European Union (Withdrawal) Bill

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

Committee (8th Day) (Continued)

19:38

Amendment 227

Moved by

[Lord Shipley]

227: After Clause 9, insert the following new Clause—
“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 Cormack (Con)]

Oh, what a pity.

[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.

19:45

[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.

20:00

I entirely concur with the analysis of the situation by the noble Lord, Lord Shipley. I hope the Government will accept and support what he is proposing. I will add a suggestion to revert to policies of a previous Conservative Government in two respects. The first was the establishment of government offices for the regions by the John Major Government and the second an unfortunate decision the other way, because the government offices were eventually abandoned by the coalition. The regional development agencies, which came into existence under the Labour Government, were also abolished by the coalition. Both of these could and should have a significant role in the future that Brexit will inflict on us. I hope the Government, in looking at the situation of the regions, will revitalise both these organisations because they will then be able, roughly speaking, to compare with the devolved Administrations in Scotland, Wales and Northern Ireland, and have access to government in a consultative process by having government representatives located in their regions and able to receive comments and proposals from the area, and to explain government policy to them.

I hope the Government will look favourably on the amendment and recognise that the English regions need to be brought into the arena. The ongoing Government, with or without Brexit, should look to develop a better and more useful relationship across the piece in England, as well as across the UK as a whole. I hope the Government will look seriously at the amendment and the suggestions I have made regarding those two matters.

[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 Wigley (PC)]

Can I help the Minister?

[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 Porter of Spalding]

I think that proves my point.

[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.

20:15

[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.

Amendment 227 withdrawn.

Amendment 227A not moved.

Amendment 227B

Moved by

[Lord Empey]

227B: After Clause 9, insert the following new Clause—
“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”.

20:30

I say to the noble Lord, Lord Empey, that this is a moral issue. If you remove yourself from the opportunity of doing good, that is a moral act—actually, it is an immoral act. You are saying, “I am not prepared to play my part in making the decisions which matter not just to my country but to the world as a whole and that part of the world in which geography, history, culture and religion place me”. I very much hope that my noble friend the Minister will recognise that although this is a probing amendment—and although he will no doubt say that this will all be dealt with in the discussions and of course it would be quite wrong for the Government to say anything about it too definitely—the idea that we are going to do anything else but this is obviously fatuous. If we do not have such an agreement, we will be shooting ourselves not only in one foot, which we are in any case, but in both feet, because we will not be able to play our part, as the noble Lord, Lord Empey, rightly said, in a very important aspect of the development of new technology.

I know that the Minister will say that—and I shall be happy for him to say it because that is what he has been told to say—but I say to him that this is all fatuous because we know perfectly well that the Government have to get a deal of this sort because if they do not, it will seriously damage our economy. But when they get it, it will be a second-rate deal and not as good as what we have. During all these debates, what we should have said, and sometimes have said, is that this is a debate about how Britain does least worst, having made this decision. I shall listen carefully to the tone of what my noble friend says because I just hope that the Government are beginning to understand quite what damage this whole process is doing.

Finally, this is doing terrible damage to the industry. How do you run a business when you do not know whether you will able to run it from Britain after Brexit, particularly after this elongated transition arrangement in which the Government seem to have given way on all the things that Europe has demanded? As a businessman, I run businesses but I do not know how I would run a business in medical matters because I do not know anything. As a businessman, I would say that the Government would be barmy not to do this deal—but of course they have to do it and are negotiating with a very powerful group of people. They therefore might not be able to do the deal.

If I am running a business, I cannot say to my shareholders, “I’m relying on the ability of Mr Davis to negotiate this deal”. I am not sure whether I would have a unanimous vote at the annual general meeting, were I to turn to them and say that was what I was relying on. Trying to run a business is difficult enough anyway in medical matters because these things are constantly being improved and changing. I would be trying to keep up with that and the difficulty of doing so would be extreme. Now I would have a new thing, which is that I might not be able to manufacture or to get recognition in this country. The noble Lord, Lord Empey, pointed to the fact that the British Standards Institution now has an organisation in the Netherlands. No doubt it will be placed next door to Unilever and others which find it no longer possible to see their future in this country.

