Wednesday 16th May 2018
(6 years, 6 months ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 102-I Marshalled list for Third Reading (PDF, 72KB) - (15 May 2018)
16:52 - Division on Amendment 1 - Ayes: 294 / Noes: 244 - Amendment 1 agreed.
Lord Deben (Con)
My Lords, I declare an interest as chairman of the climate change committee. That is why I strongly support the amendment. We see here exactly what played out during the debates on the climate change committee.
I want first to thank the Government for a serious attempt to move in the direction we wanted. My noble friend and I have not always agreed, but what he promised in the sense of a real contribution has been made. What we have to say now is only in sadness rather than out of any antagonism. My noble friend Lord Framlingham, who followed me in part of my former constituency, really cannot say that this is an irrelevant amendment, because we are talking about what the Government have placed before us. This is part of the withdrawal Bill; it has nothing to do with our pro or anti-Brexit position.
Lord Deben
If my noble friend is going to say that, I shall find it rather difficult to move towards him, because it is not; I speak as chairman of the climate committee because it is not. The reason I speak is simply this: we were promised that we would pass into UK law all the protections that we have as members of the European Union, so that, on the day after our leaving, we would be in the same position in respect of those protections. Under the present arrangements, we will not be.
As I say, this repeats what happened with the climate change legislation. The then Government were in favour of it in general, but when it came to the detailed powers, the Treasury opposed it. The Minister in Defra, or at least its equivalent in those times—it was then the Minister at the Department of Energy and Climate Change—was in favour of those powers. That battle was fought in the then Government, and they decided that they would not give the powers until we were able to show that there were enough Labour Members to give a majority in the House of Commons so that they would have to give way. Happily, it therefore became an all-party Bill that we can all claim credit for, passed by the Labour Government and ultimately supported by every party in Parliament.
Baroness Jones of Whitchurch
I thought that I had addressed that. If after Brexit day we are to have the same powers and enforcement as we had prior to it, we need to have a green watchdog with those enhanced powers that Europe has given us in the past—as we heard from the noble Lords, Lord Rooker and Lord Smith, and other noble Lords. That is the need. If we do not replace that in some way with an independent body that can achieve that, we will have no way of enforcing the regulations to which the noble Baroness referred.
The key thing in our amendment is that we have an independent body with the powers to ensure compliance by public bodies with environmental law. There will be a governance gap, a power gap, if that does not occur. I say to all those people—including, again, the noble Baroness, Lady Byford—who say that the consultation is the right way to deal with this, that the idea that a consultation will deliver a new watchdog with some teeth when it is not included in the consultation is magical thinking. We all know that the reality is that the opposite is the case with government consultations and, inevitably, further compromises tend to occur before legislation is finalised. I do not think that to hold that out as a hope and an offer is going to give us much reassurance.
Finally—and this is also a really important point—Michael Gove has already acknowledged that there will be a governance time gap. This consultation proposes a Bill in the next Queen’s Speech. That would not be enacted until, say, the end of next year at the earliest. A lot can go wrong before then. As we have discussed before, a rather large number of Defra Bills have been promised and are already in the queue for enactment. Timescales are already slipping. Even with the most optimistic projections, the current plans mean a time lag where environmental protections will not be—as promised in the Bill—the same as we had before exit day.
Our amendment addresses that gap. It addresses those omissions and requires that the legislation would be produced within six months of the date on which this Act is passed and therefore fill that gap. This is the only way to maintain both the spirit and the substance of continuity with EU rights which the Bill promised and the only way to protect the environment for future generations. I hope that noble Lords will see fit to support it.
Lord Callanan
My Lords, it is, frankly, disappointing that this amendment has been tabled today. We have debated the important topic of environmental protections on numerous occasions in your Lordships’ House, and the Government have taken clear action in response to many of the points raised. There was support across the House for the Government’s amendments removing the powers in this Bill to create new public authorities and our commitment to do so only in primary legislation.
Indeed, the noble Baroness, Lady Hayter, said on Report:
“the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things”.—[Official Report, 25/4/18; cols. 1585-86].
