European Union (Withdrawal) Bill
(6 years, 6 months ago)
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17:52 - Division on Motion F3 - Ayes: 354 / Noes: 235 - Motion F3 agreed.
Lord Callanan
That this House do not insist on its Amendments 1 and 2 and do agree with the Commons in their Amendments 1A and 1B in lieu.
“Customs arrangement as part of the framework for the future relationship
(1) A Minister of the Crown must lay before each House of Parliament a statement in writing outlining the steps taken by Her Majesty’s Government, in negotiations under Article 50(2) of the Treaty on European Union, to seek to negotiate an agreement, as part of the framework for the United Kingdom’s future relationship with the EU, for the United Kingdom to participate in a customs arrangement with the EU.
(2) The statement under subsection (1) must be laid before both Houses of Parliament before the end of 31 October 2018.”
“( ) section (Customs arrangement as part of the framework for the future relationship),”.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the issue of continued participation in a customs union with the EU was debated at length in our House. It has now been debated twice in the House of Commons. Most recently, the other place chose to reject those amendments put forward by the noble Lord, Lord Kerr. Instead, it chose to accept an amendment tabled in lieu by my right honourable friend Sir Oliver Letwin, to which this House is now invited to agree.
My right honourable and learned friend the Solicitor-General set out why the Government were unable to support Lords Amendments 1 and 2 and I do not intend to repeat those arguments at length. I will simply reiterate that the UK, in its entirety, is leaving the customs union. We will seek a new customs arrangement with the EU that allows us to trade goods and services as frictionlessly as possible with the EU, frees us to strike trade deals around the world, and avoids any return to a hard border between Northern Ireland and Ireland.
The amendment sent to us from the other place ensures that Parliament is informed, through a Statement before both Houses provided by 31 October 2018, of the steps we have taken to seek to negotiate an agreement for the United Kingdom to participate in a customs arrangement with the EU. The Government believe that this alternative to the amendment tabled by the noble Lord, Lord Kerr, provides the right balance between ensuring Parliament is informed of the steps the Government are taking to secure a future customs relationship, and ensuring that we follow through on the objective of delivering the referendum result by leaving the EU and, therefore, also leaving the customs union.
I therefore hope noble Lords will be content to accept the amendments from the House of Commons this afternoon. I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, this is the first of the Motions before us today. In addressing it, I will briefly reflect on the role that your Lordships’ House played in consideration of this Bill, and, for the avoidance of any doubt, our approach to today’s business.
Despite attracting perhaps a little more excitement, this is the same procedure that we have for every legislative Bill that comes before your Lordships’ House. I have said before that the process of Brexit cannot be left to those who have no doubt. It is only through consideration and challenge that we get better, if not the best, outcomes for any legislation. This Bill came to us deeply flawed and divisive. Together as a House, we approached it thoughtfully and diligently. We have had some long days and some long nights in Committee and on Report. We are grateful to those Government Ministers across departments who have been willing to engage on some of the less controversial but equally important issues.
Of around 200 amendments passed, 15 did not enjoy the full or initial support of the Government. Of these, one was totally accepted on agencies and another largely accepted, with minor changes, on Northern Ireland. Eight were rejected, although on some of these enhanced protections for EU-derived protections the Government have since made further concessions, or, in the case of sifting, reinstated earlier amendments. Five have been replaced with amendments in lieu. We will consider these today, including the one we are talking about now on the customs union and the publication of primary legislation to enforce environmental protections.
We are grateful to the Government for their consideration and acceptance of so many of the points raised in your Lordships’ House. Even before the Bill returned to the other place, significant changes were made on a range of issues, including removing the power to levy taxes or establish new public authorities by statutory instrument, which is particularly important for the new environmental enforcement body; additional explanatory statements and reports to Parliament; the introduction of sunset clauses on some issues; the prevention of the repeal or amendment of devolution clauses by secondary legislation and significant amendments in your Lordships’ House on devolution provisions; and clearer guidance for courts and tribunals relating to future decisions of the CJEU. Importantly, we have seen the removal of a clause that I had never seen before in legislation; that is, one giving a Minister the ability to amend the Bill via an SI. That has gone.
Despite disappointment at the rejection of some Lords amendments, this legislation is better for the work that we have undertaken. We have not exceeded our defined and limited role, but we have used our remit to provide for greater consideration, further reflection and meaningful changes. As the Leader of the House has said previously, reinforced by Ministers in the other place, there is no legislation that does not benefit from scrutiny in your Lordships’ House.
We understand that in a democracy this can be both an asset and, at times, a source of frustration to government. Canadians describe their second Chamber as a Chamber of sober second thought—a further opportunity to think things through and fine-tune legislation. That makes the outbursts of some pro-Brexit MPs all the more ridiculous. As we discuss these final amendments from the House of Commons, we have seen a fair bit of sabre-rattling from some of the most enthusiastic Brexiteers and supporters. Inaccurate and misleading press headlines such as “Enemies of the People” and “Saboteurs” may add excitement and drama, but they do nothing to improve the quality of debate or journalistic integrity.
We have also heard calls for this House to be abolished, to be replaced with a committee of experts or an elected House. I know that many hold honourable and genuine positions on different kinds of reform, but to base a case for fundamental change to and abolition of the current system on disagreement on a Bill shows poor judgment. In response to proposals for an elected House or House of experts, I suggest that such a House might not be quite so compliant in accepting the primacy of the House of Commons.
Today, our role is very clear. This House does not and should not engage in ping-pong lightly or without thought. The process of ping-pong is not to challenge the elected House, but to provide an opportunity. Where matters are clearly and obviously unresolved in the House of Commons, that is where they should be dealt with. The reported disagreement since Friday between the Government and their own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration, and it can be resolved only by those elected to the House of Commons.
Lords Amendments 1 and 2 on a customs union have been returned to this House with, in effect, just one amendment, changing “customs union” to “customs arrangement”. This is unnecessary, but I understand why the Government have done it. It is because the Government do not yet know, even today, what they want. Currently, they have two work streams: a customs partnership and maximum facilitation. However, when the Dutch Government are advising their manufacturing industry not to buy car components from the UK because our future customs relationship with the EU is unclear, we know that there is a problem that needs to be addressed urgently. As a result of the amendment from your Lordships’ House, the Government are now committed to return to Parliament in just over four months, by the end of October this year, with a Written Statement on what they have done and how they will proceed. I do not now feel that this is an issue that we should return to the other place.
Lord Newby (LD)
My Lords, I associate myself with much of what the noble Baroness has said about the role of your Lordships’ House. The role played by the Lords on this Bill has been completely in line with constitutional precedent. We indeed defeated the Government 15 times, but the Government used the Lords stages of the Bill to introduce more than 150 amendments of their own, including extremely important ones on devolution. That is because they recognised that your Lordships’ House was indeed the place in which the Bill could be improved.
Of the 15 amendments we passed, as the noble Baroness said, the Government have accepted almost half, either in whole or in part. This is not, incidentally, something that one would gather by reading the popular press. The Government have also chosen to use this stage of the Bill to introduce an amendment of their own in an attempt, possibly unsuccessful, to resolve the “meaningful vote” issue. They clearly recognise that the Lords has a vital part to play in improving legislation, even at ping-pong stage, and they are sensibly seeking to do so in this case.
Lord Grocott (Lab)
My Lords, I will speak very briefly because, like everyone else, I want to watch a football game later this evening. I hope I am not alone in the House in saying that, while it may be true that we would stand a greater chance against Brazil and others if we joined a European football team and abandoned the England one, I would not be in favour of that course of action. The reason I want to speak very briefly was hearing the noble Lord, Lord Newby, suggest that everyone needed a lecture on the constitution—I am certainly not averse to that—and, in particular, a lecture on the use of ping-pong. He also suggested that this Bill is like any other Bill and is being treated in exactly the same way: it is at that point that I have to disagree with him, on at least two grounds.
The first is that it is certainly not like any other Bill in terms of the amount of scrutiny it has been given; 12 days in Committee, six days on Report and several nights, as my noble friend the Leader of the Opposition maintained. It has had extensive scrutiny, entirely in line with the best traditions of this House, but not exactly like the scrutiny that every other Bill gets. Of course, there is another crucial difference between the way that this Bill has to be considered and the way that any other Bill has to be considered. I am not averse to ping-pong. I seem to remember occasions when a Bill has gone backwards and forwards six times. That can happen, indeed it can. However this Bill is not like any other Bill, because it is a direct and unavoidable consequence of a referendum, which this House voted for without opposition, to give the decision about our future membership of the European Union to the British people. This, we properly did, and they properly gave us their verdict. But it is not just the fact that the British people have told us that we need to pass the enabling legislation to facilitate Brexit, because this House made that decision as well—as did the House of Commons—when both Houses voted in favour of the implementation of Article 50. We all know that, having the referendum and the votes of both Houses on Article 50 as our guide, we absolutely have to pass this Bill into law, otherwise there will undoubtedly be a cliff edge. There is a lot of hyperbole about cliff edges but it is not hyperbole to talk about a legal cliff edge if this House does not pass the Bill in good time.
My view of our constitution is this: this is an exceptional Bill, which has had exceptional scrutiny. We have asked the Commons to think again, and it has thought again and decided that it preferred most of the Bill in the way that it was sent to us a couple of months ago. Now we need to expedite this. I, for one, am not minded to support any proposals which will further prolong the Bill, the decisions having already been made, according to our constitution—and, I might say, in the best traditions of this House.
Lord Robathan (Con)
My Lords, the noble Lord, Lord Newby, has offered a tutorial in the constitution. I am a relatively new Member of this House—some people have been here far too long, I agree—but I understood that something called the Salisbury convention meant that the opposition parties would agree with those things put forward in the manifesto of a governing party. Perhaps somebody could explain to me why, when the Conservative manifesto said that we would leave the customs union, opposition parties—and, I regret to say, some of my noble friends—have determined that we shall not. Surely if it is in the manifesto, it has been agreed by the people of this country and we should accept the Salisbury convention. Perhaps at some point the noble Lord, Lord Newby, or the noble Baroness, Lady Smith, might explain what happened to the Salisbury convention and why it is being ignored left, right and centre.
