Lord Goldsmith (Lab)
My Lords, my noble friend Lord Haskel has raised some important issues, which we should carefully consider—I hope that the Government will do so. He is plainly right that one of the consequences of our departure from the European Union will be the loss of the benefit of EU governance institutions and the standards that they set and enforce. It is worth underlining the word “enforce”, as the noble Baroness, Lady Ludford, did. This is not just about having the standards; it is also about having institutions that are capable of enforcing them.
Of course, the Government will say that we can and we should take over ourselves the setting and enforcement of appropriate standards. But there are challenges in doing that, to some of which the noble Lord, Lord Cormack, has referred. If we are going to have standards in which people have confidence, they need to be delivered by institutions in which there is demonstrable independence. That then gives rise to credibility: the standards and the institutions that set them must be seen to have a distance from Ministers and not be subject to expedient ministerial policy-making. We have so far become used to—indeed, perhaps taken for granted—the fact that there are standards that are set by the current EU institutions which have rigorously debated and taken into account national standards. However, as my noble friend said, we need to be assured that standards—he mentioned in particular general data protection rules, but other standards as well—are not lowered.
That raises an important point. In this Bill, the Government have taken the view, in my view quite rightly, that the fundamental rights that are protected by the European Convention on Human Rights, now by our own Human Rights Act, cannot be changed without parliamentary scrutiny—indeed, only by primary legislation. That is not the position that is proposed in relation to other rights or standards that are, in many people’s eyes, as important. We need clarity on these issues. It is not enough for the Government to say that they recognise the need to maintain high standards of protection; they need to explain how those high standards of protection are in fact to be achieved, and to do that in a way that gives rise to confidence.
My noble friend Lord Liddle raised a further important point—and, if I may say so, he played an important part in this himself in previous years—about the conversations and co-ordinations that have taken place between European countries in setting policy and the standards that go with policy. It would be good to hear from the noble and learned Lord the Minister whether those will be continued and in what way.
There is much to support in this amendment and in the principle that my noble friend has put forward. It is supported by the noble Baroness, Lady Jones of Moulsecoomb, and I do not think for one moment that the fact that she has added her name to it means that the amendment will be looked at less—quite the opposite, I suggest. We look forward to hearing what the noble and learned Lord has to say in response to this amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank the noble Lord, Lord Haskel, for tabling this amendment. I believe the intention behind it is to ensure that United Kingdom law will continue to function effectively after our departure from the European Union. This is, of course, the aim of the Bill, and so I welcome his engagement on its content. However, despite these intentions, the Government cannot accept the amendment.
The Bill will take a snapshot of European Union law—including the rights, freedoms, protections and standards it brings—so far as it applies within the United Kingdom immediately before exit day, and seek to retain it in UK law, so far as is practical. It will then be our priority to ensure it will be able to operate consistently and without deficiency within our domestic law through the use of powers given in the Bill. This includes ensuring that there is suitable provision for the transfer of existing functions and roles carried out by the EU or its institutions while we are a member. It is of course right that the Bill is able to do this.
The United Kingdom has a long-standing tradition, one that predates 1972, of ensuring that our rights and standards are protected domestically, and of fulfilling our international obligations with regard to these matters. The decision to leave the European Union does not change this. Any regulation to correct a deficiency in retained EU law, within which such rights, freedoms, standards and protections will sit, will of course be subject to the overview of this Parliament: it will be subject to the established procedures of parliamentary scrutiny and, in addition, to the work of the sifting committee that the Leader has indicated will be constructed in this House.
The noble Lord, Lord Haskel, said that standards would be subject to Ministers. But standards, I suggest, will be subject to parliamentary scrutiny. I say the same in response to the noble Baroness, Lady Ludford. We will retain the law and it will not be empty of meaning because again, in so far as we implement it in domestic law, it will be the subject of parliamentary scrutiny. The noble Baroness, Lady Jones, suggested that retained EU law would be worthless if there were no body to oversee it, but that body will be Parliament. No body is better equipped for that task than Parliament.