I agree with her. The Government have committed to do precisely that—to bring forward primary legislation so that Parliament can fully scrutinise, indeed interrogate, the powers of a new environmental watchdog. Yet here we have an amendment designed to use this Bill to set the parameters of such a body without the benefit of the consultation that we are now undertaking and without the scrutiny that would come from considering a Bill that is specifically introduced for that purpose.
We have endeavoured to provide as much transparency as possible to our plan for ensuring environmental protections are enhanced and strengthened, not weakened, as we leave the European Union. In November, the Secretary of State for Environment, Food and Rural Affairs gave a commitment on the Floor of the other place to create a new comprehensive policy statement setting out environmental principles, recognising that the principles currently recognised in UK law are not held in one place. At that time, the Secretary of State also announced our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on environmental legislation, stepping in when needed to hold these bodies to account and being a champion for the environment.
In direct response to the points made by the noble Lord, Lord Krebs, we welcome all consultees’ views on how this is best achieved, and that includes on the range of enforcement measures that might be required. On Report, I gave a firm undertaking that this consultation would be published ahead of Third Reading, and we did just that on 10 May. The consultation includes proposals on a new, independent statutory body to hold government to account on environmental standards once we have left the European Union and a new policy statement on environmental principles to apply post EU exit. I say to the noble Baroness, Lady Jones, that this is a consultation: we want to hear all views and we have, as yet, made no decisions on how these bodies might operate.
On the subject of timing, I am afraid that the noble Baronesses, Lady Jones and Lady Bakewell, are simply wrong. The Secretary of State for Environment, Food and Rural Affairs announced that we will bring forward a new, ambitious environmental principles and governance Bill in draft in the autumn of this year, with introduction early in the second Session of this Parliament, to deliver these proposals in advance of the end of the agreed implementation period.
Put simply, Amendment 1 risks compromising the timely and full consideration of many important issues. It requires consultation with stakeholders—a point well made by my noble friend Lord Ridley—and yet mandates a set way forward in primary legislation. This is neither helpful nor necessary, as the issues it seeks to bind the Government to commit to are those we will explore in the consultation. In short, the amendment is premature and it prejudges the views of important stakeholders.
There are good reasons for gathering and properly reflecting on views ahead of taking action. Indeed, if we did not do so, I suspect that we would be criticised by the very people moving this amendment. For example, a significant proportion of environmental policy and legislation is devolved. We need to take account of the different government and legal systems in the home nations, as well as the different circumstances in the different parts of the United Kingdom. Amendment 1 risks compromising consideration of these important issues, as well as the wider devolution settlement, by requiring the UK Government to take UK-wide action, including to publish proposals for UK-wide primary legislation on governance and principles.
The government consultation is concerned with England and reserved matters throughout the United Kingdom, for which responsibility sits in Westminster. However, we are exploring with the devolved Administrations whether they wish to take a similar approach, and would welcome the opportunity to co-design proposals to ensure that they work well across the whole of the United Kingdom. We would also welcome views from a wide range of stakeholders, including environmental groups, farmers, businesses, local authorities and the legal profession. I welcome the comments of my noble friend Lady Byford, who made some excellent points worthy of our consideration.
Turning to the issue of environmental principles, the published consultation outlines our proposal to require Ministers to enshrine these principles in a comprehensive statutory public policy statement setting out their interpretation and application. As we have said many times before, the core purpose of this Bill is to provide for continuity in our framework of laws and rules before and after exit: no more and no less. The Bill takes a comprehensive—
Lord Wallace of Saltaire (LD)
My Lords, will the noble Lord clarify one thing? He suggested, I think, that we are going to continue with the European regime until the end of the implementation period, which would give time for consultation. Or will we move away from the European Union arrangements in March 2019? That is important. If we are to continue to maintain all European environmental regulations, as now, up to the end of 2020, then we are in a slightly different position.
Lord Callanan
Yes, I am absolutely confirming that: the principles will continue until the end of the implementation period.
Changes to the law should be taken forward by proper processes allowing for them to receive full consideration by those affected. The Government have acted—
Lord Butler of Brockwell (CB)
This is a very important point. Will the means of enforcement continue until the end of the implementation period?
