European Union. However, I said that I would support any amendments necessary to ensure that a further referendum would be among the options in Parliament’s meaningful vote at the conclusion of the negotiations. The amendment in the name of the noble Lord, Lord Newby, is such an amendment.
I have feared throughout that the choice the Government intend to give Parliament at the conclusion of the negotiations is, “this agreement or no agreement”. I am sorry to say that what the noble Lord, Lord Callanan, said in our debate last Wednesday confirmed that this is indeed the Government’s intention. I hope that he will tell me I am wrong, but I think it was clear from what he said last week that that is what the Government propose to do. Of course, we must all hope that the agreement that emerges from the negotiations will be good for the UK—but the Prime Minister has famously said that no agreement would be better than a bad agreement. It would be entirely wrong if the only choice given to Parliament at the end of the negotiations was between an agreement, however bad, or no agreement at all. I know that the Prime Minister and the Government feel that they have an instruction from the people to take Britain out of the EU—but I cannot believe that a bad agreement is a correct interpretation of the wishes of a majority of the people as expressed in the referendum. If Parliament judges the outcome of the negotiations to be bad, a better alternative must be to think again before we drive the nation over a cliff.
Like the noble Lord, Lord Newby, I cannot get out of my mind my noble friend Lord Lisvane’s aunts, whom he described so graphically at Second Reading. If, having voted to go to cinema, they find that the two films available are ones they do not want to see, the only sensible course must be to think again about going to the cinema at all. If that is true for my noble friend’s aunts on a Saturday evening, I suggest that it is certainly true for the nation as a whole in one of the most important decisions that we will have to make in our generation.
Lord Forsyth of Drumlean
To take the cinema analogy further, does the noble Lord not think that if the European Commission thought that there was a possibility of a second referendum, it would be likely to put something on at the cinema that would be even scarier for the maiden aunts?
Lord Butler of Brockwell
My Lords, I had expected that intervention. If that is the EU’s tactic, it has plenty of ways of doing it, and plenty of motive for doing it, other than just producing a bad agreement.
As others have said, it is quite clear that, since the people voted in a national referendum to leave the European Union, that decision could be reversed only by the people. That would require either a further referendum or a general election in which the people had the opportunity to elect a Government with an explicitly different mandate. In those circumstances, I suspect the Government themselves would prefer a further referendum.
Ever since the referendum, I have argued that the British people are entitled to a further say when the terms of the UK’s departure are known. I still hold that view, but that is not the case which I am arguing today. The purpose of this amendment is simply to ensure that a further referendum remains an option if the negotiations do not turn out as well as the Government hope.
To say that Parliament’s so-called “meaningful vote” can be a choice only between a bad agreement and no agreement would be an outrage. I shall listen carefully to what the Minister says in his reply, but I am afraid that the Government intend that the meaningful vote will be simply a binary choice between the outcome of the negotiations and no agreement. In that case, I hope that the House will support an amendment on the lines of that proposed by the noble Lord, Lord Newby—if not this evening, then on Report.
Viscount Hailsham (Con)
My Lords, I had the opportunity of speaking at some length last Wednesday to my Amendments 216 and 217, when I explained my thinking fairly fully, so I shall be brief today. I shall say simply that I wholly support what the noble Lords, Lord Butler, Lord Newby, Lord Wigley and Lord Foulkes, have said about this matter. It seems of cardinal importance that we should give to the British people a chance of expressing a final view as to whether we leave. They must have the choice of staying in the European Union if that is their wish. Personally, I am inclined to think that Parliament could make that decision of its own motion, but I recognise that, once a referendum has been held, it might decide that it had no choice but to test its own opinion by recourse to another referendum, which would be conducted with the full situation apparent to the entire electorate.
I fear, as does the noble Lord, Lord Butler, that the Government have it in mind to put to the British Parliament a choice of either the deal or no deal. I would find that profoundly offensive. I could not support such a situation. I doubt I could support a Government who made that their platform. It has to be right for Parliament and probably the electorate to have a choice between remaining in the European Union or accepting the terms on offer. It has to be a genuine choice, otherwise the concept of a meaningful vote is without meaning.
Lord Adonis
Does the noble Viscount agree that it does not matter what the Government say, it is up to the House of Commons to decide what the choice should be?
Viscount Hailsham
The noble Lord is quite right and my noble friend Lord Garel-Jones was indicating this point. When my noble friend Lord Callanan constantly says that the people have spoken and we are leaving, he is wrong because ultimately it is Parliament that will decide whether we leave or not, and maybe the British people by an election. I do hope that he will stop saying, as he has been saying rather too often to my way of thinking, that the referendum is conclusive of the matter and we are leaving, whatever. That is not consistent with my understanding of the British constitution, our history or our purpose. We have a right, as Parliament, to demand that we have the decisive say, and if we think it is right, there should be another referendum on the terms then identified.
Lord Forsyth of Drumlean
I know the affection that my noble friend has for Parliament. Could he just remind the House of the size of the majorities against having a second referendum in both Houses of Parliament?
Viscount Hailsham
I think my noble friend, for whom I have the greatest respect, tempts me, and I am going to be tempted. I do not believe that there is a parliamentary majority for Brexit, either in this House or in that House. I certainly do not think that there is a parliamentary majority for a hard Brexit. I think that if Members in that place were to consult their consciences, they would vote to remain within the European Union. That is what we need to give them the opportunity to do.
Lord Robathan (Con)
I know that my noble friend does not think much of referendums, and neither do I. I think that referendums are a shocking idea. I hear around this House a lot of people who frightfully disapprove of the last referendum we had because it came up with a rotten result, as far as they are concerned. So will my noble friend please explain to me, because he is an extremely clever man, the logic for why on earth, having not liked the last referendum, we would want another one?
Viscount Hailsham
My noble friend Lord Garel-Jones says that Parliament is supreme and he is entirely right. My noble friend Lord Robathan was here on Wednesday when I gave him and this Committee my answer to that. I do not think that the last referendum was an authority to leave on any terms or no terms. I think that it was an instruction to the Government to negotiate the best terms that could be negotiated, leaving open the question: who then decides whether the terms or the absence of terms are acceptable? I have always believed that the final decision rests with Parliament and, if Parliament so requires, the British electorate.
Lord Bilimoria (CB)
My Lords, as a country we have only had referenda a few times in our history. This is the first time, let us remember, that the referendum result has not reflected the will of Parliament. Looking back to what the will of Parliament was two years ago, before the referendum, let us remind ourselves that about two-thirds of the House of Commons and well over 75% of this House wanted to remain. Since the referendum of 23 June 2016 we have been told to respect the will of the people. We have been told by the Government that they are implementing the will of the people; they are under the orders of the people; it is undemocratic if we even challenge this. The whole nation is now under an impression that this Brexit juggernaut is going, they have to get onto it and there is no turning back. But let us remember that from 20 February, when the referendum was announced, until 23 June represented four months to make a decision about 44 years.
It is so complex. Many noble Lords were in this House when, just before the referendum, the EU Committee debated one of its reports, and it was said that if only people realised how complex this was going to be and how impossible, they would never, ever want to leave. I have always said that I am a Eurosceptic in many ways; I am against a lot of the things about the European Union. It is nowhere near perfect—the euro being a great example—but on balance I think that it is absolute folly to implement this wretched referendum. The Brexit emperor has no clothes. People have changed their minds, people are changing their minds and people will change their minds in the run-up to October, let alone in the run-up to 29 March next year. People have to be given the opportunity to change their minds. As Keynes said, “If the facts change, don’t you change your mind?” Of course you can. Even David Davis said:
“If a democracy cannot change its mind, it ceases to be a democracy”.
What is wrong with the referendum, and what is so undemocratic about it—the noble Lord, Lord Patten, is so right—is that in a normal vote, if you win with 50.1%, you have won and that is it, but in five years’ time, people can change their minds if they are unhappy, if they have been lied to, if people have not performed. Here, there is no such chance for people to change their minds. What is more, we have had two years, as the noble Lord, Lord Foulkes, said—this is why this amendment is so crucial—during which people who were 16 and 17 year-olds would now be old enough to vote. Every time I speak at universities and schools, and I do so regularly, I ask them, “If you were given a choice, would you wish to remain or leave?” I am not exaggerating; almost 100% of the hands go up saying they want to remain. In fact, I get applauded a lot of the time and people say, “Really? Do we have a chance?”
Lord Dobbs (Con)
I am sorry to interrupt my noble colleague, who is very dear to me, but this idea that the young have only one view and that they will always retain this same view throughout their lives is wibble and wobble. It is simply not true. The young had the poorest turnout rate at the referendum; they were split two to one on the issue, which means that there are plenty of young people who actually wanted Brexit. His whole idea that it is impossible to have a successful Brexit is the most undemocratic view of all. Young people deserve to be heard, of course they do. Yes, they are passionate about it, and I am delighted at it, but the idea that young people will never change their minds, no matter what their experience, no matter what their age, simply goes against all the facts of politics as we know it.
Lord Bilimoria
I hear everything that my noble colleague has said and I respect him greatly. All I am reflecting is what I have seen when I have asked hundreds if not thousands of young people in the country. Of course they can change their minds. Of course they did not turn out to vote two years ago, and they regret it dearly. I think that if they had a chance now they would turn out in droves, and I guarantee noble Lords that almost 100% of them would vote to remain. What is more, what is worrying and why these amendments are required is that we are being told by the Government that we will get a meaningful say, but we do not know what that meaningful say is. We are being told by the Government that if there is no deal, we will still have to leave. What we are not being told is, if we are not happy with a bad deal or a no-deal, that the people should have a chance to change their minds. Will the Minister confirm that this is the case; that whatever happens—deal, bad deal, no deal—we have to leave and people do not get another say? This is nonsense, because it is unacceptable and undemocratic.
Lord Forsyth of Drumlean
On this theme the noble Lord is pursuing that people have the right to change their minds, how many times do they have the right to change their minds? If, for example, we had another referendum and it was narrowly one way, would people like me be entitled to argue, “Actually, do you know what, we can do a better deal, and we should have another referendum”? We would have a neverendum of neverendums—is that what the noble Lord is arguing? It is clearly ridiculous.
Lord Bilimoria
The noble Lord, Lord Forsyth, has made a point that is always made when I make this argument. But this is not a normal situation. This is a decision that is permanent, which will affect generations to come. It is a decision that has not been made with the full information. It is a decision where already in two years so much has come to light. It is a decision that depends on so many negotiations. Yes, we need another referendum so that people, with the full information, can have the option to make a proper decision, including changing their minds.
Viscount Waverley (CB)
My Lords, this has the potential to be extremely divisive for the nation. We need a referendum to ensure that we do not land up, through this whole process, with a divided nation for a very long time.
Lord Bilimoria
My Lords, how much more divided can the country be than it is now? That is what this wretched referendum has done: it has divided our country. Our House is divided in a way that it never has been before.
Viscount Waverley
That is why we need a second referendum or a vote on the final outcome.
Lord Bilimoria
We do, because if what I feel will happen happens and people decide to remain in the EU, we will have a future that is much better than if we crash out. When people voted to leave they did not say to the Government, “We allow you to leave on any basis”. It was not a carte blanche. It was not a blank sheet of paper.
We all loved my noble friend Lord Lisvane’s story about his aunts. One of the most well-known philosophers in the world today, at the University of Cambridge, gave me this analogy. He said: you go to see a doctor with your arm hurting and you say, “Please, doctor, take away the pain from my arm”. The doctor takes you into the operating theatre. You come out of the operating theatre and the doctor has cut off your arm. You say, “I did not ask you to cut my arm off”. The doctor says, “Well, you told me to stop the pain. I have done what you told me to. You did not say I should not do this or that”. That is the exact analogy: if we leave on any basis we will be letting down the British people.
Call it a referendum part 2 or a second referendum—we have to allow the people a chance if we are a truly democratic nation.
Viscount Ridley
My Lords, it is a great pleasure to follow the noble Lord, Lord Bilimoria, as I did at Second Reading, and to answer some of his points. The noble Lord, Lord Newby, did not like it when I quoted the words of his current leader to him, for some reason. He said that I should quote from my own party.
Baroness Ludford
I remind the noble Viscount, Lord Ridley, of the words of Jacob Rees-Mogg, who has said:
“Indeed, we could have two referendums. As it happens, it might make more sense to have the second referendum after the renegotiation is completed”.—[Official Report, Commons, 24/10/11; col. 108.]
The Brexit Secretary, David Davis, has said:
“Referendums should be held when the electorate are in the best possible position to make a judgment. They should be held when people can view all the arguments for and against and when those arguments have been rigorously tested. In short, referendums should be held when people know exactly what they are getting”.—[Official Report, Commons, 26/11/02; col. 202.]
Viscount Ridley
I was going to quote David Cameron because I was asked for the words of a Conservative. On 10 November 2015, after announcing the referendum, he said:
“It will be your decision … Nobody else’s. Not politicians’. Not Parliament’s. Not lobby groups’. Not mine. Just you. You, the British people, will decide … And it will be the final decision. So to those who suggest that a decision in the referendum to leave … would merely produce another stronger renegotiation and then a second referendum in which Britain would stay … I say think again … There will not be another renegotiation and another referendum … Think very carefully, because this choice cannot be undone”.
Viscount Hailsham
My noble friend really must face the possibility that Parliament will take a different view, in which case the Government will do what Parliament says—or we are not in a parliamentary democracy.
Viscount Ridley
I was under the impression that that is exactly what we are debating right here and now, and it is what the other place debated fully—and came to a very different decision from the one that we might come to here.
Lord Adonis
The noble Viscount just quoted David Cameron. Was that the same speech in which he said he would not resign if he lost the referendum?
Viscount Ridley
My Lords, I do not know the answer to that question but I can easily look it up. I will write to the noble Lord about it.
Lord Hain (Lab)
My Lords, this whole process began with a referendum and it should therefore end with a referendum. What is very different about the referendum that occurred in June 2016 on our status within Europe compared with other referenda is that, for example, as my noble friend Lord Wigley will recall, when we campaigned on the same side of the argument in the Welsh referendum in 1997—and that was the case in Scotland as well—people knew exactly what they were voting for and against. If they were voting for an assembly, they knew what they were getting. If they were voting against, they knew it was the status quo. The same applied in the Scottish referendum. The same applied in the referendum in 2011 on the alternative vote. People knew then that they were getting a form of electoral reform if they voted for it, as I did, or they were voting for the status quo—the first past the post system—as in the end it turned out the majority did.
In this case people knew what they were voting against—they were voting against the European Union, to leave the European Union—but they had no idea what they were voting for because that was not spelled out. That is what makes this very different indeed. For example, did people know that Gibraltar would be put in an impossible predicament, as my noble friend Lord Foulkes pointed out? Did people know that the Irish border was likely to end up a hard border given the Government’s policy? There is a whole series of issues. Did people in the south Wales valleys, whose doors I knocked on by the hundred and who voted by a majority to leave, know that as a result the Government would have the opportunity for a power grab to reverse the process of devolution, as they are now seeking to do?
I clarify that this is not a second referendum. This is not an attempt to overturn the first referendum’s outcome. This is a referendum on the final deal. That is very different from seeking to rerun the first referendum. This is saying, “You now have the deal in front of you” —or no deal, as the noble Lord, Lord Butler, mentioned—“This is now your opportunity to say, ‘We started this process by a referendum. We want to end this process by a referendum and make our decision’”. Why are those who are opposed to a referendum on the final deal so afraid of the people speaking? What is so undemocratic about giving the people a final say, just as they had a say at the very beginning of this process?
Lord Forsyth of Drumlean
My Lords, the noble Lord asked a question. It would not matter what kind of deal we got if we had a second referendum, the noble Lord would vote for us to remain in the European Union. Every single one of the speakers we have heard, and most of the people who support a second referendum, reject the decision of the British people to leave the European Union.
Lord Foulkes of Cumnock
The noble Lord, Lord Forsyth, insists on calling it a second referendum. It is not. If he is so furled to numerology, it is actually a third referendum because we had one in 1975.
Lord Forsyth of Drumlean
The intention is clear. I am shocked, actually, at the noble Lord. He says that he is a unionist but in the debates on the Bill he has propounded the view that the Scottish Parliament should have a veto on legislation passed by this Parliament, and now he is arguing that it is important that people have the opportunity to reconsider their decision after a referendum in which a commitment was made to implement the result. How is that going to play in Scotland, where we have a Scottish Government and a Parliament where a majority voted for independence in a referendum? The words that the noble Lord keeps trotting out—that there should be an opportunity to rethink—will be played back by the nationalists and people who want to break up the United Kingdom. This is irresponsible.
We all know that at the moment both Houses of this Parliament are held with a degree of contempt by the electorate. How are they going to react if, having voted in the biggest vote in our history, this Parliament were to decide to reverse it? There is no danger of that because both this House and the House of Commons voted overwhelmingly to reject the idea of having another referendum.
Lord Newby
I am following the noble Lord with great interest. He says that the people will be outraged if they were to be asked again. Why then, when they are asked in opinion polls do they say time after time that they want a vote on the outcome? Why do over two-thirds of all Conservative voters who were recently polled say that they want a vote on the outcome?
Lord Forsyth of Drumlean
I have not seen the particular poll that the noble Lord refers to but I saw the poll in the general election, when his party campaigned on the basis that we should have a second referendum and it was utterly destroyed—so much so that it now has to use this House as a platform to put forward its policies, because it is so beleaguered in the House of Commons.
Lord Garel-Jones
Is my noble friend saying that the Supreme Court is mistaken in this matter?
Lord Forsyth of Drumlean
I thought I heard my noble friend argue not a few moments ago about the supremacy of Parliament. I believe in the supremacy of Parliament and that judicial interference is one of the worst aspects of our membership of the European Union, and another reason why we should get out of it. I give way to my noble friend Lord Patten of Barnes.
Lord Patten of Barnes
I am very grateful to my noble friend and am always keen to build bridges with him. Given what he has said about the importance of the supremacy of Parliament, which happens to be my view, and about the extent to which referendums are an assault on the way in which we have done things for decades in this country, would he support a free vote in Parliament when the outcome of the negotiations is known?
Lord Forsyth of Drumlean
I have always regarded my membership of this place as giving me a free vote. Members of this House are not whipped to the extent that they are—
Lord Patten of Barnes
What about the vote in another place? Is my noble friend in favour, as Sir John Major suggested the other day, of having a free vote when the terms of the deal are known? Given what he has said already about the majesty of parliamentary democracy, I imagine that he would be keen on that.
Lord Forsyth of Drumlean
What I am keen on is people delivering on their promises. Not only did we promise in our manifesto that we would implement whatever the people decided in the referendum, but something like £8 million of our money was spent on putting leaflets through every door in the country, saying “What you decide we will implement”. The Government of the day promised to do that. Not only that, we stood in the general election with a clear manifesto commitment. So no, I would not be in favour of giving a free vote on a matter where we made a manifesto commitment, nor am I in favour of this House trying to overturn such commitments given by elected Governments.
All this is a distraction. It is the last gasp of the remainers. If the result had gone the other way, they would not be standing up making speeches “Oh well, it is a matter for Parliament and we cannot possibly accept the result of the referendum”.
Lord Forsyth of Drumlean
The noble Lord says that I would. I would certainly not be doing that but he believes that I would, hence the suggestion of the noble Lord, Lord Bilimoria, that we should have another referendum because people have the right to change their mind. In arguing that I would make that case, they are making the case that having successive referendums will only encourage more.
I have one final point. It is a great irony, is it not, that those parties which are keen to have more referenda—the Scottish nationalists and the Liberals—are the ones which do not accept the results of referenda when we have them?
Lord Bilimoria
Perhaps I may challenge one point that the noble Lord made, which was really worrying. He said that one of the reasons that people voted to leave the European Union was because of the control from courts and judges. Yet the decision on Article 50 was not made by the European Court of Justice; it was made by our Supreme Court across the square and everyone should respect that. The language that he used reminds me of the Daily Mail’s headline, “Enemies of the people”. Is that what we have come to as a country and as a Parliament? Do we not respect our judiciary, which is the finest in the world?
Lord Forsyth of Drumlean
The noble Lord, Lord Bilimoria, has made a great leap from what I said to what the Daily Mail said.
As to the point about judicial involvement, I will give one example. When I was a Minister of State in the Department of Employment, the European Commission decided to implement the working time directive. We thought that employment law was a matter that required unanimity, but it did so as a health and safety measure in order to have it implemented by qualified majority. The advice that I had as a Minister was that that was illegal and wrong, but I was also told that there was no point in my going to the European court because it has a duty to promote the acquis and I would lose. I do not know whether that advice was correct.
Lord Hannay of Chiswick (CB)
Does the noble Lord recognise that the transfer from unanimity to a qualified majority was conducted by a Government and a Prime Minister, Mrs Thatcher, from the party to which he belongs? It was in the Single European Act.
Lord Hughes of Woodside
Addressing the House is not simply a matter of courtesy. When the noble Lord turns his back, we cannot hear him as the sound is not picked up.
Lord Forsyth of Drumlean
From past experience, I am sure that various people would like to change places with the noble Lord.
The noble Lord, Lord Hannay, is quite wrong. Employment measures at that time required unanimity. The working time directive was introduced as a health and safety measure and it was argued that it was so that it would require only qualified majority voting, and we would no longer have a veto. The issue was whether it was worth going to the court to argue that that was an improper act.
Lord Hannay of Chiswick
The noble Lord has misunderstood what I said, which was that the provision in the treaty that provides for qualified majority voting for health and safety was introduced with the agreement of the Government of the day, whose Prime Minister was Margaret Thatcher.
Lord Forsyth of Drumlean
So what? It was not a health and safety measure; it was an employment law measure. The point that I made still stands.
I hope that we will not spend any more time discussing this second referendum, which is just an attempt by people in this House, who are unelected, to subvert the decision made by the British people.
Lord Cormack
My Lords, last week we had an interesting debate on what should happen if Parliament was given a take-it-or-leave-it decision. There was considerable support for the point of view that I sought to put forward with the support of many other noble Lords, which is that we should maintain our membership, suspend Article 50 and tell the Government to try again. I believe that that is the right course because Parliament is sovereign. I believe very strongly that the plebiscite is inimical to parliamentary representative democracy. I also believe that, because Parliament is sovereign, it can make what decision it wishes. We are talking about Parliament and not about the Executive. Throughout our debates, we have had a disturbing series of illustrations that the Government believe that the Executive are supreme. It is not; it is Parliament that is supreme.
We will not have a vote tonight, because these are probing amendments. But were we to have one, I would not vote for the amendment—not because I am completely out of sympathy with many of the points that were eloquently made by the noble Lords, Lord Newby and Lord Foulkes, and by others who have spoken in the same way, but because I believe it is premature to put an amendment of this nature into this Bill at this time. It is crucial that we do not undermine, but underpin, the sovereignty of Parliament, which is what we should be doing when we come to votes on Report. There will be votes, and I am quite sure I will be supporting a number of the amendments.
Viscount Ridley
My noble friend is talking about the sovereignty of Parliament. Does he recall that just an hour or two ago we were debating different amendments, which were essentially about putting standards from the European Union into the Bill to make sure that this country does not diverge from them later? Essentially, the basis of those amendments was not having faith in Parliament to do these things correctly.
Lord Cormack
That is a complete travesty, a total misreading or a fundamental misunderstanding. If Parliament decides to have these standards, they are there at the insistence of Parliament. That is all that those of us who took part in that very brief but rather graphic debate were arguing.
I go back to the point that I was seeking to make: we should be seeking to underpin the sovereignty of Parliament in this place. If the deal is a very bad deal, I hope that Members in another place will have the courage to vote according to their consciences. I never had any problem voting against the Government in the other place: I frequently voted against Mrs Thatcher’s Government, much as I admired the noble Baroness Thatcher. I frequently found myself in different Lobbies on issues such as the poll tax, or community charge, and did not believe that I was doing anything other than representing my constituents to the best of my ability on issues that were contentious and where I took a particular line.
We all know what a bad deal is, and I very much hope that if the deal is a bad one, they will have the courage in another place to reject it. We cannot make that ultimate decision: although I hope we give it support, this is fundamentally a House of Commons matter, and if it decides that the only proper, ultimate way out is to put that to the people, then that is up to the Commons. A sovereign Parliament has the right to do that.
I end on the note that I am very disturbed about a proliferation of referenda, because it goes a long way towards undermining parliamentary sovereignty. If it is the ultimate decision of the other place, so be it, but it is premature to seek to insert this amendment in this Bill at this time.
Lord Lea of Crondall (Lab)
Could I just clarify something with the noble Lord? I am very sympathetic to what he is saying, but he has twice said, “We all know what a bad deal would be”. But we do not. I suspect in a few months’ time that we might regret not appreciating that we need some criteria to judge what is a good deal and what is a bad deal—whether, as some people might think, it is single market, customs union or whatever. Unless there are some criteria against which we can judge the outcome, we will be all over the place, which could lead to a very interesting debate on Report on this very question of a mandate.
Lord Cormack
A bad deal would be a deal where the trading relations with the other 27 nations of Europe are appreciably worse than they are at the moment. A bad deal would be one where we are not able to reach the agreements the Prime Minister has herself said she wants to reach on such things as Erasmus and Europol. We could go on and on, but we will know what is a bad deal. I hope it will be a good deal, but if it is a bad one, it will be completely wrong to say, “Take it or leave it”. There should be another go, which is why we had that amendment last week.
Baroness Wheatcroft (Con)
My Lords, my name was on the original amendment tabled by the noble Lord, Lord Newby, and I now speak to its reincarnation. We have heard a lot about the sovereignty of Parliament, which we are of course proud of, but Parliament did pass the European Union Act 2011, which provided for a referendum on any treaty change. I do not know how individuals voted on that Act, but I suspect some of us in the Chamber who are now professing our belief in the sovereignty of Parliament and our antipathy to referenda voted in favour of that provision. It may well be that the 2011 Act and its provision for a referendum on any change in the EU’s treaty relationship with the UK is still applicable, and a legal action is going on now to try and establish that, but in the belief that the law can sometimes take a long time, I think it is important that we should move ahead on these amendments.
The people, as we have heard, are in favour of a vote on the deal. The latest opinion polling from Open Britain found that 65% of people believe that they, and not just politicians, should have the final say on the deal, and I agree with them. I voted in favour of such a move during the Article 50 process, so at least I have the virtue of being consistent. At that stage I expressed my dislike of referenda. I retain that dislike, but if one gets into a mess with a referendum, it may well be, as others have suggested, that the only way out is with another one.
We are in a mess. Parliament is in the most extraordinary position of pushing ahead with legislation which the majority of parliamentarians believe will be bad for the country, and I find it really difficult being part of that process. We are told that we must do it because we are implementing the will of the people, but this is simply not the case. As others have said, whatever the people voted for, they did not vote to get poorer. The Government are doing what the people instructed them to do: they are exploring how we might exit from the EU. But when we have an answer to that, it is the people who should decide on whether it is exactly what they want and where they want to go to.
Many times in this process it has been apparent that the outcome will be worse rather than better. Even the “Tiggerish” chancellor, when he came out with his projections of the economy, making the best of it, did not refer to the fact that all of those forecasts are lower than they were before the referendum. Things are not getting better. They may be looking slightly less worse, but they do not look good.
It should be the people who decide. We have heard about the young—my noble friend Lord Dobbs says they do not all vote as one and may well change their minds. This is true, but an overwhelming majority of them do not want to become little Englanders. They like the benefits that they get from Europe.
Lord Dobbs
I am grateful to my noble friend for giving way. Is it just possible that many of those people who voted for Brexit do not wish to become little Englanders, and that many of those younger people actually see a global world as their market, not the old, traditional European world, dominated by Brussels, that our generation was brought up on?
Baroness Wheatcroft
I am grateful to my noble friend. Of course they may well see that global world, but I think they are still waiting to hear the value of the trade deals that will be accomplished with those countries. So far, no figures appear to be forthcoming, and until they see those I think they are right to be somewhat sceptical. Of course they are global in outlook, but they are also European and they enjoy the peace, prosperity and cultural benefits that have come from being part of the EU over that time. If my noble friend has time, I would refer him to a very interesting organisation called Our Future, Our Choice, which is campaigning like mad for the young people in this country, along with everyone else, to have a vote on the deal and determine their future. If we deprive them of that, they will not forgive us. I for one do not want to be responsible—
Lord Dobbs
I am sorry to interrupt my noble friend again. She will know that I feel very passionately about young voters and the younger generation. The implication of what she is saying, and it has been said many times before, is that old people—us—voted selfishly and did not care about the younger voters. That is a pretty awful accusation that has been made time and again. I ask her to forgive me if she was not actually saying that, but there was an implication that elderly voters do not care about the young. Perhaps, again, many people voted for Brexit precisely because they thought about future generations and where the country was heading.
Baroness Wheatcroft
I am grateful to my noble friend for reading into my remarks something that was not there. I know plenty of people who voted to remain and would continue to vote that way and who thought about their children and grandchildren, but all the evidence from the analysis of the polls shows that as people went up the age scale they tended to vote out. I do not draw any conclusions from that, and it would be completely wrong for my noble friend to draw those sorts of conclusions from my remarks. However, I think we should enable people of all ages to have a say on the deal and look at what is on offer. If what they see is not attractive to them, they should have the opportunity to say no to it.
So I support the amendments. At the moment they are just probing amendments but I think we should table them on Report. Still, I would like to hear from the Minister whether he believes that if 65% of the population feel that they should have a vote on the terms, we should take any notice of that.
Lord Higgins (Con)
My Lords, I am tempted to reply to the vast mass of points that have been made during this debate. However, I shall deal with a more fundamental point: clearly, we need a debate and votes in both Houses on the principle of referendums. The reality is that this referendum has brought out very clearly the way in which referendums can undermine our system of democracy. This is a vital issue and we ought to take the opportunity as soon as possible to have a general debate on the principle.
The problem is that we are told that referendums are democratic. They are not democratic in the sense that we in this country understand it. In this country we believe in representative parliamentary democracy where Members of Parliament are elected to act as representatives, not delegates. The referendum undermines their ability to act as representatives, taking all the arguments into account. We should therefore look very carefully at the situation at the moment in Holland, where they are proposing to legislate to prohibit any further referendums, and indeed to prohibit having a referendum on whether they can legislate to prohibit referendums. [Laughter.]
This is not a laughing matter. Our system is in danger of being undermined. Indeed, it is being undermined on this occasion, when we are told that it is an instruction from the people. It is not; the Bill that we passed in this House was clearly for an advisory referendum, but it was subsequently hijacked, particularly the morning after the result by the Prime Minister, who sought to make it a mandatory referendum and, to a large extent, a hard referendum. We therefore need to stand back after this debate and really consider the whole issue because we are in a very dangerous situation concerning the real democracy that we in this country believe in.