Lord Spicer (Con)
My Lords, this may be the last time I address this House on a point of substance—unless my health changes. My physiotherapist says that I will be playing tennis again by Christmas, which would be nice because I used to captain the parliamentary tennis team. But at the moment I do not think I could crawl here from the Bishops’ Bar in a straight line without what that nice lady has given me across the counter.
Briefly, I want to make it clear why for the past 30 years I have been a pain in the neck to those who want to stay in Europe. I formed the Fresh Start group and the ERG some 30 years ago. I did so for a one-word reason. I will spend just three or four minutes, if I may, saying what I want to say.
My one word is not “trade”. I think trade is terribly important. One of the reasons I am against the European Union is that it is a defensive trade bloc, basically in the German interest, often not providing the technical solutions that Germany thinks it needs, as has been shown by several cases recently. The word I want to use is “patriotism”. I do not mean the fascist form of wrapping yourself up in a flag; I mean a bit of sentiment—John Major’s warm beer and the shadows of the trees across the cricket pitches, the music of Elgar, the Trooping of the Colour—but that is not the essence. The essence of why I oppose staying in the European Union is that it seems to me that the nation state is the best unit for democracy. It is the only unit that demands and gets loyalty and support from the people, in return for which it offers accountability. That is what it is all about: it is about the nation state being the basic unit for democracy. However much they support Europe, no one can claim that the European Union is a democratic state, in the sense that you cannot chose your Government if you are a citizen of the European Union. That is why I have always been against the European Union and in favour of the nation state, and above all the British nation state, which is in many senses the home of democracy. Democracy is the one word I would use if I were saying why I was against the European Union.
Lord Cormack (Con)
My Lords, I am sure I can speak for the whole House in saying that I very much hope that that will not be the last time my noble friend addresses this House. I regard him as a good and true friend. We have never agreed on this particular issue, but I respect his deep patriotism, to which he has given expression in his brief speech. All I would say to my noble friend and others who may be on his side of the argument is that it is perfectly possible to be a passionate patriot and to be a little concerned, to put it mildly, at the process we are now going through.
I have never sought to say, and I am not going to say it now, that those of us who voted for certain amendments have been trying, as a noble friend suggests in an article in the Times this morning, to frustrate Brexit. We have not. What we have been seeking to do is to improve a Bill which has to go on to the statute book. I totally accept what the noble Lord, Lord Grocott, said. Of course it has to go on to the statute book, and it has to do so fairly expeditiously. What we have done in your Lordships’ House has been entirely consistent with our constitutional duty. We have sent the Bill to another place, and it has now come back to your Lordships’ House. I hoped that there would be no need to vote at all today. I think there is one issue—namely, the meaningful vote—which we will have to look at, if only to give what a number of colleagues in the other place want, which is an opportunity to vote on a definite suggestion. We will come to that later.
I think we can be quietly proud of the achievements of your Lordships’ House. We have succeeded in persuading the Government to accept one amendment in its entirety and another almost in its entirety and to make, as the noble Lord, Lord Newby, said, something over 150 changes to the Bill, so we have nothing to be ashamed of. We have not procrastinated or delayed unduly. We have merely exercised our constitutional responsibility. When the Bill leaves your Lordships’ House today, I hope that, with one exception, there will be no need for it come back to your Lordships’ House because the Bill—again, I refer to the noble Lord, Lord Grocott—must go on to the statute book. Although many of us across the House, probably a majority in your Lordships’ House, are sorry about what is happening, even those of us who believe that the plebiscite is inimical to representative parliamentary democracy accept what has happened, and we must now try to ensure that whatever the ultimate outcome, it is characterised by understanding and friendship across your Lordships’ House and, more important still, understanding and friendship with those 27 countries which are our allies and our friends and with whom we do indeed wish to have, to quote the Prime Minister, a deep and lasting partnership. I hope we can now proceed fairly expeditiously this afternoon.
Lord Callanan
My Lords, I thank all noble Lords who have contributed to this debate. Not many people had much to say about the issue of the customs union and the customs partnership; nevertheless, I thank them for their contributions. I thank the noble Baroness, Lady Smith, in particular for her comments; I think that in general they were wise words. As I said at Second Reading and repeatedly throughout the progress of the Bill, of course we are prepared to look at constructive suggestions that have been made for improvements to the legislation. We were in listening mode, we have had extensive debate internally in government about many of the points that have been raised and, where we have been able to, we have moved to reflect some of the comments, amendments and Motions that have been made by Members of this House. However, I say to the noble Lord, Lord Newby, that our position has always been that many of the debates we have had—and the customs union one is part of them—were not necessarily core to the central purpose of the Bill; rather, they were about the Government’s negotiation priorities. Of course, when we have an agreement there will be further legislation and we will be able to come back and discuss these matters in more detail.
Bearing in mind the wise words from the noble Lord, Lord Grocott, I am sure many English Members will want to try to watch the game later. I hope Scottish, Welsh and Northern Irish noble Lords will not want to unduly frustrate this process to enable us to do that.
On the issue of the customs union, the Government have been clear that we are leaving the customs union and that we will seek new arrangements that allow us to trade goods and services as frictionlessly as possible with the EU, free us to strike trade deals around the world and avoid any return to a hard border between Northern Ireland and Ireland. I hope noble Lords will be able to accept the amendments that were made in the other place. Once more, I beg to move.
Lord Callanan
That this House do not insist on its Amendment 3 and do agree with the Commons in their Amendments 3A and 3B in lieu.
“Maintenance of environmental principles etc.
(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—
(a) a set of environmental principles,
(b) a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,
(c) a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),
(d) provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and
(e) such other provisions as the Secretary of State considers appropriate.
(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—
(a) the precautionary principle so far as relating to the environment, (b) the principle of preventative action to avert environmental damage, (c) the principle that environmental damage should as a priority be rectified at source,
(d) the polluter pays principle,
(e) the principle of sustainable development,
(f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,
(g) public access to environmental information,
(h) public participation in environmental decision-making, and
(i) access to justice in relation to environmental matters.”
“( ) section (Maintenance of environmental principles etc.),”
Lord Callanan
My Lords, the issue of environmental protections spanned several hours of debate in our House, both in Committee and on Report. Indeed, an amendment was made to the Bill, tabled by the noble Lord, Lord Krebs. The Government considered the noble Lord’s amendment but decided instead to give our backing to an alternative amendment put forward by my right honourable friend Sir Oliver Letwin. That amendment provides further reassurance to Parliament of the Government’s intentions to uphold environmental protections after exit and sets out in legislation that the Government will publish a draft Bill no later than six months after Royal Assent to this Bill. It delivers robust protections. In particular, it acknowledges that there may be circumstances where the new independent environmental body should be able to take the Government to court, which I know was a desire of many noble Lords. This power will be proportionate and appropriate and will supplement established processes, including of course parliamentary scrutiny.
The amendment also requires that the draft Bill includes a list of the environmental principles, such as the “loser pays” principle and the precautionary principle within it. The draft Bill and the forthcoming policy statement will provide further details of how these environmental principles will be interpreted and how they will apply. These proposals will ensure that the primary focus of the principles will be the formation of policy at a national level.
As we made clear in our consultation document and in last week’s Commons debates, the amendment applies only to England and to reserved matters. The draft Bill itself will similarly apply only to England and to reserved matters. That means that neither the amendment nor the draft Bill that will flow from it will trigger the legislative consent process. I understand that the Welsh Government do not share our view, and it is of course open to them to put forward a legislative consent Motion in the Assembly. That is clearly a matter for the Assembly and it would not change the UK Government’s view.
The noble Lord, Lord Krebs, has tabled a further amendment on this subject for consideration today. I fear that the Government are unable to accept it as we do not believe it is appropriate to use this Bill fully to design the policy for the creation of the new independent statutory body and the new statutory policy statement. We have already supported an amendment in the other place to ensure that there is a statutory commitment for government to set this body up. We are consulting stakeholders and will bring forward policy proposals and a draft Bill in due course. Deciding further detail on the body through the amendment would undermine that very consultation process.
The UK has a long history of environmental protection, and we will safeguard and improve on this record as we leave the European Union. This commitment underpins our 25-year environment plan and the Government’s pledge to leave the environment in a better state than we found it. Leaving the EU means that we now have a unique opportunity to design a set of policies that drive environmental improvement with a powerful and permanent impact tailored purely to the needs of our country.
I hope that noble Lords will accept the amendment sent to us from the other place and recognise that it underpins our pledge to use the opportunity that Brexit provides to strengthen and enhance our environmental protections, not to weaken them. We continue to welcome consultees’ views as part of the ongoing consultation on environmental principles and governance. I therefore urge noble Lords to accept the government amendment and beg to move.
Motion B1 (as an amendment to Motion B)
Lord Krebs
At end to insert “and do propose Amendments 3C to 3K as amendments to Commons Amendment 3A—
“(3) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.””
Lord Krebs (CB)
My Lords, while not moving my Motion B1, I should like first to thank the Minister for and acknowledge the changes made in the other place; I would say that they capture about 80% of what we were trying to achieve with the amendment moved in this House at Third Reading. In particular, as the Minister said, the amendment that he has tabled ensures that the new independent green watchdog, as it is often called, will have powers including the power to take legal action where necessary. I was also pleased to note that he referred to it in his comments as an independent watchdog, which was one part of my amendment, so that is already recognised by the Government, and that the Government would take both proportionate and appropriate measures, which was again part of my amendment.
However, in not moving my amendment, I do not wish to give the impression that this is the end of the story. I think that the Government’s commitment to replace the environmental protection that we have now as a member of the European Union is close but not quite there, and I hope that when the new environment Bill comes before this House later in the year, as we are promised, there will be a further chance to debate these matters. At that point, we can push the Government further.
Baroness Jones of Moulsecoomb (GP)
My Lords, to say that I am fuming at dropping this amendment would be to put it mildly. I am incredibly disappointed. It would have been a move forward. We have such fine words from the Government, but we do not have the action. Having said that, I admit that the Government’s compromise amendment has moved us forward, but just not far enough. Therefore, as the noble Lord, Lord Krebs, just said, this is unfinished business and will come back.
The Government promised us the same standards as the EU has given us, and they have backtracked on that. It is deeply offensive not only to this House but to the whole country that the Government have been so profligate with a promise they made and then decided not to honour it. I deeply regret the amendment not being moved, and we will be back.