On policy co-ordination, referred to by the noble Lord, Lord Liddell, of course, that is bound to be a matter of negotiation and not one for this particular Bill. We want to negotiate questions of the extent and depth to which we co-operate with members of the EU after we leave. As regards standards themselves, is it suggested that because we are in Europe—as the noble Lord, Lord Cormack, observed, we still are and still will be—but not in the European Union, somehow our standards are bound to fall? Is it supposed that Switzerland or indeed Norway do not maintain rigorous standards in regard to consumers, the environment and so on?
Baroness Ludford
Norway is in the single market. That is why it has to uphold the same standards, and Switzerland is de facto in the single market.
Lord Keen of Elie
Switzerland is not de facto in the single market. Switzerland has a multiplicity of agreements with the EU that have been negotiated on a bilateral basis, which is the form of negotiation that we intend to carry out in due course. Membership of the EU is not, as I say, the touchstone of rigorous standards either in Europe or beyond.
With regard to the points raised by the noble and learned Lord, Lord Goldsmith—
Baroness McIntosh of Pickering (Con)
Is my noble and learned friend saying that we are now seeking an EU/Swiss-style agreement?
Lord Keen of Elie
I am not suggesting that for a moment. I was saying that these matters will be the subject of negotiation going forward; they are not ones for this Bill. What one cannot suggest is that, because we are taking the step of leaving the EU, we are determined somehow to see any diminution in the standards and obligations that we maintain at the present time. As this House will be well aware, the Bill is not designed to legislate for the major elements of any future agreement between the United Kingdom and the EU. Indeed, we cannot unilaterally legislate for our future relationship with the EU without the withdrawal agreement, or seek pre-emptively to provide for the possibility of maintaining particular functions or powers within the UK after we leave the EU.
This Bill instead aims to provide a stable and certain domestic statute book on exit day—a platform—irrespective of the result of the negotiations in any final agreement with the EU. The proposed amendments, therefore, do not assist in that process, but would potentially disrupt any negotiating process that is to be carried on. At the end of the day, I respectfully suggest that the amendment would not benefit the task we have in hand and I therefore urge the noble Lord to withdraw it.
Lord Goldsmith
Before my noble friend responds, will the Minister give an assurance as to this? He has talked about the legal difficulties involved and the legal freedom that the Government want, but is he able to give an assurance that whatever protections and standards we leave the European Union with will not thereafter be diminished, save with the decision of Parliament through primary legislation?
Lord Keen of Elie
Clearly, the noble and learned Lord has misrepresented to an extent what I just said to the House, because I did not refer to primary legislation—those words slipped into his observation. However, I did point out that, of course, under the process that we have and will have in place, there will be parliamentary scrutiny of the steps we take to implement these provisions in respect of EU retained law after we leave.
Baroness Young of Old Scone (Lab)
Can the noble and learned Lord clarify the position on the provisions, which the Government will consult on imminently, concerning the “governance gap” that will open up on environmental issues after the withdrawal Bill has been enacted? At least a proportion of the powers and functions listed in subsection (2)(a) to (f) of the proposed new clause will be ascribed to a body whose nature is not yet known but is soon to be subject to consultation. It will deal with reviewing and reporting on compliance with legal requirements, monitoring and measuring, and certainly publicising information. Can the noble and learned Lord tell us what the difference is between the body that is going to fill the environmental governance gap and the same sort of governance gap that will open up with respect to other functions outside the environmental field?
Lord Keen of Elie
My Lords, with respect, I fear that I do not properly understand the question posed by the noble Baroness, but I will read Hansard, and in so far as I do understand it, I will write to her.
Baroness Kramer (LD)
My Lords, does the Minister agree that this particular set of issues is absolutely crucial to small businesses? He will know that many small businesses are happy to export to the European Union because they have protection in case of insolvency; it is as solid as if there were an insolvency from a customer or supplier literally round the corner or down the street.
There are many reasons why those companies choose not to export to many of the markets where we so often hear there are such extraordinary opportunities. It is because—especially for small businesses, I am afraid—there are long histories of non-payment. Large businesses can afford to retain international lawyers in different locations across the globe and across borders. Large companies—especially multinationals—frequently have contacts in governments, at the appropriate level, to make sure that their interests are protected, but that very rarely applies to small businesses, so this protection is crucial.