I received a letter after I made a similar speech, from a member of the public who said, “But you don’t realise that it was Churchill who was defending democracy”. I wrote back and said, “The democracy Churchill was defending was not in fact the system of referendums—that was enthusiastically adopted by Hitler”. I have not had a reply to that letter, which perhaps shows that democracy works.
Lord Thomas of Gresford
I wonder if I might remind the noble Lord, Lord Higgins, that the first referendum passed by this Parliament was in 1881 when Gladstone’s Government passed the Sunday Closing (Wales) Act. Wales was dry as a result of that until a Conservative Government decided in 1961 that the only way in which you could reverse that decision was to hold a series of referendums throughout Wales. Every five years or so there were repeat referendums in the various counties of Wales until ultimately, in 1996, it became wet again. So there is the precedent; I am a lawyer and I seek precedent. The Liberals introduced a referendum and the Conservatives decided in 1961 that you could deal with that by holding referenda.
Baroness Hayter of Kentish Town
My Lords, I think the House wants the Minister to reply, so I was thinking that we are probably ready to end this debate.
I have just heard the first case against referendums, which is that a referendum made my country of Wales dry—and that argument was in support of them. It was certainly dry on a Sunday when I was growing up; and this is the ex-director of Alcohol Concern confessing this.
We have considerable sympathy with one part of these amendments: that the Government cannot be allowed to mark their own homework regarding the outcome of the withdrawal negotiations, be that on Gibraltar, which is mentioned in one of them, our future relations with the EU or the withdrawal deal itself. We discussed last week, as a number of noble Lords have said, the need for a meaningful vote by Parliament on the deal and indeed on what should happen if the deal fails to win approval by the British Parliament. We also considered then the desire of some for a future referendum on the terms of the deal.
As the Committee knows, and as the noble Lords, Lord Wigley and Lord Newby, have said, we see it as essential that there is a proper, meaningful vote on the terms of our withdrawal. We trust that the amendment we will table on Report will find favour in this House and later, we hope, at the other end. As to what should happen if that deal is rejected, surely that must be decided at the time, in the full knowledge of the situation, by the House of Commons. It could be, as in a later amendment in the name of my noble friend Lord Campbell-Savours, by extending the Article 50 period. It might be by revoking the Article 50 notification. It could indeed be by a referendum, though perhaps the wording would be a matter for then, rather than by amendment today. But the first judgment on the terms must surely be for this sovereign Parliament and, if it says no, it must then be Parliament that takes responsibility for what should be the next step. That means nothing is ruled out, which therefore means nothing is set in stone at this moment.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, this has again been an excellent debate and let me say at the outset that I note that support for the amendments comes from noble Lords on all sides of the House. I am not trying to imply that this is a partisan issue, but it is one of principle. I hope that the noble Lord, Lord Butler, the noble Baroness, Lady Wheatcroft, and the noble Lords, Lord Newby, Lord Wigley and Lord Foulkes, who have tabled Amendments 226, 227BH and 357, will believe me when I say that I respect their positions. But this debate has been held many times before, and I therefore hope that noble Lords will forgive me if my argument sounds familiar. The referendum question, agreed by Parliament and presented to the people, was whether we wished to leave or remain in the European Union. Parliament attached no conditions or caveats to that vote.
It was clear in the campaign that a leave vote could lead to a range of outcomes and that not all of us advocating leave agreed about the way to do so. People knew this at the time, it was extensively debated and, in the biggest democratic mandate for a course of action ever directed at any UK Government, voters instructed the Government to leave the European Union.
Baroness Altmann
My Lords, it is that very term—“instructed” the Government or “instructed” Parliament—that is the subject of the amendments. I am not a fan of referenda, but it is clear that what the British people were led to believe, and what they voted for in the referendum, needs at least mostly to be delivered. The question is, if what they voted for—more money, no change to the borders, very easy trade deals; never mind that nobody mentioned ending of roaming and a potential Brexit surcharge on their flights—is not what is on offer, what should this Parliament do? It is questionable that this House should agree that the British people have instructed us to do whatever the Executive manage to negotiate with the EU, irrespective of whether it resembles even closely what the leave campaign told the British people it would achieve.
Lord Callanan
My Lords, the noble Baroness says that she is not in favour of referendums but is supporting a campaign to have another one. I think we all know what her agenda is: she did not like the result of the referendum, and she does not like the result of the policy. She is entitled to have her view, but we are entitled to disagree with her.
Baroness Altmann
I am not in favour of another referendum. I am in favour of parliamentary democracy and parliamentary sovereignty. The concern here is that Parliament seems to have handed over its power to the people by believing that there is an instruction from the people. If the Government were to say that there will be a free vote and a meaningful vote on whatever is negotiated, we would not need to go back to the people, because Parliament should be able to represent the national interest. I would prefer no final referendum or vote for the people, but if that is required it may be appropriate or prudent to leave it as an option.
Lord Callanan
I am not going to continue with this debate, but I think we know where she is coming from: she wants to reverse the result of the referendum, which she is entitled to believe, but I am entitled to disagree with her.
Lord Hannay of Chiswick
I will give the noble Lord another target. He seems to be an absolutist about referendums. What attitude did he take in 1975 to the two-thirds of the British people who voted to join on the terms that were put before them?
Lord Callanan
I am afraid that I was not old enough to vote in that referendum, but my father tells me that he voted to join a Common Market at the time and nobody ever asked him whether he wanted to join a European Union. But that is a separate argument.
We in the Government believe it to be our solemn duty to deliver on the instructions of the people.
Lord Callanan
I will make a little progress, if I may. I will take interventions later. I am on only the third paragraph of my speech.
I will not embarrass the Liberal Democrats further by quoting their leader, the right honourable Member for Twickenham, Vince Cable. The noble Lord, Lord Newby, says that that was years ago. It was not; it was in September 2016; it was only 18 months ago that he said that we should not have another referendum. Again, he is entitled to change his mind, but I hope that the Liberals will have the good grace to be a little embarrassed about it.
The Government never hesitated in accepting the verdict and, in line with the ruling of the Supreme Court, the Government than put the question of the power to notify Article 50 to Parliament. In passing it, this House and the other place voted with a clear majority to authorise the Prime Minister to trigger Article 50. The clue was in the name: it was the Article 50 notification of withdrawal Act, passed in the other place and in this House with large majorities. It was to give our notice to withdraw from the European Union, authorised by Parliament.
Lord Garel-Jones
Is my noble friend saying that he disagrees with the ruling of the Supreme Court that although it was indeed the case, Parliament did not authorise the outcome of those discussions? That is what the Supreme Court has ruled.
Lord Callanan
Of course I do not disagree with the ruling of the Supreme Court, which is why we will have another vote later in the year and will bring in legislation to implement the result of our negotiation.
Noble Lords will of course recall that we had a debate on Report of that Bill on the options for a second referendum, an amendment that was defeated by 336 votes to 131—a telling result, perhaps, but not as telling as that of last year’s general election, where the parties committed to respecting the result of the referendum received more than 80% of the vote. Petitions have been brought to the other place for debate on this issue and have failed to garner the support of the House.
I say this: we were given a national mandate and Members must comply with the instructions for exit from the EU. I am sorry if noble Lords are shocked by those words, but they are not mine, they are the words of the former leader of the Liberal Democrats, Sir Nick Clegg. Perhaps for the first time in my life, I agree with Nick.
We hold not only that this Bill is not the vehicle for a second referendum but that the European Union Act 2011, put in place by the coalition Government to ensure that referendum would be held regarding future transfers of competence to the EU, is also not a mechanism that can be used to secure such a referendum by stealth. I know that we shall return to this point on another day.
This debate and the issue surrounding a second referendum is about more than the decision to leave the EU; it is about whether the public can trust us politicians. The British people can trust this Government to honour the referendum result. To do otherwise would undermine the decision of the British people, with worrying implications for the perceived legitimacy of our institutions.
Viscount Hailsham
Will my noble friend address the question put to him by the noble Lord, Lord Butler? Will the meaningful vote be such as to enable Parliament to vote to stay in the European Union if that is what Parliament wants?
Lord Callanan
I covered this point earlier. Parliament has passed the notification of withdrawal Act, to give our notice under Article 50 to withdraw from the European Union. That is the process that we are following; that is the process that was authorised by Parliament.
Lord Callanan
We have said that once we have negotiated the best deal available, we will bring it back to this Parliament and Parliament will vote on whether it wishes to accept that deal or not.
Lord Callanan
No, Parliament authorised us to leave the European Union under the notification of withdrawal Act. We effectively gave two years’ notice under the Article 50 process.
Baroness Butler-Sloss
If there is a vote in either House, particularly the House of Commons, which rejects whatever the Government put forward, what will the Government do?
Lord Callanan
In such circumstances—first, we hope that Parliament will not reject it and we will negotiate for the best possible outcome—that would be an instruction to move ahead without a deal.
Lord Callanan
Well, as I said, under the Article 50 process, we have notified the European Union that we are leaving.
Lord Campbell-Savours (Lab)
Would the Government equally reject a take-note Motion in the House of Commons on that matter, even if it were carried on a free vote?
Lord Callanan
I am not an expert on the proceedings of the other place—I have never been a Member of the House of Commons—but of course the Government will listen to decisions by the House of Commons.
Baroness Hayter of Kentish Town
My Lords, this is a crucial moment. The whole issue here is whether it is a mere Motion or whether there is any legislative oomph—sorry, Hansard—behind the vote that Parliament is to have. Am I absolutely correct that the Minister has just said that even if it is a mere Motion, which is what the Government have offered so far, if the deal was rejected they would still take us out of the European Union at the cliff edge, without a deal?
Lord Callanan
We want a deal with the European Union. We have said that we will negotiate for the best possible deal and then we will put that to the House in a Motion. If Parliament approves it then we will bring legislation forward to implement the deal. That is what has been said many times in the other place as well.
Lord Forsyth of Drumlean
Does my noble friend recall that both David Cameron and the leader of the Opposition wanted to implement Article 50 within days of the referendum result? All this argument suggesting that we have somehow precipitately moved into Article 50, and that the referendum did not give a clear instruction to both the government and opposition parties, is therefore simply froth.
Lord Callanan
I am not sure that I would use the word “froth”, but we have had a good debate about this and I am sure we will continue to do so.
Parliament authorised our notification of withdrawal in the Article 50 Bill with a clear majority. That position was supported in the general election when we and the Labour Party both said that we would implement the results of the referendum and, in the process, obtained over 80% of the vote. The Liberal Democrats, of course, said that they would not and got 7% of the vote.
Baroness Kramer
I have a question for clarification. Is it now correct for us to interpret, when the Prime Minister or any member of the Cabinet says that there will be a meaningful vote, that the vote will be between whatever has been agreed—good, bad or indifferent—and no deal, and that that is the only choice? Will the Minister explain how that becomes a meaningful vote in the context of the understanding of anybody in either House?
Lord Callanan
When we have negotiated the deal it will be an extremely significant moment. We will put that deal to both Houses in a Motion to approve or not, as the case may be. This House has already considered the issue of a second referendum and rejected it. The public rejected it in the last general election.
Lord Kerr of Kinlochard (CB)
Is the Minister seriously saying that it would be out of the question for the House of Commons to consider, in addition to whether the deal should be accepted or rejected, whether there should be an attempt to improve the deal or whether it should be put to the people? Are these options to be ruled out altogether? Is it Hobson’s choice? Is it this deal—good, indifferent or bad—or no deal and no question of an extension or trying to improve it, or putting it to the people? If that is the Minister’s position, it is almost as astonishing as the suggestion from the noble Lord, Lord Forsyth, in his seventh intervention, some time ago, that the people would be outraged if they were given the final decision. I do not know if the Minister thinks that, but what he is saying about the meaningful vote is rather outrageous.
Lord Callanan
I am sorry that the noble Lord is outraged, but I am not going to stand here and try to instruct the House of Commons on what to do. It is quite capable of taking its own decisions. Many Members of this House have been Members of the House of Commons. I have not, but I am sure that if they want a vote on any subject they like they are quite capable of deciding the matter themselves.
Our focus now should be on making a success of Brexit, working to get the best deal possible, providing certainty and taking decisions on what kind of country the UK will be in the future. That is the clear instruction given to this Government in both the referendum and the general election. We believe that it is our duty to deliver upon it. A second referendum would pose a—
Baroness McIntosh of Pickering
I have not heard my noble friend respond to Amendment 357, tabled by the noble Lord, Lord Foulkes of Cumnock. If Spain retains a veto over any of the arrangements with Gibraltar, will the Government bring forward an amendment to the Bill on Report for this House to consider?
Lord Callanan
I suspect that we will still be in the process of negotiations at that stage. We have been clear that we are consulting closely with the Government of Gibraltar. Gibraltar is leaving the European Union at the same time as the UK is. We are negotiating for the UK and for Gibraltar, in close consultation with its Government. We recently had a ministerial meeting with them, chaired by my honourable friend Robin Walker, and we are keeping them closely informed about the process of the negotiation.
A second referendum would pose a serious risk of undermining our ongoing negotiating position. Worse still, it would prolong the period of uncertainty for businesses and citizens in the UK and EU. These are the unacceptable costs of what my noble friend referred to as a neverendum. In those circumstances, I urge the noble Lords to withdraw or to not move their amendments.
Lord Wigley
My Lords, the House has listened to the Minister with amazement over the last 20 minutes. We have had a repeat of the statement made last week, which the noble Lord, Lord Butler, succeeded in highlighting. If we end this process with no deal, there will be no meaningful vote for Parliament, because the only alternative to no deal is to leave on a no-deal basis. That is why there needs to be a safety net of referring the question back to the people. I get the impression that the Government believe that the referendum has given them the right to ignore the will of Parliament and override it by refusing such a meaningful vote. We will certainly come back to that.
There are two clear reasons why a confirmatory referendum should not be denied. The principle has been conceded in the context of triggering the first referendum and, as the noble Lord, Lord Newby, said, only a second referendum could gainsay that. Secondly, we are in the invidious position that Parliament would be asked to overturn the view of the people. That is obviously fraught with difficulties for anybody who is a democrat. Taking that together with the question of a meaningful vote for Parliament, I believe we have to provide the House of Commons with the hook necessary for it to return to this issue after we have finished with the Bill. When there is an opportunity to vote an amendment into this Bill on Report, I hope that we will give Members of Parliament the opportunity to consider a confirmatory referendum, if that appears to them to be the best way forward. On that basis, I beg leave to withdraw the amendment.
Arrangement of Business
(6 years, 8 months ago)
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Lord Young of Cookham (Con)
My Lords, it is the Government’s intention that a full hour should elapse before we resume the Committee stage of the withdrawal Bill. An appropriate motion will be moved to adjourn during pleasure at the conclusion of the exchanges on the third Question. I encourage short questions during these exchanges so that the maximum number of noble Lords can be accommodated.
Money Laundering
(6 years, 8 months ago)
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The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I will repeat in the form of a Statement an Answer to an Urgent Question given by my right honourable friend the Minister for Security and Economic Crime in another place. The Statement is as follows:
“Mr Speaker, I thank the right honourable gentleman for giving the Government the opportunity to say what we have been doing on this area. We have made it harder for crooks to launder money through property, jewellery and betting. We have reversed the burden of proof so that people whom we think have links to organised crime have to prove where their assets come from. If they cannot, we will seize and dispose of the assets. We served the first unexplained wealth order within 14 days of the new powers being implemented. We have, for the first time, through the Magnitsky amendment, made it possible to confiscate assets from people guilty of gross human rights abuse. We will complete that with an amendment to the Sanctions and Anti-Money Laundering Bill currently going through Parliament.
We have made it easier to seize criminals’ money from bank accounts. We have introduced new powers to be able to freeze assets of terrorists. We did so on the day the new law came into force. We have made it a criminal offence to fail to prevent tax evasion, both at home and overseas. We are currently exploring the potential of widening other areas where failure to prevent may apply in economic crime. We have brought a number of prosecutions for those involved in bribery under the Bribery Act, and have had the first conviction of a company for failure to prevent bribery. We introduced deferred prosecution agreements to ensure we maximise the incentive for companies to face up to fraud and corruption. We are setting up the National Economic Crime Centre in the NCA and have brought together the many strands of economic crime under one Minister. We have bolstered the SFO by ensuring access to blockbuster funding to make sure that big business and overseas oligarchs cannot use their wealth to obstruct justice.
Under the previous Prime Minister, David Cameron, we initiated an international anti-corruption summit. In response to the Panama papers, we established the joint financial analysis centre in the NCA. We have established one of the world’s first public registers of beneficial ownership of companies. We have helped to establish in all overseas territories and Crown dependencies a register of beneficial ownership with mutual, and in some cases almost live-time, access for law enforcement. We have committed to establish a public register of overseas owners of property in the UK.
This Government have taken real steps to tackle criminal finance in this country. Whoever crooks are, no matter what nationality, we will pursue them and their cash”.
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for repeating the Answer to the Question. According to the Daily Telegraph, official figures suggest that £90 billion in crime proceeds is laundered through the UK each year. The UK has for many years been seen as a desirable place to hide suspicious wealth. Can the Minister explain why the Government have done relatively little to discourage this activity thus far? Does she agree that the current laws under which owners of overseas companies can buy UK property while hiding their identities are ripe for abuse? They have not only led to an influx to the UK of suspicious wealth, but further exacerbated the crisis in the housing market. Can she please explain why the Conservatives blocked the Labour Party’s amendment in Committee on the Sanctions and Anti-Money Laundering Bill, calling for the introduction of a Magnitsky clause? When will the Government take more effective action to tackle this problem?
Baroness Williams of Trafford
My Lords, I can agree with the noble Lord on one thing: the impact of money laundering in the UK. However, in 2016, 1,435 people were convicted of money laundering in England and Wales. The Government established the joint money-laundering intelligence task force in 2015 to tackle the issue, and between May 2016 and March 2017 it contributed to more than 1,000 bank-led investigations into suspect customers, the closure of more than 450 suspicious bank accounts and the freezing of £7 million in suspected criminal funds.
The noble Lord talked about Labour putting forward the Magnitsky amendment. I certainly remember that, under the Criminal Finances Bill, it was the noble Baroness, Lady Stern, who put forward the Magnitsky amendment in this House and Labour did very little to tackle serious crime and corruption in this country, so I do not accept the charge he makes that we have done nothing to address this issue.
Baroness Kramer (LD)
My Lords, I have only three very quick points. First, will the Government speed up the process of getting a public register of overseas ownership of property in the UK? Transparency International estimates that some £4 billion-worth of property in London alone has been bought by suspicious wealth. Frankly, the programme the Government have laid out gives all the perpetrators plenty of opportunity to reorganise their finances. Will they please move?
Secondly, having listened—I hope—to calls from both the Minister’s own Benches as well as from the other Benches, will the Government institute a verification process at Companies House so that information on corporate ownership can be established with some clarity and accuracy as a mechanism for trying to counter laundering?
Lastly, I want to ask the Minister about a letter sent to me—I believe it was put in the Library—by her colleague the noble Lord, Lord Young of Cookham, who is in his place. It is on the freezing order applying to Andrei Lugovoi and Dmitry Kovtun. In the letter, the Minister referred to a comment he had made that the freezing order applied to overseas banks. He then said:
“I should more precisely have said that the freezing order applies to any UK incorporated banks overseas”.
Could she now give us an assurance that overseas banks that have money in the UK—whether it is through branch arrangements or any other—are covered by those freezing orders, because presumably, they will be very important in the next steps to be taken in the Salisbury poisoning case?
Baroness Williams of Trafford
I thank the noble Baroness for those questions. The Government will publish draft legislation on the creation of a register of the beneficial ownership of overseas companies that own property in the UK or bid for government contracts. This will mean that overseas countries that own or buy property or participate in central government procurement will be required to provide details of their ultimate owners. This will reduce the opportunities for criminals to use shell companies to launder their illicitly gained wealth in London properties, and it will make it easier for law enforcement to track and seize criminal funds. I can confirm the freezing order process for overseas banks so that criminals cannot hide their finances anywhere. Those freezing orders can be applied overseas as well.
The noble Baroness asked me a third question, but because of the noise in the Chamber, I did not quite hear what she said.
Baroness Kramer
Just to be helpful, this was a call for verification. As she will know, there is a public register at Companies House, which I greatly approve of, but there is no verification process. This has led to criticism from around the House.
Baroness Williams of Trafford
The noble Baroness makes a fair point. We are at a relatively early point with the public register and it is constantly being checked and reviewed to ensure that the information contained within is accurate.
Baroness Falkner of Margravine (LD)
My Lords, the Minister will be aware of the list published on 30 January by the US Treasury of 114 officials and 19 Russian oligarchs who are being considered for sanctions regarding Russia’s various infringements against the rule of law and international order in the last seven years. The Government know that many of the people on that US Treasury list, such as Mr Abramovich and Mr Oleg Deripaska, are based in the United Kingdom, are directors of listed companies in the UK and own property and other assets in this country. Will the Government collaborate with US authorities to list the people against whom they have evidence under sanctions, bribery and other regimes, including the fit and proper person test for corporates?
Baroness Williams of Trafford
I am sure the noble Baroness will understand that I will not talk about individuals, but I am sure she will also appreciate that we work with other countries to share intelligence, certainly through the Criminal Finances Act and the unexplained wealth orders. Through these institutions, we will make progress on bringing these people to book who are laundering and hiding their money in the UK.
Lord Beecham (Lab)
What do the Government propose to do about the role of the British Overseas Territories in this area? There has been a lot of controversy about the use of the facilities available there, both for UK residents and those of other countries, and the Government seem rather loath to intervene. Are they reviewing that situation?
Baroness Williams of Trafford
We made it clear during the passage of the Criminal Finances Act that we would certainly not intervene with legislation but would work with the overseas territories and the Crown dependencies to have a register of beneficial ownership with mutual and sometimes almost live-time access for law enforcement purposes.
Lord Campbell-Savours (Lab)
My Lords, have the Government fully thought through how the Russians might reciprocate if we take action against any of their citizens in the United Kingdom?
Lord Bassam of Brighton (Lab)
My Lords, would the noble Baroness like to revisit something she said in her opening Statement, which was that Labour in government had done nothing on money laundering? I have just been using Google, which says that the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 were made under the Proceeds of Crime Act 2002. I have some recollection that I played a part in that legislation. Perhaps the noble Baroness ought to reflect on what she said earlier, because she is wrong.
Baroness Williams of Trafford
I am sure that I may be wrong. I just took issue with the suggestion that we had not done anything.
Customs Clearance Arrangements at UK Ports
(6 years, 8 months ago)
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The Minister of State, Department for International Development (Lord Bates) (Con)
My Lords, with the leave of the House, I will repeat the response to an Urgent Question given by the Financial Secretary to the Treasury in the other place earlier this afternoon. The Statement is as follows:
“Mr Speaker, the Government have been clear that in leaving the European Union the UK will also leave its customs union, allowing us to establish and enhance our trading relationships with old allies and new friends around the world. The Government have also set out that in leaving the EU customs union, we will be guided by what delivers the greatest economic advantage to the United Kingdom and by three strategic objectives: first, continued UK-EU trade that is as frictionless as possible; secondly, avoiding a hard border on the island of Ireland; and thirdly, establishing an independent international trade policy.
Looking forward, as we implement the decision of the British people to leave the European Union at the end of March 2019, we want a deep and special partnership with the European Union. The Government have already set out in their future partnership paper last summer two options for our future customs arrangements—two options that most closely meet these objectives. One is a highly streamlined customs arrangement. That approach comprises a number of measures to minimise barriers to trade, from negotiating the continuation of some existing trade facilitations to the introduction of new technology-based solutions. The other is a new customs partnership, which is an unprecedented and innovative approach under which the UK would mirror the EU’s requirements for imports from the rest of the world that are destined for the EU, removing a need for a formal customs border between the UK and the EU. Those models were detailed again in the Government’s White Paper last October, and by the Prime Minister in her speech at Mansion House earlier this year and in her subsequent Statement to this House. We look forward to discussing both these options with our European partners and with businesses in both the UK and the European Union as the negotiations progress”.
Lord Tunnicliffe (Lab)
My Lords, I thank the Minister for repeating the Answer to the Urgent Question. According to the Guardian, Chris Grayling said:
“We will maintain a free-flowing border at Dover. We will not impose checks in the port … We don’t check lorries now; we’re not going to be checking lorries in Dover in the future. The only reason we would have queues at the border is if we put in place restrictions that created those queues. We are not going to do that. We will manage trade electronically. Trucks will move through the border without stopping”.
Does the Minister accept that it is both reckless and misleading for his colleague, the Transport Secretary, to imply that there will be no checks at Dover in the case of a hard Brexit? Can the Minister point out to the House other examples of countries that allow goods to flow through their borders unchecked without some form of customs agreement? Can he also explain to the House how HMRC will be able to implement customs checks post Brexit while the Government continue to close HMRC offices and when they have cut staffing levels by 17% since 2010? Finally, given the Government’s track record of delivering computer systems, does he honestly think that delivery of an upgraded system by March 2019 is in any way realistic?
Lord Bates
In response to the first question, what the Secretary of State for Transport described is pretty similar to what I said in the Answer to the Urgent Question about our desiring a frictionless border between ourselves and the European Union and a deep and ongoing partnership. Clearly, “frictionless” has connotations relating to particular checks which could be undertaken at roll-on, roll-off ferry terminals such as Dover, which are important to the economy.
On the second point, the noble Lord invites me to think about whether there are other examples which could be pointed to in this regard. But again, we are looking for something unique, innovative and different. We believe that it is possible; the fact that we are seeing agreement on the implementation period just today shows that it is possible with good will on both sides.
Finally, the noble Lord asked about HMRC and computer systems. That was one of the reasons why the Chancellor announced in his Autumn Budget that a total of £3 billion will be made available and, specifically, that £260 million will be made available to HMRC to prepare itself for the outcome. Therefore the resources are there. To touch on the point the noble Lord made about technology, that is interesting, because it is not as if at the moment the UK does not have any expertise in trading with the rest of the world. It does so quite frequently, and if you go down to Felixstowe or other places, you will see significant amounts of imports that come through and are dealt with in an incredibly efficient and effective way, using technology. We are seeking simply to take that technology and to give it wider usage so that it achieves our objective of a frictionless border that enhances both trade in the EU and for the UK.
Baroness Kramer (LD)
My Lords, does the Minister understand that even companies that have obtained trusted trader status—it is expensive—do not use it, because it is so complicated and expensive that they have found that it is not worth while? Secondly, he will know that in the container ports he cites, goods coming long distance are on ships for days and even weeks, which is why trusted trader status can be used in those situations; it takes so long that it cannot be used at an equivalent of Dover, where you have a roll-on, roll-off situation. Does the Minister also recognise that coming through the Dover port, and intermingled with the kinds of operations that could perhaps seek trusted trader status, are vans that have the accumulated goods for 12 small companies, Amazon delivery vans, and so on? The traffic is so completely mixed, and because there is no space at Dover or any capacity to pull out any of the trucks, the mechanism he describes is in effect one of turning a blind eye.
Picking up the Government proposals for dealing with the Irish border, where essentially small businesses, which account for 80% of cross-border traffic, would not be checked, that, again, is the blind-eye strategy. Does the noble Lord understand the implications for smuggling and for abuse of the system of what he is talking about? We already have extensive fuel smuggling at the Irish border and extensive abuse of the VAT tariff differential. He is now creating an opportunity in not just Ireland but at the UK ports, especially the ro-ros, for criminal activity on a scale which this country has fought deeply in the past.
Lord Bates
The noble Baroness takes a very pessimistic view of this matter. We believe that we are taking a realistic and optimistic view of the potential agreements. For example, we believe that it is in everybody’s interest to ensure that this process takes place. If we look at the balance of trade between ourselves and the EU, there is a deficit of £96 billion on trade in goods, which suggests that it is very much in the enlightened self-interest of our European friends to ensure that that border is as frictionless as possible so that this trade can take place.
The noble Baroness referred to the situation in Northern Ireland. Of course, there is a difference in duty on certain goods between the two countries, as she alluded to, and they have introduced mechanisms for dealing with that. They have a variety of means of doing so, not just technology. They use some physical checks, particularly to clamp down on the fuel element of that traffic, so I believe that where there is a political will, there is a way. We believe that a will to make this frictionless border happen has been demonstrated, and that is what we are working towards.
Lord Lamont of Lerwick (Con)
My Lords, will my noble friend draw the attention of noble Lords opposite who are so sceptical about the use of technology to the evidence given to the House of Commons Select Committee on Exiting the European Union on 29 November 2017, when the chief executive of HMRC, Jon Thompson, said that,
“this has been our consistent advice to ministers, we do not believe we require any infrastructure at the border between Northern Ireland and Ireland under any circumstances”,
whatever the outcome of the talks? In the same session of the committee, the Defra policy director for animal and plant health, John Bourne, replied, when he was asked how he could achieve no border and no infrastructure,
“the risk post-Brexit does not change … Is there a problem … No”.
Lord Bates
Whatever we say, those are very profound statements made by people who are in the front line of protecting our borders and ensuring that we collect the duties and taxes due to us. That shows that it is possible. Moreover, we say that the whole trajectory of global trade is heading in a digital direction. We also believe that our approach as a Government is moving towards a digital tax system. We believe that this necessity will force further invention, which will mean that we can deliver this process to the benefit of our economy and productivity as a whole.
Lord Campbell-Savours (Lab)
If the Government are so confident that this arrangement in Northern Ireland will work, why do they not apply exactly the same arrangement to Dover? When the Minister talks about the system being frictionless at the moment and goods can go through, of course that is the case because there are no tariff requirements. When tariff requirements apply, the whole regime changes. What controls will exist in the case of trucks that come through this border that is proposed for Dover, where it might well be possible, because the entry is from the destination point, to unload the truck or the container en route, having already come through Dover, where the entry does not truly reflect the goods that are on the truck or in the container?
Lord Bates
The noble Lord raises a technical point. I am not in the front line of dealing with these issues. The people to whom my noble friend referred, who gave evidence to the Select Committee, are, and they seem to think that it is possible to do this and achieve these objectives. We should have confidence in them and in ourselves.
Cambridge Analytica
(6 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)
My Lords, with the leave of the House, I will repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Digital, Culture, Media and Sport to an Urgent Question in another place. The Statement is as follows:
“Mr Speaker, the revelations this weekend of a serious alleged privacy breach involving Facebook data are clearly very worrying. It is reported that a whistleblower told the Observer newspaper that Cambridge Analytica exploited the Facebook data of over 50 million people globally.
In our increasingly digital world, it is essential that people can have confidence that their personal data will be protected. The Information Commissioner, as the data regulator, is already investigating as part of a broader investigation into the use of personal data during political campaigns. The investigation is considering how political parties and campaigns, data analytics companies and social media platforms in the UK have used people’s personal information to micro-target voters. As part of the investigation, she is looking at whether Facebook data was acquired and used illegally. The commissioner has already issued 12 information notices to a range of organisations, using powers under the Data Protection Act 1998. It is imperative that when any organisation receives an information notice, it must comply in full. We expect all organisations involved to co-operate with this investigation in whatever way the Information Commissioner sees fit. I am sure the House will understand that there is only so far I can go in discussing specific details of specific cases.