Lord Wigley (PC)
My Lords, at earlier stages of the Bill, when an amendment of the noble Lord, Lord Krebs, was debated, the Minister made the point that the amendment as then tabled could constrain the devolved authorities. Will he explain to the House how his amendment has overcome that problem?
Baroness Jones of Whitchurch (Lab)
My Lords, government Motion B follows the debate that we have been having throughout the passage of the Bill on the enforcement of environmental principles. On each occasion, noble Lords have voted on a cross-party basis around the Chamber to send a message that the Government’s proposals are not good enough and do not represent the protections for the environment that we currently enjoy in the EU.
At Third Reading this House supported, with a significant majority, an amendment that set out how current EU rights could be replicated in UK law. I am sorry that the Government did not feel able to support it when it went back to the Commons. They did, however, finally and reluctantly—as the noble Lord, Lord Krebs, said—come up with their own alternative. It is a step forward, and I am pleased that many of the arguments made by our side of the House, and across the Chamber, have had some impact.
As the Minister will know, the views that we expressed are supported by tens of thousands of individuals, activists and NGOs around the country who have campaigned vigorously on these issues. So we have made progress, but there remains—as my noble friends said—unfinished business. We will continue, therefore, to use every opportunity to achieve what we have been promised. All we are trying to do is replicate what we already have—and to be assured that it will be in place on Brexit day.
At the heart of environmental protection we need a green watchdog, on a statutory footing and independent of government, that can take appropriate enforcement action against Ministers and arm’s-length bodies when they ignore their environmental responsibilities: in other words, a watchdog that replicates the current role of the EU Commission. We also want an obligation on Ministers to act in accordance with the provisions of the Bill, rather than simply to “have regard to” the provisions, which is a much less stringent legal requirement and could lead to considerable legal uncertainty. Finally, we want to ensure that our exit from the EU does not end, by accident or design, in a diminution of rights and powers otherwise enjoyed in the EU.
It is important that these issues are resolved because, as we debated at Third Reading, the Government’s proposed alternative—the environmental principles and governance Bill—will not be available, at the earliest, until after the next Queen’s Speech. For many of us, moreover, the consultation document produced in advance of that Bill is a thin and unpromising start to the promises made by the Secretary of State to deliver a world-leading environmental body, with independent, statutory backing, to hold the Government to account.
I hope, therefore, that the Minister will address our ongoing concerns, despite the progress that has been made. I hope that he will make it clear that what we have before us is a minimum set of proposals and that negotiations will continue on the details. I hope, too, that he fully understands that we are not going away and will press these arguments at every opportunity.
Lord Callanan
My Lords, as I said at the start of this debate, the issue of environmental protections has been widely discussed during the Bill’s passage through both Houses, and I thank all noble Lords who have contributed today. In particular I say to the noble Baroness, Lady Jones—who I know feels passionately about these issues—that we agree with her that the environment should be left in a better state than when we inherited it, and that we want to use the opportunity of Brexit to design environmental policies that in many respects are more advanced than those of the European Union but are tailored purely for the benefit of the United Kingdom. I am sorry that the noble Baroness feels disappointed, but she has the commitment of the Government—and the Secretary of State—to take these matters forward in the Bill once the consultation is finished.
I will address some of the points that were made. As I set out earlier, the consultation document is clear that these proposals are for England only. They cover areas that are the responsibility of the UK Government. The amendment requires the Secretary of State to publish a draft Bill and makes no substantive change to the law in Wales or anywhere else. This goes to the heart of the point made by the noble Lord, Lord Wigley. We will work closely with the devolved Administrations on the new body, including on whether they wish to take a similar or, indeed, different approach themselves. The UK Government view is definitely that this amendment does not meet the test for legislative consent.
I reiterate that the amendment sent to us from the Commons represents an opportunity to strengthen and enhance our environmental protections, not to weaken them, and I hope that your Lordships will agree it today. I emphasise that we are still out to consultation on the main legislation. There will be plenty of opportunity to contribute to that consultation. I know that noble Lords and noble Baronesses who feel passionately about these matters will be able to contribute to that consultation—and then, of course, once the draft Bill is launched, there will be frequent opportunities in this House to debate the issues at great length, which I am sure noble Lords will take full advantage of.
Lord Callanan
Moved by
That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, and do propose Amendment 4B as an amendment to the Bill, and Amendments 4C to 4E as amendments to its Amendments 9, 161 and 162, in lieu—
“Affirmative procedure for instruments which amend or revoke subordinate legislation made under section 2(2) of the ECA (including subordinate legislation implementing EU directives)
5CA (1) A statutory instrument which—
(a) is to be made on or after exit day by a Minister of the Crown under a power conferred before the beginning of the Session in which this Act is passed,
(b) is not to be made jointly with any person who is not a Minister of the Crown,
(c) amends or revokes any subordinate legislation made under section 2(2) of the European Communities Act 1972, and
(d) would otherwise be subject to a lower procedure before each House of Parliament and no procedure before any other legislature,
may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(2) Sub-paragraph (1) has effect instead of any other provision which would otherwise apply in relation to the procedure for such an instrument before each House of Parliament but does not affect any other requirements which apply in relation to making, confirming or approving the instrument.
(3) Any provision which—
(a) may be made under the power mentioned in sub-paragraph
(1)(a),
(b) is not provision which falls within sub-paragraph (1)(c), and
(c) is subject to a lower procedure than the procedure provided for by sub-paragraph (1),
may be included in an instrument to which sub-paragraph (1) applies (and is accordingly subject to the procedure provided for by that sub-paragraph instead of the lower procedure).
(4) If a draft of a statutory instrument which—
(a) is to be made on or after exit day by a Minister of the Crown under a power conferred before the beginning of the Session in which this Act is passed,
(b) is not to be made jointly with any person who is not a Minister of the Crown,
(c) amends or revokes any provision, made otherwise than under section 2(2) of the European Communities Act 1972 (whether or not by way of amendment), of subordinate legislation made under that section, and
(d) would otherwise be subject to a lower procedure before each House of Parliament and no procedure before any other legislature,
is laid before, and approved by a resolution of, each House of Parliament, then the instrument is not subject to the lower procedure.
(5) This quotegraph applies to an instrument which is subject to a procedure before the House of Commons only as it applies to an instrument which is subject to a procedure before each House of Parliament but as if the references to each House of Parliament were references to the House of Commons only.
(6) For the purposes of this quotegraph, the order of procedures is as follows (the highest first)—
(a) a procedure which requires a statement of urgency before the instrument is made and the approval of the instrument after it is made to enable it to remain in force,
(b) a procedure which requires the approval of the instrument in draft before it is made,
(c) a procedure not falling within quotegraph (a) which requires the approval of the instrument after it is made to enable it to come into, or remain in, force,
(d) a procedure which provides for the annulment of the instrument after it is made,
(e) a procedure not falling within any of the above paragraphs which provides for the laying of the instrument after it is made,
(f) no procedure.
(7) For the purposes of this quotegraph a power is conferred whether or not it is in force.
(8) References in this paragraph, other than in sub-paragraph (4), to subordinate legislation made under section 2(2) of the European Communities Act 1972—
(a) do not include references to any provision of such legislation which is made (whether or not by way of amendment) otherwise than under section 2(2) of that Act, and
(b) do include references to subordinate legislation made otherwise than under section 2(2) of that Act so far as that legislation is amended by provision made under that section (but do not include references to any primary legislation so far as so amended).
(9) This paragraph is subject to any other provision made by or under this Act or any other enactment.
Enhanced scrutiny procedure for instruments which amend or revoke subordinate legislation under section 2(2) of the ECA (including subordinate legislation implementing EU directives)
5CB (1) This quotegraph applies where, on or after exit day—
(a) a statutory instrument which—
(i) amends or revokes subordinate legislation made under section 2(2) of the European Communities Act 1972, and
(ii) is made under a power conferred before the beginning of the Session in which this Act is passed, or
(b) a draft of such an instrument,
is to be laid before each House of Parliament and subject to no procedure before any other legislature.
(2) The relevant authority must publish, in such manner as the relevant authority considers appropriate, a draft of the instrument at least 28 days before the instrument or draft is laid.
(3) The relevant authority must make a scrutiny statement before the instrument or draft is laid.
(4) A scrutiny statement is a statement—
(a) setting out the steps which the relevant authority has taken to make the draft instrument published in accordance with sub- paragraph (2) available to each House of Parliament,
(b) containing information about the relevant authority’s response to—
(i) any recommendations made by a committee of either House of Parliament about the published draft instrument, and
(ii) any other representations made to the relevant authority about the published draft instrument, and
(c) containing any other information that the relevant authority considers appropriate in relation to the scrutiny of the instrument or draft instrument which is to be laid.
(5) A scrutiny statement must be in writing and must be published in such manner as the relevant authority considers appropriate.
(6) Sub-paragraphs (2) to (5) do not apply if the relevant authority—
(a) makes a statement in writing to the effect that the relevant authority is of the opinion that, by reason of urgency, sub- paragraphs (2) to (5) should not apply, and
(b) publishes the statement in such manner as the relevant authority considers appropriate.
(7) This paragraph does not apply in relation to any laying before each House of Parliament of an instrument or draft instrument where an equivalent draft instrument (ignoring any differences relating to procedure) has previously been laid before both Houses.
(8) This paragraph applies to an instrument which is subject to a procedure before the House of Commons only as it applies to an instrument which is subject to a procedure before each House of Parliament but as if references to each or either House of Parliament, or both Houses, were references to the House of Commons only.
(9) For the purposes of this paragraph—
(a) a power is conferred whether or not it is in force,
(b) the draft instrument published under sub-paragraph (2) need not be identical to the final version of the instrument or draft instrument as laid,
(c) where an instrument or draft is laid before each House of Parliament on different days, the earlier day is to be taken as the day on which it is laid before both Houses, and
(d) in calculating the period of 28 days, no account is to be taken of any time during which—
(i) Parliament is dissolved or prorogued, or
(ii) either House of Parliament is adjourned for more than four days.
(10) Sub-paragraph (8) of paragraph 5CA applies for the purposes of this paragraph as it applies for the purposes of sub-paragraph (1) of that paragraph.