Lord Keen of Elie
My Lords, I share the concerns that the amendment raises about the consequences of failing to maintain our co-operation with the EU in matters of civil justice, in particular, in this present context, matters of insolvency. On the matter of meetings with officials and others, the noble Baroness, Lady Hayter, may recollect that we discussed this topic when we met last week, albeit briefly. It might be that I am not the appropriate individual with whom more specialist bodies would wish to take this matter forward, but I would be content to pass on her request for a meeting to BEIS. I am confident that it will have no difficulty arranging that for the convenience of all parties.
Clearly, should we fail to agree a replacement for our current arrangements when we leave the EU the impact will be felt by both the UK and EU member states. I therefore believe that it is in our mutual interest to agree a close and comprehensive arrangement regarding insolvency, as well as other matters of civil judicial co-operation.
I do not think I can accept the suggestion from the noble Baroness, Lady Kramer, that a small company in the UK can trade as if it is as solid as a domestic supplier that it was supplying in the context of the insolvency regulations. They do not work quite as simply as that. The insolvency regulations as restated in 2015 determine that the insolvency regime for each country stands alone. Each member has its own rules, but the recast 2015 regulations identify the debtor’s centre of main interest and treat that as the principal proceedings for the purposes of insolvency. For example, if we have a centre of interest for a company in the United Kingdom and a liquidator is appointed in the United Kingdom, that appointment would generally be recognised throughout the EU. That is certainly a step better than the insolvency regimes that operate internationally beyond the EU, such as the UNCITRAL rules, where there is not that element of recognition and it is necessary to take further steps if judicial co-operation is secured by way of litigation in each individual country. I recognise the benefits and advantages of the EU regime, although some would say that it is far from perfect or uniform.
There is a clear need for effective dispute resolution and effective jurisdictional recognition when a company enters insolvency or needs to restructure. Indeed, in its absence those who suffer will be the creditors of the company, because the cost of carrying out the insolvency process will be increased. The UK has already said in its position paper, Providing a Cross-Border Civil Judicial Cooperation Framework, published last August, that we wish to continue with substantively the same principles of co-operation as we already have in civil judicial co-operation, including insolvency. As the noble Baroness, Lady Hayter, observed regarding the implementation period, the transition agreement from the EU referred at paragraph 63 to at least a starting point for that for insolvency processes which commenced before the exit date. We wish to build on that and ensure that we can maintain a suitable regime. We have no difficulty with that and we believe that the EU 27 will also recognise the importance, relevance and advantages of maintaining a single insolvency regime with the United Kingdom after our exit date. As I said, that would be based, as we hope it is at present, on identifying any debtor’s centre of main interest and treating it as the primary place from which insolvency proceedings should emanate and be recognised in the other EU states.
Of course, all of this involves a degree of reciprocity. That is why it will have to be the subject of the ongoing negotiation. We consider that at the end of the day we will have the means to persuade the EU 27 that it is in everyone’s interest that, in general, civil judicial co-operation should be maintained. In the context of the present amendment, that should include the insolvency regime. I hope that what I have said will reassure the Committee and the noble Baroness, Lady Hayter, that we are committed to seek and retain current co-operation with the EU on cross-border restructuring and insolvency following our exit from the EU. In that context, I invite the noble Baroness to withdraw her amendment.
Baroness Hayter of Kentish Town
My Lords, I think the House wants the Minister to reply, so I was thinking that we are probably ready to end this debate.
I have just heard the first case against referendums, which is that a referendum made my country of Wales dry—and that argument was in support of them. It was certainly dry on a Sunday when I was growing up; and this is the ex-director of Alcohol Concern confessing this.
We have considerable sympathy with one part of these amendments: that the Government cannot be allowed to mark their own homework regarding the outcome of the withdrawal negotiations, be that on Gibraltar, which is mentioned in one of them, our future relations with the EU or the withdrawal deal itself. We discussed last week, as a number of noble Lords have said, the need for a meaningful vote by Parliament on the deal and indeed on what should happen if the deal fails to win approval by the British Parliament. We also considered then the desire of some for a future referendum on the terms of the deal.