The appropriate use of data is important for good campaigning. Canvassing someone’s voting intention is as old as democracy itself. Indeed, we do it in this House every day. But it is important that the public are comfortable with how information is gathered, used and shared in modern political campaigns, and it is important that the Information Commissioner has the enforcement powers she needs. The Data Protection Bill, currently in Committee, will strengthen legislation around data protection and give her tougher powers to ensure organisations comply. The Bill gives her the powers to levy significant fines for malpractice of up to 4% of global turnover against organisations that block the ICO’s investigations. It will enhance control, transparency and security of data for people and businesses across the UK.
Because of the lessons learned in this investigation and the difficulties the Information Commissioner has found in getting appropriate engagement from the organisations involved, she has recently requested yet stronger enforcement powers. The power of compulsory audit is already in the Bill, and she has proposed additional criminal sanctions. She has also made the case that it has become clear that, in order to deal with complex investigations like these, the power to compel testimony from individuals is now needed. We are considering these new proposals, and I have no doubt that the House will consider this as the Bill passes through.
Data, properly used, has massive value and social media is a good thing, so we must not leap to the wrong conclusions and shut down all access. We need rules to ensure transparency, clarity and fairness, and this is what the Data Protection Bill will provide. After all, strong data protection laws give citizens confidence, and that is good for everyone”.
Lord Stevenson of Balmacara (Lab)
My Lords, I am grateful to the Minister for repeating the Answer to the Urgent Question asked by the chair of the DCMS Select Committee in the other place.
I think we all owe a great deal to Carole Cadwalladr and the Guardian for their striking investigative journalism, which has led to a remarkable exposé of what appears to be a significant breach of our data protection laws, and for drawing attention to the threat that such activity poses for our democracy and our polity. I am sure that the DCMS Select Committee will produce a powerful report on these and related matters, and we look forward to seeing that.
I agree with much of what the Secretary of State says in his Answer, not least his belief that we should see whether we can find common ground between the parties on what can be done to improve the Data Protection Bill, which is currently in Committee in the other place. In that context, does the Minister agree that we should think about giving the Information Commissioner the resources that she needs and the additional enforcement powers that she has requested to ensure that, as well as auditing the activity of all data controllers, she has the power to seize papers and digital materials and to require individuals to give evidence when required? Does he also agree that we should think about backing the Electoral Commission’s request for powers—not necessarily in the Data Protection Bill but in other legislation if necessary—so as to introduce better safeguards in this area, including digital imprinting for political advertising?
Given that one of the underlying concerns here is that this is a rapidly changing area, does the Minister agree that we should think about bringing forward plans for a data ethics commission that could look at, inter alia, whether we need personal copyright in data, the changes that might be required to the e-commerce directive post Brexit, and such backstop powers as may be needed once this alleged data breach has been properly investigated? Finally, does he agree that we should meet in the not too distant future to discuss how best to make progress on these important issues?
Lord Ashton of Hyde
My Lords, I thank the noble Lord for his constructive remarks. I too pay tribute to the Guardian and the journalists who worked on this. Certainly they have exposed questions to answer but we will have to see what the ICO comes up with in its investigation, and it is very important not to prejudge that. I agree with the noble Lord that there is common ground between us. We found common ground to improve the Data Protection Bill as it went through this House. Six hundred and ninety-two amendments were considered and a great number were accepted, so I think that that worked very well as regards the Official Opposition and the Lib Dems. That is a good example of where we have done well in scrutinising legislation.
In the Commons, in particular, the Secretary of State made it clear that we will consider what the Information Commissioner has asked for in respect of new powers. I would say that, generally speaking, during the passage of the Bill we have liaised very well with the Information Commissioner, and I was present at a call this morning to discuss these matters, among others, with her.
The noble Lord also talked about safeguards during elections, and of course we take them very seriously. It is absolutely critical that advances in data-mining analysis allow free and fair elections, and we will obviously consider that.
The data ethics and innovation group is proceeding and I think we are working as fast as we can. It is a very important area for the reasons that the noble Lord mentioned. Of course, I am always delighted to meet him to discuss any further progress that we can make on the Data Protection Bill, although we are getting short of time. I remind everyone that the GDPR comes into place on 25 May. Once the Commons has finished with the Bill, we will have to move swiftly—and, I hope, on the basis of consensus.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, I think we all agree that these allegations against Cambridge Analytica, if correct, indicate a shocking betrayal of people’s personal data and that this could be the tip of a large iceberg. All campaign work linked to Cambridge Analytica must now be scrutinised, including any links to elections in the UK. Will the Minister ensure that, as part of the investigation, the Information Commissioner takes steps to look into links between the breach of data privacy and elections and referenda in this country? I join in thanking him for encouraging cross-party co-operation on this matter, which I agree is very important.
Lord Ashton of Hyde
My Lords, I want to put on the record that we absolutely agree with the noble Baroness that if these allegations—and at the moment they are allegations—are correct, that will be truly shocking. The new Data Protection Bill will bring forward stronger enforcement powers, and, as we have said, we might strengthen them even further. It is very important to consider that some people have said that the powers in the new Data Protection Bill are too burdensome. That shows exactly why we need strengthened individual data subjects’ rights and the means to protect them. The privacy of individual data subjects must be taken extremely seriously, and the Bill will do that. Of course, the Information Commissioner will certainly take seriously any links that she finds between any data breaches and elections, and I confirm to the noble Baroness that we will too.
Baroness O'Neill of Bengarve (CB)
My Lords, the Minister has, very understandably, spoken as though the problem that we are addressing is breach of privacy, and that is of course what data protection legislation is intended to achieve. However, does he not think that new uses of data, including personal data, by digital media and specifically by social media are evading the way in which we would like elections to be conducted and enabling data use that is not merely a breach of privacy but a breach of public interest?
Lord Ashton of Hyde
I have to give a short answer to what is an extremely difficult question. I certainly agree with the noble Baroness that there are more questions to answer than simply those about data protection in the fairly broad confines of the Data Protection Bill. Of course, the data ethics and innovation body is there to consider some of the wider aspects. Many other areas are evolving, and I cannot say that we have all the answers in this one Bill but we are certainly looking at the issues. Our ambition is to make the internet a safe place to be. We have to take into account all areas of public interest, and I agree that elections are certainly matters of public interest.
Lord Tyler (LD)
My Lords, can I take the Minister a step further on the question raised by the noble Baroness and my noble friend? He has referred extensively to the Information Commissioner, but in one very important respect this is a matter of concern to the Electoral Commission. We have a vehicle for improving the powers of the Information Commissioner but we do not at the moment have any vehicle to improve the powers and investigative processes of the Electoral Commission. Will the Minister confirm whether the Electoral Commission is looking at the issue of whether Cambridge Analytica employed at any stage, or gave advice at any stage to, any of the participants in the leave campaign during the referendum? If so, has he received any advice from the Electoral Commission as to whether the law needs to be tightened up in that respect, too?
As we understand it, one of the companies concerned may well be not a UK-owned company—in which case it would of course be an ineligible contributor to any campaign such as a referendum. Given that it is possible that, within a matter of months, we may have another referendum, I suggest to the noble Lord and to the Government that this is a matter of some urgency, and therefore cannot be left simply to improving the powers of the Information Commissioner.
Lord Ashton of Hyde
I am not sure that I agree with the premise of the latter part of the noble Lord’s question. Nevertheless, he makes a sensible point about the Electoral Commission, which is, I believe, a Cabinet Office responsibility. I cannot confirm whether the Electoral Commission is currently conducting the investigation that the noble Lord asked about, but I will certainly find out. What I can say is that, as far as data is concerned, which is my responsibility, we continue to have cross-party talks on areas of interest, including with the noble Lord’s own party. I recently participated in a round table with the Secretary of State and representatives from the Labour Party and the Lib Dems to talk about how we can go forward as far as political parties and elections are concerned. The Electoral Commission was raised at that stage—but I will have to come back to the noble Lord on the specifics of his question on the Electoral Commission.
European Union (Withdrawal) Bill
Monday 19th March 2018
(6 years, 8 months ago)
Lords ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-IX Ninth marshalled list for Committee (PDF, 218KB) - (19 Mar 2018)
Lord Shipley
“Local government consultation
Her Majesty’s Government must—(a) maintain a full consultative role for local authorities in the planning and decision-making processes involved in the United Kingdom’s withdrawal from the EU, in due time and in an appropriate way for all matters which concern them, and(b) provide by regulations made by a Minister of the Crown for a formal mechanism in domestic law to replicate the advisory role conferred on local authorities via membership of the EU Committee of the Regions within the United Kingdom after exit day.”
Lord Shipley (LD)
My Lords, I remind the House that I am a vice-president of the Local Government Association. Amendment 227 derives from two problems. The first is the fact that consultation with local authorities has been inadequate in the planning of the UK’s withdrawal from the EU. Secondly, the absence to date of any mechanism in domestic law to replicate the advisory role conferred on local authorities by the European Committee of the Regions after exit day is becoming a matter of increasing concern.
Local government has in the past been told that there would be a seat at the table for it. That has not been fulfilled. It is not enough for the Government to have occasional informal discussions with some elected mayors in England and dress that up as proper consultation. The Minister will be aware that the devolved legislatures of Scotland, Wales and Northern Ireland, as well as the Mayor of London, have had detailed consultative involvement in recent months. However, similar involvement has been missing in England and I fear that this results from Whitehall seeing itself as representing all of England as well as the UK as a whole. I have concluded that we need a proper consultative structure for all parts of the UK—the nations, the regions, the sub-regions and the local authorities, right across the United Kingdom.
I accept that, in England, regions and sub-regions may have very different governance arrangements from each other. Nevertheless, we need representative bodies reflecting natural geographies to meet regularly with Ministers. It is very strange that UK Core Cities has found it easier to meet with Monsieur Barnier in Brussels than with UK Government Ministers in London.
There are several very big strategic problems that need resolution if Brexit is to proceed. First there is the replacement of the EU funding streams that currently provide some £8.4 billion in structural funds—mostly ERDF and ESF in the UK—between 2014 and 2020. The aim of the funding streams is to create jobs, support business growth, improve skills and reduce comparative deprivation in poorer areas. The question arises as to how this will be continued if Brexit happens.
Secondly, there are serious issues around workforce planning, particularly in high-tech industries where, for example, graduate retention of international students in our university cities matters profoundly. The immigration and trade Bills must recognise this and I hope that the Minister will be able to confirm shortly that they will.
Thirdly, we need structures to permit discussion of exactly those matters that the Committee of the Regions helped to establish across national borders, such as extremist prevention strategies, protection of our steel industry and community energy supply projects. Talking within the EU across national boundaries has produced better legislation for the United Kingdom.
Finally, we should remember that one reason for the Brexit vote was the serious inequalities that have emerged over the past 20 years across the United Kingdom. A lot of places have felt left behind, and justifiably so. But Brexit must not result in those places feeling even more left behind. We have to ensure inclusive growth for all and so I hope that the industrial strategy and the planned shared prosperity fund will help to deliver that. To achieve it will require a structure for shared discussion of the issues by the regions, the sub-regions and local government generally, and I hope that the Minister agrees. I beg to move.
Lord Porter of Spalding (Con)
My Lords, I rise briefly to speak in support of the spirit of the amendment, but first I need to put on the record that I am the chairman of the Local Government Association and the leader of South Holland District Council. Obviously that is South Holland in Lincolnshire, not south Holland in the Netherlands.
Lord Porter of Spalding
It would be better because I would like to have been an alderman, really.
Lord Adonis (Lab)
My Lords, depending on whether we leave the European Union, the noble Lord might be able to transfer.
Lord Porter of Spalding
There are some people who have already offered me a one-way ticket.
I should clear up one minor misunderstanding in the previous comments. We do meet with the DExEU team and my local government counterparts in Scotland, Wales and Northern Ireland also meet regularly. As noble Lords will know, it is our staff who generally do most of the heavy lifting and they meet continually with representatives of DCLG, as it was, and DExEU. That is not to say that we should not have something not to replace the bureaucracy of the European Committee of the Regions but to strengthen the ability of local government to help the national Government form better policy.
Over the past 10 years national government has managed to give itself 350,000 more staff while in the same period local government has lost 840,000 staff. There are some people who would probably say that the Civil Service has a better capacity to advise the Government, but I would just like to remind them that local government has the capacity to advise them better.
Lord Wallace of Saltaire (LD)
My Lords, perhaps I may follow the noble Lord, Lord Porter. When I was a small boy singing in the choir of Spalding parish church, after services we used to look for the graves of the Dutch engineers who had dug out the Fens and drained them—which of course is why the area is known as South Holland. I also remember that when the current Government Chief Whip came to this House, I formed an early bond with him in part because I think I was almost the only person in the Chamber who knew where Holbeach was.
I strongly support the amendment. One of the things that I became increasingly irritated by when I was in government was going to meetings where one would hear the Scots, the Welsh and the Northern Irish perspective on a subject, and then we would move on. The population of England is extremely diverse and there is, as my noble friend said, a great deal of inequality between regions—and yet we did not discuss the north-eastern or the north-western perspective, or the Yorkshire perspective because there is no mechanism for consultation and for giving the English regions a voice. This is a particular problem in Yorkshire, as the noble Lord will know. We do not yet have an agreed strategy with the Government for the one-Yorkshire solution that we are now all agreed on, so that while the city mayors whom Government officials meet represent bits of urban England, they leave an awful lot of English local authorities outside.
I do worry that, if we leave the European Union and the economy goes down further, there will be a real backlash in some of the areas of the north that have been left behind. They voted strongly to leave because they feel ignored, underpaid and undertrained. They expected to get lots of goodies when we left the EU. Well, new apprenticeships, which are desperately needed in the white working class communities of West Yorkshire, have halved in the past year. Spending on schools and children’s social care has been going down. As my noble friend said, we are about to lose the European social and structural funds, so the outcome could be bad.
It is in the interests of all parties that we make sure that the voices of the poorer regions of England are seen to be represented in this process. That is because an outcome which leaves Yorkshire and the north-east, which are most dependent on trade with the EU and are also heavily dependent on EU funds, distinctly worse off will create the sort of popular discontent that could revive UKIP or worse in our country. So I hope that the Minister will be able to reassure us that some visible and public form of consultation will be established and that the Government will actively pursue the reassurance and the funding that is needed by those who have grown increasingly cynical about the northern powerhouse and the various other promises that have been made but which do not actually seem to add up to very much.
Lord Tope (LD)
My Lords, I, too, should begin by declaring the usual interest as a vice-president of the Local Government Association—but rather more relevant to this debate is a former interest. I was appointed to the EU Committee of the Regions when it was first formed in 1994, and indeed as I look across the Chamber to the noble Lord, Lord Empey, I think that he was among the same number—as indeed was the noble Lord, Lord Bowness, and the noble Baroness, Lady Farrington. We were all elected to this new body that had been created.
I could go on for the rest of the evening about this, but I will not. Suffice to say that with each European treaty, from Amsterdam through to Lisbon, the Committee of the Regions was given more powers. There were probably a number of reasons for that, one of which was that we were finding our way. Maastricht was the first treaty that recognised any form of government below member state level, and it was certainly the first time that what I choose to call sub-state government—local and regional government—was represented. That became recognised as increasingly useful.
My purpose in this debate is to wonder why and to say what is important. It was not simply a process of turning up every so often and consulting local or regional government on what we were going to do anyway. It was eventually recognised that local and regional government in the EU was in fact responsible for implementing what someone calculated was around 70%—the figure might have varied between the member states—of EU legislation. It was good common sense to talk with the people who had responsibility for implementing rules, regulations and laws and discuss with them how that could best work before getting to the legislating stage.
In my 20 years on the Committee of the Regions, that was often the very best way to do it: not necessarily—in fact, not usually—in the formal, awful plenary sessions with 300-plus people present, but much more in meaningful dialogue and discussion with the Commission and with commissioners. As my noble friend Lord Shipley said about the experience of city mayors in this country, we found it much easier to access the Commission and commissioners than it ever was to access Ministers and civil servants in this country. When we did, we had a meaningful dialogue and discussion before decisions were made. That worked very well. I am not surprised—indeed, I am pleased—to hear that nobody is suggesting that we try to replicate in some way the Committee of the Regions for the United Kingdom. The thought of trying to replicate something that already struggles with 28 member states is somewhat horrifying.
The point has already been made about the recognised need for the English regions, but nobody has yet devised a way of meeting it. We should remember, too, that the Scottish Parliament and Executive, the Welsh Assembly and Government and the Northern Ireland Assembly and Executive were all members of the Committee of the Regions, as was English, Welsh, Scottish and Northern Irish local government. It worked remarkably well—the noble Lord, Lord Empey, would recognise that, although he was not there quite as long as 20 years—and the UK delegation was, and is, one of the most effective delegations in the Committee of the Regions. If Brexit happens, that will of course come to an end. The other day, I was surprised to be asked by a colleague, “Will we still be members of the Committee of the Regions if we leave the European Union?” He was a little surprised to be given the very obvious answer, “No”. He said, “Well then, we need something else”. This is the opportunity for the Government and the Minister to tell us what else we will have and how it will be effective, not simply in a consultation process but in the policy formation process and the decision-making process.
Lord Adonis
My Lords, the noble Lord, Lord Shipley, drew attention to a significant weakness in our constitutional arrangements. The paradox of devolution as it has developed in recent decades in respect of Scotland and Wales—and Northern Ireland, to some extent, although it has a more complicated history—is that the greater the degree of formal statutory devolution, the greater the degree of formal statutory consultation with central government.
As these debates have unfolded in the interminable Committee, which I now think of almost as the committee for public safety on the Bill and which we have held over many weeks, I am struck by the fact that we have devoted huge amounts of time to arrangements with Scotland, Wales and Northern Ireland. They have a population of 10 million between them; England has a population of 53 million and we have spent almost no time on it—indeed, I think this is the first substantive debate we have had, in a very thin Committee at 8 o’clock in the evening, on the arrangements for consulting and liaising with England on devolution. That goes to the heart of the big problem in our constitutional arrangements, which is that sub-national government in England has no formal relationship in terms of statutory bodies or arrangements with central government and is largely ignored. I hope that the Minister, who is very reasonable, will at least reflect on the fact that the responsible leaders of English local authorities who are in the House this evening—including the noble Lord, Lord Porter, on his side—appear to have more confidence in the consultative machinery in place in the European Union than in central government here in London. That is quite a telling sign.
The bit of English government that I have had most contact with in recent years, as a Minister and politician, is the government of London. The single most significant and positive change made by the British state, in respect of the government of England in the last 20 years, was establishing a Mayor of London with substantial powers and a real degree of autonomy. When I was sitting on the Benches opposite as a Minister, I can say that you took the call of the Mayor of London; he is elected by a million votes and has statutory responsibilities. For other local authority leaders in England, with little formal status—nothing like the clout of the Mayor of London—and no formal machinery in place, it is very hit and miss whether their voice is heard at all in London.
The paradox of the Brexit vote is that the areas that are the least consulted and engaged with by central government in England—which, to be blunt, is most of England outside the south-east—are also the areas that voted most heavily for Brexit. There is a big and fundamental commentary there on the state of the government of England: whether we complete Brexit next year or not, the substantial unfinished business of constitutional reform in Britain over the coming years will be the government of England outside London. That is not something we will determine at 8 o’clock in the evening in debate on amendments to the EU withdrawal Bill, but it is quite clear that the whole EU withdrawal process has set in train a set of concerns that will be very difficult not to address.
I want to make one final comment so that we can put the entire constitution on the agenda in one short debate. I suspect that the future of the House of Lords will have a part to play, because if we have proper devolved arrangements for the regions or cities of England—however we choose to provide better government for England—we will have something that starts to resemble a genuine, balanced federation in the United Kingdom. Once we have that, the obvious and logical successor to this rather toothless and nominated House of Lords would be a proper federal second Chamber. Who knows? If we can envisage withdrawing from the European Union, we can certainly envisage having a federal second Chamber of the United Kingdom in our lifetimes.
Lord Beecham (Lab)
My Lords, I refer to my interests in the register as a vice-president of the Local Government Association and a councillor in Newcastle.
Of course, it is understood that the north-east will be the region most adversely affected by the departure from the EU that Brexit will bring about. It is ironic really that the population in the north-east is greater than that of Northern Ireland. Of course Northern Ireland has its own history and problems, but it has not been overlooked in the north-east that in cash terms the offer made to the North of Tyne Combined Authority amounted, over 30 years, to less than half the amount recently secured by the DUP as a condition of supporting the Government. We feel somewhat underfunded compared to other places. Not to be included in any of the discussions that will take place—and are currently taking place—rubs salt in more than somewhat.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I thank the noble Lords who participated in what has been a very interesting and wide-ranging debate on the Committee of the Regions aspect of this legislation. I will respond to the thrust of what the amendment seeks, then I will briefly go through the contributions and pick up the points that have been made.
In thanking the noble Lord, Lord Shipley, I say that I have considerable sympathy with the underlying aim of Amendment 227, which he tabled, although I do not believe that the proposed provisions are strictly necessary. Addressing the first limb of the amendment, the Government have been very clear that we are consulting with local government and will continue to do so throughout the withdrawal process. Local government has a clear and vital role to play as we depart from the EU and the Government are committed to facilitating it. We have held meetings with leading members of the local government associations of England, Scotland, Wales and Northern Ireland, and their officials, as was indicated by my noble friend Lord Porter. We have met with the Mayor of London and attended a number of “sounding board” round tables, facilitated by the Local Government Association, in Newcastle, Essex, Bristol, Cornwall, London and Staffordshire. These crucial conversations will continue, with local government remaining engaged throughout the Brexit process.
The second limb of the noble Lord’s amendment concerns domestically replicating consultative rights that local government currently has at European level through the mechanism of the Committee of the Regions. The United Kingdom delegation to the Committee of the Regions currently makes an invaluable, important contribution to the decision-making process of the European Union on issues including transport, and economic, social and territorial cohesion. I pay tribute to noble Lords in the Chamber who have been part of that process. I readily agree that it performs a very useful and important function. We do not consider it necessary to provide a statutory basis to a domestic replication of the existing consultative rights provided to local authorities through the mechanism of the Committee of the Regions, but I will explain how we propose to proceed.
We believe the statutory basis risks introducing unduly rigid bureaucracy, which many find so unattractive in some of the current structures. That said, the Government have been having constructive discussions with local government about how the consultative rights and responsibilities it currently has at European level can be replicated domestically, in a non-statutory way, when the United Kingdom has left the European Union. These discussions involve the Local Government Association, the Convention of Scottish Local Authorities, the Northern Ireland Local Government Association and the Welsh Local Government Association, and they are continuing, including at ministerial level.
However, I can now say that we envisage the following approach. Through a ministerial Statement to Parliament, the Government will give local government a clear assurance about how it can expect to be consulted on certain matters which, following their repatriation from Europe, will now be handled at the United Kingdom level. These matters will be those which local government would have been consulted on through the mechanism of the Committee of the Regions. In this way, we could have a flexible, non-statutory mechanism that, in essence, replicates for local government the rights and responsibilities it had through the Committee of the Regions, but in a lighter-touch, non-bureaucratic way. Any such new consultative arrangements will need to complement the wide range of domestic processes and procedures the Government already have for consulting local government.
Lord Adonis
My Lords, will those consultative arrangements include a consultative body? If they do not, people will regard what the noble Lord just said as rather hollow.
Lord Bourne of Aberystwyth
I am coming to that point, but I anticipate that they would. I will just deal with this point, because there is a complication here. In devolved areas, many of these issues will be matters for the devolved Administration dealing with the relevant bodies. That has to be catered for too. Clearly some non-devolved matters would be part of the arrangement relating to this legislation, but we have to recognise that there are some that are rightly the prerogative of devolved Administrations.
This is the important point, which I hope goes some way to answer the point raised by the noble Lord, Lord Adonis. My colleague in the other place, the Minister for Local Government, Rishi Sunak, will carry this forward with the local government associations’ representatives, and we will update the House on the progress made by the next stage of the Bill. I anticipate that in seeking to replicate the arrangements it will take that forward. We need to allow those discussions to take place with the Minister in charge of local government. I will report back on this on Report.
I will deal with the relevant points raised. The noble Lord, Lord Shipley, talked about the importance of the European Social Fund, the European structural funds, steel, community energy and so on. I anticipate that all these points will come within the ambit of the new arrangements.
My noble friend Lord Porter of, I think, South Holland made it clear that he had consultation and discussion with the Ministry of Housing, Communities and Local Government and the DExEU teams. That is very much on the record.
The noble Lord, Lord Wallace of Saltaire, talked about the regions of England being left out of the devolution arrangements. I readily recognise that point. It came up in a wide-ranging discussion that, apart from the city mayors—I take the noble Lord’s point about Yorkshire not quite being there at the moment, but it will eventually be there with the might of the whole of the county, so I hope that will progress—there is, I readily recognise, a dimension in England that is not answered by the devolution arrangements that exist for Scotland, Wales and Northern Ireland.
The noble Lord, Lord Tope, spoke with feeling and passion about the importance of the Committee of the Regions. He was clearly very much part of it. In this House we have the collective wisdom of many noble Lords as to how that operated very effectively.
The noble Lord, Lord Adonis, talked about the paradox of devolution. I recognise some of the points he made, although I do not necessarily agree with all of them. He talked about the regions of England having some of the highest Brexit votes. That is true, but we should not ignore the fact that some very high Brexit votes were in the valleys of Wales. That happened not just where there was an absence of some substructure of government. I think that the highest yes vote in Wales was in Conservative Monmouthshire, so these things are perhaps not quite as simple as they may seem.
Lord Porter of Spalding
My colleagues in Wales would not forgive me if I missed the opportunity to put it on record that that was probably due largely to the fact that devolution to Scotland, Wales and Northern Ireland seems to have bypassed local government in all those provinces as it seems to have done in this country. If the vote there was due to people not being consulted, it might be because the Welsh devolution system does not recognise Welsh local government.
Lord Bourne of Aberystwyth
I am not going to be tempted too far down that path, but I shall be tempted a little way. The area that has historically been most resistant to devolution is Monmouthshire, the only local authority that voted against extended powers in 2011.
Lord Bourne of Aberystwyth
Let me finish the point if the noble Lord, Lord Wigley, will allow. If what I said is true, the area with the lowest yes vote on devolution had the highest yes vote in relation to Europe, so I am not sure that the point made by the noble Lord, Lord Porter, would be borne out totally.
Lord Wigley
It was 49.5% yes in the referendum in Monmouth, so it was almost a majority, while all the other 21 areas voted overwhelmingly in favour— 66% over the whole of Wales. On engagement with local government, it is quite clear that there is a system that works in Wales. Local authorities are brought into consultation, sometimes to an excess—I have heard some complain about the number of times they have to be down in Cardiff to be consulted. It is a question not just of being consulted but of whether the representations lead to change of policy. In those valleys that voted to leave, it was the economic frustration driving them, as in the rust belts in America and in north-east England. Getting the economy right is the key to this.
Lord Berkeley of Knighton (CB)
I support what the noble Lord, Lord Wigley, said. Is it not ironic that the valleys of south Wales, where there was a large Brexit vote, had received more money from the EU almost than anywhere else?
Lord Bourne of Aberystwyth
Certainly, it is, but before we cause great confusion on the part of anybody tuning in now and thinking that they have tuned into Cardiff Bay, I think all noble Lords will realise the dangers of us going down that path. Suffice it to say that it is wise in the light of that not to be led down the path of discussing a federal second Chamber, although there are certainly issues worthy of broader consideration on another occasion. However, I appreciate some of the points being made.
I am pleased to note that the noble Lord, Lord Beecham, is recovering from his injury and that it is not more serious than it looks.
Lord Beecham
I am grateful to the Minister for that. I should make it quite clear that it is not damage inflicted by Brexiteers.
Lord Bourne of Aberystwyth
I am not sure that the noble Lord is absolutely certain of that, because it seemed to be a Tube driver who caused the accident. Anyway, I am pleased that it is not a serious injury.
The noble Lord talked about the particular issues in the north-east in relation to government offices and so on. Again, I think it wise to leave the matter for the new arrangements, but I take the point about the great regional interest of the north-east. It is worth mentioning in passing that there was an opportunity under the previous Labour Government which was turned down pretty heartily, but circumstances change and it does not mean that there are not regional interests that need looking after.
We have had a fascinating and wide-ranging discussion. As I have indicated, I am very sympathetic to the aim of what is being sought, but it should not be on a statutory basis. We will follow up with a ministerial Statement. The Minister for Local Government will proceed shortly to discuss this matter with Local Government Association representatives cognisant of the fact that interests in Scotland, Wales and Northern Ireland will need protecting. I understand the concerns. In light of these assurances, and with the undertaking that I will update the House on Report, I urge the noble Lord to withdraw his amendment.
Lord Shipley
Indeed, my Lords, I shall do so. I thank the Minister for his response, which is mostly welcome. It is clear that some progress is being made. It is good to hear that, prior to Report, we shall hear more about what is planned.
However, I want to say two things. First, meetings regionally and sub-regionally, certainly in England but almost certainly also in Scotland, Wales and Northern Ireland—although it is not for me to say—need to be more regular, inclusive and public. Secondly, I was encouraged by what the Minister said about replicating the Committee of the Regions’ consultative arrangements, but I share the concern of the noble Lord, Lord Adonis, about the structure within which that will take place. It is one thing for roadshows to turn up in places and take evidence; it is another to have a formal structure where everybody understands how it is working. That should include elected mayors, combined authorities and local enterprise partnerships. I hope that the Minister will give due consideration to this prior to Report.
Lord Adonis
Does the noble Lord agree that it is crucial that an actual body is established? Will he perhaps invite the noble Lord, Lord Porter, who chairs the Local Government Association, to bank the very constructive response of the noble Lord, Lord Bourne, to ensure that that happens, because this could be a seminal moment in the development of the constitution of England?
Lord Shipley
I agree with the noble Lord, Lord Adonis. He has made several points which constitutionally are extremely important. I also believe that to link the regions and sub-regions of the nations with Parliament through its second Chamber seems a very interesting constitutional proposal. It would not be strange in some other countries I can think of where similar structures apply. I would like to think we could look further at that as well. I beg leave to withdraw the amendment.
Lord Empey
“Mutual Recognition Agreements relating to the safeguarding of public health
In respect of mutual recognition agreements relating to the safeguarding of public health, within one month of the passing of this Act, a Minister of the Crown must publish a strategy for ensuring that existing United Kingdom notified bodies, in accordance with provisions laid out in the EU Medical Devices Regulation, may continue to conduct conformity assessment certification for both United Kingdom and EU medical devices to ensure continuity within and beyond the EU.”