Lord Callanan
Yes. All current processes will continue until the end of the implementation period.
The Government have acted as a responsible Government should. They have done what this House invariably asks them to do by setting out a range of options and inviting views to inform policy through the consultation process.
Lord Deben
Does my noble friend mean that, until the end of 2020, we would be able to take an enforcement action to the European Court? If he does not mean that, the system does not continue and the Government do have to put into the Bill an alternative. But if he does mean that, it is a revelation.
Lord Callanan
My Lords, as we have announced on numerous occasions, there will be further legislation to consider this matter when we have completed—
Lord Callanan
I ask noble Lords to wait a moment. There will be a further withdrawal agreement and implementation period Bill to consider the details of the implementation period, which have already been agreed with the European Union. This has already been announced and we have already set it out. But there will be further opportunities to consider this, as there will be further opportunities to consider the primary legislation that we are announcing in response to this amendment.
Baroness Butler-Sloss (CB)
I do not know which way to vote, so what the Minister is saying to the House is enormously important to me. Are we actually going to be able to have enforcement by the European Court of Justice until the moment of the completion of the implementation?
Lord Callanan
That is what has been agreed in the implementation period that we have agreed with the EU so far—but it will be the subject of legislation that we will be able to consider.
Baroness Hayter of Kentish Town (Lab)
Will the Minister therefore explain why our amendment to allow the ECJ to continue until the end of the transition—the implementation period—was not accepted by the Government?
Lord Callanan
Because there will be separate legislation to consider the implications of the implementation period as part of the withdrawal agreement and implementation Bill that we have already announced. We are trying to confine the purposes of this Bill to the originally announced process. I realise that lots of noble Lords want to use this legislation as a way to both influence the legislation and in some cases to prevent the process of Brexit. But we are trying to put forward revisions to the statute that will ensure that European regulations will continue to have effect in British law after the end of the period.
Lord Teverson (LD)
Can I point out to the Minister that we have no agreement that there will be an implementation period? Indeed, many government departments are preparing, rightly, for there not to be one—because nothing is agreed until all is agreed. That is why this amendment is even more important in terms of that potential gap.
Lord Callanan
I am afraid that the noble Lord is simply wrong: we do have agreement on an implementation period. It was announced at the March European Council, agreed by the Government and the European Union.
Baroness Smith of Newnham (LD)
My Lords, surely, in the event that there is no deal, we leave on 29 March 2019 and there is no implementation period.
Lord Callanan
Obviously if there is no deal, we do not have an implementation period—but we are working towards getting a deal. Each of the stages so far has been announced and agreed. We agreed the issues over the financial settlement and citizens’ rights before Christmas. We agreed the implementation period in March. I realise that that the noble Baroness and many of her colleagues do not want the process of Brexit to proceed, but we are acting as a responsible Government and endeavouring to agree these things in a timely and proportionate manner. We have agreed the details of an implementation period. Each time they declare their scepticism, but we are confident that we will reach a deal at the end of the day.
As I have set out, this is neither helpful nor necessary as the text of the amendment mirrors all of the issues that we are consulting on before introducing legislation that this House and other places will be able to scrutinise. I hope that noble Lords will acknowledge that voting for this amendment would prejudge a significant period of consultation that would go against the principles of good policy-making and be ultimately detrimental to the future protection of environmental law. I hope, therefore—without much optimism—that the noble Lord will see fit to withdraw the amendment.
Lord Elton (Con)
I hate to interrupt the Minister again, but I am genuinely confused by his answers to the Cross Benches. Do I understand that there will be an untrammelled means of enforcement until the end of the implementation period, and during that time there will be negotiation about future legislation; or is it suspended while the negotiation goes on?
Lord Callanan
As the implementation period has already been agreed, it will be the subject of further legislation in this House. Irrespective of that, we are giving a commitment to bring forward the environmental legislation already announced by the Secretary of State for Environment, Food and Rural Affairs, on which I have already updated this House.