As the Committee knows, and as the noble Lords, Lord Wigley and Lord Newby, have said, we see it as essential that there is a proper, meaningful vote on the terms of our withdrawal. We trust that the amendment we will table on Report will find favour in this House and later, we hope, at the other end. As to what should happen if that deal is rejected, surely that must be decided at the time, in the full knowledge of the situation, by the House of Commons. It could be, as in a later amendment in the name of my noble friend Lord Campbell-Savours, by extending the Article 50 period. It might be by revoking the Article 50 notification. It could indeed be by a referendum, though perhaps the wording would be a matter for then, rather than by amendment today. But the first judgment on the terms must surely be for this sovereign Parliament and, if it says no, it must then be Parliament that takes responsibility for what should be the next step. That means nothing is ruled out, which therefore means nothing is set in stone at this moment.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, this has again been an excellent debate and let me say at the outset that I note that support for the amendments comes from noble Lords on all sides of the House. I am not trying to imply that this is a partisan issue, but it is one of principle. I hope that the noble Lord, Lord Butler, the noble Baroness, Lady Wheatcroft, and the noble Lords, Lord Newby, Lord Wigley and Lord Foulkes, who have tabled Amendments 226, 227BH and 357, will believe me when I say that I respect their positions. But this debate has been held many times before, and I therefore hope that noble Lords will forgive me if my argument sounds familiar. The referendum question, agreed by Parliament and presented to the people, was whether we wished to leave or remain in the European Union. Parliament attached no conditions or caveats to that vote.
It was clear in the campaign that a leave vote could lead to a range of outcomes and that not all of us advocating leave agreed about the way to do so. People knew this at the time, it was extensively debated and, in the biggest democratic mandate for a course of action ever directed at any UK Government, voters instructed the Government to leave the European Union.
Baroness Altmann
My Lords, it is that very term—“instructed” the Government or “instructed” Parliament—that is the subject of the amendments. I am not a fan of referenda, but it is clear that what the British people were led to believe, and what they voted for in the referendum, needs at least mostly to be delivered. The question is, if what they voted for—more money, no change to the borders, very easy trade deals; never mind that nobody mentioned ending of roaming and a potential Brexit surcharge on their flights—is not what is on offer, what should this Parliament do? It is questionable that this House should agree that the British people have instructed us to do whatever the Executive manage to negotiate with the EU, irrespective of whether it resembles even closely what the leave campaign told the British people it would achieve.
Lord Callanan
My Lords, the noble Baroness says that she is not in favour of referendums but is supporting a campaign to have another one. I think we all know what her agenda is: she did not like the result of the referendum, and she does not like the result of the policy. She is entitled to have her view, but we are entitled to disagree with her.
Baroness Altmann
I am not in favour of another referendum. I am in favour of parliamentary democracy and parliamentary sovereignty. The concern here is that Parliament seems to have handed over its power to the people by believing that there is an instruction from the people. If the Government were to say that there will be a free vote and a meaningful vote on whatever is negotiated, we would not need to go back to the people, because Parliament should be able to represent the national interest. I would prefer no final referendum or vote for the people, but if that is required it may be appropriate or prudent to leave it as an option.
Lord Callanan
I am not going to continue with this debate, but I think we know where she is coming from: she wants to reverse the result of the referendum, which she is entitled to believe, but I am entitled to disagree with her.
Lord Hannay of Chiswick
I will give the noble Lord another target. He seems to be an absolutist about referendums. What attitude did he take in 1975 to the two-thirds of the British people who voted to join on the terms that were put before them?
Lord Callanan
I am afraid that I was not old enough to vote in that referendum, but my father tells me that he voted to join a Common Market at the time and nobody ever asked him whether he wanted to join a European Union. But that is a separate argument.
We in the Government believe it to be our solemn duty to deliver on the instructions of the people.
Lord Callanan
I will make a little progress, if I may. I will take interventions later. I am on only the third paragraph of my speech.
I will not embarrass the Liberal Democrats further by quoting their leader, the right honourable Member for Twickenham, Vince Cable. The noble Lord, Lord Newby, says that that was years ago. It was not; it was in September 2016; it was only 18 months ago that he said that we should not have another referendum. Again, he is entitled to change his mind, but I hope that the Liberals will have the good grace to be a little embarrassed about it.
The Government never hesitated in accepting the verdict and, in line with the ruling of the Supreme Court, the Government than put the question of the power to notify Article 50 to Parliament. In passing it, this House and the other place voted with a clear majority to authorise the Prime Minister to trigger Article 50. The clue was in the name: it was the Article 50 notification of withdrawal Act, passed in the other place and in this House with large majorities. It was to give our notice to withdraw from the European Union, authorised by Parliament.