(11) In this quotegraph “the relevant authority” means—
(a) in the case of an Order in Council or Order of Council, the Minister of the Crown who has responsibility in relation to the instrument,
(b) in the case of any other statutory instrument which is not to be made by a Minister of the Crown, the person who is to make the instrument, and
(c) in any other case, the Minister of the Crown who is to make the instrument.
(12) This paragraph is subject to any other provision made by or under this Act or any other enactment.”
Amendment to Lords Amendment 9 (see Bill 212)
“(ca) paragraphs 5CA to 5E (affirmative and enhanced scrutiny procedure for, and information about, instruments which amend or revoke subordinate legislation under section 2(2) of the European Communities Act 1972 including subordinate legislation implementing EU directives),”
Amendment to Lords Amendment 161 (see Bill 212)
“(8A) Sub-paragraph (8) of paragraph 5CA applies for the purposes of this paragraph as it applies for the purposes of sub-paragraph (1) of that paragraph.”
Amendment to Lords Amendment 162 (see Bill 212)
“(6A) Sub-paragraph (8) of paragraph 5CA applies for the purposes of this paragraph as it applies for the purposes of sub-paragraph (1) of that paragraph.”
Lord Callanan
My Lords, we now come on to the issue of enhanced protection of retained EU law. We have always understood the concerns that motivated noble Lords, but were concerned that the original amendment proposed by the noble Baroness, Lady Hayter, did not strike the right balance. In short, that amendment, as discussed in the other place, would have risked weakening rather than strengthening the rights in retained EU law. It would have left us unable to ready the statute book for exit or update it after exit, wreaking havoc across our domestic statute book in the process. However, in the best traditions of this House, both sides have now found more common ground. The noble Baroness, Lady Hayter, has tabled another amendment, which is aligned in its purpose if not in the mechanism used, with the amendments in lieu standing in my name. I am glad that the noble Baroness has been able to table a Motion to agree to some of those amendments.
Noble Lords will recall that at Report we brought forward amendments assigning a status to the different categories of retained direct EU law. The noble Baroness, Lady Hayter, herself mentioned, when tabling her original amendment, that there is a class of law where our amendments at Report did not provide for enhanced protection. That is our domestic implementation of EU directives, which is preserved through Clause 2 of the Bill. Much of this domestic implementation has happened under Section 2(2) of the European Communities Act 1972, which has historically been the delegated power used to implement many, if not most, of our EU obligations.
The Government are alive to the unique position that regulations made under the ECA to implement directives hold in our domestic legislation. They implement law which was negotiated at the EU level and which the UK as a member state was under a binding obligation to implement. They could in the past be modified only within the constraints of EU law. That is why the Government have tabled Amendments 4B, 4C, 4D and 4E, to reinforce protections for regulations created by Section 2(2) of the ECA and put in place an enhanced procedure once we have left the EU for secondary legislation amending such regulations.
We will have left the EU and be free to change these laws, but it is right that this is possible only within the constraints placed on us by active and informed consideration by Parliament, via an enhanced procedure which will involve everything the noble Baroness has called for. This proposed enhanced procedure for amendments to Section 2(2) regulations reflects their unusual nature and unique status in our legislative framework, and will complete the tapestry of protection that is threaded throughout the Bill’s provisions for retained EU law in all its many different forms. These government amendments deliver the noble Baroness’s goal, and I hope I can persuade her of this.
I will also explain the four reasons why the Government cannot accept the noble Baroness’s alternative Amendment 4F and why I believe, happily, that our amendment resolves all of those issues. The first issue is devolution. I know that the noble Baroness is fully committed to the devolution settlements, as am I and my ministerial colleagues. As it is written, the noble Baroness’s amendment only allows amendment by primary legislation or subordinate legislation made under an Act of Parliament. This means that no subordinate legislation at all made under devolved Acts can amend retained EU law in these areas, even when it is within the competence of the devolved Administrations. Where Acts of this Parliament allow the devolved Administrations to make subordinate legislation, the amendment would require devolved legislation to be subject to a procedure before this Parliament.
I know that it will not have been the intention of the noble Baroness to impinge on the competence or procedures of the devolved Administrations and Parliaments, and I am sure it was not her intention to create an unprecedented position in which devolved legislation made by a devolved Minister should be considered by this Parliament. This could, of course, be solved by some radical changes in the drafting, but the issue has been addressed in our amendment by providing that it applies only to instruments made by UK Ministers before this Parliament. This is doubly important at this late stage in the Bill’s passage, when there is no time to seek supplementary legislative consent from the devolved Assemblies.
Our second concern with the noble Baroness’s amendment is the range of still significant issues where it would create legal uncertainty. Amendment 4F refers to retained EU law “relating to” various policy areas. Quite apart from the fact that there are certainly other areas potentially worthy of protection, we are concerned that it will never be clear what law falls into these categories. An example would be a piece of EU legislation relating to which classes of investor may or may not purchase certain financial products. Does that relate to consumer protection or financial conduct, or both? Will it depend on the intent of the modification in question?
As we have said before, if anybody feels that their private interests have been adversely affected, would they be able to challenge any SI on the basis that it had improperly either undergone, or not undergone, the enhanced procedure referred to in the amendment? Even if an SI had undergone the higher of the two procedures, confusion over which procedure should have applied could very well give rise to a host of legal challenges on procedural grounds and risk crucial corrections to ready our statute book for exit or future improvements being struck down. Again, happily, we believe that the government amendment resolves this issue by being clear that it focuses on the legislation made under Section 2(2) of the European Communities Act to implement EU directives, and which is preserved by Clause 2 of the Bill. This will apply to all policy areas. We have also ensured that instruments can be combined and that, where there are grey areas, an instrument can safely be upgraded to our enhanced procedure. Our amendment provides both certainty and enhanced protection across the board.
The third concern is the interaction with other provisions in the Bill. I am very pleased that both Houses have now accepted the provisions on status which the Government tabled on Report. These set out how EU regulations, tertiary legislation, decisions and treaty rights will be amended, in particular ensuring that EU regulations and treaty rights will only be amended as if they were primary legislation. However, these provisions do not account for those others. If there is an EU regulation relating to one of the areas in the noble Baroness’s amendment, this Bill would provide two competing procedures and potentially conflicting instructions for how to amend it, and the scrutiny which would apply to any amendment by secondary legislation. In some cases, we might be able to muddle through but that would not be good law. As I said a moment ago, it would also open any changes to these important EU regulations being struck down. This cannot be good for the certainty that any enhanced protection is meant to provide.
The fourth issue is that we wish to say more in the Bill itself and less in SIs, as the Opposition have pushed for throughout the passage of the Bill. The noble Baroness’s amendment asks us to set out an enhanced procedure in an SI, including for the approval of both Houses and consultation. I am pleased to assure the House that we have done this already in the government amendments, which will provide that any changes made to these regulations by existing powers within our statute book will go through the affirmative parliamentary procedure. There will therefore be—this cannot be stressed enough—a debate and a vote in both Houses on every one of these statutory instruments. But they also go one step further, providing that these changes will also attract a new, enhanced pre-laying scrutiny requirement, which will ensure that there is a proper opportunity for public and parliamentary consultation on its content before the draft is laid.
This amendment proposes that any SI created by an existing power in our statute book which amends or revokes any Section 2(2) regulation must be published 28 days in advance of a draft being laid before both Houses of Parliament—a period, I hasten to add, which does not include recesses. This is not merely if the Minister thinks it is warranted, as the noble Baroness’s amendment suggests. This 28-day period presents both the public and parliamentarians—as well as parliamentary committees—with the opportunity to comment and make recommendations on the content of the statutory instrument. Any recommendations will then be reflected upon by the Government, who will consider whether to amend the SI ahead of laying it before Parliament. When introducing the SI to Parliament, the Minister or relevant authority will then also have to provide a “scrutiny statement”, which details the Government’s response to the recommendations they received and any representations from other quarters, and their consideration of them. This statement is designed to sit alongside and complement the statements which the Bill already requires Ministers to make alongside any SI amending Section 2(2) regulations, explaining them and the “good reasons” for them, and therefore for any departure from EU directives as they stood on exit.
I apologise to noble Lords that I have dwelt at length on the details here, but before closing I will also draw the House’s attention to the numerous other commitments the Government have made to ensure that rights and protections within equalities, workers’ rights and consumer protection and other rights and standards are not diluted or damaged as we depart from the EU. In regard to equalities, a government amendment to the Bill from its initial Commons stage ensures that the Government provide confirmation that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010 when using the powers in the Bill. The UK has a long and proud tradition of upholding and championing rights and protections, both domestically and internationally. This is a legacy the Government are determined to build on as we move into the next chapter of this country’s history. I hope that the government amendments are welcomed by this House as the best solution forward in this matter, and I beg to move.
Lord Goldsmith (Lab)
My Lords, perhaps the most important words the Minister just said were to the effect that rights and protections will not be diluted or damaged as we leave the European Union. I noted those words, and we will all study Hansard carefully to get the extent of the assurances he has given. That was what lay at the heart of this debate: whether the consequence of leaving the EU would be a diminution of, or damage to, rights and protections that have grown up over the years and which for many people are of enormous importance. The areas identified in my noble friend Lady Hayter’s amendment indicate the areas of importance, such as workers’ rights and equality, as well as others to which the Minister referred.
I was glad to hear from the way the Minister described his amendment that there is no disagreement between us over the importance of protecting those rights; the disagreement is on the mechanism for doing so. To some extent, we are in uncharted territory. So long as these were rights derived from the European Union and so long as we remain in the European Union, they cannot be changed by a decision of a Minister or the Government alone.
The Minister has given assurances about the Government’s intentions and assurances that the mechanisms being put forward, which we welcome, will give effect to the need to maintain those protections. People will be watching—the Minister knows that—and they will be observing carefully how that promise is assured and safeguarded. Fundamentally, that is what these amendments from our Benches were designed to achieve: to make sure that these rights were neither diluted nor damaged. On that basis, we look forward to seeing how these assurances work in practice.