Lord Krebs
My Lords, I thank all noble Lords who have taken part in the debate this afternoon. We have heard some very passionate and powerful arguments, many in favour of this amendment. I also thank the Minister for his response, although I found it as disappointing as he found my amendment. In fact, I was reminded of the words of Francis Cornford, written over 100 years ago. In his chapter on argument, he said that there are many reasons for not doing something but only one reason for doing it, which is that it is the right thing to do. I strongly believe that in this case, the right thing to do is to support the amendment.
In his speech, the noble Lord, Lord Deben, reminded me of something I heard him say over 20 years ago when he was Secretary of State. He defined sustainability as “not cheating on our grandchildren”. One of the advantages that many noble Lords will share with me is that, as you get older, you have grandchildren. I am fortunate to have three wonderful grandchildren. But with that pleasure comes the responsibility to care about their future. This amendment is about caring for the future of our grandchildren. It is not just about birds, bees, butterflies and wild flowers, because the health of our grandchildren is intimately related to the health of the environment that we leave for them to live in. This is about a healthy environment for the future and about the health of future generations. So, in spite of the arguments for not doing so, I wish to test the opinion of the House.
Baroness Wheeler (Lab)
My Lords, on behalf of my noble friend Lord Hunt, who is unable to be here today, I fully support the amendment of the noble Baroness, Lady Finlay. It was helpful to be reminded of the strong concerns expressed on Report; I also endorse the comments made by the noble Lord, Lord Warner. It is important to have clarification that the need to preserve Article 168 of the Lisbon treaty as part of retained EU law is recognised, and I look forward to hearing the Minister’s comments.
I commend the Minister’s willingness to work with noble Lords across the House on this important matter and his helpful role in facilitating this and working through the issues referred to by the noble and learned Lord, Lord Mackay. Article 168 places public health protection and health improvement at the epicentre of policy-making, and the Government’s assurances that our domestic law implementing EU public health requirements will continue to be interpreted by reference to relevant EU law, including Article 168, will be welcome.
The Minister’s assurance of the Government’s commitment to ensuring that the UK remains a world leader in public health following Brexit would also be welcome. I hope he will provide the House with this, to be noted for the record.
Finally, it is important once again to pay tribute to and place on record the work of the wide coalition of major public health bodies, medical colleges, charities and the wider health community in helping us, one hopes, reach a consensus on the way forward.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
I thank the noble Baroness, Lady Finlay, for bringing back this important amendment before your Lordships’ House. I do not think I have ever drunk as much tea as I have in the past week or so as I have met various noble Lords and noble Baronesses, but it has been worth it.
I shall be a little more specific in the words I read out because we need on this occasion to give noble Lords the exact words that I hope they require. Before doing that, I should pay tribute to the noble Lord, Lord Warner—to say that he has been spirited would perhaps be an understatement—and to my noble and learned friend Lord Mackay, who is right about there being legal advices and legal advices, but I would much rather have his advice than that of others.
Let me tell your Lordships a little more about the effect Article 168 of the Treaty on the Functioning of the EU will have after we leave. It is right that we pay tribute to the Faculty of Public Health and the 62 organisations that have contributed to keeping this issue at the forefront of your Lordships’ House’s discussion. An important coalition has been assembled. I would like to think that there is now genuine recognition on all sides of the Brexit argument that public health must be at the epicentre of our engagement. There should be no back-rolling in any of the health standards. The Faculty of Public Health has been at the forefront of public health, and will continue to be so. That is important to put on the record today.
Many noble Lords have spoken eloquently of the importance of Article 168, notably its role in a successful defence to the legal challenge brought by tobacco manufacturers against the introduction of plain packaging. We therefore recognise why noble Lords are keen to confirm the Bill’s effect in that area. The Government should have been clearer on this matter in previous debates and I welcome the opportunity provided by the noble Baroness, Lady Finlay, to provide that further clarity.
The Government fully expect that, after exit, Article 168 will continue to be influential to the interpretation and application of retained EU law. This may include the determination of legal challenges to which Article 168 is relevant, including the consideration of public health legislation before exit day. As was noted on Report in this House, although Article 168 is not a directly enforceable provision of the TFEU, it has nevertheless been influential on EU and domestic law in the area of public health. I reassure the noble Baroness that when retained EU law is interpreted and applied, any such influence will be preserved by this Bill.