Lord Garel-Jones
Is my noble friend saying that he disagrees with the ruling of the Supreme Court that although it was indeed the case, Parliament did not authorise the outcome of those discussions? That is what the Supreme Court has ruled.
Lord Callanan
Of course I do not disagree with the ruling of the Supreme Court, which is why we will have another vote later in the year and will bring in legislation to implement the result of our negotiation.
Noble Lords will of course recall that we had a debate on Report of that Bill on the options for a second referendum, an amendment that was defeated by 336 votes to 131—a telling result, perhaps, but not as telling as that of last year’s general election, where the parties committed to respecting the result of the referendum received more than 80% of the vote. Petitions have been brought to the other place for debate on this issue and have failed to garner the support of the House.
I say this: we were given a national mandate and Members must comply with the instructions for exit from the EU. I am sorry if noble Lords are shocked by those words, but they are not mine, they are the words of the former leader of the Liberal Democrats, Sir Nick Clegg. Perhaps for the first time in my life, I agree with Nick.
We hold not only that this Bill is not the vehicle for a second referendum but that the European Union Act 2011, put in place by the coalition Government to ensure that referendum would be held regarding future transfers of competence to the EU, is also not a mechanism that can be used to secure such a referendum by stealth. I know that we shall return to this point on another day.
This debate and the issue surrounding a second referendum is about more than the decision to leave the EU; it is about whether the public can trust us politicians. The British people can trust this Government to honour the referendum result. To do otherwise would undermine the decision of the British people, with worrying implications for the perceived legitimacy of our institutions.
Viscount Hailsham
Will my noble friend address the question put to him by the noble Lord, Lord Butler? Will the meaningful vote be such as to enable Parliament to vote to stay in the European Union if that is what Parliament wants?
Lord Callanan
I covered this point earlier. Parliament has passed the notification of withdrawal Act, to give our notice under Article 50 to withdraw from the European Union. That is the process that we are following; that is the process that was authorised by Parliament.
Lord Callanan
We have said that once we have negotiated the best deal available, we will bring it back to this Parliament and Parliament will vote on whether it wishes to accept that deal or not.
Lord Callanan
No, Parliament authorised us to leave the European Union under the notification of withdrawal Act. We effectively gave two years’ notice under the Article 50 process.
Baroness Butler-Sloss
If there is a vote in either House, particularly the House of Commons, which rejects whatever the Government put forward, what will the Government do?
Lord Callanan
In such circumstances—first, we hope that Parliament will not reject it and we will negotiate for the best possible outcome—that would be an instruction to move ahead without a deal.
Lord Callanan
Well, as I said, under the Article 50 process, we have notified the European Union that we are leaving.
Lord Campbell-Savours (Lab)
Would the Government equally reject a take-note Motion in the House of Commons on that matter, even if it were carried on a free vote?
Lord Callanan
I am not an expert on the proceedings of the other place—I have never been a Member of the House of Commons—but of course the Government will listen to decisions by the House of Commons.
Baroness Hayter of Kentish Town
My Lords, this is a crucial moment. The whole issue here is whether it is a mere Motion or whether there is any legislative oomph—sorry, Hansard—behind the vote that Parliament is to have. Am I absolutely correct that the Minister has just said that even if it is a mere Motion, which is what the Government have offered so far, if the deal was rejected they would still take us out of the European Union at the cliff edge, without a deal?
Lord Callanan
We want a deal with the European Union. We have said that we will negotiate for the best possible deal and then we will put that to the House in a Motion. If Parliament approves it then we will bring legislation forward to implement the deal. That is what has been said many times in the other place as well.
Lord Forsyth of Drumlean
Does my noble friend recall that both David Cameron and the leader of the Opposition wanted to implement Article 50 within days of the referendum result? All this argument suggesting that we have somehow precipitately moved into Article 50, and that the referendum did not give a clear instruction to both the government and opposition parties, is therefore simply froth.
Lord Callanan
I am not sure that I would use the word “froth”, but we have had a good debate about this and I am sure we will continue to do so.