Baroness Neville-Rolfe (Con)
My Lords, I give my strong support to government Amendment 4B in its unamended form and to Amendments 4C, 4D and 4E, and I encourage others to do so, if necessary. Throughout the passage of the Bill I have been concerned about serious mistakes that might creep on to the statute book if statutory instruments made under the Act are not published and consulted on. Proposed new paragraph 5CB(2) responds well to those concerns with, 28 days in advance, publication of the drafts of any instruments making changes to provisions enacted under Section 2(2), which has been the parent of much UK law over the last 45 years.
If I have understood correctly, there is cause to celebrate and to thank the Minister for this change and for the other scrutiny changes. They will allow all relevant stakeholders, whether they are consumers, trade unions or from business, or indeed from other countries, to review such drafts and help the Government to address any concerns and correct any errors of the kind that we all want to avoid as EU rules are carried over into UK law on Brexit day.
Lord Callanan
First, I thank the noble and learned Lord, Lord Goldsmith, for his comments and for his support, which I think I detected, for the Government’s amendments. I am also very grateful for the comments of my noble friend Lady Neville-Rolfe, who has taken a close interest in this matter. It is a very technical but important matter, and I know that she has engaged on it with Ministers and officials. She brings the benefit of her experience in government and we are grateful for her contributions.
As I said in opening the debate on this Motion, the government amendments are the final thread in the tapestry of protection woven by the Bill. On Report, we addressed protected EU regulations and treaty rights, and now we are adding, as requested, an enhanced procedure to protect the legislation implementing directives. Most importantly, the government amendments deliver the procedure and the protection that underlies it. I therefore commend them to noble Lords.
Lord Keen of Elie
Moved by
That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House, I will speak also to Motions P and Q.
These are complex matters which, for understandable reasons, have raised particular concerns across the House. Nobody on any side of this House wants to see our rights and protections diluted when we leave the European Union. I therefore appreciate why your Lordships asked the other place to think again about the exclusion of the Charter of Fundamental Rights and rights of action based on the general principles of EU law. The Commons has done just that and has made it clear—for the third time in the passage of this Bill, and by increasing majorities each time—that it does not want these elements of the EU legal system retained when we cease to be under obligations as an EU member state. In line with established convention, we should now respect the will of the elected House on these matters.
Let me say a little more to address directly some of the concerns that I know some noble Lords still have, and to respond directly to some observations that have been made. The simple fact is that the Charter of Fundamental Rights was not intended to, and did not, create any new rights. As protocol 30 makes clear, it reaffirmed the rights that were already recognised in EU law: that is, law that is being retained in the United Kingdom under the terms of the Bill. As the illustrative analysis we have published sets out in greater detail, most of the fundamental rights protected in the charter are also protected in UK law, most notably under the Human Rights Act 1998, in the common law and via specific statutory protections—for example, those in equalities legislation. Rights saved by the Bill and many of the issues currently justiciable via the general principles of EU law will continue to be justiciable without rights of challenge based specifically on the charter or general principles being retained, because other sources of rights will continue to exist and operate in UK law. This includes, for example, the right to equal treatment and non-discrimination, which will continue to be protected by existing, long-standing domestic rights of action.
By contrast, as we have said, keeping rights of challenge based on the charter or general principles, which could result in disapplication of primary legislation, would be inconsistent with the principle of parliamentary sovereignty. It would also directly undermine the legal certainty provided by the Bill if these rights are retained way into the future but in relation only to a limited and reducing body of law.
The Government have gone to considerable lengths to listen and respond to concerns, particularly in relation to accrued rights. We want to get the balance right. Therefore, in rejecting this House’s amendments, the other place has agreed to a significant additional delay to the prohibition on certain general principles rights of challenge to three years after exit. This approach seeks to strike a balance and a fair compromise between strongly held views on all sides. Inevitably, some noble Lords will still disagree and argue that we should go further, or indeed that we should not go so far, and I understand the range of views. It is, however, for the elected House ultimately to determine these matters and that is what it has done. I suggest that we should now respect that decision.
I turn to the amendment from the noble Lord, Lord Beith, in respect of validity challenges. He is absolutely right to draw attention to this technical yet important issue and I am grateful for the diligent and constructive way in which he has done so. The Government’s view is that it would not in general make sense to create for our domestic courts an entirely new jurisdiction in which they are required to, in effect, step into the shoes of the CJEU and consider, for example, questions around whether the relevant EU institution misused its powers or complied with the applicable procedural requirements. It is nevertheless important to have a mechanism to enable Ministers, with Parliament’s agreement, to provide a right of challenge in domestic law to the validity of retained EU law in some circumstances. The original amendment from the noble Lord, Lord Beith, made on Report, would have removed that right, which is why we could not agree to it and why the elected House has rejected that proposal. I urge the noble Lord and this House to agree with the Commons in that decision. In doing so, however, perhaps I can also try to reassure him and other noble Lords on this point and say a little about the amendment in lieu that he has proposed.
We have always recognised that there may be some circumstances where there is good reason for the validity of an EU instrument to be challenged in a domestic court. One possible example is where a decision of an EU institution or body is addressed to an individual or business in the United Kingdom but later overturned by the CJEU in so far as it applies in the EU. That individual or business will continue to be bound by the decision in the United Kingdom, unless the United Kingdom courts could overturn it as well. We have not proposed—and I do not suggest that we do so today—that regulations would deal only with circumstances where, for example, a public interest test is met. That is, however, an interesting suggestion which we are happy to consider as we discuss with Parliament and others the potential content of any regulations. But I can confirm, for the avoidance of any doubt, that the Government in no way intended to cherry pick which individual cases would be allowed to continue before domestic courts. Any regulations we make would be most likely to specify certain types or class of case that could be brought after exit. To be clear: this is about preserving rights and protections.
This is a technical issue that may specifically impact individuals and businesses and we are therefore keen to listen to and take into account the views of Parliament and undertake consultation with stakeholders. Following that, and subject to parliamentary approval, our intention would be that regulations would be in place before exit day. However, such a right of challenge may be appropriate in circumstances that we cannot accurately predict at this stage—or, indeed, before the point of exit—and the power would therefore permit further regulations to be made after exit if Parliament agrees.
Turning specifically to the amendment in lieu of the noble Lord, Lord Beith, I appreciate the constructive spirit in which he has tabled it but we cannot accept it. The effect of the noble Lord’s amendment would be that in the event that Parliament did not approve any regulations allowing for certain validity of challenges to be available, or if by the point of exit no class of case had arisen that the Government considered—and Parliament agreed—should be permitted, all such challenges would as a default be permissible in domestic law. As I noted, allowing for a right of challenge to the validity of retained EU law would be to hand our domestic courts a wholly new jurisdiction. These are not cases they are able to hear at present. Simply saying that they can now hear all such cases without saying any more would raise uncertainty—for example, which courts would hear these cases and, crucially, who would defend any challenges.
Any regulations the Government brought forward would be able to address these finer points in the specific circumstances they cater for, but the effect of the noble Lord’s amendment would be to provide for a situation where none of this is clear and our courts would, in effect, be left to try and work it out themselves. The core purpose of the Bill is to minimise legal uncertainty as we exit the EU. This amendment therefore works directly against that. I appreciate that may not be the noble Lord’s intention. He wishes to avoid a lacuna in the event that any regulations that allow for challenges are not made before exit. However, I repeat my firm assurance that the Government’s clear intention is to have regulations on this in place before exit day. In the light of that, the amendment is unnecessary. I hope that, in clarifying the Government’s intentions, I am able to address the concerns expressed in both Houses. I beg to move.
Motion D1 (as an amendment to Motion D)
“( ) The Charter of Fundamental Rights (apart from the Preamble and Chapter V) is part of domestic law under this Act on or after exit day save that—
(a) there is no right of action in domestic law on or after exit day based on a failure to comply with any provision of the Charter;
(b) no court, tribunal or public authority may, on or after exit day—
(i) disapply or quash any enactment or other rule of law, or
(ii) quash any conduct or otherwise decide that it is unlawful,
because it is incompatible with any provision of the Charter.””
Lord Pannick
I thank the noble and learned Lord the Minister and the Solicitor-General for the care and attention they have taken, not only on this issue but on all the legal issues that have been raised by this Bill. I was particularly pleased that the noble and learned Lord confirmed that the general principles of EU law—that is, outside the charter—can be relied upon in court proceedings, not to challenge legislation or decisions but as an interpretive device, and his confirmation that equality is one of those general principles of law. In the light of that, and given the eagerness of the House to move on to the important discussion on the Motion of the noble Viscount, Lord Hailsham, I shall not move Motion D1.
Lord Beith (LD)
My Lords, in the same spirit, I thank the Minister for the full and careful explanation he has given today and thank him and the Solicitor-General for their assistance in going into this carefully. My concern was about setting up the Government and Ministers as gatekeepers to the court room without any clear principles or certainty about whether there would be regulations. We now have on the record a much clearer indication of how these powers might be used. That is not perfect but it is a distinct improvement on where we were and I do not intend to press my amendment in that circumstance.
Baroness Ludford (LD)
My Lords, I hope the Government will keep an open mind in the future about the charter in the terms in which the Motion of the noble Lord, Lord Pannick, was framed—that is, as a guide to interpretation of retained EU law. While the noble and learned Lord, Lord Keen of Elie, said that most of the charter rights are found in other sources of law, not all of them are. This may prove to be an issue in the Brexit negotiations, which is why I hope that the Government might have cause and justification to revisit it.
I suggest that in the context of security co-operation and data transfers for the tech industry, this may be a factor in the extent and scope of our co-operation with the European Union in the future. I therefore make a plea that the Government do not totally close their mind to the EU Charter of Fundamental Rights as a guide to interpretation because I think that could be well received by those whom we have to persuade on the scope of co-operation.
Lord Keen of Elie
My Lords, I am grateful to all those who have spoken in this debate, in particular the noble Lords, Lord Pannick and Lord Beith, for their observations about engagement with the Government over these matters. The Government have listened and the other place has agreed to significant amendments in respect of certain challenges based on general principles of EU law. Given that, I hope that the House will endorse the decision today.
Lord Keen of Elie
That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.