The Bill is intended to capture EU law as it stands at exit day and, as we have previously discussed, incorporate it into domestic law. Clause 2 preserves domestic legislation that implements or relates to EU law, including that in the area of public health. It is preserved,
“as it has effect in domestic law immediately before exit day”.
This will include, for example, the effect given to the Standardised Packaging of Tobacco Products Regulations 2015 by the tobacco packaging case, which, in a sense, echoes the words of my noble and learned friend Lord Mackay of Clashfern. Similarly, Clause 3 incorporates direct EU legislation, such as EU regulations relating to nutrition and food safety into domestic law,
“as it has effect in EU law immediately before exit day”,
and Clause 5 provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures that were recognised and available in domestic law immediately before exit by virtue of Section 2(1) of the European Communities Act,
“continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.
I had to get that exactly right; I hope it is. Therefore, any rights or obligations that have been drawn from Article 168 will be preserved as part of retained EU law.
Clause 7 is also important because it ensures that retained EU law is interpreted in accordance with relevant pre-exit case law. This means, for example, that domestic law implementing EU public health requirements will be interpreted by reference to relevant EU law, including Article 168. As my right honourable friend the Secretary of State for Health wrote on PoliticsHome on 18 April:
“Our guarantee of equivalent or higher standards of health protection and health improvement when we have left the EU is unequivocal”.
The influence of Article 168 of the TFEU on retained EU law, and existing duties such as those in the NHS Act 2006 and Article 12 of the International Covenant on Economic, Social and Cultural Rights will enable us to do this.
I am sorry that on this occasion I cannot therefore accept the amendment in the name of the noble Baroness.
Lord Lansley (Con)
Circumstances have not enabled me to participate in previous debates on this subject but I want to put one point to my noble friend. He has instanced the debate on standardised packaging; I was responsible for the initial consultation. That policy did not stem from a European Union initiative but from one in this country or, one might say, from my conversations with Nicola Roxon, the Australian Health Minister. We do not therefore depend on the treaty for the function of the European Union to lead on public health. We have done so inside Europe, as we have across the world, on issues such as the tobacco control regime, and I hope we will continue to do so. The practical, rather than legal, issue is how effective our continuing co-operation with other European Administrations, national and EU, will be in combating public health threats—for example, the spread of infections. That kind of activity is much more practical than it is legal.
Lord Duncan of Springbank
I thank my noble friend Lord Lansley for that helpful intervention. He is, of course, absolutely right that the judgment did draw upon an aspect of Article 168, but of course the principal driver was not the EU component; that was rather a contributing component and as such it will be available as a contributing component going forward. The second point my noble friend raises is an important one and I hope it will permeate much of the discussion we have had and will continue to have. There needs to be ongoing collaboration with our colleagues and friends in the EU; that must continue. We must learn lessons where we can, not just from the EU but more broadly. I would like to think, again, that where good ideas emerge in the wider world of public health we grab hold of them, take them to heart and move forward on that basis.
Lord Dykes
Bearing in mind that Clause 4 as amended has clear definitions of the protections that were required in the amendment, would it not therefore be possible for the Government kindly to consider reinforcing the certainty and security of the assertions by including the text, or perhaps a revised, shortened version of the text, in the new Clause 5? It would go in the Bill as subsection (1), paragraph (c) to the amended Clause 4. Would that not be a very convenient way of combining two certainties to reassure the public?
Lord Duncan of Springbank
I always welcome interventions of this nature. On this occasion I think that the Government position is clear—I hope so as I look to the noble Baroness—and provides the necessary and useful support and words of comfort. I think that on that basis it should be understood by all who read today’s remarks and engage directly with the Government on this matter that what they are seeking is provided for and will be available: as it is today, so shall it be after Brexit day. I hope that those words are of comfort to the noble Baroness on this occasion.
Baroness Finlay of Llandaff
My Lords, I am most grateful to everyone who has intervened. As someone who has felt passionately about tobacco control I am glad to be able to tell noble Lords that I am now involved in working with Hong Kong on its tobacco control measures. UK public health has indeed led the world in many ways and nobody wanted to see that jeopardised. I am particularly grateful to my noble friend Lord Warner for generously sharing some of the background to all this with me, and of course the noble and learned Lord, Lord Mackay of Clashfern, who gave me a tutorial on some of the issues around EU law shortly before we came into the Chamber.