Lord Empey (UUP)
My Lords, before I speak to the amendment in my name, the noble Lord, Lord Tope, tempts me down memory lane. I served on only the first two terms of the Committee of the Regions; he is a veteran with many stripes on his arm and much more experience. I recall that when it began we had a president, Jacques Blanc, who was the president of Languedoc-Roussillon. We invited him to Belfast and he came in a pillar of fire, having hired a private jet. By the time he came to Belfast, he was Jimmy White and not Jacques Blanc. He then proceeded to tour the European capitals in that jet, much to the chagrin of our paymasters in the European Parliament. I do not know whether the jet has yet landed—but, whatever it did, President Blanc ran up against the buffers of the accountants in the Parliament. Nevertheless, it was an interesting body, but it was a mixture of those of us who were from local authorities and the very powerful—the Bavarians were on it and others with enormous resources. So it was not a balanced body, but it was interesting and at least everybody could have their say.
This probing amendment would require the UK Government to seek agreement with the European Union during the withdrawal discussions—which would of course include the transition period—that the current legal framework underpinning the regulation of medical devices in the EU will be maintained after 29 March 2019. This would enable notified bodies hosted in the United Kingdom, such as the British Standards Institute, to continue to perform conformity assessments on medical devices both from within the UK and across the EU, and issue CE safety label marking after the UK’s withdrawal. The noble Baroness, Lady Kennedy of The Shaws, earlier introduced a number of amendments concerning the welfare of women and young girls and said that she was hoping to put this clearly on the agenda that was moving forward—and this is what I am trying to do this evening.
On 14 September 2017 the noble Lord, Lord O’Shaughnessy, our Health Minister, gave a speech at the Association of British Healthcare Industries on the future of medical technologies post Brexit. He set out the Government’s commitment to the medical tech sector and discussed the opportunities and challenges it faces as the UK leaves the EU and what support the Government were going to offer. There were some core principles in the speech about regulation and conformity assessments post Brexit, including that patients should not be put at a disadvantage and that the industry must get its products into the UK market as quickly and simply as it does now. He said:
“I want to give this promise; no matter what the outcome of the negotiations—on basic patient safety and public health issues—the UK will be, as it always has been, a willing and reliable partner for Europe”.
Furthermore, the European Commission recently warned manufacturers within the EU that CE safety labels provided by notified bodies based in the UK may no longer be valid after Brexit. The Commission document states:
“Subject to any transitional arrangements that may be contained in a possible withdrawal agreement, as of the withdrawal date, the EU rules in the field of non-food and non-agricultural products, whether for use by consumers or professionals no longer apply to the United Kingdom”.
That means that the UK will no longer operate as a host country for EU notified bodies as it currently stands.
Significantly, the European Commission has advised manufacturers to consider the legal repercussions of their current conformity assessment procedure, advising that in future they will need to gain their CE certification through an existing EU member state after the UK’s withdrawal, or to transfer existing files to an EU notified body. It should be noted that, while manufacturers can obtain a CE label from any notified body in the EU, the UK has built an expertise in this area, with approximately 40% of medical devices and 60% of high-risk medical devices on sale in the EU having been certified in the UK by a notified body. The British Standards Institute has led the way in such testing and has recently set up an office in the Netherlands so that it will continue to have an EU-country representation post Brexit.
The development with the European Commission regarding the publication of the notice to stakeholders mentioned earlier would impact on the five existing UK-based notified bodies working in the area of medical devices, including the BSI. BSI chief executive Howard Kerr has previously suggested in media interviews that he believes that a mutual recognition agreement on medical devices between the UK and EU will most likely be achieved during the course of the negotiations, allowing for retained aligned standards after Brexit. As for the possibility of the UK hosting notified bodies after the UK’s withdrawal from the EU, some so-called third countries are able to operate as host nations for a notified body, including Turkey, Switzerland and Norway—so it is possible that an agreement can be made between the UK and the EU.
I believe that mutual recognition agreements and related conformity assessments post Brexit will be vital for sustained patient access to medical devices post Brexit. Although not always at the forefront of the current debate on the EU withdrawal Bill, they are still important so that treatment is consistent for patients. I believe that this approach is also in the spirit of the broad principles and objectives of the Bill: to make sound provision for the transfer of EU law into UK law. Mutual recognition agreements will be the mechanism within the necessary new trade arrangements to transfer into UK law the rights with regard to conformity assessments that the UK currently has in the area of the regulation of medical devices.
The second dimension to this is that there are a number of manufacturers of such devices in the United Kingdom, not only in my own region but elsewhere. They tend to have concentrated in the higher-value and higher-quality areas of the sector. So I believe that this item, although it may not attract the full House that we had earlier on other aspects of the debate, is nevertheless a significant matter. I believe that it should be drawn to the attention of the Government so that it is included in the agreement. It can be done—we know that—and I believe that it is something we should pursue vigorously. I beg to move.
Lord Deben (Con)
My Lords, I support the comments of the noble Lord, Lord Empey. It seems to me, though, that one should put them into a wider picture, because this is yet another example of how the best outcome of the negotiations is worse than where we are. I do not think that this Committee has to remind the country as a whole that this is what we are negotiating. We are negotiating a situation that we already have but in which we will of course have no say. Even if we get the very best deal we can, and protect our industry and the excellence of our regulatory structures—which, as the noble Lord, Lord Empey, rightly pointed out, has meant that in one case 40% and in another case 60% of these devices are brought here, whether or not they are manufactured here, because of the excellence of our regulatory control—we will no longer have a say in the central issue of how the regulatory structure is changed in future. This is crucial in this case because, as we all know, medical devices are constantly changing and improving. If we accept that, then we recognise that the way they are regulated—the way in which we set the standards—will also change, and that we will play no part in such decisions.
I am a patriotic person. I object strongly to the intention of sidelining my country from these things and us being the beggar, because that is what we are going to have to be. To compare us with Turkey, to put it delicately, does not fill me with enthusiasm. I suggest that this is another example of the intended consequences of Brexit because the people who are enthused by Brexit—and I see few of them around just at the moment—want to believe in a world in which we can operate on our own without any drawbacks. The noble Lord, Lord Empey, has rightly pointed out that that is not possible, and that the world we live in is a world of co-operation and joint concern in getting the right answers.
I wanted to intervene because I was unhappy with one part of what the noble Lord, Lord Empey, said. He talked of the need to protect ourselves and the importance of this to his own Province as part of the United Kingdom. I want to turn it round and refer to the importance of our contribution to these decisions, the important place that Britain should have in these discussions, not only with regard to medical devices—and the curious expression in the amendment that I particularly like, which refers to the “safeguarding of public health”—but of course to any medical aspect. We have had several debates in the Moses Room on precisely these issues. What this means, of course, is that Britain is saying, “We no longer want the opportunity to play a proper part in seeing that we do this right”.
Lord Warner (CB)
My Lords, I support this amendment and echo very much the points made by the noble Lord, Lord Deben. I say that as a former Minister who was responsible for regulating pharmaceuticals and medical devices. In those days, we were a rule-maker; now, we become a rule-taker—and in an area where we have already lost the European Medicines Agency, which is disappearing out of the country. So our position on the regulation of medicines has been worsened, as has the investment in this country as a result.
We are now going down the same path with medical devices, which are one of the unglamorous bits of our healthcare system but they are very important. We are rather good at inventing medical devices in this country. We produce quite a lot of inventions and have been the rule-maker through the BSI. Most of Europe has been happy to take that rule-making from the BSI, which has moved abroad, because it has a reputation as an effective regulator in this area. We are ending up with medicines and medical devices coming ever closer together but we have lost the regulatory system for them both. That is no mean achievement for the Government.
If we do not secure some kind of reciprocal agreement, as this amendment suggests, we will be in an even worse state than the noble Lord, Lord Deben, thinks we might. I am with him all the way. This is another industry which we are neglecting. In many cases, the companies making these devices are quite small and we are putting them into a very difficult position. They cannot hang around when they make their business decisions in the hope that David Davis will come up with a deal that resolves some of the uncertainties in their business. They will have to take decisions quite quickly if they want to survive.
The Government’s approach to negotiation is to be untransparent and incoherent, while trying to reassure everybody that it will all be all right on the night. But that is not a position that businessmen and businesswomen can accept in running their businesses and keeping them solvent. This is another example of a sector where we are going to diminish our capacity to innovate and to open up new markets within Europe for our inventions. Much more to the point, we will lose the kind of control over regulation that we had in the past.
Baroness Ludford (LD)
Can I just remind the noble Lord of the debate we had last week on the clinical trials regulation and the uncertainty there? We have had contradictory statements from two Ministers about whether the clinical trials regulation will be retained EU law, in domestic law, on exit day. As I think the noble Lord is aware, I have written to the noble and learned Lord, Lord Keen of Elie, to try and clarify exactly what the Government’s position is.
Lord Warner
I did not want to remind the Government Front Bench of the slaughter of the innocents over clinical trials last week, but I have no doubt the Minister will read that debate in Hansard and form his own judgment. I am pleased the noble Baroness has written to the noble and learned Lord, Lord Keen, about this. It opens up the possibility of securing more protection in the Bill for some British industries, and we should not be afraid to take that opportunity in this House.
Lord Wallace of Saltaire
My Lords, I would say to the noble Lord, Lord Deben, that we are really shooting ourselves in the knee. It is a matter of active interest to a significant minority of Members in the House, because replacement knees and hips are among the medical devices which are most common among us.
Lord Deben
I was going to suggest that there is probably not a Member of the House who should not declare an interest in this debate, because there are few of us who have not had some device or other implanted. Are we not lucky that they were made and regulated in this country?
Lord Wallace of Saltaire
Shortly after the referendum, I was sitting in the orthopaedic surgeon’s office with my wife, who was about to have a new hip, and he explained to us how leaving the European Union would cost the NHS more and would make it more difficult for him to procure what, in his opinion, was the best artificial hip available for the occasion. It was made by a multinational company in southern Ireland with bits—as noble Lords will know, these are complicated devices—coming from across the border and various other places. This undoubtedly would be more expensive, take longer and cost the NHS more. It is yet another example of where, despite the false promises of how much money would flow into the NHS, it will actually be completely the other way round. We will be creating artificial obstacles of one sort or another for these artificial devices, which will affect us all extremely closely. Those of your Lordships who have not yet got one will probably get one within the next 10 years. As the noble Lord says, we are absolutely shooting ourselves in various different embarrassing places by accepting that, in leaving the European Union, we are making these possibilities more difficult and more expensive.
Baroness Chalker of Wallasey (Con)
My Lords, I hesitate to join in, as I have to declare a double interest. As many of your Lordships will remember, I witnessed Second Reading sitting just in front of the Throne in my surgical socks.
I have every sympathy with the amendment proposed by the noble Lord, Lord Empey, and particularly with the speech of my noble friend Lord Deben. There is absolutely no doubt that the pioneering spirit, particularly in orthopaedics, in this country has been of immense value. It is not that other countries within the EU do not have their experts—of course they do—but there has been, as I will say in a later debate, a very special dedication in this country to improving health, not only for this nation but for our partners in the EU and partners far more widely across the world. It therefore behoves us to make sure that we have, in any arrangements, the opportunity for those British companies that have been such pioneers and indeed such income earners for Britain not only to pursue their existing research but to collaborate with the partners that they have engendered and encouraged in many other parts of the world.
I hope when my noble friend replies that he realises that this is far wider than just your Lordships’ personal interests. It goes right across the world, and what is done here can be replicated for the benefit of Britain, in or out of the EU. But we must be able to continue to give that information freely and for it to be accepted within the EU. That is the concern that many people have: that, if and when we leave the EU, much of that brilliant innovation will be lost to other partners and other parts of the world.
Baroness Finlay of Llandaff (CB)
My Lords, I support the amendment. I remind the House that many of these inventions in the biomedical sphere actually happen in academic clinical departments. That is where the idea comes—the bright spark of invention. They will establish whatever the device is, and then often it will be a spin-out company from the university that will start to develop it. These new devices are getting smaller and smaller so they are getting into smaller blood vessels or parts of the body to do things that, when I graduated in medicine, were unimaginable.
However, in order for a company to be able to go out and market the device, it has to be able to go through all the rigorous testing procedures that the noble Lord, Lord Warner, outlined. So if we create yet another barrier and another difficulty, the bright sparks are not going to stay here because other universities are already looking at them. Those universities want them and their inventiveness; in Europe they are very attractive commodities. We have to remember that a part of our economy and our economic strategy has depended on our science, and our biological sciences in particular. We have a unique situation with the NHS where we have a broad patient population that is different from some of the other ways in which healthcare is organised and allows such innovation to happen here.
Lord Hunt of Kings Heath (Lab)
My Lords, this has been an excellent debate. Here we have a successful and innovative industry with lots of SMEs involved, but their very future is at risk because of the approach that the Government are taking to Brexit. We need to be clear about this. The noble Lord, Lord Empey, talked about CE marking and the notified body. What is crucial is that the CE marking is a logo placed on medical devices to show that they conform to the requirements of the various EU directives. The notified body is an organisation that has been designated by an EU member state to assess whether manufacturers and their medical devices meet the requirements set out in legislation. As part of our being within the EU, the Medicines and Healthcare products Regulatory Agency is the designated competent authority in the UK. That sets out the legal position and why it is so important in terms of both patient safety and the ability of UK companies to do business in the rest of the EU and market some of the most extraordinary machines, devices and developments that have been seen in the world.
Here we come to the point where there is such a risky position for our companies. To take the point of the noble Lord, Lord Deben, we should look at Mrs May’s Mansion House speech, where she referred to the fact that the Government,
“want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”—
and she mentioned the European Medicines Agency by name, although, extraordinarily, not Euratom, which we will come to debate later this evening and tomorrow. She went on to explain why we should be seeking associate membership of the European Medicines Agency and the other agencies named. She said:
“First, associate membership of these agencies is the only way to meet our objective of ensuring that these products only need to undergo one series of approvals, in one country. Second, these agencies have a critical role in setting and enforcing relevant rules … Third, associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts … Fourth it would bring other benefits too. For example, membership of the European Medicines Agency would mean investment in new innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster as firms prioritise larger markets when they start the lengthy process of seeking authorisations”.
If ever I have heard a convincing case for remaining a member of the EU, the Prime Minister set it out in her Mansion House speech. The point is the one that the noble Lord, Lord Deben, made. We are going to beg for associate membership. As the Prime Minister said, we will follow the rules and pay the cost, but we will have no say in the rules that are being set. At the moment, the MHRA is one of the most effective negotiators in the EU, so when it comes to medicines safety or devices, the UK has a huge influence. That means a big advantage for UK companies, because it has in mind the interests of the UK as a whole.
We are to throw all this away and be supplicants at the altar of those agencies, because the Government have woken up to the fact that they cannot let those industries go down, so they will have to negotiate associate membership. It will be on EU terms, because they are a lot bigger than we are. We will have to abide by their rules but no longer will we have any say in how those rules are developed. As the noble Lord, Lord Deben, said, we are trying to negotiate the least worst option, but it is a worst option.
It is a wholly depressing picture: this Government seeking to destroy so many of our innovative industries through their obdurate and ignorant approach to the way industry, the UK and the EU work. The noble Lord, Lord Empey, has done us a great service tonight by letting us debate this important issue. It would be nice, would it not, to hear a proper response from the Government to show that they recognise the problems that they are now causing for British industry?
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
My Lords, this medical device amendment has been deemed a probing amendment, and I can tell the noble Lord, Lord Empey, that I feel well and truly probed by the comments made across the Chamber this evening.
The noble Lord, Lord Deben, made a number of sweeping statements, which of course are accurate, about the response that I must give at this point. He will not be surprised to know that. We have agreed today the beginning of a journey with regard to the transition. I sought confirmation again that medical devices and the CE framework are included in that transition, and indeed they are, so I can give that assurance just now. The noble Lord, Lord Deben, will also be aware that the matters that we have discussed this evening must necessarily be a matter for negotiation. I am sure he will understand why that is so, also.
Were I to stop there, the Committee would rightly be disappointed. This has been a wide-ranging debate touching on a number of points. The noble Lord, Lord Hunt, in summation, raised the Mansion House speech delivered by my right honourable friend the Prime Minister. That speech is a recognition of the importance of mutual recognition, what it means and why it will be important after we leave the European Union.
As a Member of the European Parliament, I sat on the Environment, Public Health and Food Safety Committee when the medical devices and in vitro question was being debated, and I was aware how important that forum was for determining particular standards. I am also aware of the importance of the United Kingdom’s innovation in medical devices. It is global in its reach and import and is extraordinary in what it can achieve. I am aware that, as we exit the European Union, we must secure mutual benefit to both sides. I do not accept the assertion that this is a moment when big means right. We are seeking an outcome that is right for those who would seek the comfort and necessity of what those medical devices must be and can achieve for them.
Lord Hunt of Kings Heath
Will the Minister explain to noble Lords what effect mutual recognition would have? Can he explain how the UK will have as much influence on those rules in the future, outside the EU, as it does now, as a key member of it? Or does it mean that, in effect, we will simply have to follow the rules set by the EU?
Lord Duncan of Springbank
I thank the noble Lord for his question. I am again reminded of the importance of the United Kingdom’s academic sector and the academic excellence which it creates, not just in the wider area of science but specifically in medical science. I am aware of how important that innovation is and believe that, right now, it should be able to speak for itself in the negotiations and discussions in terms of the wider recognition and import of what they represent.
I am conscious that, as we embrace the challenges which lie ahead—
Lord Bassam of Brighton (Lab)
Will the Minister answer the point made by my noble friend Lord Hunt? It sounds to me that he is unable to do so. If that is the case, he should tell the House so. It is clear to me that he has not answered the question, which is highly pertinent and relevant to the direction of the debate.
Lord Duncan of Springbank
I am sorry if I have misled noble Lords. I am unable to answer the question. That will be a matter for the negotiations and I cannot comment upon them. This is the point made earlier by the noble Lord, Lord Deben. I wish I could, but I cannot. I am sorry if my response misled the noble Lord as well. Determining exactly how that mutual recognition will work in practice will be a matter for the ongoing negotiations. I hope that it will work on both sides in a common-sense way which recognises that, at the heart, we are talking about the health and well-being of individuals. We are not talking about constitutional matters or anything other than ensuring the best health for the people of the continent of Europe that we can achieve.
Lord Wallace of Saltaire
My Lords, the Government have talked about completing the negotiations by October 2018. Is this one element that they hope to have completed negotiations on by then, or will it have to be put off into the transitional period?
Lord Duncan of Springbank
It is the Government’s intention to complete all negotiations by that point.
I think that all noble Lords agree that UK notified bodies have a strong reputation in the EU. We have heard it more than once this evening. The notified bodies assess a disproportionate number of medical devices. According to a recent independent assessment of the market, UK notified bodies make up the first, third and fourth largest share of assessors. Furthermore, we estimate that UK notified bodies oversee between 50% and 60% of all the highest-risk devices on the EU market.
As I stated earlier, the UK has played a leading role in the negotiations of new regulations for medical devices in general and, specifically, for in vitro diagnostic medical devices. I believe that these innovations will make a significant difference. As the Government have made clear, whatever the outcome of negotiations, the principles which underpin our approach remain: that patients should not be disadvantaged; innovators should be able to access the UK market as quickly and simply as possible; and the UK will continue to play a leading role in both Europe and the world in promoting public health.
At the heart of much of this is the notion stressed by the noble Baroness, Lady Finlay. Inside the EU, there are a number of means by which research is supported, not least of which is the Horizon 2020 fund. We have been blessed by punching above our weight in securing funds from this resource. I believe that in future it will be an asset for the entire EU and this will be negotiated in the next few years. It has yet to be made clear exactly how it will be determined. I remind noble Lords that the last time this was negotiated the EU top-sliced a substantial amount of money away from the fund, to the detriment of the overall Horizon 2020 reach.
Lord Empey
My Lords, little did I believe when I moved this amendment that I was going to open up the spectre of your bionic Lordships. Nevertheless, it did personalise the issue to a point. My noble friend Lady Finlay pointed out that science and very often SMEs emerge out of spin-offs from universities. That is true, but there are larger international companies involved in this as well, and that might have been overlooked. It is not all a matter for small business.
I thank all noble Lords who participated in this debate. I did not know when I tabled the amendment what would happen today. I am glad the Minister has confirmed that this matter is on the agenda for those discussions. I shall certainly follow that extremely closely and obviously reserve the right to come back to this matter later in the Bill’s proceedings. With the assurance that the Minister has given, however, I beg leave to withdraw the amendment.
Lord Campbell-Savours
“Failure to negotiate a withdrawal agreement by 29 January 2019
(1) In the event that no withdrawal agreement under Article 50(2) of the Treaty on the European Union acceptable to both Houses of Parliament has been reached between the United Kingdom and the EU by 29 January 2019, a Minister of the Crown may move a motion in each House of Parliament to provide for a referendum on whether the United Kingdom should seek to revoke notification of withdrawal under Article 50 and re-negotiate membership of the EU with—(a) restrictions on the arrangements for the free movement of persons between the United Kingdom and the EU;(b) a renegotiation of the Own Resources Decision to provide a new mechanism for calculating the United Kingdom’s reduced contribution, replacing the rebate; and(c) amendments to other regulatory arrangements as they affect the United Kingdom as proposed by both Houses of Parliament.(2) If such a motion is agreed to in the House of Commons, the Minister of the Crown may not make regulations under section 9(1) but must bring forward proposals to hold such a referendum, and the Government must seek such an extension of the Article 50 period as may be necessary for this purpose.”
Lord Campbell-Savours (Lab)
My Lords, under this amendment, if by the end of January 2019 negotiations have not concluded in an agreement endorsed by Parliament, then a Motion would be put to revoke Article 50 and authorise a second referendum with the Government having already opened talks and informally secured an agreement on three issues. These are: a non-rebated own-resources contribution maintaining our existing contribution under subsection (1)(b); amendments to regulatory arrangements of most concern to Parliament—and I suggest animal welfare as one—under subsection (1)(c), and stronger border controls under subsection (1)(a), on which I intend to concentrate my remarks.
My amendment, which is not Labour policy, would signal to our European partners an alternative to Brexit and end the delay which is on course to undermine our economy and, in my view, our industrial base. Negotiators would need to negotiate on the core issues that concern the British people and influenced the referendum. I am arguing today a direct linkage between loose border controls, insensitivity to public concerns over immigration and developing political extremism in both the United Kingdom and Europe.
My amendment finds its origins in February 2016, after David Cameron’s return from Brussels, having failed to secure a meaningful deal. I am not blaming Cameron: I blame inflexibility in Europe. As I set out in the February 2017 debate, I have always been a supporter of European union, having canvassed in its favour in 1975 and loyally supported union throughout the period of Labour difficulties on Europe in the 1980s. I have never wavered until the Cameron failure in 2016.
For me, the Commission is the problem: its insensitivity to public opinion, its almost breathtaking administrative arrogance and its inability to address the problem of developing political extremism in the European Union. The result of that was that the people gave the system a good kicking—as indeed I did. I voted leave, along with another 17.5 million people. Neither I nor they voted to leave the customs union. People in the industrial heartlands of south Wales, the Midlands and the north—the core leave vote—are not stupid; they were alert to the risks of economic and industrial upheaval, and they were not rejecting the whole single market. For most, these were obscure terms. Millions travel abroad every year; they like what they see and recognise the benefits. They are not bought off with billion-pound promises on healthcare—they know instinctively when politicians are telling porkies.
Those issues were not at the heart of the leave vote. Millions voted leave due to a feeling of national insecurity, stemming from what they believe to be permeable borders throughout Europe. They believe that we have lost control over immigration and fear migratory flows across Europe from other continents that will destabilise populations. Be all that a true or false, valid or invalid reason, all was not helped by inadequate official statistics hiding inertia in government. They believe that inertia threatens their jobs, their personal security, the national well-being, and, for some, their cultural heritage. That is at the heart of the leave vote, not antipathy towards Europe.
The Merkel initiative, Sangatte, the crisis in the Mediterranean, imported criminal activity and the bombings in Europe have all served to aggravate the condition. Our leadership in this country is in denial, and most frightening of all is that the pursuit of integration in areas such as education and the tearing down of indefensible cultural boundaries, which are desperately needed, have fallen victim to political correctness. The public know it, and all over Europe the public are kicking the system and challenging permeable borders. Even those of us who argue for managed migration and its benefits are deemed out of touch. Even we are told that we are in denial, that we do not understand, and that we live in silos of privilege—which, to some extent, is probably true. When we argue that migration is not the cause of all the insecurity they point to threats to their jobs and unscrupulous employers who insist on passive cheap migrant labour sheltering behind government indifference.
It is all an invitation to political extremism and anti-migrant prejudice. That is what happens when states do not listen. For those of us who believe in the vision of a new Europe, our dream is being shattered by the politics of that institutional indifference. Denial at home is only surpassed by denial overseas. France is divided and the Visegrad states are riddled with division; there was Italy last week, and the AFD in Germany. All over Europe people are in revolt; in some EU states, even freedom of movement is being questioned.
I spent Christmas researching anti-immigration and wider extremist movements generally in 32 inner and outer European states. The findings were breathtaking. The migration crisis has given not only birth but real lift to reactionary movements throughout the continent of Europe. One is reminded of the 1930s. It is about time the powers that be consider whether their failure to act collectively on migration and its resultant insecurity is undermining their historic role in the development of Europe. They should be talking about aiding development, increasing resources on aid and creating safe areas in parts of the world where people live in fear, at the same time as acting to hold back the forces of political extremism. I used my leave vote to promote that debate, on Schengen and wider European border control issues. Without a leave vote in the United Kingdom there would be no debate in Europe on these matters, just drift. This amendment is a modest attempt to forward that debate.
I recognise that tougher border controls may be limited in effect, but that would depend on border management policies, whether we introduce work permits, ID requirements and the profile of social support. The Government’s Brexit-inspired immigration advisory committee recommendations due later this year might point to a way forward. At least we can be sure that taking back control of borders would help in planning our public services. That is what the public expect of their Parliament.
For me personally this has always been a high-wire, high-risk strategy. I saw my own credibility slip away among colleagues in both Houses as I set out in 2016, two years ago, why I, as a remainer, was voting leave. Those of us who wanted a real debate on those issues which are of most concern to the public had to stand up and be counted. I repeat: without a leave vote there would be no debate. We cannot rely on the Commission, as it is smothering any debate that questions its direction of travel. It says that the pillars are immutable, all while some nation states are chomping at the bit for reform. We need tough negotiations and brinkmanship with a clear message. Commission inflexibility should be met by preparedness to go direct to nation states. If we leave the Commission to run amok and run rings round nation states, there will be no single market left in the end to defend. We should be leading the charge, not only for ourselves but for Europe as a whole.
For those in the Chamber who say that challenging a single market core principle is a pipe dream, I say that they underestimate attitudes in Europe towards Britain, our Parliament, our institutions, our history, our stability, our commitment to democracy, our response in history when they were all in trouble, and our financial contribution to Europe. They have an eye on our money and, in particular, the topslicing of budgets post Brexit, which worries many of them.
I believe that one day we will have real freedom of movement throughout Europe. There will be no borders, just regional differences and cultural traditions, but not now. At this time in our history, the developing crisis demands a rethink. Too much is at stake and the threat of extremism has to be tackled head on now. If we win a new deal on the basis of the agenda in this amendment, we could win a second referendum with a resounding vote and our nightmare would be over.
This has not been an easy contribution for me to make, particularly as I personally embrace immigration in its most positive form and in warmth. My great, great, great grandmother on my mother’s side was born in slavery in the colonies in the early 1800s. Even now, after 200 years, one is conscious of that legacy and the agony of those before me who suffered racism through extremism—political extremism—in those times. We want to love our fellow man, but sometimes love has to be tough to survive. My amendment is about being tough and stamping out the evil of intolerance before it is too late and sweeps across Europe. I beg to move.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thought that we would have a longer debate on this matter. I understand the intentions of the noble Lord, Lord Campbell-Savours, with this amendment. He is concerned, as are many other noble Lords, with the timeframe in which a deal with the EU is reached, and the consequences should Parliament choose to reject it. I also understand that the Government’s position on future referenda on extending the Article 50 period and what will occur if Parliament does not support our negotiated agreement is, to be fair, not one which satisfies the whole House. Therefore, I reassure the House once again that we are confident that we will reach a positive deal with the EU, as that is indisputably in the mutual interests of both the UK and the EU. Parliament will be given the opportunity of a vote on the final terms of the agreement, alongside the terms of our future partnership. There will be a clear choice—whether to accept the deal we have negotiated or move forward without a deal. Ultimately, if Parliament chooses to reject the deal, we will leave the EU with no deal once the Article 50 window closes.
The noble Lord proposes that, in the event of Parliament rejecting the deal, there should be another referendum on whether the UK should revoke its notification under Article 50 and renegotiate its membership of the EU. We had a very long and strong debate about a second referendum earlier this evening. As has been said, rather than second-guess the British people’s decision to leave the EU with a second referendum, the challenge as the Government see it is to make a success of it. That is how we are approaching the negotiations—anticipating success, not failure. It is vital that we try to reach an agreement that builds a deep and special partnership between the UK and the EU, not just for those who voted to leave but for every citizen of our country.
Lord Campbell-Savours
My Lords, I thank the Minister for his response. I am sure he will understand, as indeed will most Members of the House, that immigration is a very difficult subject to talk about and to seem fair in doing so. Tonight, I have tried to set out what I believe should be the thrust of our negotiations. If we settle that issue to the satisfaction of the British people, we will not be leaving Europe.
The Minister referred to the Cameron negotiations. The problem is that they took place in a climate within Europe in which these issues had not really been debated at great length. What has happened over the last two years? There has been a lot of water under the bridge and the nature of the debate is changing, because we have driven our European partners into a position where increasingly they are having to address these issues. I am arguing that there is now a very different market in Europe and that we should raise these matters again in exactly the same way as Cameron did then.
If Cameron had come back with a deal, I would have voted to remain. It was that single failure on his behalf that drove me into the leave camp and I hope that it can be righted. With that, I beg leave to withdraw the amendment.
“Recreational boating
(1) Before exit day, a Minister of the Crown must lay before both Houses of Parliament a report setting out the extent to which, and how, the rights currently enjoyed by recreational boaters from the United Kingdom in the EU will be maintained after exit day.(2) The report under subsection (1) must include consideration of—(a) the ability of recreational craft to retain Union Goods status;(b) the ability of UK recreational craft that do not have Union Goods status to continue to be able to visit the EU without being subject to an 18-month restriction on Temporary Admission procedures for relief on customs duties and VAT provided they do not change ownership;(c) the ability of recreational craft to travel between the United Kingdom and the EU without being subject to border controls;(d) the ability of UK citizens who are accredited as Royal Yachting Association instructors to continue to work on a seasonal basis in EU member States for such purposes.”