Lord Keen of Elie
My Lords, with the leave of the House, I will speak also to Motion L and Motion M. The scope of the powers in this Bill is not an issue that either House has taken lightly, and it is not one that the Government take lightly, either. Before the Bill was introduced, the Government set out the shape and size of the task ahead and why it could be achieved only by the use of relatively broad delegated powers. I do not believe that any noble Lord rejects the premise of that task. All of us here today accept that our law must be corrected so that it works properly when we leave the EU and EU law ceases to apply in the United Kingdom. None of us wishes to face a scenario, once we leave the EU, where the law does not work or where it is left so complex, confusing and convoluted that we spawn a new generation of legal cases that inherit the mantle of Jarndyce v Jarndyce.
My ministerial colleagues in the other place have given examples of where this might come to pass if our law looked as if it was still referring to the EU. We have a duty to do everything we can to provide legal certainty, and I know that I share that goal with Peers across the House. We want a sensible solution, accepting that the powers should be as wide as is required but no wider. The Government have honoured their commitment on this front with the limits we have already put on the correcting power, and indeed the total removal of one of the key powers in the Bill now that further analysis has weakened the case for it.
We have followed the recommendation of your Lordships’ Constitution Committee and have required Ministers to make, alongside any exercise of the key powers in the Bill, a statement that they have “good reasons” for their course of action and an explanation of this to Parliament. We are happy to have been able to do as recommended by the committee, and we are grateful for its constructive and expert approach to this issue.
Noble Lords asked the Commons to consider again the test that should circumscribe the breadth of the correcting power. They have done just that and they have found that a stark test of necessity, while perhaps understandable in everyday language, is not acceptable on the statute book. Indeed the Commons have now voted four times in favour of “appropriate”—I repeat, four times. Given that, I do not think it would be the right course for this issue to return to the Commons yet again, when their view has been so clearly expressed. I ask noble Lords to consider that.
Having accepted what the task ahead is and the principle of how to approach it, we must ask ourselves today what statutory wording will permit the sensible, logical and common-sense corrections we all support without giving unnecessary discretion to Ministers? For example, our approach will permit us to end inappropriate reciprocal arrangements such as those established by the directive on the return of cultural goods, which could leave the EU 27 able to force UK nationals into court to demand the return of cultural objects brought here, with no power for the UK to take legal action in similar situations overseas.
Other potentially unnecessary but sensible and appropriate corrections to deficiencies would include folding the EU’s authorisation process for controlling the export of devices that risk being used for torture into the UK’s own more responsive and effective domestic export control regime. We looked at this important issue and, by sending our amendments, we asked the Commons to look again. As I said, they have done so. They have debated at length and they have decided that it remains clear that only the original wording of the Bill will suffice. I hope that noble Lords will respect the decision they have made. I beg to move.
Lord Lisvane (CB)
My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.
The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.
So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.
Lord Goldsmith
My Lords, in following what was said by the noble Lord, Lord Lisvane, I will make one observation. In this House, noble Lords have supported the noble Lord’s amendment, and rightly so, because the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the other place, that it is for Parliament to make such important decisions.
As the noble and learned Lord, Lord Keen of Elie, said, having got to the stage where the House of Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and does not think it necessary to go any further, we are not recommending that noble Lords should disagree the amendment. But the important point has been made, and two comments follow from that. First, we hope that Ministers will carefully realise the significance of the debate that has taken place; we imagine that they will. Secondly, we hope that people outside this House will realise that, in pushing and speaking to these amendments, this House has been doing its job of making sure that the Executive is held to account.
Lord Wallace of Saltaire (LD)
My Lords, there are two stages in the mass of subordinate legislation that we will have: what is required to be in place before March 2019 and what can be dealt with afterwards. Many of us in this House are now conscious that time is extremely short and the mass of legislation that needs to be got through before March 2019 is extremely large. If possible, we would like to hear from the Minister that, over the next six to nine months, Ministers will resist the temptation to cut corners on parliamentary approval of subordinate legislation and in the general adjustment of required legislation because there is such a shortage of time, and that he will make sure that Parliament and this House are allowed thorough scrutiny of all the measures that need to be put in place.
Lord Keen of Elie
I am obliged to noble Lords for their contributions. On the last point, it is not the Government’s intention to cut corners anywhere in the legislative process. I hope that noble Lords will take some comfort from that.
As the noble Lord, Lord Lisvane, observed, no new arguments were raised in the Commons, which underlines its view on the current state of the legislation. Following the theme of the noble and learned Lord, Lord Goldsmith, in response to the point on the matter of interpretation raised by the noble Lord, Lord Lisvane, it will of course be necessary to interpret the legislation in an appropriate manner.
Baroness Evans of Bowes Park
That this House do not insist on its Amendment 19 and do agree with the Commons in their Amendments 19A and 19B in lieu and do propose Amendments 19C to 19L as amendments to Commons Amendment 19A—
“Parliamentary approval of the outcome of negotiations with the EU
(1) The withdrawal agreement may be ratified only if—
(a) a Minister of the Crown has laid before each House of Parliament— (i) a statement that political agreement has been reached,
(ii) a copy of the negotiated withdrawal agreement, and
(iii) a copy of the framework for the future relationship,
(b) the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown,
(c) a motion for the House of Lords to take note of the negotiated withdrawal agreement and the framework for the future relationship has been tabled in the House of Lords by a Minister of the Crown and—
(i) the House of Lords has debated the motion, or
(ii) the House of Lords has not concluded a debate on the motion before the end of the period of five sitting days beginning with the first sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (b), and
(d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.
(2) So far as practicable, a Minister of the Crown must make arrangements for the motion mentioned in subsection (1)(b) to be debated and voted on by the House of Commons before the European Parliament decides whether it consents to the withdrawal agreement being concluded on behalf of the EU in accordance with Article 50(2) of the Treaty on European Union.
(3) Subsection (4) applies if the House of Commons decides not to pass the resolution mentioned in subsection (1)(b).
(4) A Minister of the Crown must, within the period of 28 days beginning with the day on which the House of Commons decides not to pass the resolution, make a statement setting out how Her Majesty’s Government proposes to proceed in relation to negotiations for the United Kingdom’s withdrawal from the EU under Article 50(2) of the Treaty on European Union.
(5) A statement under subsection (4) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(6) This section does not affect the operation of Part 2 of the Constitutional Reform and Governance Act 2010 (ratification of treaties) in relation to the withdrawal agreement.
(7) In this section—
“framework for the future relationship” means the document or documents identified, by the statement that political agreement has been reached, as reflecting the agreement in principle on the substance of the framework for the future relationship between the EU and the United Kingdom after withdrawal;
“negotiated withdrawal agreement” means the draft of the withdrawal agreement identified by the statement that political agreement has been reached;
“ratified”, in relation to the withdrawal agreement, has the same meaning as it does for the purposes of Part 2 of the Constitutional Reform and Governance Act 2010 in relation to a treaty (see section 25 of that Act);
“sitting day” means a day on which the House of Lords is sitting (and a day is only a day on which the House of Lords is sitting if the House begins to sit on that day);
“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—
(a) states that, in the Minister’s opinion, an agreement in principle has been reached in negotiations under Article 50(2) of the Treaty on European Union on the substance of—
(i) the arrangements for the United Kingdom’s withdrawal from the EU, and
(ii) the framework for the future relationship between the EU and the United Kingdom after withdrawal,
(b) identifies a draft of the withdrawal agreement which, in the Minister’s opinion, reflects the agreement in principle so far as relating to the arrangements for withdrawal, and
(c) identifies one or more documents which, in the Minister’s opinion, reflect the agreement in principle so far as relating to the framework.”
“( ) section (Parliamentary approval of the outcome of negotiations with the EU),”
“(5A) A Minister of the Crown must make arrangements for—
(a) a motion in neutral terms, to the effect that the House of Commons has considered the matter of the statement mentioned in subsection (4), to be moved in that House by a Minister of the Crown within the period of seven Commons sitting days beginning with the day on which the statement is made, and
(b) a motion for the House of Lords to take note of the statement to be moved in that House by a Minister of the Crown within the period of seven Lords sitting days beginning with the day on which the statement is made.
(5B) Subsection (5C) applies if the Prime Minister makes a statement before the end of 21 January 2019 that no agreement in principle can be reached in negotiations under Article 50(2) of the Treaty on European Union on the substance of—
(a) the arrangements for the United Kingdom’s withdrawal from the EU, and
(b) the framework for the future relationship between the EU and the United Kingdom after withdrawal.
(5C) A Minister of the Crown must, within the period of 14 days beginning with the day on which the statement mentioned in subsection (5B) is made—
(a) make a statement setting out how Her Majesty’s Government proposes to proceed, and
(b) make arrangements for—
(i) a motion in neutral terms, to the effect that the House of Commons has considered the matter of the statement mentioned in paragraph (a), to be moved in that House by a Minister of the Crown within the period of seven Commons sitting days beginning with the day on which the statement mentioned in paragraph (a) is made, and
(ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of seven Lords sitting days beginning with the day on which the statement mentioned in paragraph (a) is made.
(5D) A statement under subsection (5B) or (5C)(a) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(5E) Subsection (5F) applies if, at the end of 21 January 2019, there is no agreement in principle in negotiations under Article 50(2) of the Treaty on European Union on the substance of—
(a) the arrangements for the United Kingdom’s withdrawal from the EU, and
(b) the framework for the future relationship between the EU and the United Kingdom after withdrawal.
(5F) A Minister of the Crown must, within the period of five days beginning with the end of 21 January 2019—
(a) make a statement setting out how Her Majesty’s Government proposes to proceed, and
(b) make arrangements for—
(i) a motion in neutral terms, to the effect that the House of Commons has considered the matter of the statement mentioned in paragraph (a), to be moved in that House by a Minister of the Crown within the period of five Commons sitting days beginning with the end of 21 January 2019, and
(ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of five Lords sitting days beginning with the end of 21 January 2019.
(5G) A statement under subsection (5F)(a) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(5H) For the purposes of this section—
(a) a statement made under subsection (4), (5C)(a) or (5F)(a) may be combined with a statement made under another of those provisions,
(b) a motion falling within subsection (5A)(a), (5C)(b)(i) or (5F)(b)(i) may be combined into a single motion with another motion falling within another of those provisions, and
(c) a motion falling within subsection (5A)(b), (5C)(b)(ii) or (5F)(b)(ii) may be combined into a single motion with another motion falling within another of those provisions.”