That is why I talked about patriotism. Sometimes people talk as if we are not the patriotic ones; we are. We are the ones who say, “Britain is better off without all this nonsense”. The Government will say that this is all a matter of negotiation. We know that it is not; it is actually a matter of existence. If we do not negotiate it properly then another industry will not be here. We have also already given up the thing that ought to matter most, which is Britain’s opportunity to make the world a better place to live in.

[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.

20:45

[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.

21:00

I will, if I may, touch upon one issue raised by the noble Lord, Lord Deben. He raised a number of issues, one of which rested on the question of morality. I am always loath to enter a debate of which morality is at the centre, but in this instance it is appropriate: there is a moral question that we need to address here. In truth, it needs to be addressed by both sides in these negotiations. Our question must therefore rest on the morality of both in recognising that we are not simply talking about a constitutional arrangement; we are talking about how to ensure that innovation in medical devices more broadly can be embraced across the continent of Europe, and that the innovations that can originate in the UK or elsewhere are, none the less, available to all.

These are some of the challenges that both sides will face. Moving forward on the basis of the Mansion House speech given by my right honourable friend the Prime Minister in the area of mutual recognition will bear much fruit. Again, I must stress that the outcome will rest with the negotiations, and those negotiations have not yet begun. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

[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.

Amendment 227B withdrawn.

Amendment 227BA

Moved by

[Lord Campbell-Savours]

227BA: After Clause 9, insert the following new Clause—
“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.

21:15

As I said earlier, we were given a national mandate and this Government are determined to deliver on that mandate in the national interest. Any commitment to a second referendum would seriously risk undermining our ongoing negotiation position, as it would encourage the EU to propose the worst possible deal in the hope that we would somehow change our mind.

The Government’s focus now is on making a success of Brexit, working to get the best deal possible and taking decisions on what kind of country the UK will be in the future. The Government are committed to a positive new relationship with the EU and believe that a strong and successful EU, forging forward on its own path, is in the UK’s interest. It is not in either of our interests for the UK to attempt to revoke our Article 50 notification with no goal other than to begin yet another negotiation—one that would have no basis in the treaties. I think that at that stage we might seriously risk trying the patience of our European friends.

Furthermore, although I understand the aims of the terms of renegotiation that the noble Lord has set out in his amendment, they rather call to mind the goals of Prime Minister Cameron’s “renegotiation”, to which he referred. That process demonstrated what was possible within the framework of the treaties and that proposition was part of the Government’s position in the referendum, but we all know what happened—the UK electorate rejected it.

As the Prime Minister has said, we respect our EU friends when they say that the four freedoms are indivisible. That is why we have been clear that remaining in the single market and the customs union is not compatible with the referendum result. The Government have always been clear what the outcome of failing to agree a withdrawal agreement would be. It is not a scenario that anybody, least of all me, relishes, but it is also not one that should come as a surprise.

Finally, on timing, we have made it clear that it is our objective to reach an agreement with the EU by October 2018, as my noble friend Lord Duncan confirmed in the previous debate. It is an objective that is shared by the EU and it is one that we consider we are on course to deliver. As I have said in previous debates, we therefore expect that the vote will take place well before exit day. However, inserting statutory deadlines into this process would serve no purpose other than to weaken our negotiating position. Although an early deal is of course highly desirable, we must balance that with a recognition of the need also to achieve the best possible deal. I am afraid therefore that the Government cannot support this amendment and I hope that the noble Lord will feel able to withdraw it.

[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.

Amendment 227BA withdrawn.

Amendment 227BB

Moved by

[Lord Fox]

227BB: After Clause 9, insert the following new Clause—
“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.

21:30

I shall address some of the other issues raised by the noble Lord, Lord Fox. It is important to stress that the effect of withdrawal on recreational boating will, along with many other matters, depend upon the outcome of the UK’s negotiations, and I am sure that the noble Lord will respect that. In truth, I believe that there is an appetite on both sides of the discussion to ensure that the relationship is workable and I hope that that will be maintained and sustained going forward.