Lord Fox (LD)
My Lords, the noble Lord, Lord Berkeley, is unable to attend, so I will move Amendment 227BB in his stead. This amendment represents something of a change of scene from what we have been discussing this evening, relating as it does to the future of the recreational boating sector following the UK’s departure from the EU. But this is an important sector for us. It is not just about the estimated 3.5 million people who take part in boating activity in the UK every year. It is also a thriving business sector, with the recreational boating and marine sectors being a success story in the UK. In 2015-16, the marine industry contributed about £1.3 billion to the UK economy, which adds up to around 33,000 full-time employees and more than 4,500 businesses. We should realise also that this is often in areas where alternative employment is not always available, so the sector is very important to the communities in which it exists.
The industry currently enjoys the benefits of free movement of people and the absence of customs borders between the UK and other EU countries. There are then, unsurprisingly, a number of issues arising from Brexit, causing significant uncertainty to both recreational boaters and the marine industry. I know that the Royal Yachting Association, the RYA, and British Marine have been in contact with DExEU and other government departments in relation to these issues. Briefly, and for the benefit of the House, I will set out the key issues.
The first is the ability of recreational craft to retain what is called Union goods status, which allows continuous free navigation around the waters of the EU. The second is the nature of the maritime border control regime between the UK and the EU after Brexit. The third is the ability of UK citizens who have RYA qualifications to travel freely to and from the EU for work that is often seasonal.
The Union goods issue requires a little explanation, so I will go into that detail, if noble Lords will excuse me. Vessels and all the equipment on them, such as computers and electronic gear, that enter the EU from non-EU countries are required to pay customs duties and VAT unless the owner can show that they are entitled to exemption. This is not the case if the equipment has Union goods status, which means that it is treated as duty paid. Pre Brexit, vessels moving between the UK and the rest of the EU are treated as Union goods, provided that VAT and customs duties were paid when the vessel first entered the EU. After Brexit, vessels moving between the EU and the UK, and vice versa, should qualify for a temporary relief from duty—but only if the vessel stays for fewer than 18 months in the country in question. So UK citizens who keep their boats in, say, Greece, would find that they would have to pay all the duties or move completely outside the EU before they could re-enter for another 18 months. The result of this is clearly not good for the Britons who have to keep moving their boats around to avoid paying up to 20% of the boat’s value in duties. It is also not good for countries such as Greece that are hosting this tourist trade. Additionally, when boats are moving in long-term passage within EU waters, there might also be customs duty when moving from one EU country to another EU country. It is not clear how that will unfold.
Noble Lords will appreciate that these issues may not necessarily be front of mind and addressed in the broader negotiations on customs and border controls. Accordingly, this amendment asks the Government to produce a report to Parliament in advance of 29 March 2019. This report would set out the rights and freedoms that recreational boaters currently enjoy and how they would be maintained after the UK’s withdrawal from the EU. It would provide a clear opportunity for the Government to offer much-needed certainty to the thousands of recreational boaters—and of course to the marine businesses as well.
Without that reassurance, there is potential for significant damage. Very briefly, that significant damage comes in terms of costs and the administrative burden faced by boaters and business, with associated significant damage to the resale market for boats. It also causes new maritime border controls, which could be disproportionate and compromise navigational safety—and, as I said before, RYA instructors could find it difficult to do seasonal work elsewhere.
The RYA and British Marine have been in touch, and I know that they are ready to negotiate. None the less, the importance of this sector to communities all around the country should not be overlooked when there is so much else going on. We have talked about the need to negotiate everything in such a short time, and this is just one more thing that the Government need to place on their list. Before the formal departure from the EU it is vital that the Government commit publicly to setting out how they will defend the interests of UK boaters and marine businesses. I will be interested to hear the Minister’s response to this amendment.
Baroness McIntosh of Pickering (Con)
My Lords, my name is not associated with this amendment but I am a regular attender of the London Boat Show at the invitation of British Marine. I have a specific question for the Minister to answer when he sums up. The record figures for the export of yachts and recreational craft this year were spectacular. But a source of concern to British Marine once Britain has left the European Union is the extent to which Britain will remain aligned with the legislation. I mention that because we transposed the recreational craft directive onto the statute book. The British Marine Federation was instrumental in making sure that that directive did not cause too much damage to our industry in terms of the standards with which it had to comply. Will the Minister assure the House that we will continue to align ourselves with future legislation to make sure that our main export market for recreational craft will still be there and that we will have some means of ensuring that the concerns of the British marine industry can be made known when future statutory instruments are being negotiated?
Lord Tunnicliffe (Lab)
My Lords, I declare my interest as a recreational boater and I thank the noble Lord, Lord Fox, for proposing the amendment of my noble friend Lord Berkeley. Everything that he said seemed entirely reasonable and I am sure that the whole House awaits the Minister’s concession on this point.
Lord Duncan of Springbank
My Lords, in moving this amendment, the noble Lord, Lord Fox, said that it may not be at the front of everyone’s minds. But as often happens in these circumstances, this particular issue is almost the nexus of all the key issues affecting withdrawal from the EU, whether it be our mutual recognition of certain types of goods for the purposes of customs duty, the precise arrangements and procedures for ensuring cross-border security or the mutual recognition of professional qualifications. So in truth, one might argue that this is a key amendment in many respects. The noble Lord, Lord Fox, is right to remind us of the significance of this sector. It is a substantial contributor to the Exchequer and a major employer. It is also, as a number of noble Lords have noted, a source of much pleasure, and we should not lose sight of that.
In responding to this debate it is important that I am very clear, so perhaps I may turn directly to the specific question raised by my noble friend Lady McIntosh. She asked whether we will continue to align with future legislation within the EU. I am afraid that that is a commitment I cannot give at this moment because it will be determined by the ongoing negotiations and our future relationship at that point. However, it is important to stress that we are in very regular contact with the British marine sector and are attentive to the issues that it is raising. I hope that in saying that, my noble friend will recognise that it is our intention to be very careful as we take this matter forward.
Lord Tunnicliffe
The noble Lord started by saying that this is the nexus of the issues virtually across the piece. He is painting a very dull picture of the future if he cannot assure us that in this area we are able to achieve the objectives of the amendment.
Lord Duncan of Springbank
I thank the noble Lord for his probe in this regard. This is, if you like, the epitome of the challenges we are facing, but unfortunately it is larger than the individual amendment can recognise and what it seeks to do, which is to have Ministers place before us a single report setting out both the current arrangements and thereafter the arrangements that we secure through negotiation. The arrangements we secure through negotiation will be detailed for this House and will be iterated so that we understand what they are, and they will emerge from that negotiation. It is not our intention to downplay the significance of these issues, but we must recognise that they play a part in a wider question, in particular when it comes to the customs issues. On that basis, I still hope that the noble Lord will be able to withdraw his amendment.
Lord Fox
My Lords, I thank the Minister for demonstrating his sensitivity to this issue, which will be reassuring to some extent for boat owners and boating businesses around the UK, so there may be some solace in that. The amendment is not seeking a running commentary on the negotiations. The Minister is correct to say that this goes to the nub of the customs and free movement issues as they unfold, but providing a promise of some kind to keep the industry informed about what is going on is very important. Obviously we will look at the Minister’s response in detail in Hansard, and with that, I beg leave to withdraw the amendment.
Lord Warner
“Public health
In carrying out their duties and functions arising by virtue of this Act, a Minister of the Crown or a public authority must have regard to the principle that a high level of human health protection must be ensured in the definition and implementation of all policies and activities.”
Lord Warner
My Lords, I shall bring the Committee back to terra firma with this amendment, which is tabled in my name and that of the noble Baroness, Lady Jolly, and the noble Lords, Lord Hunt of Kings Heath and Lord Patel. This amendment inserts a new clause on public health and requires that:
“In carrying out their duties and functions arising by virtue of this Act, a Minister of the Crown or a public authority must have regard to the principle that a high level of human health protection must be ensured in the definition and implementation of all policies and activities”.
The language of the amendment draws on Article 168 of the Lisbon treaty and has the advantage of existing legal precedent and interpretive guidance on which to draw when determining its meaning. It does not preserve our law in EU aspic because it would be for UK courts to decide the specifics in future individual cases. In doing so, they would be able to draw on pre-Brexit legal precedents. Putting the amendment in the Bill would give a clear signal to EU members that the UK remains committed to maintaining our public health agenda to the high standards we have established together.
Disease is no respecter of international borders, and public health is best protected when the international community operates to established and well-understood high standards. The amendment goes much further than the power placed on the Secretary of State for Health under the 2006 National Health Service Act, as amended by the 2012 Health and Social Care Act. It places the duty to “do no harm” on the whole of government, including devolved Governments and a wide range of public authorities. In other words, it reminds a wide range of interests that they must continue to protect and do no harm to public health. This seems particularly apposite in the year that our hard-pressed NHS reaches its 70th birthday and its hard-pressed staff face a future of continuing rising demand without the funding to meet it.
The Secretary of State and the noble Lord, Lord O’Shaughnessy, have given various assurances about the Government’s commitment to the UK playing a leading role in promoting and ensuring public health in the EU and around the world. Jeremy Hunt has outlined his commitment to,
“maintain participation in European cooperation on … disease prevention”,
and,
“public health”.
I do not doubt the good faith of those assurances—or of any more that the Minister gives us today—but they rather miss the point. The citizen does not need ministerial assurances but an effective legislative provision to challenge in court the Government, devolved Administrations and public bodies when they fall down on the job of protecting public health.
Although I am not a lawyer, let me try to explain why a legal protection formulated in this way is important when UK courts come to adjudicate on specific cases before them. Here I draw on helpful advice provided by Professor Tamara Hervey, a professor of EU law at Sheffield University. There have been a number of cases in which the high level of protection under EU law for human health in all EU policies and activities has been an important part of the outcome. These include the failed challenges by the tobacco industry to the Standardised Packaging of Tobacco Products Regulations 2015. Here, the high-level protection provisions were used to interpret EU tobacco products law as well as the powers to implement it. It was also used to determine the proportionality standard according to which freedom to trade versus public health is balanced. In particular, much restriction on free trade is legitimate for the purposes of protecting public health, so it helps strike a balance in these contested areas. Perhaps I might quote a passage in the High Court judgment:
“Articles 168 TFEU (on public health) and 169 TFEU (on consumer protection) are especially important. They emphasise how the protection of public health is to be placed at the epicentre of policy making and also how the setting of EU policy is to take account of the work of international organisations (which obviously includes the WHO) and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.
The amendment is not the vague wording that government Ministers have tried to claim in meetings with public health interests. It specifies a very clear consideration that the courts can take into account when considering specific cases. By placing the wording in the Bill, the UK courts would be under no misapprehension about what Parliament expects them to continue doing after Brexit. I hope the Minister will have the good sense not to read out anything in his brief about the wording being vague. It establishes an important legal principle that is not currently provided for in UK legislation but is provided for in EU legal principles.
I am spoilt for choice in terms of future cases where concerned citizens might well ask the courts to intervene because of the action—or, more likely, inaction—of the Government, a devolved Administration or a public authority. As a Londoner, I cite air pollution. In the first five days of 2017, London exceeded the total annual limit for air pollution. Outdoor air pollution is estimated to cause 40,000 deaths in the UK each year. The High Court has slammed the Government for failing to produce an adequate plan to tackle air pollution. To do so, the Government will need the co-operation of the EU after Brexit. The amendment will help keep the Government focused on tackling this killer more effectively. There are other areas, such as unhealthy foods and minimum pricing of alcohol, where this amendment helps, but I do not want to steal the thunder of other colleagues who will probably speak on them regarding the amendment.
In conclusion, I will say a few rather unkind words about why ministerial assurances about good intentions simply will not do. The Government’s track record on public health has been inadequate, as was brought out in this House’s Select Committee report on NHS sustainability. A credible draft obesity plan was put by the Department of Health to No. 10 and emerged with two-thirds removed. It is a totally inadequate response to a crisis. Public health budgets nationally and locally have been cut, despite government protestations to the contrary. On top of all this, the Government’s incoherent and untransparent approach to Brexit, which we have discussed endlessly under the Bill, makes it impossible to give much credence to the assurances of individual Ministers, however well meant they may personally be.
The recent letter to the Times by many public health experts makes it clear that the profession, in the public interest, strongly supports the amendment. That is borne out by the excellent briefing provided by the Faculty of Public Health to me and to many other Members of this House. Here, I say a big thank you to the faculty and to its staff. The extent of support for the amendment is brought out well in the piece in today’s Times. I hope the Minister will have the good sense to accept the spirit of the amendment, but the DExEU approach so far to the Bill does not encourage me to think that he will. I beg to move.
Baroness Jolly (LD)
I will speak briefly in support of Amendment 227BD, which is in the name of the noble Lord, Lord Warner, and others, including myself. I add my thanks to the Faculty of Public Health for its support with this amendment. We are all approaching a major crossroads in our political life. Much may well change. Since we joined the EU there has been a huge improvement in our public health. I think that the general public would expect that this rate of change should not be jeopardised.
Some members of the Committee might think that this amendment should be part of a health and social care Bill, but many in this Committee will remember the 2011 Health and Social Care Bill and certainly not wish to revisit it. The EU Withdrawal Bill is where our constitutional stability and certainty will be secured within the UK legal system, so this is where the amendment should sit. Thus, in the current circumstances, this is the appropriate Bill. The British constitution does not exist, as do others, with a single set of principles. If it did, this amendment would be part of it. But it should be enshrined in this Bill, which will be part of the patchwork which forms our constitution.
Baroness Chalker of Wallasey
My Lords, I, too, thank the Faculty of Public Health for its briefing. Perhaps I may cast this issue a little wider and refer to the immense work done both by the Liverpool School of Tropical Medicine and the London School of Hygiene & Tropical Medicine. What they have laid down in public health has often been taken as a whole by other institutes of public health both across the European Union and far wider.
We have always been really quite fortunate in this country. Many will ask why I as a constituency Member many years ago had an interest in public health. “We don’t have cholera here,” I remember being told. “We don’t have the various diseases we read about in far-off places”. The reason we do not have them is our high standards of public health. It is a very simple thing to say, but it is fundamental. That is why I believe this modest amendment from the noble Lord, Lord Warner, is very important. It does not interfere with the Brexit process, wherever one comes from. It lays down something that has been basic and good in this country for well over a century. I shall not go into the history of the women pioneers who established public health standards, but we owe it to our history and to our outstanding progress in taking public health standards into a wider world to make sure that what we maintain in this country will not only be maintained but be enhanced in the time after we leave the European Union. I do not know of any branch of medicine that does not pay considerable tribute to the standards of public health developed in this country. I believe that this is a non-intrusive amendment and one that the Government will be very grateful to have on the statute book in the proper way in the future.
Lord Patel (CB)
My Lords, I shall speak very briefly to this amendment and point out two crucial things. One is the importance of cross-border co-operation. The second is the importance of UK/EU collaboration.
Cross-border co-operation is critical to addressing health threats. The EU has a number of technical agencies relevant to health; for example, the European Centre for Disease Control, the European Food Safety Authority, the European Medicines Agency and the European Monitoring Centre for Drugs and Drug Addiction. They gather data and undertake monitoring, surveillance, trend analysis and risk assessment. They provide alert mechanisms for Governments and key stakeholders. They contribute to shared learning across borders and offer a platform for co-ordinated European responses to crises within the EU and globally; for example, during the Ebola crisis and pandemic influenza outbreaks. These mechanisms are critical for public health. Noble Lords might be interested to watch the BBC Four programme at 9 pm this Thursday on the effect of pandemic flu and how many it might kill without co-operation—good watching.
EU co-operation has also incentivised work on antimicrobial resistance, which requires a global response. Infectious diseases remain a major threat to the UK health system and economy. Repeated threats of infectious diseases from overseas in recent years have highlighted the necessity of arrangements that enhance co-operation between the UK and EU to protect the health of the UK population. Since infectious diseases know no borders, collaborative work to develop robust systems for surveillance and preparedness is critical. It is thought that there are currently five major infections threatening the world and each may have a more devastating effect than Ebola had or that pandemic flu may have.
Our proximity to Europe means that infectious diseases in the UK are regularly imported from Europe, and vice versa. Outbreaks of measles in England and Wales have been repeatedly linked to ongoing outbreaks in countries in eastern Europe, while cases of hepatitis A have been linked, with approximately 4,000 cases identified to date that probably came from Europe. Further diseases regularly emerging from Europe include legionella, an often severe form of pneumonia, and food-borne sources of infection, eloquently spoken of by the noble Lord, Lord Rooker, on his amendment last week. As we leave the EU, it is important that we reassure our European partners that we recognise our international obligations in relation to health protection.
Our arrangements for international health protection have been shaped in tandem with the EU. The European Centre for Disease Prevention and Control is tasked with strengthening Europe’s defences against infectious diseases. It works in partnership with our national health protection bodies, such as Public Health England, to strengthen continent-wide disease surveillance. The ECDC’s work includes risk assessment; being a hub for data analysis and interpretation to enable disease surveillance across borders; carrying out scientific analysis; and co-ordination between national public health agencies during outbreaks and emergencies. These are things we do not do just now; we do not need to because the ECDC does them.
As a member of the EU, the UK currently benefits from a number of specific ECDC systems which enhance the UK’s ability to detect in real time and manage infectious disease threats. Examples include the Early Warning and Response System, the European Surveillance System, the Epidemic Intelligence Information System and the Threat Tracking Tool. The ECDC has significantly more capacity to manage public health threats than individual national surveillance systems. An example is the fact that the ECDC took the lead on the enhanced infectious disease surveillance required for the 2012 London Olympics.
In summary, I welcome the Government’s commitment to maintain participation in EU co-operation on disease prevention and public health. It is important for the UK to continue to play a leading role in promoting and ensuring public health globally. This amendment would reinforce that commitment more tangibly, and I support it.
Baroness Blackstone (Ind Lab)
My Lords, I support the amendment moved by the noble Lord, Lord Warner. I associate myself with the words of the noble Baroness, Lady Chalker, about the great history of public health in this country, but there is still a great deal more to be done. We cannot be complacent. We know that few areas of public policy are of more concern to our population than healthcare. Many people fear that their well-being is being threatened by a lack of investment in all areas of health and they desperately need reassurance. The NHS and access to good healthcare come close to the top in many public opinion surveys about what concerns the electorate.
Particular importance is attached to public health, although that term is not always used. Public health is not just about treatment, it is about prevention—more than anything else, perhaps. It should not be cut, as has happened recently. As has already been said, investment in this area has been incredibly important in reducing smoking and cutting the number of teenage pregnancies, to give just two examples. We may no longer have cholera but the challenges continue: appalling air pollution, alcohol consumption that is too high, drug abuse, poor diets, lack of exercise—all these have dire consequences, leading to very high levels of obesity, health inequalities and widespread physical and mental illness.
As has already been said, well-being is created not just by high-quality public health provision but by good housing and good schooling, creating happy and fulfilled children enjoying learning, with opportunities for post-school education and training, and decent conditions of employment which reduce stress. Leaving the European Union poses dangers for economic growth and therefore for the funding of all these public services, as well as threats to rights at work which derive from European Union directives.
I am particularly concerned about mental health, which has not been mentioned so far. Although additional investment was pledged in November 2017 for mental health services, the historic underinvestment is so great that hugely more needs to be done. Mental health problems cause 23% of all illness in the UK but mental health care receives only 11% of health spending. There is a huge disparity here. Two-thirds of people with common problems such as anxiety and depression receive no appropriate treatment, compared with a quarter of those with physical health illnesses. This was evidence given to us on the Select Committee on the Long-term Sustainability of the NHS.
To tackle the massive amounts of undetected and untreated mental ill-health requires more trained staff and more understanding and knowledge of the causes of mental illness and what constitutes effective treatment. I fear that greater economic uncertainty as a result of Brexit reduces the likelihood of these resources being available. Substantial support for research into mental health has been secured from European Union programmes, with large tranches of funding since 2014 through Horizon 2020. Brexit jeopardises all this—just another example of the dire consequences of leaving the European Union which people were completely unaware of when they voted in the referendum.
I conclude by asking the Government to give serious consideration to this amendment, which recognises the enormous importance of protecting our citizens’ physical and, indeed, mental health as a matter of principle, alongside the other issues of the security of our nation and the prosperity of our people.
Lord Deben
I bring the Committee back to the fact that this is a Bill about withdrawal, so we might ask why this amendment has been tabled. I say to the noble Lord, Lord Warner, how important the amendment is because of the Government’s commitment. The Government said that they were taking into British law all that was in European law. This amendment draws attention to the fact that the Government are not doing what they said they would: they are not taking into British law the protocols and those things that surround European law to which one can refer in a court case. We have been precise in what we have taken in and the Government have been precise in what they have excluded.
I speak in favour of the amendment because there is no reason why the Government cannot accept it. It is not possible to say that this is all a matter of negotiation—we are not going to negotiate this. Before my noble friend Lord Duncan spoke on the amendment before last, he gently upbraided me for suggesting that I knew how he was going to reply, and of course he did reply that it was not possible to commit the Government to the protection of medical devices because that was going to be part of the negotiation. However, there will not be a negotiation as to whether we will uphold the highest standards of public health; that will not be part of the negotiation at all. What is true is that the protection that, as a member of the European Union, we now have under European law would no longer be afforded to us were we to leave the European Union. Therefore, this amendment is merely to ensure that the withdrawal Bill does what the Government said that they wanted to do, which is to take into British law all those things that at the moment are in European law. This is an important amendment, because it helps to complete what, unfortunately, the Government left out from what they said that they would achieve.
There is a second reason why the amendment is so important. I am fortunate to be the chairman of the Committee on Climate Change. One of the things that is important to us is that we have a statutory position. When the carbon budgets, which we prepare, are passed into law by both Houses of Parliament, they cannot be changed thereafter without the Committee on Climate Change saying that that is right and proper. That is how we in Britain have made sure that we do not go back on our climate change commitments.
For most of our laws, we do not have that kind of protection, but we did and do have it because of our membership of the European Union. That is the kind of change that we will have to make if we leave the European Union to make sure that the public are as well protected after so sad an occasion as they were before. It is not me saying that but my right honourable friend the Secretary of State for Defra, who is not known for his enthusiasm for the European Union. He has made it clear that we need to protect the people of Britain post Brexit by having very clear rules which give independent enforcement of environment law. He said we cannot have a system whereby environment law is affected by the whims—or sensible policies—of Ministers. He said we have to have something independent and has promised that he will present it to the Houses of Parliament. If that is true about environmental law, is it not also true about public health law? Do we not need precisely the same protection for public health that we clearly need to replace the protection we have in the European Union on the environment?
I shall listen extremely carefully to my noble friend’s answer, but I do not think that we can now say that the reason this is not acceptable is because of negotiation, nor do I think the Government can really say that they do not believe that this is what their policy is. This is, after all, only a statement of what the Government have said they believe—so why can we not put it on the face of the Bill, continue the protection which the British people have in the European Union, so that if we leave we at least make sure that public health is as protected afterwards as it was before?
Baroness Finlay of Llandaff
My Lords, as the noble Lord, Lord Deben, has pointed out, this is about moving into our law the regulations that currently protect us. That is why it seems appropriate in this Bill. I remind the Committee that the implications of Brexit for our health were published in the Lancet in a review in November last year, which detailed the areas that are in jeopardy. A fortnight ago, the Guardian reported a leaked document highlighting an unprecedented, co-ordinated effort by transatlantic right-wing think tanks to secure what they described as the “ideal” trade arrangement between Britain and the USA, which would involve the UK diluting its existing standards on food safety. I remind the House that the excessive use of antibiotics has resulted in superbugs, which is precisely why we have been worried about diluting any food safety standards. Working conditions in the farming areas that want to export to us are troubling. This would tear up the precautionary principle, whereby companies have to prove their product is safe before it can be sold, rather than waiting for it to be proven unsafe before it is recalled. That precautionary principle and the principle of safety run right through everything. As my noble friend Lord Patel outlined, and as previously discussed in Amendment 30, this relates to all of the infective areas, but it also covers toxic substances and the way that we handle those.
I strongly support this amendment because it would build up the health protections that we have built up slowly since we entered the European Union. It would simply guarantee the continuity of the present conditions and ensure that Articles 9, 11 and 168(1) of the Lisbon treaty are actually respected. It would require European institutions to maintain high levels of human health in all their policies and activities and would mean that these are then mirrored in the UK. It would of course affect areas of shared competence, such as environmental law, health and safety law, and public health law, as well as trade law. By mainstreaming this, it would build on precedents in UK law such as in Section 75 of the Northern Ireland Act, Section 149 of the Equality Act and Section 3 of the Human Rights Act. It covers acts of all public authorities, as I understand it. Judicial acts taken in interpreting retained EU law would then be subject to the same standards that we are used to and have become accustomed to. It covers the whole of the UK, irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh. I cannot see a reason not to accept it. It would maintain the standard to which we have become used. We are all aware of the dangers of dropping that standard.
Baroness Northover (LD)
My Lords, I support this amendment on public health. I feel very strongly on this issue, having played my part as a member of the health team on the government Benches that took the then Health and Social Care Bill through the Lords. My responsibility was to take through the measures on public health; I had an academic background in a related area. We placed public health back with local authorities. We said that public health would be safe there, in its appropriate place. As we have heard, the 19th-century development of public health in Britain led the way in extending life for those living in cities globally, and it did so in a local authority setting. It was not antibiotics that transformed life expectancy, it was public health measures.
So has public health been safe? Not recently, I submit. With local authorities and social care in crisis, what chance for public health? So when the Faculty of Public Health flags to me its worries about public health if we leave the EU, I listen. Yet another threat from Brexit, it seems, as the noble Baroness, Lady Blackstone, pointed out. The Minister will be aware of the concerns from the Faculty of Public Health and others working in this most important field. I am sure he will assure us that there will be no reduction in standards if we leave the EU—in which case, enshrine that in the Bill.
The public health community is concerned that, without the safety net of EU law, we may see our existing high level of vital public health legislation, policy and practice eroded. This year we celebrate the 70th anniversary of the NHS, as the noble Lord, Lord Warner, pointed out. Public health is a critical part of that NHS, not a side issue. We know that diseases such as cardiovascular disease, cancers, chronic respiratory disease and diabetes account for around 40% of premature mortality in the UK, and they continue to place a significant burden on patients and the health service. These conditions are to a large extent preventable and their costs in human, social and economic terms largely avoidable. We also know that effective public health strategies to tackle these and other challenges deliver an extensive range of benefits. As the noble Baroness, Lady Chalker, and the noble Lord, Lord Deben, have referred to, we have been able to bring benefits and improvements worldwide by the promotion of public health, from sanitation onwards.
That is why safeguarding public health is vital. The Government have said they will continue to co-operate with the EU on disease prevention and public health and that the UK will continue to play a leading role in promoting public health globally, so the amendment would simply put that commitment in the Bill. I have heard those promises on public health. When I was in government, I was worried that public health in local authorities was not ring-fenced as we were ring-fencing the NHS. I was assured by our coalition partners that all would be well. I was particularly worried about the position of reproductive health, given how essential yet controversial that might be. The reason why I am supporting the amendment today is that those promises proved rather hollow, so no promises that the Minister gives tonight will ring true to me. Whatever he may genuinely feel or whatever may be in his brief, they could be out of the window should the UK decide that standards are to be lowered or costs cut in an effort to increase the UK’s competitiveness. That is why the amendment is so important.
Baroness Lister of Burtersett
My Lords, I want to say a few words—a very few, I promise—in support of the amendment. Decent public health provision is of special importance to people living in poverty and people living in deprived areas, whether we are talking about the impact of the daily cocktail of pollution referred to recently by the Chief Medical Officer of England and mentioned by the noble Lord, Lord Warner, as a prime example of why the amendment is needed; the incidence of obesity referred to by my noble friend Lady Blackstone; preventable stillbirths; or life expectancy, where some recent statistics have been very worrying. In the Longevity Science Panel study published last month, the life expectancy gap between England’s richest and poorest neighbourhoods has widened since 2001, and it identified income inequality as the biggest factor. Recent data from the Office for National Statistics indicate that life expectancy of the poorest girls in England has fallen for the first time on record since the 1920s.
These are stark examples of how health and illness follow a social gradient. Campbell Robb, chief executive of the Joseph Rowntree Foundation, was quoted in the Independent as saying:
“These figures should serve as a wake-up call: we need action to loosen poverty’s grip on the health of our nation”.
I hope that the Government will take note of this wake-up call and, as a minimum, accept the amendment, which sets out important guiding principles for public policy as we exit the European Union.
Baroness Goldie
For once, I am grateful to the noble Lord opposite. Can I ask one of my colleagues to determine who should precede the other?
Baroness Oppenheim-Barnes
I would just like to put the opposite view. Some of the regulations that we have had to accept from the EU on health matters were likely to be completely unhelpful and possibly even make matters worse. I remember when people were concerned about harmful additives in food and parents, in particular, wanted to know more, so the EU produced a regulation in which the information was to be given in tiny letters, smaller than anything else on the label. You had the vision of a busy mother with a child on each arm who possibly needed her glasses to read what it said. She would get a completely opposite view because the writing was so small: she would think that it was the good thing that they should have when in fact it was trying to warn her against it. I was unable to get that amended at the time. That was just one small example of such misinformation or lack of information. I am looking forward, when we complete everything and achieve Brexit, to redrafting a number of these regulations that we had to accept to make them much more sensible for those who are rightly concerned about these matters.
Lord Brooke of Alverthorpe (Lab)
My Lords, it is this side. I have been waiting patiently on this side. I am grateful to the noble Baroness; you will have your chance.
I support the amendment of the noble Lord, Lord Warner, signed by several other noble Lords. The UK is a leader in public health. We have done extraordinarily well on the world stage and within Europe. I trust that the Minister will have no problem with the advice from his colleague, the noble Lord, Lord Deben, to incorporate this into the Bill. There is no real reason why it should not go in. It should go in because that would send a wider message about what life might look like in future.
Post Brexit, the Government will have to negotiate about 760 treaties on different subjects with 168 countries. Many of these will affect people’s health in a variety of ways, many of which have been mentioned: food safety, environmental standards and chemicals.
I suspect that these negotiations—particularly with the United States—may affect the NHS. Given the fact that the NHS was a central part of the Brexiteers’ argument, it is very important to keep a close eye on this. It is possible that the UK may be vulnerable to industry lobbies when we are negotiating alone, not in concert with others from Europe. It is also possible that there may be other pressures. We have just heard from the noble Baroness, Lady Oppenheim-Barnes, who indicated that we should look at existing standards and change them. I suspect that many people who are interested in seeing a low-cost, Singapore-style economy will be pleased to see many of those weakened in future.