“(6A) In subsection (1) “framework for the future relationship” means the document or documents identified, by the statement that political agreement has been reached, as reflecting the agreement in principle on the substance of the framework for the future relationship between the EU and the United Kingdom after withdrawal.”
““Commons sitting day” means a day on which the House of Commons is sitting (and a day is only a day on which the House of Commons is sitting if the House begins to sit on that day);”
““Lords sitting day” means a day on which the House of Lords is sitting (and a day is only a day on which the House of Lords is sitting if the House begins to sit on that day);”
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, as you will have noticed there has been a great deal of movement and debate on this issue since we last considered it, including the tabling of a manuscript amendment just this morning, so I hope you will indulge me if I spend a moment to take stock of where we are.
Ahead of the other place’s consideration of our amendments, the Government tabled an amendment in lieu of my noble friend Lord Hailsham’s Amendment 19. This amendment reflected the spirit of this House’s advice and incorporated a number of elements of my noble friend’s amendment. This included guaranteeing in law the Government’s commitment to: tabling a Motion on the final deal in both Houses; securing an Act of Parliament containing provision for the implementation of the withdrawal agreement; ensuring that the Commons Motion occurs before the European Parliament votes, so far as is practicable; and giving the Government 28 days to make a statement setting out their next steps in the unlikely event that the Commons rejects the deal put to it. But our amendment in lieu included some significant differences. For example, we attached a deadline to this House’s consideration of a Motion on the final deal. As some noble Lords, such as my noble friends Lord Lamont of Lerwick and Lord Howard of Lympne, raised when we debated this issue on Report, it is not right that your Lordships’ House could have a veto on the deal simply by refusing to consider a Motion.
The Government also removed a number of the deadlines set out in the amendment passed by this House—deadlines that would have served in practice to make it harder to negotiate the best possible deal for the UK. Importantly, we removed Parliament’s power to give binding negotiation directions to the Government. As we discussed at length on Report, this would represent a profound constitutional shift regarding which branch of the state holds the right to act in the international sphere. It would also be totally impractical. The Government cannot demonstrate the flexibility necessary for a successful negotiation if they are beholden so directly to the House of Commons. Significantly, this is a point of principle accepted by those on both sides of the debate, including my right honourable and learned friend Dominic Grieve. It is also worth repeating the comment of Vernon Bogdanor, a constitutional expert quoted by the Secretary of State in the other place, that such a provision would be a “constitutional absurdity” that, would “weaken the position” of Britain’s negotiators.
So I am disappointed to see an alternative amendment on the Order Paper, tabled by my noble friend Lord Hailsham, which resurrects this provision and reflects an amendment tabled in the other place by Dominic Grieve—although noble Lords will no doubt have noticed that he himself said in a television interview yesterday that, “The idea that Parliament should be able to mandate, to order, the Government to do something … was going too far”. The House will be aware that my noble friend tabled manuscript Amendment 19P earlier this morning, so I will leave it up to him to advise the House which of the two amendments he intends to move.
I will not go through either amendment line by line at this stage as my noble friend will want to set out his stall himself, but from the Government’s perspective his first Amendment, 19M, retains the same major flaws, both practical and constitutional, as the one this House passed during Report. The government amendment on this subject has now been accepted in the other place. However, noble Lords will doubtless be aware that its acceptance was in part on the basis that further conversations would take place with MPs on the Government Benches who held concerns about elements of it. In particular, we heard the concern that our amendment does not make overt provision for parliamentary input in the unlikely event that we do not agree a deal with the EU. We said that we would consider this point and come back with a new version in the House of Lords, which is precisely what we have done.
The Lord Speaker (Lord Fowler)
Motion F1 has not been moved. Therefore, Motion F2 falls.
Motion F3 (as an amendment to Motion F)
Viscount Hailsham
Leave out “19C to 19L” and insert “19C to 19E, 19G to 19L and 19P”
“(5A) A Minister of the Crown must make arrangements for—
(a) a motion for the House of Commons to approve the statement mentioned in subsection (4), to be moved in that House by a Minister of the Crown within the period of seven Commons sitting days beginning with the day on which the statement is made, and
(b) a motion for the House of Lords to take note of the statement to be moved in that House by a Minister of the Crown within the period of seven Lords sitting days beginning with the day on which the statement is made.
(5B) Subsection (5C) applies if the Prime Minister makes a statement before the end of 21 January 2019 that no agreement in principle can be reached in negotiations under Article 50(2) of the Treaty on European Union on the substance of—
(a) the arrangements for the United Kingdom’s withdrawal from the EU, and
(b) the framework for the future relationship between the EU and the United Kingdom after withdrawal.
(5C) A Minister of the Crown must, within the period of 14 days beginning with the day on which the statement mentioned in subsection (5B) is made—
(a) make a statement setting out how Her Majesty’s Government proposes to proceed, and
(b) make arrangements for—
(i) a motion for the House of Commons to approve the statement mentioned in paragraph (a), to be moved in that House by a Minister of the Crown within the period of seven Commons sitting days beginning with the day on which the statement mentioned in paragraph (a) is made, and
(ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of seven Lords sitting days beginning with the day on which the statement mentioned in paragraph (a) is made.
(5D) A statement under subsection (5B) or (5C)(a) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(5E) Subsection (5F) applies if, at the end of 21 January 2019, there is no agreement in principle in negotiations under Article 50(2) of the Treaty on European Union on the substance of—
(a) the arrangements for the United Kingdom’s withdrawal from the EU, and
(b) the framework for the future relationship between the EU and the United Kingdom after withdrawal.
(5F) A Minister of the Crown must, within the period of five days beginning with the end of 21 January 2019—
(a) make a statement setting out how Her Majesty’s Government proposes to proceed, and
(b) make arrangements for—
(i) a motion for the House of Commons to approve the statement mentioned in paragraph (a), to be moved in that House by a Minister of the Crown within the period of five Commons sitting days beginning with the end of 21 January 2019, and
(ii) a motion for the House of Lords to take note of the statement mentioned in paragraph (a) to be moved in that House by a Minister of the Crown within the period of five Lords sitting days beginning with the end of 21 January 2019.
(5G) A statement under subsection (5F)(a) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(5H) For the purposes of this section—
(a) a statement made under subsection (4), (5C)(a) or (5F)(a) may be combined with a statement made under another of those provisions,
(b) a motion falling within subsection (5A) (a), (5Q(b)(i) or (5F)(b)(i) may be combined into a single motion with another motion falling within another of those provisions, and
(c) a motion falling within subsection (5A)(b), (5C)(b)(ii) or (5F)(b)(ii) may be combined into a single motion with another motion falling within another of those provisions.”
Viscount Hailsham (Con)
My Lords, I shall formally move Motion F3, which is on the supplementary list. As your Lordships know, it is a manuscript amendment which I tabled this morning. For reasons of convenience, I shall refer to Motion F3 as “Grieve II”. We also have a Grieve I, but I shall come to that. I shall also comment on the Government’s Motion F, which is the Government’s amendment. As your Lordships have just heard, I do not move, and have not moved, Motion F1 which is on the Marshalled List and was tabled on Friday, and which I will refer to as Grieve I.
By way of brief explanation before I come to my substantive comments, I say that Grieve I, which is the Motion that I have not moved, was the amendment tabled by Mr Grieve in the House of Commons. It was before the House of Commons on 12 June: it was discussed but never voted on. Grieve II, the Motion to which I am now speaking and will formally move, reflects the agreement that Mr Grieve believed he had made with the Solicitor-General. Mr Grieve thought that Grieve II was agreed to, but it appears that senior Ministers objected and it has now been repudiated. By moving Grieve II—or Motion F3 on the supplementary list—I am asking your Lordships to make a decision which will enable the House of Commons to vote on what Mr Grieve believes was agreed with the Government. That is the purpose of my amendment.
On 30 April this year, this House passed by a very substantial majority what has been described as the “meaningful vote” amendment. On that occasion I explained at some length my reasons for advocating a truly meaningful vote. I am quite sure that I will be forgiven if I do not repeat myself. I would like, however, if I may, to explain why I am moving Grieve II, indicate briefly what the amendments provide, and say again briefly why I hope that your Lordships’ House will support Grieve II, the Motion I am moving.
The first question is: why am I moving Grieve II? On 12 June, the House of Commons considered the Bill as amended by this House. Mr David Davis, as he was perfectly entitled to do, put down an amendment that substantially altered your Lordships’ meaningful vote amendment. Mr Davis’s amendment was itself the subject of an amendment moved by Mr Dominic Grieve and that amendment is Grieve I, which I have not moved but which gave Members of Parliament the power to prevent the United Kingdom crashing out of the European Union and, in the event of such a risk arising, to instruct the Government on what to do next. I accept, and Mr Grieve accepts, that the words used in subsection (5C) of Grieve I are both directional and mandatory.
It seemed to everybody in the House of Commons that Grieve I was likely to carry, and in order to forestall this the Government, in the person of the Solicitor-General, offered negotiations. What he said, of course, appears in Hansard. Of Mr Grieve he said,
“I think that there is much merit in the approach that he urges the House to adopt in subsection (5A). I need more time to think about the other parts of the amendment … but by indicating my position on a key part of it, I am indicating that the Government are willing to engage positively ahead of the Lords stages”.
He went on to say of Mr Grieve’s comments:
“They will form a clear basis for a formal set of discussions that we can start at the earliest opportunity”.—[Official Report, Commons, 12/6/18; cols. 766-67.]
As a result of the Solicitor-General’s intervention, your Lordships’ meaningful vote amendment was defeated and Grieve I was never put to the vote.
Following the undertaking given by the Solicitor- General, negotiations were commenced. These negotiations included a meeting with the Prime Minister. It is reported by those present at that meeting that the Prime Minister herself gave a personal assurance to those present that their concerns about the risk of a no-deal Brexit would be addressed.
I have known Mr Grieve for very many years. He is a man of the utmost personal and professional integrity. I accept without reservation what he has said about those negotiations. I say in passing that the attacks on Mr Grieve in last week’s press, especially the Daily Mail, were disgraceful and the authors ought to be thoroughly ashamed of themselves.
As reported in the Times on 15 June, Mr Grieve said:
“We had very sensible negotiations and thought we had reached an agreement and then they phoned and said that they had to make the motion unamendable. For the life of me I can’t understand why … It is utterly bizarre”.