The noble Lord raised some specific issues with regard to the recognition of qualifications, in particular those associated with the Royal Yachting Association. It is important to note that Royal Yachting Association certificates are not covered by the mutual recognition of professional qualifications directive. As a consequence, holders of these certificates need to check the certification requirements of the local port state control administration prior to entering its jurisdiction. I think that that is something we should have been able to do in the past, but we have not been able to address it at this moment.

On the mutual recognition of certain types of goods, that refers specifically to the customs question. I am sure that the noble Lord is aware that that is perhaps the beating heart of much of what is being discussed in your Lordships’ House. I wish that I could give greater solace to the noble Lord in this regard, but unfortunately in this instance many of these issues must await the outcome of the negotiations. However, I stress that he should be aware that the issue of the wider boating question is one which the UK Government take very seriously indeed and we will not lose sight of it as the negotiations unfold. I hope, on the basis of my response, that he will feel able to withdraw his amendment.

[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.

Amendment 227BB withdrawn.

Amendment 227BC not moved.

Amendment 227BD

Moved by

[Lord Warner]

227BD: After Clause 9, insert the following new Clause—
“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.

21:45

This amendment is about public health: protecting and improving the nation’s health and well-being, reducing health inequalities, protecting the public from hazards and dealing with emergencies—I am sure that public health officials in Salisbury will have been hugely busy during the past few weeks. Locally, this may involve delivering smoking cessation services, help with changing diet and lifestyle, advising on suitable housing options for an area and improving air and water quality.

The Committee has already discussed several health-connected amendments. Today, we have had the amendment in the name of the noble Lord, Lord Empey, on the EU’s medical devices regulation—here, I declare an interest: I must be one of few noble Lords who does not have any medical device to help me yet; there will be time for that. There have been amendments on clinical trials, on regulations surrounding pharmaceuticals and over-the-counter medicines, on the future of health services for EU citizens living in the UK and for UK citizens living in the EU, as well as on the EHIC and Euratom. There should be few noble Lords who think that health should not have a part in the Brexit negotiations. On these Benches, there is regret that the Secretary of State for Health and Social Care is not a member of the Cabinet committee for EU exit and trade.

This amendment should unite the whole House; it is a Brexit-neutral amendment. It draws on Article 168 of the Lisbon treaty. For those who cannot call it to mind, I shall quote it:

“A high level of … health protection shall be ensured in the definition and implementation of all … policies and activities”.

This should give remainers a rosy glow. Those who are Brexiteers will be grateful that the amendment puts a marker down: British law for British people.

One could say that a state’s first duty is the defence of its people and its borders. Surely few would disagree that the second is the improvement and maintenance of the health of its population. That is just what this amendment explicitly calls for and should secure.

[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.

22:00

[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 (Lab)]

My Lords—

[Baroness Altmann]

My Lords—

[Baroness Oppenheim-Barnes (Con)]

My Lords—

[Noble Lords]

Order!

22:15

[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 Altmann]

My Lords—

[Baroness Oppenheim-Barnes]

My Lords—

[Noble Lords]

Order!

[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.

[Baroness Altmann]

My Lords—

[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.

22:30

[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.

22:45

[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.

Amendment 227BD withdrawn.

Amendment 227BE

Moved by

[Lord Marlesford]

227BE: After Clause 9, insert the following new Clause—
“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.

Amendment 227BE withdrawn.

Amendments 227BF to 227BH not moved.

23:00

Amendment 227BK (in substitution for Amendment 227BJ)

Moved by

[Lord Broers]

227BK: After Clause 9, insert the following new Clause—
“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?

23:15

[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.

Amendment 227BK withdrawn.

Clause 16: Regulations

Amendment 227C not moved.

Clause 16 agreed.

Amendment 228 not moved.

Schedule 7: Regulations

Amendment 229 not moved.

Amendment 230

Moved by

[Lord Adonis]

230: Schedule 7, page 41, line 40, leave out paragraphs (2) and (3)

[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.