It is interesting to look at the lobby groups which have been involved in the Canada-EU negotiation, to see where they came from, what they were after and what they tried to secure. Many of those groups were involved in the failed negotiation between the USA and the EU. As has been mentioned, their interests revolve around alcoholic spirits, the quality and standards of meat, pesticides and chemicals. I have been seeking to find out who is lobbying the Government regarding the negotiations for a deal with the USA. From all accounts, there is a significant interest from the health sector, which is an extraordinarily big part of the USA economy. Compared with most other countries in Europe, the NHS is quite unique. We are the one remaining country with a virtually totally state-run health service with—as yet—minimal amounts sectored out, sourced out or privatised.
There is a view that, as part of a trade deal with the Americans, when seeking to get better deals in other areas, we might have to let something go—as you do in any negotiation. I am pleased to see that the Minister is shaking his head, saying that we are not going to negotiate on the NHS in a trade deal with the Americans in order to have the freedom to get deals in other areas when we could do better for our manufacturing business elsewhere. If that is the case, why do the Government not come out more firmly on this? They could make a start by accepting the amendment.
As other noble Lords have mentioned, this year is the 70th anniversary of the National Health Service. The amendment also provides the Government with an opportunity to affirm for future generations their commitment to universal healthcare free at the point of use and funded through general taxation. The negative impacts of privatisation on health service efficiency and quality are now well evidenced in many areas. Publicly run health services must not be opened up to further competition and no “ratchet clause” or negative listing should preclude the return of privatised public services to a state operation. A reverse could take place. If the NHS is safe in our hands, let us have a true red line written into the sand on this issue. We could make a start by seeing the Government’s commitment. Will they accept the amendment or not? We can then start moving towards firm commitments: not just mealy words then finding flexibility introduced into the negotiations allowing further encroachment and privatisation of the National Health Service.
Baroness Altmann
My Lords, I rise to support the amendment and to point out to the Minister that it gives him an opportunity. I know that he and the Government care deeply about public health. This amendment gives him the chance to reassure the Committee, and the wider public, that the Bill will do no harm to the precious public health. It is supported by more than 15 medical organisations, and I thank the Faculty of Public Health for its very informative briefings.
The amendment deliberately uses the language of Article 168 of the Lisbon treaty, so there is a body of jurisprudence through which it can be interpreted. The UK can be proud of its high standards of public health protection, safeguarded by legislation, policy and practice. I hope that the Government and my noble friend will seriously consider accepting this amendment to help provide the reassurance that, if we leave the EU, we will do no harm to public health. The amendment places a duty not only on the Government and the devolved authorities but on the arm’s-length bodies that can so often be involved in the detail of public health standards. This Bill is where constitutional stability and certainty needs to be established within our legal system, so I hope that the Minister will respond positively.
Lord McKenzie of Luton (Lab)
My Lords, I welcome this opportunity to join with others on this important amendment in support of the noble Lord, Lord Warner. I draw attention to my entry in the register of interests as the president of the Royal Society for the Prevention of Accidents. I will focus on the importance of public health prioritisation in easing the extreme pressures on our A&E departments, in promoting, improving and safeguarding the health of the nation’s workforce and its productivity, and in preventing unnecessary burdens on society and families caused by unintentional death and serious injury.
Currently, an average of 14,000 people die every year in accidents, and accidents remain the biggest single killer of children and young people up to the age of 19. While the UK has made incredible strides over the past century in reducing accidents at work and on the road—giving the country the enviable safety records it has today—unintentional death and injury at home and at leisure is on the increase, with around 6,000 people being killed in their own home each year. In 2010, a total of £11.5 billion was spent by the health and social care sectors on fall-induced fractures alone. This will, of course, rise if today’s problems go unchecked.
Despite the overwhelming evidence that unintentional injury is one of the biggest public health issues facing society today, accident prevention is afforded woefully inadequate focus on the public health agenda. We need a major investment in falls prevention programmes in order to promote healthy ageing and thus ensure that older people are kept out of the health and social care systems for as long as possible, allowing them to enjoy later life to the fullest.
We also need to ensure that we are protecting the most vulnerable at the other end of the age spectrum: the under-5s. A disproportionately large number of young children visit A&E departments, while at least one child under the age of five is killed in an accident every week. This amendment will help as we strive to meet these challenges. It is my hope that it will encourage assessment of public health priorities, and of distribution of resources in line with this. Local authorities must be empowered to discover where their greatest health challenges lie, and properly assisted when they look to tackle them.
As for Europe, the accident prevention community in the UK has learned a lot from its colleagues on the continent, as they have learned a lot from us. RoSPA is a leading member of the European Association for Injury Prevention and Safety Promotion—EuroSafe—and also hosts the European Child Safety Alliance. It also continues to work with the European Agency for Safety and Health at Work in ongoing efforts to drive down occupational accidents and ill health. The latest Health and Safety Executive estimated cost to UK business of injuries and ill health from current working conditions stands at a staggering £14.9 billion, with 31.2 million working days lost each year. While there is still more to be done, much can be learned from the excellent workplace health and safety practice displayed by employers across the country—and, indeed, across the continent—as we look to reduce accidents that happen to people when they are in the home and at leisure.
It is to be hoped that this amendment will go some way to addressing concerns of an impending deregulatory agenda which has the potential to erode decades of research and creation of solid, evidence-based regulation that ensures that the population can work and live their lives unhindered by unintentional injury. While we hear much about the red tape of such regulation hindering business and productivity, we know that the opposite is in fact true: good, proportionate regulation is good for the workforce and good for business.
Baroness Neuberger (CB)
My Lords, I support this amendment, which is in the name of my noble friend Lord Warner and others. It has been nicknamed, as everybody knows, the “do no harm” amendment although perhaps, more accurately, it should be the “do not roll back” amendment. I declare interests as an honorary fellow of the Faculty of Public Health—I too wish to thank the faculty and staff for its briefing—and as a former chief executive of the King’s Fund.
Much has already been argued, and I will not repeat any of that; it is late, and there are more amendments to come. However, I lay on the line that, as was asserted by the noble Lord, Lord Deben, in the debate on the amendment on medical devices, this is a moral issue. “First, do no harm” is a moral imperative taught to all medical and healthcare students, and this amendment makes it clear that those hard-won advances in public health as a result of EU legislation and regulation must not be rolled back, for whatever reason, be they air quality, tobacco packaging, alcohol pricing or whatever else that has been raised from around the House. The Government have given assurances that all will be well. However, as my noble friend Lord Warner has already said, we need more. We need this in the Bill. I cannot remember the public health community coming so strongly together on anything since tobacco packaging. This matters hugely to those who work in the area of public health, and it should matter to all of us. There is concern out there, and a moral imperative in the amendment. I support it strongly.
Lord Hunt of Kings Heath
My Lords, this has been an interesting debate, and we have identified some of the challenges that we face in public health: air quality, environmental standards, food standards, accidents, infectious diseases and, indeed, huge health inequalities. I listened with interest to the noble Baroness, Lady Oppenheim-Barnes. Overall, I disagreed with her. Of course, you can pick out some regulations from the EU with which one might disagree or think that they do not go far enough, and she identified an issue around labelling. Overall, however, the EU has been generally helpful and a force for improvement in public health. I mention in particular air quality, because that is one clear example where it has pressed this country hard on our very poor performance. Governments have started to do something about it only because of the fines we face. There are other examples as well.
The fear expressed so well by noble Lords—I too pay tribute to the Faculty of Public Health for its briefings on this—is that without EU law, and in the context of already significant reductions in public health budgets, we will see a gradual erosion over time of our important public health legislation. The noble Baroness, Lady Finlay, and others mentioned food safety as an example. The Minister will no doubt tell us that he cannot say anything substantive because of the process of negotiations; he has said that a few times before. However, one of the fears clearly is that in the Government’s haste to negotiate a deal with the US—they are desperate to do so, for obvious reasons—when it comes to it, things like some of the food standards we have at the moment will go by the board. We know that that will happen because they have to produce a US trade deal; they have no option but to do it. They are so weak compared to the US in terms of the negotiation that it is quite likely that some of those standards will have to be thrown away.
That is why this amendment has been brought forward tonight. Ministers have helpfully discussed this amendment in meetings with some stakeholders. I know Ministers may say that the Secretary of State already has the powers set out in the amendment. However, as the noble Lord, Lord Warner, said, the amendment would place a duty on the whole of the Government to do no harm. That is a very important distinction. Importantly, it would also place a duty on other public authorities, including the devolved nations, so I believe that it goes further than current legislation. It is relevant to the European Union (Withdrawal) Bill, not just to a theoretical health and social care Bill which may be introduced at some point.
Other noble Lords have talked about the Lisbon treaty and the impact upon it. The amendment essentially seeks to ensure that there is a legal precedent and interpretive guidance on which to draw when determining the meaning of the proposed new clause, but, as I understand it, it does not seek to preserve EU law and regulation. Therefore, it would be for the British courts, on the basis of our doctrines of parliamentary sovereignty, to decide the future interpretation of the law.
This has been a very important debate. The Minister has to recognise that there is real concern that the Government’s desire to negotiate agreements with other countries will lead to them having to agree to reduce some of our essential public health standards. This amendment seeks to provide a guarantee and assurance that this will not happen. We should very much welcome it.
Lord Duncan of Springbank
I thank the noble Lord for his comments. I will start where he finished: no, we are not going to do that. I am afraid that is not the Government’s purpose. There will be no rollback of these standards because they are at the heart of what we believe to be right and proper. A number of noble Lords have implied that what has been proposed will be the case. I assure them that is not the case.
My noble friend Lady Chalker is right to stress the leadership role that the United Kingdom has long had in the area of public health. Indeed, that leadership role has been a beacon to not only the EU but its member states. As someone who currently lives in Edinburgh, I recognise the role that Scotland has had in pushing forward boundaries which are only now being adopted in certain parts of the world. It is important to stress that we are not in any way diminishing our regard for public health. Indeed, in bringing across the corpus of European law, those matters will rest in our statute book and will therefore be removable only by the other place and by this place.
Before I address some of the more substantive points, it is important once again to look at the EU itself, mostly in the area of public health. The noble Lord should be aware that public health has not been a core competence of the EU. Indeed, many of the aspects of public health have rested elsewhere within the statute books. Noble Lords will be aware that we have known about the pernicious and deadly impact of tobacco for many years, yet it is only in the last five years that the EU has phased out subsidies for tobacco growers.
I was a member of the European Parliament and sat on the environment committee. I also sat on the committee that investigated a scandal that came to be known as “dieselgate”. Noble Lords will be aware of exactly what that represented. At the heart of the EU, a major organisation installed cheap devices in vehicles that were specifically intended to undermine the core air quality standards. We should again remember that that was uncovered by an American public body, not by the EU’s body, which is in itself a borderline scandal. Further, we must also recognise that Volkswagen has compensated car owners in the US but has not in any way compensated car owners in the EU.
I am reminded also of the traceability of food and the horsemeat scandal, which riddled the EU. High standards are important only if they are met, and they must be met in each and every instance. Far too often we have found across the EU some of the most rigorous standards on paper that there could ever be, yet their enforcement is dreadful and woeful. Indeed, I am nearly certain that when we leave the EU the mean standard of public health will fall in the remaining states, so important is the contribution that we make to the wider question of public health.
When we look at the role of global standards and something like the recent Ebola outbreak, it was not the EU that pushed at that standard but France and the UK. They recognised an obligation to deliver against that pernicious pandemic. I believe we also need to recognise that the UK has been at the cutting edge of driving forward public health.
The noble Lord, Lord Warner, said that I might suggest that his amendment was vague. It is not vague; it simply duplicates exactly what the Government—indeed, not just this Government but every Government—have long said and long held to be dear. At the heart of good government must be the preservation of public health. It must be a cornerstone not just in the UK Government but in the Governments of the devolved Administrations, which in some respects have been brought into the ambit of the report. We need to recognise that.
Perhaps I may touch upon some of the other issues that have been brought into this wide-ranging debate. I reiterate that many of the aspects that we are touching on here will necessarily be part of ongoing negotiations, but I assure noble Lords that it is this Government’s intention to secure the highest possible engagement on matters of wider public health. I thank the noble Lord, Lord Patel, for bringing up a number of the areas that I believe the Government need to look at carefully—how we continue our collaboration, how we ensure that we can co-operate and how we can maintain that high standard. We can do so by sharing practice on both sides, because we both have a great deal to contribute and each will be the poorer for the absence of that collaboration.
It important for me to stress that the Secretary of State for Health and Social Care has a statutory duty under the National Health Service Act 2012 to protect the health of the public. A number of noble Lords have raised that, as indeed has the briefing from a number of sources, not least the Royal College of Physicians of the United Kingdom. Of course we are going to argue that the Secretary of State for Health and Social Care already has these powers, and it is his intention to hold them to the highest possible standard. I stress that, although there is an equivalent duty under the NHS—
Lord Warner
Can I make it clear that the Minister is saying that the powers and duties of the Secretary of State are as wide as the powers and duties in this amendment?
Lord Duncan of Springbank
I am stressing once again that the powers and duties that rest upon a Secretary of State for Health and the health department are high enough and wide enough to capture the intent of this amendment, and that is why the Government will not support the amendment on this occasion.
Lord Warner
That was not my question. Can the Minister say whether the current powers extend to the devolved Administrations, the other public bodies and the whole of government, as covered by the amendment?
Lord Duncan of Springbank
No, for one very simple reason. As the noble Lord knows, we cannot impose on the devolved Administrations by this mechanism. I am afraid that that is a simple statement of where the law and the devolution settlement rest.
Lord Hope of Craighead (CB)
My Lords, there is another way of approaching this, and that is to ask whether the provision in the treaty on which my noble friend Lord Warner has based his amendment is part of retained EU law. If it is, then it has a place in the statute and will be applied by the courts if necessary. Is the noble Lord able to answer that? Is it part of retained EU law?
Lord Duncan of Springbank
In this instance, it is not part of EU retained law, but that is not the point. We are saying that the powers that already rest in the Secretary of State’s hands are equal to the powers that would come through this amendment.
Lord Deben
If it is not part of this Bill, why not? The Government said that they were going to take this into the legislation. Why is it excluded? That is why people are frightened—because the Government have not put it in the Bill.
Lord Duncan of Springbank
Because it is superseded by the power that rests in the hands of all good Governments to deliver at that particular level. That is the purpose, and that is the point that I raised just now. If I may, I will make some progress.
It is important that I stress that we are committed to continuing co-operation not just within the EU but more broadly. That is why we are an active participant in the World Health Organization and in various other elements of global public health. My noble friend Lord O’Shaughnessy, the Parliamentary Under-Secretary of State for Health and Social Care, who is sitting beside me this evening, has committed to continuing the UK’s leading role in promoting and ensuring public health, in Europe and beyond. This commitment builds upon the principles set out by my right honourable friend the Secretary of State for Health and Social Care last July on a post-Brexit regulatory system where patients are not disadvantaged and patient safety remains at the heart of our endeavours. It is the Government’s intention, as stated in the future partnership papers, to continue collaboration with the EU to safeguard resilience. This of course will be determined as we move through the engagement on this matter.
I stress that the values and principles which have underpinned our National Health Service for the past 70 years—and which are not to be traded away with the US or any other trade partner we might have—will continue to guide us, just as they have contributed to the development of health and social care services across the EU. That is why, in this instance, I ask the noble Lord to withdraw his amendment.
Lord Warner
My Lords, I am grateful to everybody for their contributions in this debate. My score-card shows 14 in favour of the amendment and two against, including the Minister, and that was across the Benches. I am glad that he has moved on from saying that the amendment is vague—that is a bit of progress from what Ministers said before to the Faculty of Public Health.
The Minister seems to be setting up the EU as a straw-man villain to criticise. I never claimed in the past that everything that the EU did in this area was perfect and for all time. What I was trying to do in this amendment was take a principle in the Lisbon treaty, which this country has signed, and apply it to the jurisprudence of the future. If I may, I remind him of the quotation from the High Court judgment, which he needs to read carefully. It makes it very clear that the courts found it useful to apply this principle and put it at the “epicentre”—the word of the judgment, not mine—of public health. It was used in coming to a judgment that actually helped the Government’s position on tobacco policy.
I have heard nothing from the Minister which suggests that the Government have got the same breadth and width of coverage as this amendment provides in this legislation. As the noble Lord, Lord Deben, said, I cannot see why on this issue the Government cannot put in the Bill what they claim to be their policy. It would reassure a very large number of people and help with the exit from the EU. I can guarantee the Minister that I shall return to this issue on Report.
I would be very happy to have a meeting with him, if he feels some flexibility coming upon him, as would many of my colleagues. However, if he does not, I think he can expect a rerun of this on Report. In the meantime, I beg leave to withdraw my amendment.
Lord Marlesford
“Common Travel Area
It is an objective of the Government in negotiating the United Kingdom’s withdrawal from the EU to ensure that the Common Travel Area between the United Kingdom and the Republic of Ireland is maintained.”
Lord Marlesford (Con)
My Lords, I raise this issue because the question of the Irish border has increasingly become a major obstacle to the whole issue of withdrawal. Despite a debate last week of some two hours, very little progress has been made.
For me, this whole debate has been immensely enlightening and indeed entertaining, if sometimes a little long. I have been rather disappointed in the Government’s rejection again and again of noble Lords’ suggestions. It reminded me of AP Herbert, who, after he had chaired a committee and was asked to make recommendations, made them, and they were rejected by the Government. He wrote a short letter to the Times saying that the Government,
“like an elderly hypochondriac, is always asking for a second opinion but never accepts it”.
At any rate, I will quickly set out the assumptions on which I think we agreed last week. The common travel area must be retained. There can be no physical border for the movement of people by land between Northern Ireland and the Republic of Ireland. There should be symmetry for persons travelling from Northern Ireland to the Republic and those travelling from the Republic to the north. The national security of the UK will be protected and enhanced against the growing threat from terrorism regardless of how the terrorists seek to enter the United Kingdom.
It was made very clear in the debate last week that to impede the free movement of people over the land border would intrude on the social life and indeed the community relations that have, thankfully, been building up since the Good Friday agreement. I have what I hope is a simple and practical suggestion by which these objectives could be achieved. I do not of course claim to be able to help on the parallel issue of trade and the movement of goods over the border.
Let me first describe briefly how I came to the conclusion that I shall put to your Lordships. Some months ago, my wife and I flew from London Heathrow to Dublin to visit friends. My wife is Italian and has an Italian passport. I have a UK passport. On arrival in Dublin Airport my passport was looked at and waved through. My wife’s passport was scanned and she was waved through. The whole process took seconds rather than minutes.
When we returned to Heathrow some days later, by the same airline—British Airways—all the passengers on the aircraft after disembarking were directed by a special route straight to baggage collection. There was no immigration procedure whatever. I should mention that there were a multitude of nationalities on board the aircraft, although of course I have no idea what passports they held—nor did anyone else have any idea. However, it appeared that there was absolutely no sort of border control. My proposal is therefore that this asymmetry be removed by making the border of the island of Britain the border for those travelling to or from the island of Ireland. The immigration procedures would be identical for both directions of travel.
To those who say that this removes or infringes the rights of passport-free movement I would reply that to be required to show that you hold a passport that entitles you to passport-free movement is no more an infringement of your rights than it would be if any of us claimed that to carry—and wear, as we are nowadays required to—our parliamentary passes is an infringement of our rights to be in the Palace of Westminster. Surely this simple measure of common sense, made necessary by the sad state of the world we now live in, must trump the memories and prejudices that were so justifiably generated by the many sad periods of the history of the relationship between the British and the Irish. I feel that we need some action and I hope that I am not going to hear from the Minister that it is all impossible, unless he has a better idea to suggest. I beg to move.
Baroness McIntosh of Pickering
My Lords, if I have understood correctly, my noble friend Lord Marlesford is calling for us to remain within the customs union, because the history is that passport controls were dispensed with when we entered the single European market in 1992. Is that understanding of what the amendment proposes correct?
Lord Marlesford
I am concerned purely with immigration and the movement of people across borders. I want to make the border of the island of Britain the border between Britain and the island of Ireland.
Baroness Goldie
My Lords, your Lordships are going to have to tolerate AP Herbert’s elderly hypochondriac. I thank my noble friend Lord Marlesford for highlighting this issue. The Government are committed to ensuring that the common travel area with Ireland and the Crown dependencies is maintained. The common travel area has special importance to many of the people of these islands going about their daily lives. Importantly, maintaining the common travel area protects the ability of British and Irish citizens to move without hindrance across the border between Northern Ireland and Ireland, recognising the symbolic significance of this in the implementation of the Belfast Good Friday agreement, and removes the need for immigration controls on journeys from Ireland to the UK.
The common travel area with Ireland was formed many years ago, long before either the UK or Ireland were members of the EU. It is reflected in each state’s application of national immigration policy and provided for by bilateral agreements and arrangements. The common travel area arrangements are recognised in European Union law, confirming that the UK and Ireland can continue to work together to make arrangements for the movement of people between our states. Let me reassure my noble friend Lord Marlesford that the Government are committed to maintaining these arrangements. The common travel area has proven to be resilient over the years, withstanding legal challenges and new policy and political developments. It has been staunchly protected by all its members. Both the UK Government and the Irish Government are firmly committed to protecting and maintaining co-operation as part of the common travel area arrangements.
The Government have endeavoured to set out, from the Prime Minister’s Article 50 letter and her Florence speech to our position paper in August, that preserving these arrangements and the unique relationship between the UK and Ireland is a priority for the negotiations. Perhaps I may remind noble Lords that, importantly, paragraph 54 of the December joint report includes recognition from the EU that the common travel area with Ireland is protected after the UK has left the EU. As with all the commitments made in the December joint report, we are determined to ensure that this is turned into legally binding text in the withdrawal agreement. To reiterate, the withdrawal agreement and implementation Bill will implement the major elements of the withdrawal agreement, including the protection of all the Northern Ireland and Ireland commitments in the joint report. All of that is of course a matter for the future Bill rather than the one that we have before us.
As well as the clear commitment of this Government to maintain the common travel area, I am also clear that these arrangements can be maintained after the UK has left the EU. The UK’s approach to the common travel area is provided for by primary legislation in the Immigration Act 1971. Our approach to arrivals in the UK from within the common travel area is distinct from our membership of the EU and will therefore be unaffected by the UK’s exit. The high level of collaboration with Ireland on border security, on strengthening the external border of the common travel area and on promoting legitimate travel within this special travel area can continue. In these circumstances, I suggest that the amendment moved by my noble friend is unnecessary and I hope that, with my explanation, he will feel able to withdraw it.
Lord Marlesford
I thank the Minister for her comments, which are what I very much expected. The simple fact is that a solution has not yet been produced to avoid having any sort of hard border between Northern Ireland and the Republic of Ireland. What I was seeking, as far as the movement of people is concerned, is to make it possible to allow the situation to remain as it is. We are not talking about the impact of leaving the EU; we are talking about national security and the present unsatisfactory position that it appears is going to cause further problems as a result of leaving the EU. However, the hour is late and I am sure that we shall return to these matters. I beg leave to withdraw the amendment.
Lord Broers
“Implementation of agreements reached with the EU on nuclear research and development
(1) Before exit day, the Secretary of State must publish a report which includes the details of any agreements reached with the EU on the United Kingdom's continued participation after exit day in—(a) extensions of the JET project;(b) the ITER project;(c) research into advanced nuclear fission reactors;(d) any other research undertaken by Euratom.(2) In addition to the report described in subsection (1), at the same time, the Secretary of State must make regulations providing for the implementation of any agreements described in the report.(3) A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Broers (CB)
My Lords, the amendment would ensure that we maintain the resources needed to remain competitive in nuclear research and development beyond 2020. If we do not, we will almost certainly lose the ability to replace and increase the nuclear baseload needed to underpin our intermittent renewable sources. Our large wind and solar resources will leave us in the dark on windless nights—at least until full-scale storage or fusion power become realities—unless we replace nuclear power with fossil fuel plants and thereby miss our legally binding target of reducing emissions by at least 80% by 2050.
Indeed, we would find ourselves in the situation that exists in Germany, as described by the noble Viscount, Lord Ridley, in today’s Times, where, because the Germans decided to abandon nuclear power, they are now being forced to build coal-fired power stations to back up their renewable sources, thereby counteracting the purpose of building the wind and solar facilities in the first place. At least we have not got that far. We are pressing ahead with our nuclear baseload and all looked well until we made the incomprehensible decision to withdraw from Euratom, despite the fact that our withdrawal was not legally required by our withdrawal from the EU. Until now, we had sensibly been relying on our membership of Euratom to improve our capabilities to manage and dispose of nuclear waste, improve radiological protection, keep up to date with the progress being made on advanced fission reactors—including small modular reactors, or SMRs—and remain major contributors to the development of fusion power, particularly extensions to the Joint European Torus, or JET, at Culham and the International Thermonuclear Experimental Reactor, or ITER.
Let me say a few words about fusion. Controlled release fusion was first achieved in JET at Culham in 1991. In my opinion, this could well turn out to be one of the most important advances in experimental physics ever made. This was the earliest successful experiment; however, it produced only two short pulses when fusion power of one megawatt was verified for a fraction of a second. By 1997, things had moved on and JET produced a peak of 16 megawatts of fusion power, with fusion power over 10 megawatts sustained for over half a second. This gave everyone the confidence to proceed with JET’s successor, ITER, which had been talked about since the mid-1980s but was escalated into a multinational project that had been estimated to cost about €13 billion—interestingly, about the same cost as has been estimated for the finding of the Higgs boson. ITER is currently under construction in southern France and is designed to produce 500 megawatts of fusion power and 10 times more fusion power than the power put into the plasma.
I mention this background to show that progress has been made but this is a very long-term project. Construction of ITER will not be completed until 2020; the initial plasma will not be created until 2025; and the first fusion experiments will not be carried out until 2035. Few noble Lords will see that happen. Many challenges face the project but there are potential answers to all of them. At present, there are no experimental or theoretical showstoppers identified. By the middle of the century, it could well demonstrate that fusion power is practical and capable of delivering unlimited quantities of clean, carbon-free energy.
Through what I see as government neglect or lack of support, we have lost our expertise in a disturbing number of vital technologies, of which microelectronics is one. We are leaders in designing microelectronic chips—that capability is now owned by Japan—but we cannot make chips. More recently there was the decoding of DNA, where we do retain expertise but have lost the business of DNA decoding to the USA.
Let us not lose our expertise in nuclear power. These matters are too important to leave to chance and words of promise. Let us this time ensure that we remain internationally competitive in nuclear technologies and lead rather than follow in seeking truly clean energy for our planet. The amendment would ensure that our nuclear technology continues to receive support at its present level. I beg to move.
Viscount Trenchard (Con)
My Lords, I share with the noble Lord, Lord Broers, many of his concerns about the future of our nuclear energy programme. Like him, I regret very much that we have lost so much expertise. Part of the result of our withdrawal from Euratom is that the ONR will have to recruit a large number of scientists qualified in nuclear matters. Perhaps we will also have another opportunity to debate these matters tomorrow in the Nuclear Safeguards Bill, so I will not detain the Committee long, except to say that although I basically agree with the noble Lord, Lord Broers, about the importance of nuclear power, and the fact that it is not subject to intermittency makes it much more reliable than renewable energy, I do not go as far as him in saying that it is necessarily deplorable that we withdraw from Euratom.
Many scientists and senior executives who have worked in the nuclear industry consider that Euratom is a rather bureaucratic organisation that is too cumbersome in its approach to verifications and too much concerned with understanding the detail of what all its members are doing, rather than helping to ensure a proper, adequate nuclear safeguards regime. I believe the noble Lord’s amendment does not recognise the upside of our withdrawal from Euratom—we will ourselves be able to decide where to commit funds in nuclear research and development. For example, we might want to spend money on small modular reactors instead of on ITER. Anyway, if we want to be in ITER, besides the EU/Euratom countries, China, India, Japan, Korea, Russia and the United States all participate. It will be good to be able to decide which projects we commit funds to in nuclear research and which we do not, whereas at present we have no independent right to decide.
Besides that, it is clear that we will need a transition or implementation period for the Euratom treaty as well as the EU treaties, so we do not have to decide any of this by exit day anyway. We will take some time to decide the detail as to which projects to go on with after we have recovered our right to decide where we will commit our funds in nuclear research.
Lord Teverson (LD)
My Lords, I find that slightly strange from the noble Viscount. We do have a choice over our expenditure on the JET programme because we finance a significant proportion of it outside of Euratom. We already have that independence to a large degree. In fact, as I understand it from the Government’s policy, we are already offering to extend that financial contribution up to 2020. I have to admit that it did not seem a great come on to the European Union or the EU 27 to offer the same terms if it happened to keep its research in Culham as it has at the moment.
I did not the read the amendment as saying half the things that the noble Viscount mentioned. I understand it very sensibly to be saying that we want the Government to tell us in no uncertain terms how we are going to remain in the various programmes of Euratom. That does not stop us doing other things such as small modular reactors or whatever we might want to do in addition—I really do not see that problem.
It is important to remember that Euratom has a research budget of €1.6 billion from 2014 to 2018. As it is part of the industrial strategy of the United Kingdom, we should want to stay a part of that. Although some of us can be slightly sceptical about fusion, as someone concerned with non-carbon energy I see it as one potential pathway to the future which the United Kingdom should be a part of. I went to Culham earlier this year. There are 1,300 jobs there, 600 of which are high-skill, with employees drawn from all European countries and beyond that. I hope that the Government will find uncontentious a sensible amendment such as this and that we can remain a part of this community, see what it offers and be a part of its success in the future.
It would be a dead end if we continued to contribute to the JET funding and to be a part of it until 2020 only to throw all that investment away and not be a part of ITER. To be a part of ITER, we have to plan ahead, which is what this amendment calls for. It is entirely logical and a very good way for the Government to take forward this agenda openly and constructively and to keep Parliament informed as it happens.
Lord Liddle (Lab)
My Lords, when the Minister replies eloquently as she always does, could she try to explain to the Committee why in all our mini-debates on this issue and on the nuclear safety Bill, the Government have still not come forward with a coherent written explanation for their decision to leave Euratom? Why have we not been written to about this, despite repeated requests in this House, and when will the Government face up to the fact that they are doing this purely for ideological reasons without any clear explanation whatever?
Lord Broers
I want to point out two things in response to the noble Viscount. First, I have introduced this amendment because research and development was ruled by the Public Bill Office to be outside the remit of the safeguards Bill, so it had to be brought here. Secondly, the fusion projects are large and collaborative; they are not projects where we can decide what we want to do and where we want to do it. We would be hopelessly underresourced if we did not join these European projects. That is why we have to join them. At the moment, we are major players in them and have always been so, but we have relatively small resources. ITER costs €13 billion—it has to cost that amount. It is certainly worth that amount. It is a tiny fraction of what we spend on energy, but, unless we collaborate with the other nations in this project, we will be nowhere.