I am confident that the Government’s reassurances today will offer the legal certainty that the sector is seeking; I am sure they will be warmly welcomed by the whole health community and all those organisations which signed up to the coalition. They are 62 major health and welfare organisations and it sends a very strong signal that this Government are committed to the health and well-being and individuals, of communities and of the country during the Brexit negotiations and after we leave the EU. It signals that future Governments must retain this as a highest priority. Therefore, I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.
On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:
“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.
As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.
My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.
The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.
Baroness Hayter of Kentish Town
My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.
There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.
I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,
“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,
while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.
Lord Keen of Elie
My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.
I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.
I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.
The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.
I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances, I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.
In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.
I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.
Lord Callanan
“( ) In subsection (9), leave out “and (8)” and insert “, (8) and (8L)”.”
Lord Callanan
Lord Callanan
My Lords, I move the Motion with a tremendous sigh of relief. This is a good time to reflect—briefly, noble Lords will be pleased to know—on the passage of the Bill through the House. As I have said on numerous occasions, the Bill has a simple purpose: to prepare our statute book for leaving the European Union. This Bill is vital to ensuring that, as we leave, we do so in an orderly way.
When the Secretary of State for Exiting the European Union opened the Second Reading debate in the House of Commons, he said:
“I stand ready to listen to those who offer improvements to the Bill”.—[Official Report, Commons, 7/11/17; col. 343.]
No one can be in any doubt that we have listened. We have brought forward significant amendments to all the key aspects of the Bill, in partnership with many noble Lords in this House, with almost 200 amendments having been made to the Bill in total. The Bill now ensures that our courts are clearer on the interpretation of the CJEU’s case law. It ensures that Parliament is better informed about, and better able to scrutinise, the powers in the Bill. And it ensures that, as we leave the EU, more new powers are passed by default to Edinburgh, Cardiff and Belfast than ever before.
We have had 11 extended days—over 100 hours—of Committee debate on the Floor of this House. We have had six days on Report, and we have discussed almost 800 amendments. More noble Lords spoke at the Second Reading of this Bill than any other Bill in the history of your Lordships’ House.
The Government have of course suffered defeat on 15 issues. Although I regret the number of defeats, I am grateful to the many noble Lords who have worked constructively to improve the Bill. This House has done its duty as a revising Chamber. The Bill has been scrutinised. It is now right that the Bill be sent back to the elected House of Commons so that Parliament can, as a responsible legislature, complete the job of ensuring a functioning statute book for the whole of the UK. I beg to move.
Amendment to the Motion
Lord Callanan
My Lords, all of us have travelled a long way—in my case, it seems like an awful long way—over a long time on this Bill since its introduction what seems like years ago but apparently is only a few months.
First, I thank the Opposition Front Benches for their work and for their kind words. I pay particular tribute to my colleagues, particularly the Leader, the Chief Whip, my noble friend Lady Goldie and my noble and learned friend Lord Keen—of wet trousers fame—for all their help and support throughout. If noble Lords do not understand that remark, I think it is on YouTube.
I also offer my considerable thanks to the team in my private office and to all the dedicated civil servants—Marianne and her team—in the Bill team, who have worked tremendously hard. Do not forget that they also took the Bill through the House of Commons: they have worked all hours of the day and night and are a credit to the Civil Service. I am very grateful for all the support and help they have given me and the rest of the Front Bench.
Let me briefly reply to the noble Lord, Lord Adonis. The House will be pleased to know that I am not going to engage in any disagreements or arguments with him at this stage—well, I am slightly—but, to reply to his question, I am sure that the other place will consider this House’s amendments in due course but it is not for me to determine its timetable. For my part, I am pleased that in his amendment to the Motion he seems finally to have recognised the need to get the Bill on the statute book in good time to ensure that we successfully deliver on the instruction given by the electorate on 23 June 2016 to leave the European Union.