23:30

The Government’s argument is that imposing a new fee or charge in the first place is a matter of policy, whereas a subsequent change is a lesser matter. I have to say that I am not convinced by this. The Government have some form. To take the example of the draft Non-Contentious Probate Fees Order 2017—as your Lordships will shortly discover, “Non-Contentious” here refers to the probate element rather than to the fees element—there was a proposal to raise the fees by 13,000%. That is a vivid example of how a subsequent change in the amount of a fee or charge can be highly contentious. Of course there is a temptation, shall we say, to be a little disingenuous. A new and very modest fee might not frighten the horses, but if such a fee were introduced and a subsequent SI were to raise it dramatically, that would be a completely different matter.

We have already debated the appropriateness—or the inappropriateness, I should say—of taxation by statutory instrument and the question of when cost recovery becomes a tax. I have to say that I did not find the Government’s arguments in that case particularly convincing, especially as this is a regime that could lead to public authorities charging pretty well what they want to charge for their services. The lesser control—the negative procedure—for an increase in a fee or charge is part of that regime, and I find it similarly concerning. So I hope that the Government will come forward on Report with amendments to make such increases subject to the affirmative 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.

23:45

[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.

Amendment 230 withdrawn.

Amendments 231 to 236 not moved.

Amendment 237

Moved by

[Lord Lisvane]

237: Schedule 7, page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert—
“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)

Moved by

[Lord Sharkey]

237A: Schedule 7, in subsection (4)(b), at end insert “, or
(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.

I will now deal very briefly with Amendment 239B. This amendment addresses paragraph 4 of Schedule 7. The paragraph creates special procedures for SIs in cases that the Minister considers urgent. It allows the Minister to lay made affirmative instruments—instruments that become law immediately and before Parliament has considered them. I understand that, as exit day approaches, there may be urgent cases. I note that any SI laid and made under the urgency procedure must be approved in the normal way by both Houses within a month—but I wonder whether the Government are entirely certain about all this. I note that in the Taxation (Cross-border) Trade Bill, the Government have created a new 60-day period during which SIs subject to the made affirmative procedure must be supported by both Houses in order to remain law. Why 60 days there and 28 days in this Bill? Perhaps the Minister could explain that.

Where the Minister invokes the urgency procedure, the Bill says that he or she must make a declaration that the case is urgent. But that is all. What is missing is any requirement for an explanation of why the Minister believes that the case is in fact urgent. Amendment 239B puts this right. It simply obliges the Minister to provide a statement of the grounds for invoking urgency—as is the case, for example, in the LASPO 2012 Act or the remedial order procedure arising from the Human Rights Act.

As many noble Lords have remarked, this Bill awards Ministers and others quite unprecedented powers by way of secondary legislation. These delegated powers represent a fundamental shift in power from Parliament to the Executive. Such a shift requires careful and appropriate constraints. At Second Reading, the noble and learned Lord, Lord Judge, said:

“When we come to look at the Bill, can we please examine whether it gives more powers to the Minister than he or she should ever have and whether we should control the Executive better than we do? If we do not do that now with this Bill, we will never ever recover the opportunity to do so again”.—[Official Report, 31/1/18; col. 1642.]

The amendments in this group are intended to help us find a way of doing both those things.

[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.

00:15

[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.

00:30

[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.

Amendment 237A (to Amendment 237) withdrawn.

[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.

Amendment 237 withdrawn.

Amendment 238

Moved by

[Lord Hodgson of Astley Abbotts]

238: Schedule 7, page 45, line 23, at end insert—
“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!

00:45

These two amendments are designed to provide, for this exercise only and not for general use, a special super-affirmative procedure. I anticipate it being used very sparingly but I equally argue that its very presence would serve as a warning to Ministers or officials who might be tempted to engage in an extension of the powers of the Executive. As laid out in Amendment 238, it applies only to instruments that are subject to the affirmative procedure under the provisions of the Bill. It requires under sub-paragraph (2) that the relevant Minister provides a memorandum explaining why the standard affirmative procedure should apply. That remains the default option. If no objections are raised, the normal affirmative procedure continues unaffected. But under sub-paragraph (3) either House of Parliament can require that the new super-affirmative procedure should apply, by means of sub-paragraph (4), by a request of any committee of either House which has responsibility for scrutinising and reporting on those statutory instruments that result from the UK leaving the European Union. The committee has 10 days to bring forward the request for the new procedure to apply. The relevant House then has five days within which to overrule the committee, for the reasons that the noble Lord, Lord Lisvane, pointed out—clearly, the committee is a committee of the House and the House can decide that the committee has exceeded its powers.