Lord Mackay of Clashfern (Con)
My Lords, I recall many years ago in private practice acting on the instruction of the late Lord Weinstock to fix the price of Hunterston A. At that time, we were in the very lead of nuclear energy development. I regret to say that I have the feeling that we are slightly less in the lead now than we were then. I do not have anything like the expertise of the noble Lord, Lord Broers, but I want to emphasise the need to ensure the important place of nuclear energy in our future plans.
Lord Adonis
My Lords, can the noble and learned Lord remember what price he fixed it at? How does it compare with Hinkley Point B?
Lord Hunt of Kings Heath
My Lords, that was a mischievous intervention by my noble friend, which the noble and learned Lord has dealt with eloquently from his place.
It seems to me that this is a very important question and the noble and learned Lord is surely right: obviously, this country developed the first peacetime nuclear plant at Sellafield—or Windscale, or Calder Hall, even—and we blew that. We blew our leadership completely. We have though, with nuclear fusion, still great potential and we are at risk of throwing that away as well. That is why this is such an important amendment and discussion. It would be a tragedy if we lost the current expertise that we have, and I hope the noble Baroness will be able to say something about that.
I echo what my noble friend Lord Liddle said: we have had a number of debates about Euratom now, but there has never been a straight explanation as to why the Government decided they had to leave Euratom even though we were members of Euratom and Euratom existed before the EU. The noble Viscount, Lord Trenchard, is critical of Euratom, but the fact is that the Government—his Government—are saying that we want to maintain nuclear safeguards in consistency with Euratom, but we cannot do so at the beginning so all we can promise to do is to maintain the standards of the IAEA, which as the Office for Nuclear Regulation told the Public Bill Committee in the other place will mean fewer inspections at lower intensity. So we have this remarkable situation where the Government have decided, for no reason that anyone can understand, that we are going to leave Euratom, but because we think Euratom is such a good institution our aspiration is to keep to Euratom standards. However, we cannot do it: because the UK cannot get the number of inspectors in place to maintain those standards, we are going to keep to the reduced standards of the IAEA. We find ourselves in a quite extraordinary position.
I turn to the speech given by the Prime Minister at the Mansion House just a couple of weeks ago. She differentiates between some EU agencies and others. So, in her speech, she says:
“We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency”.
However, when she talks about energy, she simply talks about having “a close association” with Euratom. I ask the noble Baroness why, when is it is quite clear that the Government are going for associate membership of a number of agencies, such as the EMA, which means accepting their rules but having no influence over those rules, in the case of Euratom, which I would have thought, frankly is as crucial as the European Medicines Agency or the European Chemicals Agency, all we are seeking to do is to have a close association. It would be very helpful if the noble Baroness would explain what is it about Euratom that the Government seem so determined to leave and not seek associate membership, when it is an agency whose standards we aspire to keep. It is a puzzle that, despite the help of Ministers on this Bill and the Nuclear Safeguards Bill, we still do not understand.
Lord Teverson
Before the Minister stands up, perhaps I might ask for some clarification. The draft transition agreement was published today. I read through what it says on Euratom—it is in green, meaning that it is completely agreed apart from any legal, bureaucratic changes that might be made, yet I am still unclear from that document whether during the transitional period the ONR is responsible to the International Atomic Energy Agency for safeguarding in the UK or Euratom continues to be responsible under the acquis. I ask the Minister to clarify that tonight—it must have been agreed because it is in green—so that we are clear for the debate tomorrow.
Baroness Goldie
My Lords, having listened to the very distinguished contributions, I can say that I bring to this matter only my ignorance. I was not a star in the physics class at school and I am feeling much humbled by the calibre of the contributions. I welcome the sentiment behind Amendment 227BK, moved by the noble Lord, Lord Broers. The UK is a world leader in nuclear research and development, as he acknowledged, and the Government are committed to ensuring that that is not put at risk.
I will try to advance a proposition for why the Government consider the amendment unnecessary. We are taking the future of UK participation in nuclear fusion and fission research and development programmes very seriously, and we have already taken practical steps to protect them. The Joint European Torus—JET—facility at the Culham Centre for Fusion Energy is currently the most advanced fusion reactor in the world, I understand, and has helped the UK become a world leader in this technology. Let me be clear: the Government are committed to maintaining and building on this hard-won position as we leave the EU.
As noble Lords indicated, we have already announced that the UK will continue to pay its fair share of the JET operating contract, should it be extended to 2020. That commitment is independent of the outcome of the Brexit negotiations. Furthermore, the Government recently committed £86 million for a national fusion technology platform to support further development of fusion technologies in the UK and to underpin our commitment to continued international collaboration. As noble Lords will be aware, the Government are also working closely with the UK Atomic Energy Authority and the Nuclear Innovation and Research Office to engage with our EU partners and determine the best way forward for the UK’s nuclear research and development sector.
The Government have consistently been clear that we want to find a way to continue science and innovation collaboration with Europe. The Prime Minister recently set out the UK’s commitment to establishing a far-reaching science and innovation pact with the EU. This will enable continued participation in key programmes alongside our EU partners. More specifically, in September our future partnership paper on science and innovation made it clear that the UK wants to find a way to continue to work with the EU on nuclear research and development. In January, we went further. A Written Ministerial Statement made by my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy confirmed that the UK’s specific objectives in respect of the future relationship are to seek,
“a close association with the Euratom Research and Training Programme, including the Joint European Torus (JET) and the International Thermonuclear Experimental Reactor (ITER) projects”.—[Official Report, Commons, 11/1/18; col. 10WS.]
Of course, these matters are all subject to the negotiations.
Both the noble Lords, Lord Hunt and Lord Fox, raised specific issues about what they perceive as a distinction in the Government’s treatment of different EU agencies. I undertake to look in Hansard at the points raised by the noble Lords and will try to come back with a more specific response. I do not have detailed information available to me. What I can say is that the Secretary of State has also committed to report back to Parliament every three months about overall progress on Euratom, covering the EU negotiations and other important matters such as research and development, by way of further Written Ministerial Statements. The first of these updates is expected to be published before the House rises for the Easter Recess.
The UK’s contribution to EU nuclear research programmes is valued, and it is in no one’s interests for the UK to be excluded from these efforts. We are working constructively and with great determination towards a successful and mutually beneficial outcome for this important area of the negotiations. I realise that what I say may not totally satisfy your Lordships and may be short of what the noble Lord, Lord Broers, is looking for, but I suggest that, in the circumstances, he might feel able to withdraw his amendment.
Lord Teverson
My Lords, I ask the Minister again to clarify—this has to be clarified because it is in the draft agreement—who is responsible to the international community for safeguarding during transition. Is it Euratom, on our behalf, or is it the Office for Nuclear Regulation?
Baroness Goldie
I am sorry, but I do not have a specific response to the noble Lord. I shall find out and write to him.
Lord Broers
My Lords, I am encouraged that the Government are going to be conscientious and provide all these updates. I wonder whether one of these updates might satisfy my amendment. In light of what the Minister has said, while I am still minded to hang on to this issue—I have been pursuing it for a long time with a lack of any success, but that does not mean I will not hang on to it—for the moment, with the permission of the House, I beg to withdraw my amendment.
Lord Adonis
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
I should remind your Lordships that if Amendment 230 is agreed to, I cannot call Amendments 231 to 235.
Lord Adonis
My Lords, speaking in the middle of the night I see my role as being purely a silent John the Baptist to the noble Lord, Lord Lisvane. I beg to move.
Lord Lisvane (CB)
My Lords, I shall speak to Amendment 240. I am really not cut out for the role that the noble Lord, Lord Adonis, has set out for me. I am not sure whether, in its emergency arrangements, the Bishops’ Bar is serving locusts and wild honey tonight. But I will do my best with Amendment 240, which has in common with the other amendments in this group the fact that it seeks to impose a restriction on the use of regulation-making powers. However, it is a little different and it reflects a recommendation of the Delegated Powers Committee.
If secondary legislation made by Ministers or Ministers in the devolved Administrations under Schedule 4 imposes a new fee or charge, those regulations will be subject to the affirmative procedure. But if the fee or charge is subsequently changed— the lovely word “modified” is used, but we can probably assume that the change would be an increase, just as new fares always turn out somehow to be higher—the regulations making that change are subject only to the negative procedure.
Baroness Hayter of Kentish Town (Lab)
My Lords, we support that. It is particularly important for the new SIs that will deal with functions hitherto carried out by EU bodies and which therefore will not be part of the normal, ongoing scrutiny that may have happened for many years. It is particularly important that these should be by only the affirmative procedure, as the word “modification” can only mean an increase.
Viscount Hailsham (Con)
In order to indicate cross-party support, I will say that I support this amendment.
Lord Mackay of Clashfern
My Lords, I am just wondering whether the noble Lord who moved this amendment is thinking that the House of Lords should not reject an SI outright once it has been confirmed by the House of Commons but should ask that it be reconsidered, and whether that should be the only option apart from approving it.
Lord Lisvane
My Lords, I think that if it were an SI concerned only with imposing a fee or charge, noble Lords would not have it laid before them.
Baroness Goldie
My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.
Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.
Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.
As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.
The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.
To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.
It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.
I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.
The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.
I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.
The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.
I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.
I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.
I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.
I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.
Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—
Baroness Hayter of Kentish Town
My Lords, before the noble Baroness leaves the issue of fees, it was fairly clear earlier that the House probably would not accept that fees could be charged without primary legislation: we do not accept that the power to do that should be by secondary legislation. Assuming that we win on that, which I think we might, when we come to Report, I think it unlikely that the House will want to accept the idea that those fees could then be hiked by a Minister without coming through the affirmative procedure. Given that the Minister said that she would look at this in the broader context that this is a new power to set up fees for new functions being brought over, raising them without an affirmative procedure is perhaps a step too far.
Lord Tyler (LD)
Further to that point, am I not right in thinking that the reference back under the amendment to Part 1 of Schedule 4 means that we are talking about public authorities, not just Ministers? Will the Minister comment on the number of organisations that may fall into this category? I recall a previous discussion where it was clear that literally hundreds of organisations might be making such modifications to taxes or charges. So this is not, in her words, a small, technical matter; it could apply to a large number of organisations which could impose considerable increases in taxes and charges.
Baroness Goldie
I have undertaken to look at the contributions to the debate. I have not suggested that all matters are de minimis; I am merely pointing out that some are, and trying to find proportionality in how we deal with our response to this. However, I undertake to look at what the noble Baroness and noble Lord have said and reflect further on the position.
I return to Amendment 236, in the name of the noble Lord, Lord Adonis, which requires all regulations made by Northern Ireland departments under their Schedule 2 powers to follow the affirmative procedure. As drafted, the Bill provides that the criteria for triggering the affirmative in the Assembly are the same as those for this Parliament. It is right that, where this Parliament confers powers on the Northern Ireland Executive, it should provide for those powers to be scrutinised. We do not necessarily have to provide that those procedures be the same for Northern Ireland departments and UK Ministers if there is good reason that they be different. However, that decision cannot be taken without a view from the Assembly as to the level of scrutiny that is required. In the absence of an Executive, we cannot invite the views of the Assembly and the Executive as we have for the Scottish Parliament, the National Assembly for Wales, and the Scottish and Welsh Governments.
It is also right that we do not introduce an entirely new procedure, such as the sifting committee, without a view from the Assembly, and that we should preserve the competence of the Assembly to challenge the scrutiny provisions if they see fit. That is only respectful and it is what this Bill does. If we were to provide a set of scrutiny procedures entirely different from those for UK Ministers’ powers, or for the Scottish and Welsh Ministers’ powers, as this amendment would do, we should do so only where we are satisfied that this reflects the needs and wishes of the Assembly.
I have tried to cover the main points of concern and, I hope, to include the presence of a comfort blanket to reassure your Lordships that the Government are prepared to reflect on this. On the basis that we cannot, at this present time, find what the noble Lord wants, I ask for his indulgence and suggest that he withdraws his amendment for the moment.
Lord Adonis
My Lords, the noble Baroness is so mellifluous and so reasonable when she says that she is not actually prepared to accept anything you have said but there are, none the less, very good and sufficient reasons why—she may not be personally familiar with them, but they are extremely compelling and she proposes to give them full consideration outside the Chamber—that one cannot possibly end up without agreeing with her. However, I latch on to the words, “sifting process”, because everything in the judgment depends on whether we should have negative or affirmative instruments on that process. At 12 minutes before midnight, the sifting process is the groups of amendments we are about to proceed to. The best service I can give the Committee is to enable it to move immediately on to them. The warm and mellifluous words from the noble Baroness will probably ensure that she gets them all completed by midnight. I beg leave to withdraw.
Lord Lisvane
“Parliamentary committees to sift regulations made under section 7, 8, 9 or 17
(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument to which paragraph 1(3), 6(3), 7(3) or 11 applies, and(b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”).(2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.(3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies.(4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made.(5) For the purposes of this paragraph—(a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in sub-paragraph (1)(a) is made, that another procedure should apply in relation to the instrument.”
Lord Lisvane
My Lords, I will move Amendment 237 and speak to Amendments 237A and 239A. One of the host of extraordinary things about the Bill is that, for many of the regulation-making powers under Clauses 7, 8 and 9, the Government have a choice as to whether the affirmative or negative procedure is to be used. This applies even in some cases to Henry VIII powers. This is not a decision to be taken by Parliament but, as the Bill stands, arrogated to Government. It is consistent with the Executive carte blanche which characterises much of the Bill. The amendment on sifting which passed in the Commons and now appears at paragraph 3 of Schedule 7 appears to involve Parliament in the process and so it does, to an extent. The requirement in paragraph 3(3), for a draft to be laid and the Minister’s reasons to be given, is welcome. However, in a surprising irony, not only can the Minister then ignore any recommendation of the committee—as the Bill stands it is only a committee of the House of Commons, but the Minister has said that it will be extended to your Lordship’s House—it is the committee’s making of the recommendation which is the trigger. That is what brings into play the Minister’s ability to do just what he or she wants.
Therefore, Amendment 237 in my name and in those of the noble Baroness, Lady Hayter of Kentish Town, and the noble Lords, Lord Tyler and Lord Blencathra—respectively a member and the chairman of the Delegated Powers Committee—sets out, as recommended by that committee, a procedure that actually has teeth. It would give to a committee of either House the power to recommend the upgrading of the procedure from negative to affirmative. It would also allow the relevant House the opportunity to disagree with its own committee’s recommendation. It would work on the basis of highest common factor rather than lowest common denominator in that a recommendation in either House is enough to raise the bar to affirmative so there is no need for a reconciliation mechanism. It is slightly less ambitious than the heavyweight procedure in Amendment 238 in the name of the noble Lord, Lord Hodgson of Astley Abbotts, which we will come on to talk about shortly, but nevertheless it seeks to cure something that is very concerning in the Bill as it stands at the moment.
Last week I was rather beastly to the noble Baroness about precedents. That was mainly because the precedents that she was deploying were ones that I did not like. However, I have much better precedents for Parliament setting the level of scrutiny: the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011. I really do not see why a similar procedure cannot be adopted here. It would certainly be better for Parliament, rather than Ministers, to take the decision.
Amendment 237A, in the name of the noble Lord, Lord Sharkey, to which I have added my name, is an amendment to Amendment 237, which would simply allow either House to take the initiative directly rather than acting on the recommendation of a committee. Amendment 239A, also in the name of the noble Lord, Lord Sharkey, is not about sifting but it provides a reconciliation mechanism that would operate when the House took different views on an affirmative instrument. Of course, if a Government get into difficulty, it is always open to any Government to withdraw and relay an instrument or a draft that has been disapproved of by one or both Houses, as was famously and unfortunately not done in the tax credit case. The relaid instrument does not have to be very different either, but Amendment 239A would provide a transparent mechanism. I beg to move.
Amendment 237A (to Amendment 237)
Lord Sharkey
(c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply to the instrument.”
Lord Sharkey (LD)
I declare my interest as chair of the Hansard Society, whose work on delegated legislation will be familiar to many noble Lords. I have three amendments in this group, to which the noble Lords, Lord Lisvane, Lord Norton, and Lord Lexden, my noble friend Lord Tyler and the noble Baroness, Lady Jay, have variously added their names, and I am very grateful for their support. Amendment 237A is an amendment to the sifting Amendment 237, which I wholeheartedly support. In particular, I support the fact that Amendment 237 removes ministerial discretion over whether to take any notice of the sifting committee’s recommendation to upgrade an SI to the affirmative procedure. Amendment 237A proposes a simple addition to Amendment 237. It gives the House the power to upgrade to the affirmative procedure even if the sifting committees have not. I do not imagine that this provision will be used frequently, but it would be wise to reserve the power for the House to take action if it felt that the sifting committees were making an error or if there was an uncertainty over their decision sufficient to warrant a full debate.
Amendment 239A proposes a more significant change to the currently available methods of dealing with affirmative SIs. In fact, the next group of amendments, Amendments 238, 239 and 248, also put forward new proposals for dealing with SIs generated by this Bill. Between the current group and the next, there are three SI procedure proposals for the House to consider. They are: a mechanism for sending back SIs to the Commons for reconsideration; an option to upgrade to super-affirmative; and an option to make affirmative SIs amendable. Here I will deal only with Amendment 239A, which is the reconsideration proposal. I will spend a few moments saying why I believe the change to our procedures is necessary for SIs used for withdrawal purposes.
The Government estimate that the Bill will generate between 800 and 1,000 SIs, and there are rival and much higher estimates. Of these 800 to 1,000 SIs foreseen by the Government, they estimate that 20% to 30% will fall into the affirmative resolution category as determined by the tests set out in the Bill. This is certainly an underestimate. It cannot take account of the sifting committee’s powers to upgrade negative procedure SIs to the affirmative procedure. This means that we will be presented with probably around 300 to 400 affirmative SI procedures from this Bill alone—all to be dealt with as rapidly as possible. This is an unprecedented situation, both in volume and timing. However, there is ample precedent for Parliament’s dealing with very wide delegated powers. Parliament has frequently insisted that a strengthened scrutiny procedure be inserted into Bills to control the use of such wide powers. There are currently 13 Acts of Parliament that contain such strengthened procedures, all of them inevitably slightly different.
The nature of the Bill before us and the unprecedented powers it delegates to Ministers and to others calls for a strengthened procedure to be incorporated into the Bill too. The question is: what kind? We have to balance the need for thorough scrutiny with the need to have a working statute book on exit day. The noble Lord, Lord Hodgson, and the noble Viscount, Lord Hailsham, will in a moment press the merits of the super-affirmative and amendable-affirmative routes. Amendment 239A proposes a power to send an affirmative procedure SI back, once only, to the Commons for reconsideration, with reasons if we so wish. The Commons will have 10 sitting days to confirm its approval. If it does, the SI is approved; if it does not, it is rejected. This is a classic “think again” procedure entirely in keeping with the normal relationship between the two Houses. Its one-time-only nature gives the Commons the final say.
At the moment, of course, we have the option of either accepting or rejecting an affirmative SI—a regret Motion has no practical effect—and there is a view that, under the current system, a consideration without explicit rejection can be read as equivalent to approval. That means that we either say yes or we use what has been described as the “nuclear option” of rejection. We have been very cautious about doing this. In fact, we have rejected affirmative SIs only on six occasions since 1950 and noble Lords will remember the constitutional tensions on the last occasion we did that: the rejection, or at least the non-approval, of the tax credit orders of 2015.
Given the number of affirmative SIs that will come before us, and the delicate and sensitive areas they will inevitably deal with, it would be very difficult for us, and probably very unwise, to resort to the nuclear option with any frequency. In fact, with only two options open to us, our proper reluctance to reject SIs outright will almost certainly lead us to approve marginal cases, or cases about which we still retain serious reservations. That would be entirely unsatisfactory as to the quality of created law, and potentially damaging as to the balance of power between the Executive and Parliament. Better to do what we often do where doubt exists: ask the Commons to think again. That is what Amendment 239A proposes. The mechanism will not frustrate the will of the Commons—and, importantly, it will not act significantly to delay the progress of the necessary secondary legislation, as other proposals might. There is not a lot of time, as the Minister said, between Royal Assent and exit day, and I think that we all acknowledge the need to have a coherent and consistent statute book on that day.
Noble Lords may recall that in his report, commissioned by the Government after the House had declined to approve the tax credits order, the noble Lord, Lord Strathclyde, also recommended a reconsideration mechanism for SIs. He said:
“I recommend the third option of creating a new process set out in statute, for the Lords to ask the Commons to think again about a statutory instrument. This would provide the government of the day with a degree of certainty, while maintaining for the House of Lords a simplicity of procedure in keeping with already established procedures for other forms of legislation. It would preserve and enhance the role of the House of Lords to scrutinise secondary legislation by providing for such legislation to be returned to the Commons. In the event of a further Commons vote to approve a statutory instrument, it would enable the Commons to play a decisive role”.
You had to read on into the small print to realise that the noble Lord, Lord Strathclyde, was proposing to substitute this reconsideration mechanism for our veto power to reject—and, of course, we rejected his package of proposals. Our amendment does the first part of what the noble Lord proposes, and for the reasons he sets out. It does not touch our power to reject at all. It simply creates for us an additional mechanism alongside acceptance and rejection, and I commend it to your Lordships.
Lord Tyler
My Lords, I am an eternal optimist, which somehow goes with the territory of being a Liberal.
What a wonderful thing it would be if out of this dismal, divisive, deceptive process we could achieve a modest but beneficial change to the way in which Parliament works. This group of amendments, all of which I enthusiastically support, offers a very timely, perhaps even unique, opportunity to improve the co-ordination between the two Houses in our joint scrutiny of secondary legislation proposed by the Government of the day.
Long after Brexit has been forgotten and we cannot remember what it was all about, we could still benefit from a rebalancing of the power between the legislature and the Executive as promoted by this group of amendments. Your Lordships will have noted the formidable supporters and signatories.
I have been involved at both ends of this building in attempts to improve the quality of secondary legislation. It has been a very difficult task and a cross-party task, and it has taken place under different Governments, but at every stage I have been reminded that, if Parliament did not have an unchallenged monopoly in the manufacture of regulation, our customers would cheerfully take their business elsewhere because, frankly, the quality of our product is pretty variable. A succession of investigations and reports carried out internally, and by very professional external observers such as the Hansard Society, have come up with two perpetual areas for criticism and need for reform.
First, the interface between the scrutiny work of the two Houses has been rightly identified as at best disjointed and at worst counterproductive, and Ministers in successive Administrations have been able to divide and rule. Amendments 237 and 237A address this very important issue. They draw on the analysis of the Delegated Powers and Regulatory Reform Committee, and the principal architecture for the improved, co-ordinated sifting system, which is set out in Amendment 237, is signed by the noble Lord, Lord Blencathra, who was here earlier this afternoon and is chairman of that committee.
The second weakness in the present system is even more profound. In essence, Parliament—both Houses individually and together—is faced at present with a dangerous false choice: either to accept an obviously inadequate addition to the law of the land, perhaps with a devastating impact on individuals or interests, or, as my noble friend Lord Sharkey said, to take the nuclear option and reject an SI outright. I remind those who claim that the latter option is “unconstitutional” that the Joint Committee on the conventions of the British Parliament, on which I served, reported as follows in 2006. Recommendation 15 read:
“Neither House of Parliament regularly rejects secondary legislation, but in exceptional circumstances it may be appropriate for either House to do so”.
That recommendation was endorsed unanimously by both Houses.
At the time of that committee and its assessment of the conventions that apply to the two Houses of our Parliament, I was very struck by the evidence given by the Conservative Party—indeed, by the noble Lord, Lord Strathclyde, to whom reference has already been made. He said:
“The fundamental view of the Conservative Party is that the executive in the UK has become too strong and Parliament is too weak. We wish to see both Houses strengthened. We do not believe strengthening of scrutiny in either House would be to the detriment of the other House”.
Of course, it was the Leader of the Opposition in your Lordships’ House speaking at that time rather than a government representative.
Ingenious attempts to get round this false dichotomy have led us to all sorts of mealy-mouthed Motions. However powerfully advocated or well supported in the Division Lobbies, regret Motions, for example, can be conveniently ignored by Ministers, even in a minority Government. As my noble friend Lord Sharkey said, the most persuasive case for a “middle way” was argued, perhaps rather unexpectedly, in the report of the noble Lord, Lord Strathclyde, produced for the Government in 2015. As my noble friend has referred to it and it is just past midnight, I do not think that I need make further reference to it, but I recommend to Members, particularly on the other side of the Committee, the logic that the noble Lord, Lord Strathclyde, used in arguing for the middle way that we are now promoting.
It is absurd that, unable to express an intelligent, practical and positive view as to how an SI could be improved, both Houses continue to face this destructive dilemma. Amendment 239A, devised by my noble friend Lord Sharkey and supported by the noble Lords, Lord Lisvane and Lord Norton of Louth, and the noble Baroness, Lady Jay, rides to the rescue, as has already been explained. The reconsideration procedure is carefully crafted to achieve all that the Strathclyde report seemed to be searching for.
I believe that the adoption of this amendment, for this Bill, for all other EU Bills and as a precedent for all future secondary legislation, would be a hugely beneficial step forward. Popular with MPs and Peers alike, in time I suspect that it would soon be seen as a major improvement in our working mechanisms by Ministers and civil servants themselves. While not abolishing our established right in the Lords to reject an SI outright, I doubt that that would happen any more often than it has in recent years. However, the major advance would be that the regret, the delay and the complicated conditional Motions would surely become almost completely redundant. Instead, the reconsideration option set out in this amendment would be far more effective and would improve the eventual legislative product. Perhaps we should refer to it in future as the Strathclyde solution.
Meanwhile, whether or not Brexit actually happens, here is a golden opportunity in a previously unbalanced area of lawmaking for this House to enable the British Parliament to take back control.
Lord Adonis
My Lords, we can already see this evening what will be the Government’s formula to get these statutory instruments through: they will produce them at 12 minutes past midnight, put forward the noble Baroness, Lady Goldie, to propose them, and then they will go through on the nod with nobody daring to protest and us all thinking that it was the best possible thing that could happen.
The real danger facing us is not the procedure; I think we can get too hung up on that. In particular, I do not agree with the noble Lord, Lord Sharkey, when he said that there was great constitutional tension caused by the rejection of the tax credits orders. The crucial thing to remember about that rejection is that the Government accepted it immediately—they did not seek to reverse the rejection in the Commons because they knew that they did not have the majority for it in the Commons. It was a legitimate use of your Lordships’ role, which is to require the House of Commons to think again. What in fact happened, under the smokescreen of the Strathclyde report, was that the Government were forced to think again, they did not have a majority and they backed down.
The real issue with these regulations, which no one has an answer to because we are in such unprecedented circumstances, is not the precise procedure—although it is better to have an affirmative procedure than a negative one for issues of consequence—but the volume of orders that will hit us. It is going to be colossal, given the scale of law that has to be transposed and the amount of consequential legislation that is going to follow in the process of transposing it. Nothing that I have heard in our consideration so far gives me any reassurance at all that we are going to be able to cope with the sheer volume of it—unless the noble Lord, Lord Taylor, with his great skill in these matters, manages to ensure that all these orders come before the House between midnight and 4 am, when they will be proposed by the noble Baroness, Lady Goldie, and will all go through without us really realising what has happened, under a kind of parliamentary anaesthetic, which she does such a good job of imposing on us all.
Lord Norton of Louth (Con)
My Lords, I support the amendments that have already been spoken to most eloquently by the noble Lords, Lord Lisvane and Lord Sharkey. I have added my name to Amendments 237A and 239A. The only reason my name does not appear on Amendment 237 is that others got there before me. I will keep my comments brief as I am conscious of the time and I do not wish to repeat points that have already been made by noble Lords, although I appreciate that that did not stop quite a lot of noble Lords earlier in our proceedings.
I serve on the Constitution Committee of your Lordships’ House, and to some extent these amendments cohere and flow from what we put in our report. I remind the Committee of what we said in paragraphs 227 and 228:
“The Bill does not give the sifting committee(s) power to strengthen the parliamentary control of an instrument, only to recommend that it be strengthened. We recommend that committee(s) should be empowered to decide the appropriate scrutiny procedure for an instrument, subject to the view of the House, in order to provide the necessary degree of parliamentary oversight”.
The report continues:
“In our view, the Bill as drafted proposes scrutiny measures that are inadequate to meet the unique challenge of considering the secondary legislation that the Government will introduce once the Bill is passed”.
The amendments that have been put forward meet the balance that is necessary in order to deal with the volume that will be coming to us but in a way that strengthens the House in relation to the Executive. They achieve some degree of the recalibration that is necessary in the Bill.
I have considerable sympathy for Amendment 238, tabled by my noble friend Lord Hodgson of Astley Abbotts, but the amendments that have been moved strike the right balance and I hope that the Government will look favourably on them because, if they do not, we may have to move more in the direction of the amendment proposed by my noble friend Lord Hodgson.
Baroness Smith of Basildon (Lab)
My Lords, I confess that when I first came to your Lordships’ House I never imagined that I would be speaking at 12:15 am on the exciting subject of statutory instruments. That is partly because this House has always taken a greater interest in statutory instruments than the other place.
Looking at the amendments before us this evening, it seems to me that what we are all trying to do is grasp the problem mentioned by my noble friend Lord Adonis. He hit the nail on the head when he said that it is the volume and scale of the statutory instruments that will come before Parliament and how we can deal with them, understanding and recognising the Government’s commitment that EU law should be transposed into UK law while at the same time ensuring the accuracy of those statutory instruments—so many issues, so little time. It is finding the balance that meets the objectives of the legislation without creating serious problems that the lack of scrutiny will bring. The accuracy of these SIs and orders is vitally important.
We started this debate last week when the noble Baroness, Lady Goldie, responded about publishing the draft instruments. I have brought forward two issues time and again. First, we need the resources to do this job properly and, secondly, we need wider consultation on draft amendments prior to them being laid before your Lordships’ House or the other place. When we had the debate last week, the noble Baroness said that it was not possible, and I am still struggling to understand. I hope at some point that things will become clear because her point was that to publish all SIs in a draft form,
“could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues”,—[Official Report, 12/3/18; col. 1467.]
in negotiations. I struggle to understand how discussing a statutory instrument can possibly impact on negotiations, given the Government’s commitment to bringing all issues into UK law. That aside, the crucial issue is the volume.
I hope that the Leader of the House will say something today about how the Procedure Committee has already looked at this. We are taking things slightly out of sync but it is helpful to the House. I am grateful to her for discussions that we have had in the Procedure Committee and through the usual channels about how we can best give effect to what is currently in the Bill. I hope that she will say something today about how that will be addressed when appropriate to do so. I am grateful to her for suggesting that. We are trying to look at the fine-tuning of that process and make sure that we get it right.
On the specific amendments, I thought that the noble Lord, Lord Lisvane, did a fine job of trying to bring order and I am grateful to him for that. It would be helpful if it were not the subjective decisions of Ministers alone. The involvement of Parliament would be greatly welcomed.