Parliament authorised our notification of withdrawal in the Article 50 Bill with a clear majority. That position was supported in the general election when we and the Labour Party both said that we would implement the results of the referendum and, in the process, obtained over 80% of the vote. The Liberal Democrats, of course, said that they would not and got 7% of the vote.
Baroness Kramer
I have a question for clarification. Is it now correct for us to interpret, when the Prime Minister or any member of the Cabinet says that there will be a meaningful vote, that the vote will be between whatever has been agreed—good, bad or indifferent—and no deal, and that that is the only choice? Will the Minister explain how that becomes a meaningful vote in the context of the understanding of anybody in either House?
Lord Callanan
When we have negotiated the deal it will be an extremely significant moment. We will put that deal to both Houses in a Motion to approve or not, as the case may be. This House has already considered the issue of a second referendum and rejected it. The public rejected it in the last general election.
Lord Kerr of Kinlochard (CB)
Is the Minister seriously saying that it would be out of the question for the House of Commons to consider, in addition to whether the deal should be accepted or rejected, whether there should be an attempt to improve the deal or whether it should be put to the people? Are these options to be ruled out altogether? Is it Hobson’s choice? Is it this deal—good, indifferent or bad—or no deal and no question of an extension or trying to improve it, or putting it to the people? If that is the Minister’s position, it is almost as astonishing as the suggestion from the noble Lord, Lord Forsyth, in his seventh intervention, some time ago, that the people would be outraged if they were given the final decision. I do not know if the Minister thinks that, but what he is saying about the meaningful vote is rather outrageous.
Lord Callanan
I am sorry that the noble Lord is outraged, but I am not going to stand here and try to instruct the House of Commons on what to do. It is quite capable of taking its own decisions. Many Members of this House have been Members of the House of Commons. I have not, but I am sure that if they want a vote on any subject they like they are quite capable of deciding the matter themselves.
Our focus now should be on making a success of Brexit, working to get the best deal possible, providing certainty and taking decisions on what kind of country the UK will be in the future. That is the clear instruction given to this Government in both the referendum and the general election. We believe that it is our duty to deliver upon it. A second referendum would pose a—
Baroness McIntosh of Pickering
I have not heard my noble friend respond to Amendment 357, tabled by the noble Lord, Lord Foulkes of Cumnock. If Spain retains a veto over any of the arrangements with Gibraltar, will the Government bring forward an amendment to the Bill on Report for this House to consider?
Lord Callanan
I suspect that we will still be in the process of negotiations at that stage. We have been clear that we are consulting closely with the Government of Gibraltar. Gibraltar is leaving the European Union at the same time as the UK is. We are negotiating for the UK and for Gibraltar, in close consultation with its Government. We recently had a ministerial meeting with them, chaired by my honourable friend Robin Walker, and we are keeping them closely informed about the process of the negotiation.
A second referendum would pose a serious risk of undermining our ongoing negotiating position. Worse still, it would prolong the period of uncertainty for businesses and citizens in the UK and EU. These are the unacceptable costs of what my noble friend referred to as a neverendum. In those circumstances, I urge the noble Lords to withdraw or to not move their amendments.
Lord Wigley
My Lords, the House has listened to the Minister with amazement over the last 20 minutes. We have had a repeat of the statement made last week, which the noble Lord, Lord Butler, succeeded in highlighting. If we end this process with no deal, there will be no meaningful vote for Parliament, because the only alternative to no deal is to leave on a no-deal basis. That is why there needs to be a safety net of referring the question back to the people. I get the impression that the Government believe that the referendum has given them the right to ignore the will of Parliament and override it by refusing such a meaningful vote. We will certainly come back to that.
There are two clear reasons why a confirmatory referendum should not be denied. The principle has been conceded in the context of triggering the first referendum and, as the noble Lord, Lord Newby, said, only a second referendum could gainsay that. Secondly, we are in the invidious position that Parliament would be asked to overturn the view of the people. That is obviously fraught with difficulties for anybody who is a democrat. Taking that together with the question of a meaningful vote for Parliament, I believe we have to provide the House of Commons with the hook necessary for it to return to this issue after we have finished with the Bill. When there is an opportunity to vote an amendment into this Bill on Report, I hope that we will give Members of Parliament the opportunity to consider a confirmatory referendum, if that appears to them to be the best way forward. On that basis, I beg leave to withdraw the amendment.