So much for the ways the procedure can be triggered or invoked. The procedure itself is explained in Amendment 239. First, the Minister must have regard to representations made by either House or by members of the public outside Parliament, during a 60-day period. I will come back to the 60-day period in a minute. If the Minister decides to press on with the regulations on an unchanged basis, he or she must give details of the representations that have been made to him or her; that is in sub-paragraph (3). Provided that both Houses approve, that is the end of the matter, under sub-paragraph (4). However, a committee of either House that scrutinises regulations may recommend, if it considers the ministerial response inadequate, that the regulation should not be proceeded with. Again, this decision is subject to being overruled by a resolution of the House in question; that is in sub-paragraphs (5) and (6). In sub-paragraph (7) the Minister has the chance to have a fresh bite of the cherry by revising the regulations, explaining the representations made and the consequent revisions that are proposed. If the Minister does so proceed, in sub-paragraphs (8), (9) and (10), the relevant scrutiny committee in turn has a second chance to consider whether the changes proposed adequately address the concerns made under the earlier representations. Once again, this decision is subject to the House being able to overrule its committee. That is the practical application of this proposed new procedure.

Before I close, I will address some of the criticisms that were made of these amendments inter alia in the briefing circulated by the Hansard Society. I do so against the general background of my earlier comments that I do not regard the amendments as being in any way the finished article. The first criticism is that, as drafted, the procedure will be available only for SIs subject to the affirmative procedure and not the negative procedure. The Hansard Society points out that the Legislative and Regulatory Reform Act, which first introduced the super-affirmative procedure, could be brought to bear on negative as well as affirmative resolutions. Obviously, that is true but I would not draw too close a comparison between the Legislative and Regulatory Reform Act and the European Union (Withdrawal) Bill as to scope, importance or timescale. Further, given that this new super-affirmative procedure is designed, at least in my view, for relatively rare use for regulations of high significance, these will almost certainly be predominantly, some might say exclusively, subject under current conditions to the normal affirmative procedure.

The second point made by the Hansard Society is that it is the Minister who decides and has the whip hand on whether the procedure should be used—yes, and no. Technically yes, given that the Minister provides the memorandum justifying the standard procedure but practically no, because the relevant committee of either House can raise objections and no doubt can be expected to do so loudly, forcefully and publicly.

Thirdly, the society says that the 60-day consultation period is too long in the circumstances of the Brexit timetable. That may well be right. I have no theological attachment to 60 days. All I believe is needed is enough time to marshal any evidence and opinion which takes a contrary view to that of the Executive, or to discover that no such contrary evidence or opinion exists.

If I were expressing the strategic purpose of these amendments in military terms, I would describe them as another step in a graduated response; that is, a step between the built-in inflexibility of the existing scrutiny procedures of your Lordships’ House on the one hand, and their complete rejection and destruction on the other. I beg to move.

[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.

01:00

There is one other objection, however, that has to be addressed very seriously: the number of statutory instruments that are going to be brought forward under the Bill. We are told that there will be 800 to 1,000, of which perhaps 20% will be affirmative resolutions. That is a serious challenge and one that I acknowledge, but there may be a way through it—a compromise, building in part on what my noble friend Lord Hodgson has been saying. There is absolutely no reason why, in Standing Orders, we should not appoint a committee to identify which statutory instruments of an affirmative character may require amendment. That decision could then enable the SI to be amended. If we did that, only a relatively small number of statutory instruments would be the subject of amendments—but it would assert the principle of parliamentary control and, building on what the noble Lord, Lord Tyler, said, it may serve as a precedent for the way in which we handle other SIs arising from different legislation.

[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.

Amendment 238 withdrawn.

Amendments 239 to 242 not moved.

House resumed.

House adjourned at 1.17 am.