I am surprised that some noble Lords on the Liberal Democrat Benches invoked the Strathclyde report. If noble Lords recall, I take the view, as I think does the majority of this House, that when we declined to accept the tax credits amendment and suggested transitional measures to the Government, it was not a rejection of that SI but an opportunity for the Government to reconsider and think again, which the Government gratefully took and accepted. The Strathclyde report was then a response to that, but it also tried to clip the wings of your Lordships’ House in how we deal with SIs, so I am not sure that I would rely on the Strathclyde report as a good way forward.
I understand what noble Lords are seeking in Amendment 237A, and the noble Lord, Lord Lisvane, has tried to bring some order to that because of course we cannot send something back to the other place if it was not sent to us from the House of Commons. I would be interested in the Government’s response to that.
Lord Sharkey
Perhaps I can help on the point about whether the Commons can reconsider something that it has not actually considered. I hate to have to refer to the Strathclyde report again, given what has been said, but there is a suggestion in the report of exactly how that is taken account of. The two committees could easily agree a sequence for consideration so that it was already possible for the Commons to reconsider something. We simply have to introduce a slight delay to make that happen.
Baroness Smith of Basildon
I understand the point the noble Lord makes, but if we remember the reasons it was brought forward, this is not the process we have at present.
The other point about stating the reasons, as set out in Amendment 239B, for why an SI is urgent is very helpful in this regard. All of these amendments are trying to bring some order to the process which at the moment seems to be complicated and difficult and raises concerns about accuracy.
I hope that the noble Baroness can respond positively to these amendments. I will not go into further detail because that has been provided by the noble Lords who have spoken to these amendments, but this is a serious issue and I suspect that if we do not receive an appropriate response from the Minister, we will return to it as the Bill proceeds.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, before responding to these amendments in turn, I should like to take this opportunity to expand on the remarks I made at Second Reading. As I said then, I wanted to find a way to build any new sifting procedure into the existing scrutiny structures which this House has developed so successfully over the years. On 5 March, as the noble Baroness has said, the Procedure Committee agreed to my proposal to incorporate the same powers as those of the new Commons sifting committee into the terms of reference of the Secondary Legislation Scrutiny Committee as well as conferring the power to appoint sub-committees. This will allow the sub-committees to recommend within 10 sitting days that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure.
As the House will expect, the SLSC’s existing role in scrutinising the merits of all instruments will continue as before, with the sub-committees fulfilling this function alongside their new sifting role in relation to the SIs flowing from this Bill. The main committee will have responsibility for determining the allocation of policy areas between the two sub-committees as well as maintaining oversight of the scrutiny process in general terms. If it wishes to do so, this will allow it to meet as a whole to conduct its own inquiries into the overall management of secondary legislation, as it has done in the past. The 10-day period for allowing the sifting committee to make a recommendation was originally suggested by the Delegated Powers and Regulatory Reform Committee of this House and was endorsed by the Procedure Committee in the Commons. The Government are content to agree to this timeframe, and that is why the sub-committee will have the power to report directly to the House, to award it greater agility in conducting its sifting role without unrealistic constraints on the time to report.
The agreement reached regarding the SLSC’s new role is, I believe, an example of the House coming together on a constructive basis to strengthen our important scrutiny role, and I am grateful to other members of the Procedure Committee, including the noble Baroness, Lady Smith, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope of Craighead, for their support in reaching this decision. I am also grateful to the chairman of the SLSC, my noble friend Lord Trefgarne, his clerk and advisers for their constructive engagement in the development of this proposal. I am pleased to confirm that the SLSC will receive additional resources both in terms of expert advice and additional members, including the ability to form two sub-committees, in order to fulfil its new sifting role. I know that noble Lords on all sides will want to ensure that the new arrangements are a success. The House will be invited to agree the proposed arrangement when the Procedure Committee presents its report. That is expected to be when the passage of this Bill is nearing completion, as of course the report may have to reflect any relevant changes to the Bill that are agreed by both Houses.
In the meantime, and as the Bill progresses, I am clear that both Houses must be treated equally regarding the proposed sifting arrangements under the Bill. In this respect, the Bill, as introduced to this House, only makes reference to the House of Commons in the relevant paragraphs of Schedule 7. The Government will therefore introduce amendments to incorporate equivalent references to the House of Lords where appropriate.
I hope I have explained to noble Lords the new proposed arrangement, so I will now turn to Amendment 237, tabled by the noble Lords, Lord Tyler and Lord Lisvane. Noble Lords will know that the sifting committees, as currently provided for in the Bill, cover only the main powers in the Bill, rather than any consequential and transitional provisions made under Clause 17 where the negative procedure is stipulated. Making such consequential provisions through SIs is already a standard approach in legislation—even in significant constitutional legislation, such as the Constitutional Reform and Governance Act 2010, the Scotland and Northern Ireland Acts and the Government of Wales Acts. We have already published a draft example of consequential provision that we will need to make under the Bill—the European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018—but we intend to publish further such examples before Report. I hope these will reassure noble Lords that the negative procedure is being used appropriately. In relation to the comments of the noble Baroness about draft SIs, we intend to publish them where possible and appropriate. As I have mentioned—I will mention a few more—we have already published some illustrative drafts and will continue to do so to support the debate in this House.
The proposed powers of the SLSC, as the Bill stands, will not allow it to make the sort of binding decision proposed by noble Lords. We believe that this is consistent with how this House’s committees conduct their scrutiny work in other areas. Ultimately, it is up to both Houses to decide whether a Government are using appropriately the delegated powers Parliament has given them when they come to consider an SI. It is right for this House to consider these instruments in the light of the expert advice of its committees, but we do not believe that it would be right for those committees to make binding decisions about the use of delegated powers independent of the whole House. The amendment, as proposed, would also see the Government bound by a decision of the sifting committee of one House, even when the other disagrees, and only the recommending House would be able to reject the recommendation. Currently, no mechanism for the resolution of such disagreement is provided in the amendment.
The noble Lord, Lord Lisvane, mentioned the Legislative and Regulatory Reform Act, the Public Bodies Act and the Localism Act. All of those Acts combine a sifting mechanism with the form of the super-affirmative procedure. We do not believe that the super-affirmative procedures are suitable for the instruments to come, particularly given that they can take up to six months, but as I hope I have set out, we have taken steps to create a sifting process in the Bill.
I understand noble Lords’ concerns that, as Ministers are not bound to accept the committee’s recommendations, they may choose to exercise discretion; however, if both sifting committees were to reach the same—well-considered, no doubt—and persuasive recommendation, I assure your Lordships that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would of course need to be carefully considered on its merits. On the occasions—hopefully, very rare—when the Government did not agree to a recommendation to use the affirmative procedure, we would expect to justify fully our reasons to the committee concerned.
Furthermore, when the House chooses to delegate a scrutiny role to its committees—as is the case in other important policy areas—it is important for it to have confidence in the committee’s expertise and judgment to make a persuasive recommendation for the House to consider. I fear that making the committee’s recommendation binding, then building in an explicit provision to allow the House to reject such a decision, as the amendment seeks to do, could undermine the well-established confidence that the House has in its committee structure.
The amendment would also—unnecessarily, in my view—increase the sifting period from 10 to 15 days. As noble Lords have already said, we expect time to be in short supply as we prepare to exit the EU. As I have already stated, the changes to the SLSC’s powers, agreed to by the Procedure Committee, will seek to maximise the sub-committee’s ability to conduct its important scrutiny work within that 10-day period.
Lord Beith (LD)
The situation that the noble Baroness described, in which the sifting committee has made a recommendation that the Government have rejected, is surely not one in which the confidence in the committee will be undermined. It is for the Government then to see whether they can persuade the House as a whole that the committee’s recommendation is unnecessary or undesirable. That is the scenario, not the one that she presented.
Baroness Evans of Bowes Park
I did say that it would indeed be for the Government to justify their position in that situation, although I also hope that I have made it clear that where both committees agree and both Houses put forward—I have no doubt—strongly argued reasons for a change in the procedure to be used, our expectation is that the Government would accept such a recommendation. The noble Lord is absolutely right: it would be for the Government to have to justify their position if that is not the case.
Moving on to Amendment 237A in the name of the noble Lord, Lord Sharkey, I believe that, despite its well-intentioned deference to this House, it is unnecessary. If either House were to feel especially strongly that a particular instrument should use the affirmative procedure, they could choose to table a Motion to that effect and make a recommendation to the Minister regardless. As with the sifting committees’ recommendations, I am sure that the Government would respond to such a resolution with the weight it deserved.
For similar reasons, I believe that Amendment 239A in the names of the noble Lords, Lord Sharkey and Lord Lisvane, is also unnecessary. The Bill adheres to the House’s established procedures for the scrutiny of statutory instruments and the proposed change would mark a significant departure from the standard SI procedure. The noble Lord, Lord Sharkey, and indeed the noble Lord, Lord Tyler, pointed out the similarity of the system proposed in the amendment to that proposed for all SIs by my noble friend Lord Strathclyde. We believe that making such a change would represent a significant change to the balance of the relationship on SIs between the two Houses.
We also feel this would be insufficiently sensitive about the time constraints that I have already articulated. As noble Lords know, the task at hand of correcting the statute book must largely be completed before exit day. The majority of SIs that will be made to address deficiencies and make corrections, barring potentially some relating to provisions which have no practical application and can be addressed in the period after exit day, must be passed and ready to come into force on exit day to ensure the continuity of the UK’s legal system.
The Government therefore expect to be laying and ensuring a steady flow of statutory instruments before Parliament for scrutiny by this House from when the Bill receives Royal Assent until shortly before exit day. As noble Lords have rightly alluded to, we estimate that between 800 and 1,000 SIs will be introduced during that period relating to our exit from the EU. As I explained in my evidence to the Constitution Committee in December, and, indeed, as my noble friend Lady Goldie outlined in the last debate, the Parliamentary Business and Legislation Committee is now overseeing secondary legislation in much the same way as it manages primary legislation. This is partly because we want to improve the quality of SIs—indeed, the noble Baronesses highlighted the importance of that—but we also want to ensure that the flow of SIs is steady, rather than in peaks and troughs, to allow Parliament to do its job more effectively by allowing adequate time for scrutiny.
I can reassure noble Lords that we absolutely understand what is coming before us. We as a Government are making every effort to ensure we are working effectively to try to make sure this House and the other place have the time to deal with the SIs that will come before us effectively. I will continue to work with my parliamentary colleagues to make sure we do our very best on this.
Finally, I turn to Amendment 239B from the noble Lord, Lord Sharkey, which seeks to require the Minister to make a statement of the grounds for urgency in the case of urgent SIs made under the “made affirmative” procedure. “Urgent” is a term without definition in the Bill, but I hope that the requirement for each “urgent” SI to contain a declaration of urgency in the body of the instrument will reassure noble Lords on that point. The Government have already promised that Explanatory Memoranda will contain an explanation by the Minister as to why they considered the SI to merit the urgent procedure. Nevertheless, I promise that the Government will consider this issue further before Report to see whether we can provide further assurances to your Lordships on it.
I hope my response to these amendments demonstrates that the Government continue to take this House’s scrutiny role seriously and that we do not consider it—
Lord Sharkey
On the urgent procedures, why in the Taxation (Cross-border Trade) Bill is there a 60-day period, whereas for SIs generated urgently by this Bill there is a 28-day period? The Minister has talked about the necessity for speed. I do not understand why one Bill has 60 days and the other has 28.
Baroness Evans of Bowes Park
The procedure, including in EU exit-related legislation such as the customs Bill, must reflect the specificities of the Act. Where certainty and the nature of tax legislation require provisions to come into force rapidly, it is important that there is time to arrange for debate and scrutiny, so there will be different timings relating to different legislation. I am happy to seek further information and write to the noble Lord if that would be helpful.
I hope that I have managed to allay some of your Lordships’ concerns and that I have explained the process that we are setting out. I hope, too, that noble Lords will understand that we are taking this matter seriously. We will obviously reflect on the debate; there are a couple of issues in particular that I have said we will take back, but I hope that, at this point, noble Lords will feel able to withdraw their amendments.
Lord Sharkey
Yes, I feel able to withdraw my amendment, but want to make one comment before I do so. The Minister has pointed out that the proposal for a reconsideration period marks a major change. She is quite right about that, because the circumstances seem to require exactly that change. I think that we will come to discuss this matter again, but, in the meantime, I beg leave to withdraw the amendment.
Lord Lisvane
My Lords, I am extremely grateful to the Leader of the House for setting out in such detail what is proposed in terms of sifting and scrutiny. They are often combined as a single concept, but sifting as to importance, and so the procedure to be attached, is a rather separate concept from the scrutiny of what results. I am sure that noble Lords will want to study with considerable care the amount of detail—which we are very grateful for—that the noble Baroness has given us.
She saw Amendment 237 as being difficult to work because of the time involved, but the amendment is not linked to super-affirmatives and it is possible to craft something—it may well be between now and Report—which deals with one House dictating to the other in terms of the highest common factor that I referred to earlier and of the time limits involved; the noble Lord, Lord Sharkey, made a very good point about the distinction between 28 days and 60 days. If we are already talking in those terms, those are in parliamentary time quite extensive periods.
I did not really understand the logic of the argument that if the House rejects a committee’s view this is in some way to downgrade or demean the committee—here, I endorse what was said by the noble Lord, Lord Beith. Committees are subordinate to the House which appoints them. Any House can take a view on what a committee says to it. That seems a perfectly ordinary parliamentary relationship. Rather less acceptable—although I appreciate the lengths to which the noble Baroness went to set our fears at rest—is that Ministers will still be able to choose which procedure applies to which instrument. When under Clauses 7, 8 and 9 that includes the use of Henry VIII powers which may be subject to negative procedure, that will remain concerning. These are matters that I think noble Lords will wish to reflect on between now and Report. The application of creativity and inventiveness may take us some way along the road to agreement, but somewhere—it is an overused phrase in the current Brexit situation—a red line will need to be identified. In that spirit, I beg leave to withdraw the amendment.
“Parliamentary committees to sift regulations made under section 7, 8 or 9 and the super-affirmative procedure
3A_(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument to which paragraph 1(1), 6(1), or 7(1) applies, and(b) is of the opinion that the instrument should be subject to approval by resolution of each House of Parliament (“the affirmative procedure”). (2) Before laying a draft of the instrument, the Minister must lay before both Houses of Parliament a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the affirmative procedure.(3) The affirmative procedure applies unless, within the relevant period, either House of Parliament requires the super-affirmative procedure to apply, in which case the super-affirmative procedure applies.(4) A House of Parliament is taken to have required the super-affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the memorandum was laid before the House, that the super-affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made.(5) For the purposes of this paragraph—(a) where an instrument is subject to the super-affirmative procedure, it may not be made unless the procedures set out in paragraph 3B have been followed,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid before Parliament) does not apply in relation to any statutory instrument to which this paragraph applies.”
Lord Hodgson of Astley Abbotts (Con)
My Lords, this is the graveyard shift, but graveyard shift or not I shall speak also to Amendment 239. It is my first contribution in Committee on this Bill and when one finds one’s amendment sandwiched between ones being moved by such luminaries as the noble Lord, Lord Lisvane, and my noble friends Lord Norton of Louth and Lord Lexden, one needs to proceed with a certain degree of care. In these amendments I return to an issue I raised at Second Reading; namely, the weaknesses of the procedures for scrutinising secondary legislation, which the noble Lord, Lord Tyler, talked a great deal about very fluently in his contribution a few minutes ago. In my view, in the very special circumstances that prevail with respect to this country’s departure from the European Union, I was concerned that, maybe inadvertently, there could be what is vulgarly called a power grab by the Executive during this process of redrawing our relationship with the EU and refocusing our legal and regulatory structure on a UK-centric basis.
In part, these amendments may serve to address some of the issues, and concerns raised in earlier debates; notably by my noble friend Lady Neville-Rolfe in Amendments 249 to 251, which we were debating in the early hours of last Tuesday morning. As I say, my fundamental concern remains the weakness of our procedures for scrutinising secondary legislation. The noble Lord, Lord Sharkey, referred to what he graphically called the nuclear option, which is really the only option open to us. Not surprisingly, while Members of your Lordships’ House will finger the nuclear button—sometimes even lovingly finger the nuclear button—they have proved rather reluctant to press it. I am not a lawyer, nor am I an expert on parliamentary procedure, so I need to place on record my great thanks to the Public Bill Office of your Lordships’ House for helping me give legal form to my practical objections. Therefore I do not pretend that Amendments 238 and 239 are perfect: they are of course at this stage probing amendments, not least because I expected that my noble friend the Leader of the House would have some words to say today about the evolving position of the scrutiny of Brexit secondary legislation.
None the less, the purpose behind my amendments is to give the Committee a chance to discuss a possible new procedure that might be described as a sub-nuclear option; a new super-affirmative procedure to be available for use where particularly significant statutory instruments are being discussed. In establishing this new procedure I have sought to achieve a balance between, on the one hand, the need of the Government to have a reasonable chance of getting their business through—as we have heard in earlier debates tonight, it would surely be irresponsible for us not to have the proper legal practice in place on D-day, therefore the Government need some protection against capricious behaviour—and on the other hand, to give either or both Houses of Parliament the means to require the Executive to think again, and to do so over a timescale that allows public and other opinion to be aroused, discerned and tested, thereby reducing the possibilities of mission creep.
Finally, the think-again option should be limited to regulations concerning this country’s withdrawal from the European Union, so it has an in-built sunset clause. My thinking has been informed, to some extent, by the time I served as a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House. So, with that, to horse!
Lord Beith
My Lords, the amendments in this group all seek to address a long-standing problem with statutory instruments: that for the most part, they are incapable of amendment. That is not absolutely always so because, many years ago in the other place, I moved an amendment to a statutory instrument arising from the Census Act but few bits of primary legislation allow one to do that. This is not an occasion on which those of us who have long been concerned about that are trying to use this legislation to improve a long-standing defect. It is peculiarly relevant to what we are considering because major matters will be dealt with by way of statutory instrument—a theme throughout the debates in recent days—and they may well include things which ought to be susceptible to amendment, such as details about the creation of public bodies, their powers and remit. To take one example, and there will be others, there are the ways in which new bodies can be held to account when they are created to replace European bodies.
We would be left in a situation where it would be said in the House of Commons, “Take it or leave it—this is the only statutory instrument you’re going to get and we clearly need to address this issue, therefore you must accept it in this form”. I am afraid that in this House, it would be, “Take it or face unspecified constitutional consequences”. Either we agreed to the statutory instrument in its present form or did something we should really not be doing at all, according to members of the Executive. That is an absurd position to put this House in, when what would be at issue would be some fundamental defect in the way the statutory instrument sought to transpose existing European processes into the British domestic statute book. The Government have to address the plea that all these amendments raise: to have some way to do something which falls short of wanting to reject a statutory instrument but insists that if it is to go through, it must be amended in some way.
Baroness McIntosh of Pickering
My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.
My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:
“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.
In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.
While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.
Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.
I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.
Lord Wigley
My Lords, I am delighted to support Amendment 247 in the name of the noble Baroness, Lady McIntosh, to which my name is attached. This is a pragmatic amendment, intended to make the provisions of the Bill more workable. As such, it should be acceptable to noble Lords on both sides of the Brexit argument, and perhaps even to the Government. Given that so much legislation is moving over to being enacted by statutory instrument, the case for looking into the ways of making instruments amendable now becomes an urgent challenge and will become increasingly so as the Bill goes forward.
As the noble Baroness, Lady McIntosh, spelled out the detail of the amendment, including very helpfully the precedents, perhaps I could just give an example of where the power to amend SIs would be useful. Take, for example, Clause 7(6)(b), which enables Ministers to establish new public bodies to undertake functions now carried out by the EU. The provision of such a power by order would require the relevant SI to specify precise details for the workings of the new body, such as its objectives, duties, powers, members, resources and accountability. Parliament might be happy for such a new body to be established but might want to change some of those details, which it could not do under our current procedures and which could only be triggered by rejecting the SI in its entirety, thereby subjecting the process to potentially long delays—exactly what the Government want to try to avoid. Having a process to allow amendment would be swifter and provide more acceptable legislation.
These powers would be used in exceptional circumstances, and it is not proposed that they should cover other Brexit legislation—although a strong argument could be made along those lines. But given the ominously growing use of unamendable orders to force legislative change through Parliament, there is a case for undertaking a far more rigorous review of the statutory instrument system. Since this facility could save time, which may be of the essence in regard to Brexit legislation, I would have thought that Amendment 247 should appeal to both sides, to Brexiters and remainers alike. I commend it to the Committee.
Viscount Hailsham
My Lords, I shall speak to Amendment 248 in my name. Because of the lateness of the hour I will speak briefly, but throughout these debates the Committee has repeatedly expressed concern about the scope and nature of the SI procedure. Time and again, noble Lords in Committee have said, “This is not amendable. We cannot change what is proposed. This is government by fiat and declaration”. The noble Lord, Lord Beith, and I spent many years in the House of Commons, where we lamented the fact that statutory instruments could not be amended. It is a great defect in our constitutional process. Statutory instruments are a form of legislation; in fact, they are a form of legislation by fiat or declaration—and that is an extraordinary thing in a parliamentary democracy.
The amendments that I have tabled have just two objectives: one is to assert the primacy of the House of Commons, which must have primacy in these matters, and the other is to say that legislation should be amendable. As two propositions, they are wholly unobjectionable. What are the objections, if there be any? Actually, they are the objections of the Executive throughout the centuries: it makes life for the Government rather more difficult. As a parliamentarian, I am bound to say that I do not find that a very impressive argument.
Baroness Goldie
My Lords, I have to say that I have been called many things in my life, but the appellation by the noble Lord, Lord Adonis, of a “parliamentary anaesthetic” is a first. As we approach the last contribution from the Government on today’s business, though, maybe a metaphorical sleeping draught is appropriate as noble Lords contemplate their slumbers.
As I have stressed, the Government are committed to full and proper scrutiny of the statutory instruments that will come under the Bill. The sifting process seeks to provide transparency where there has been ministerial discretion in choosing the procedure that will apply to an instrument, and it is therefore extended to the main powers under the Bill. All instruments under the Bill will be subject to an appropriate level of parliamentary scrutiny. We have also provided for additional explanatory material to ensure that there is a proper level of transparency for all the instruments and that Parliament is fully informed and can properly sift and scrutinise all the secondary legislation that is to come. If noble Lords do not approve of their contents—and sometimes that happens—the proper way to express that is to oppose the instruments and ask the Government to come back with an alternative proposal.
Nothing in the Bill is intended to be an alteration to the long-established and, in this House, well-functioning procedures for the scrutiny of secondary legislation. The Government understand the concerns around the powers in Clause 17, and I have listened closely to what your Lordships have been saying. We will consider how we might be able to provide reassurance and address concerns when we reach that clause, as we shall imminently do.
The amendments in this group raise similar issues to those in earlier groups, but I shall address—in, I hope, sufficient detail—my noble friend Lord Hodgson’s Amendments 238 and 239 concerning the creation of a new super-affirmative procedure for the scrutiny of statutory instruments under the Bill.
I cannot shy away from the fact that a significant number of statutory instruments will come before us under the Bill. I reassure your Lordships once more that a very significant element of what needs to be done will be strictly technical, making de minimis changes such as the adjustment of reference to EU law or to retained EU law. Procedures such as that suggested by my noble friend, which were described as “turbocharged” procedures, are simply disproportionate to these changes, and a procedure of the kind mooted by my noble friend is simply unnecessary. The powers in the Bill can be used only for limited purposes and are themselves subject to a number of restrictions.
For the types of major policy change that a number of your Lordships appear to be concerned that the Government might seek to make under the Bill, we do not shy away from parliamentary scrutiny. The proper means for scrutiny of such changes is primary legislation—rather than seeking to design, at pace, a new, bespoke super-affirmative process.
I know that some of your Lordships are wary of relying on assurances from the Dispatch Box but, in this case, we have acted on those assurances already, as can be seen through the passage of the Nuclear Safeguards Bill and the sanctions Bill. I understand noble Lords’ wish to ensure that Parliament can give the SIs to come consideration which is akin or similar to the consideration given to primary legislation, but I suggest that there must be some delineation—there always has been—between things that merit such full consideration and those that do not. Frankly, the alternative is legislative logjam: a complete constipation of the process.
For each of those categories, the Government wish to use the well-established procedures that Parliament has already set down. I have to say that all precedent suggests that procedures such as those suggested by my noble friend can take six months to a year or even longer. Quite simply, in the context of what we are engaged in, we do not have that time. Adopting a super-affirmative procedure would therefore prevent us from being able to deliver on a key objective of the Bill: making timeous and necessary change to maximise certainty for businesses and individuals by ensuring continuity through a functioning statute book in time for exit. In my opinion, that would be a grave failing.
My noble friend Lord Hailsham’s amendment, Amendment 248, crosses similar ground to Amendment 247 in the name of my noble friend Lady McIntosh. They bring us to a discussion of some of the fundamental assumptions of the debates we are having today, have had on previous days and shall have in regard to other Bills, about secondary legislation. I understand the concern of my noble friends, echoed no doubt by others in the Committee, that this is a framework Bill and that the detail, wherein the devil always lies, will be available only in secondary legislation, with which we can only declare ourselves content or not content. However, I must make it clear that the Government cannot support these amendments as a solution to this problem.
It is by the processes involved in passing primary legislation that the House can amend law as it passes before Parliament. That process involves long and detailed scrutiny and debate, with the Government given an opportunity to explain their case in great detail and others given an opportunity to challenge and test that over multiple stages and in both Houses in sequence.
Lord Beith
I should like the Minister to envisage that she is responding on behalf of the Government to a debate on a statutory instrument which the House in general is saying that we need to have but which has a fundamental flaw that has been identified by many noble Lords. At that point, is she really going to say to the House, “The proper course for you to take is to reject this instrument, and then I will be forced to take it away and come back with a corrected instrument”? Or will she say, “We’ve no time for that now, you will just have to accept it as it is”?
Baroness Goldie
That would of course entirely depend on the circumstances of the instrument, the extent of the change being effected by the instrument and what was an appropriate response to the concerns being raised. I am certain that the Government would respond in a sensible manner if that situation were to arise.
I repeat that it is for primary legislation to set a policy direction and establish the framework in which government may operate. Secondary legislation has a different place in our legal framework. The Hansard Society, which many in the House will accept as an expert source in this area, has said that the power to amend SIs would be,
“essentially undermining the principle of delegation”.
If wider review of the legislative process is proposed—as a number of noble Lords would like—this Bill is not the place to do it. I note the recommendation of the Constitution Committee, in its report The Process of Constitutional Change, that substantial constitutional change should be clear when a Bill is introduced. This Bill is substantial in its repeal of the ECA, but that was clear even before the Bill was introduced and I do not think a change of this type would be appropriate for a Bill which has already completed its passage through the other place.
In the other place, my right honourable friend Dominic Grieve proposed a triage mechanism and both he and the Government accepted the sifting mechanism proposed by its Procedure Committee. This will increase the transparency surrounding secondary legislation, but will not change its nature. Secondary legislation can be scrutinised and debated and, indeed, can be of great importance. However, its purpose is to fill in the spaces where Parliament has set a course under primary legislation and empowered the Government to provide for the details in subordinate instruments. As has already been said, if Parliament is not content with an SI, it can be rejected and the Government can consider and return with another. To open statutory instruments to amendment would essentially be to create a new kind of legislation, without the scrutiny afforded to primary legislation but, at the same time, conferring on the new kind one of the essential qualities of primary legislation.
Baroness McIntosh of Pickering
If the Government are not minded to accept an amendment to statutory instruments under these circumstances, where there is a substantive policy change, would they be minded to bring back that proposal as an Act of Parliament, so that all the proper scrutiny procedures could be undertaken?
Baroness Goldie
I respond to my noble friend as I did to the noble Lord, Lord Beith. That hypothetical situation would depend entirely upon the practicalities of the situation confronting the Government if and when such a situation arose.
Lord Wigley
A moment ago, the Minister said that we would effectively be according to statutory instruments the role of primary legislation. However, throughout the Bill we are having the amendment of primary legislation by order. In other words, the statutory instrument system is being used—excessively to my mind—in the primary legislative system and we cannot get away from that.
Baroness Goldie
I have tried to make it clear that we are not attempting to equate delegated legislation with primary legislation. I have been trying to clarify when the Government consider primary legislation is appropriate and should be used—for policy change, for example. However, we are in an extraordinary situation, as all noble Lords acknowledge. It is beyond argument that the Government are having to contemplate the transfer of a body of law of huge volume and massive complexity. We owe it to the people and businesses that rely on that law to make a good fist of getting it transferred from A to B by the critical point of exit day.
My noble friend Lady McIntosh mentioned the Civil Contingencies Act 2004, which is one of the very few examples of where statutory instruments made under an Act can be amended by Parliament. The emergency regulations made under that Act are very unusual instruments. The nature of the situation with which they are intended to deal is self-explanatory. It is in a state of emergency and is such that Parliament cannot scrutinise these instruments before they are made. None of the normal scrutiny procedures of this House applies. That is intrinsic to the very unusual approach under that Act, drafted for unusual and extraordinary circumstances. Noble Lords may be interested to note that in the history of the Civil Contingencies Act no Government have ever made any emergency regulations.
We are not proposing in this Bill anything of the sort of action envisaged by the Civil Contingencies Act. I cannot think that allowing amendable SIs is the solution to the concerns expressed by my noble friends. Nor, I repeat, is reform of the legislative process the role of this Bill. It is merely intended to provide continuity and certainty in our statute book.
The amendments would not only fundamentally alter the nature of secondary legislation but imperil the Government’s programme of secondary legislation and Parliament’s opportunity to scrutinise it. If this legislation is subject to continued movement back and forth, we run the risk that crucial provisions are not in place in time to allow businesses and individuals to prepare for exit, and that so many SIs would become bunched at the end of the process that they would not be properly scrutinised. I have endeavoured to deal—I hope—fully with the very important points raised by colleagues in the Chamber, and I hope that my explanation reassures noble Lords and the noble Baroness. I ask that the amendment be withdrawn.
Lord Mackay of Clashfern
I was wondering whether my noble friend had any special comment on proposed new sub-paragraph (4) in Amendment 248, which seems to have nothing much to do with the amendments and seems in conflict with what the noble Lord, Lord Tyler, was saying earlier.
Baroness Goldie
At this time of night my reading qualities are not at their most alert. May I look at that in more detail and revert to my noble and learned friend?
Lord Hodgson of Astley Abbotts
My Lords, I thank my noble friend for her reply. She short-changed herself in only one sense: that was that the noble Lord, Lord Adonis, described her as mellifluous. Never was she more mellifluous than in dealing with the noble Lord, Lord Beith, and my noble friend Lady McIntosh. The hour is late; we have had a long and helpful contribution from my noble friend the Leader of the House which demands careful scrutiny, so all that I would like to do now is to thank all those who participated in this short debate. I beg leave to withdraw the amendment.