On 16 June the Times reported the following conversation: asked if he had been tricked by the Prime Minister, Mr Grieve replied that,
“when it came to the end, she wasn’t—for some reason—in a position to deliver”.
I was in direct contact with Mr Grieve throughout Tuesday. I can confirm from my own knowledge that until the afternoon of that day, he was confident that he could achieve a sensible accommodation. Grieve I, which I have not tabled, is the amendment that was before the House of Commons on 12 June. It would probably have passed but it was never voted on. But Grieve II sets out the agreement which Mr Grieve believes he made with the Solicitor-General, negotiating on behalf of the Government. If your Lordships approve Grieve II, the House of Commons will have an opportunity to consider and approve the agreement negotiated in good faith between the Solicitor-General and Mr Grieve.
Lord Robathan
I am grateful to my noble friend. He is indeed a friend. I have always found him both highly intelligent and very entertaining. However, on a point of clarification, can he say whether it remains his position that he wishes at all costs to destroy Brexit?
Lord Robathan
Can he say whether he wishes to destroy Brexit—that is not a very parliamentary gesture, if I may say so to the noble Lord opposite—and that this amendment is in fact about sabotaging Brexit? That seems to be the case. On a second point of clarification, can he tell us what discussions he has had with the Opposition Front Bench on this amendment?
Viscount Hailsham
Yes, it is perfectly true that I have had negotiations and talks with the Opposition Front Bench, and with the Liberal Democrats and many Cross-Benchers. I make absolutely no apology for that. This is the high court of Parliament and we are not party hacks.
Viscount Hailsham
My noble friend’s second question was whether I am seeking to frustrate Brexit. I do not believe in Brexit, that is perfectly true. I think it is a national calamity. But I believe above all that the House of Commons should have a decisive say one way or another.
Moving on from that point, which I had the pleasure of making to my noble friend—
Lord Garel-Jones (Con)
Is it not the case that the point my noble friend is making about Parliament has already been made with great clarity by the Supreme Court—that Parliament approved the referendum but did not approve the outcome?
Viscount Hailsham
My noble friend Lord Garel-Jones was one of the best Deputy Chief Whips I have ever met—better even than my noble friend. Of course, he is right. But the point is that this Government have sought to prevent a meaningful vote in every possible way. I want to ensure, if I can, that Parliament in fact has a meaningful vote. I do not want to see it left to chance.
I need to turn briefly to what the amendments before your Lordships’ House say. I commented on Grieve I, which is not before the House. I have already summarised it and I acknowledge that it was directional and mandatory. That caused serious problems for the Government, which Mr Grieve understood. It was for that reason that Mr Grieve was negotiating with the Solicitor-General. Grieve II—that is the Motion before your Lordships’ House, and here I am referring effectively to subsection (5F)—requires the Government, in the absence of any political agreement having been made by the end of 21 January next year, to make a statement setting out how they propose to proceed and to make arrangements for the House of Commons to approve the statement by way of a Motion.
I have taken the best advice available to me. I believe that the Motion in the House of Commons would be amendable but not justiciable—that is to say, the Motion could not be enforced by legal action. However, the political consequences for a Government who sought to act differently from the Motion, whether amended or not, would be very grave. In that respect, Grieve II gives Parliament and, in particular, the House of Commons a meaningful vote.
Lord Grocott
The noble Viscount talks about the political consequences of votes. Given that leaving the European Union has been the central objective of this Government since their election, does he not acknowledge that should they lose a vote enabling them to leave the European Union the inevitable political consequence would be that the Government would fall?
Viscount Hailsham
I am simply not going to speculate. The truth is that the world at the moment is extraordinarily unpredictable and all the parties are extremely divided on this issue, so I think it is wise not to speculate about what would happen if the Government lost, save to say that the political consequences would be very great.
However, I want to consider what the Government are offering by way of an alternative—in other words, how the Government are proposing to honour their repeated promise to give Parliament a meaningful vote. What is on offer—and it is only this—is as follows. In the event of no deal—that is to say, when there is every probability of the United Kingdom crashing out of the European Union, an outcome which in the eyes of most would be a calamity—the Government are offering a Statement followed by an unamendable take-note Motion. My noble friend’s amendment—she did not refer to its terms when she first introduced it—is that the take-note Motion should be in neutral terms. What is meant by “neutral terms”? It means that it may not express approval, it may not express disapproval and it will not be subject to amendment. The Government’s amendment not only fails to deliver the promised meaningful vote—that would be an act of omission and bad enough—but is far worse as the Government are seeking to make the promised meaningful vote impossible, and that is an act of commission, contrary to what Ministers have on many occasions promised. It deliberately removes the possibility of a meaningful vote and, moreover, the Government’s amendment is being brought forward at least in part by my noble friend Lord Callanan, who on 14 March in this House, to the amazement of everybody who heard him, said:
“We have never used the term ‘a meaningful vote’”.—[Official Report, 14/3/18; col. 1650.]
That statement was inaccurate as to fact, but deeply revealing as to intention.
Viscount Hailsham
I am not going to give way. Much as I admire my noble friend, I am now going to proceed. I come to the last and fundamental question: why should this House support Grieve II? There are essentially three reasons for that. The first is this—if I can find it in my notes.
Viscount Hailsham
That is very kind of my noble friend but he has given me an opportunity to find my notes, so while I am grateful to him he is going to have to resume his seat. The first reason is this: the House of Commons has never had an opportunity to vote on the amendment, so it is a matter of procedural propriety. Secondly, the Government have failed to deliver on their promise to provide a meaningful vote. Grieve II represents the agreement negotiated in good faith between the Solicitor-General and Mr Grieve but which others thought fit to reject, so it is a matter of honour.
Thirdly, and by far most importantly, it is in the national interest. I appreciate that the Prime Minister faces great difficulties in the conduct of these matters. There are serious divisions within her Government, divisions reflected within all the parties and indeed within the country itself. However, consider where we are and how we got here. The Article 50 process was triggered without any collective agreement as to the desired outcome—indeed, without any collective agreement as to the negotiating framework. Now, just a few months before the deadlines expire, that remains the situation.
This is not an occasion for anything other than temperate language—the political temperature is already far too high—so I shall content myself with questions. Was it wise, prudent or responsible to start the Article 50 negotiations without a firm collective agreement as to where we wanted to go or how we were to get there? Was it perhaps a serious error of judgment to trigger the Article 50 procedure without there being a clear policy on these matters? Is it right that, in the absence of a deal, Parliament should risk crashing out of the EU on the basis of a take-note Motion cast in neutral terms and as a result of the unconstrained decisions of Ministers—these Ministers?
Your Lordships’ answer to those questions may help you to decide whether, to safeguard our nation’s vital interests in the event that there be no deal on the table, Parliament—and here I mean the House of Commons—should have the authority to intervene. Ministers, the Prime Minister in particular, have promised a meaningful vote. As yet, that promise has not been honoured. My noble friend’s amendment frustrates, and is intended to frustrate, that commitment. If your Lordships want Parliament to have a truly meaningful vote then Parliament must insist, and the Grieve II amendment would enable the House of Commons to do that. I beg to move.
Motion F4 (as an amendment to Motion F3)
“(5J) Any motion or resolution approved by the House of Commons or debated by the House of Lords under subsections (5A), (5C)(b), or (5F)(b) may not have the effect of binding Her Majesty’s Government to prevent or delay the United Kingdom’s withdrawal from the EU on exit day.”
Lord True (Con)
My Lords, I beg to move my amendment as set out on the supplement to the Marshalled List.
My noble friend Lord Hailsham has just indulged us with some Disraelian oratory on a Gladstonian scale, as far as time goes. I shall try to be a little more direct. I have to say to my noble friend that people outside this House and Parliament are getting a little tired of the parliamentary games here and the arcane language of the parliamentary discussions that go on. They are less interested in the rodomontade that we heard from my noble friend about who said what to whom when. They actually want to know when they are going to get Brexit, when it will be delivered, when it will be done.
If I may be direct with my noble friend—he is my noble friend—he is wrong. All the talk we have heard today lets the cat out of the bag: Grieve I, Grieve II, Grieve this, Grieve that. All this talk suggests to me that my noble friend is acting as the representative on earth of Mr Dominic Grieve—if your Lordships’ House could ever be described as earth; I would not wish to offend your Lordships by suggesting that it was anything other than heaven to be here. Perhaps I should say Mr Dominic Grieve’s representative here in heaven.
This House should not be taken for granted as an enforcement posse for any individual, whether in Parliament or anywhere else. It is interesting that the opinions of your Lordships are so taken for granted by that faction in the House of Commons that it is already openly talking about what will happen when my noble friend’s amendment comes back. I submit that in this House’s greatest days, your Lordships were never taken for granted in that way. It was never considered that your Lordships were a tale foretold or lobby fodder for someone else’s interest. This House has made abundantly clear that it is unhappy about Brexit. I do not think you need to be a reader of the Daily Mail to know that the House of Lords is unhappy in the majority about Brexit, although I do not agree on that. But there comes a point when enough is enough.
Today, having listened to my noble friend the Leader of the House and the very reasonable tones that she used in opening this debate—far from the clarion calls we heard afterwards—we should be cautious about lending support to those whose tactics will inevitably end by weakening the Government and undermining the United Kingdom’s negotiating position. Whatever your position in the argument, no good will come from perpetuating uncertainty by offering Motions and resolutions in perpetuity that might alter the United Kingdom’s position. That weakens our position at the negotiating table, and I do not think that your Lordships should do that.
I apologise to the House that this is a manuscript amendment laid before you. That is because my noble friend tabled an amendment last week which gave the House of Commons wide-ranging—one might say Cromwellian—powers to direct the Government by resolutions, which he called Grieve I. They would in effect be the kind of orders beloved of the Long Parliament in the 1640s. That was plainly unacceptable, as my noble friend has acknowledged. I laid an amendment, the defunct Motion F2, last Friday, to prevent any such direction. I thought that was the end of the matter and that we would debate it today. However, a weekend is clearly a long time in politics, because what my noble friend thought on Friday he disavowed this morning. This morning my noble friend telephoned me—from an interesting place, actually; we have heard about these contacts with the party opposite—to say that he was withdrawing his amendment and putting down another one that on the face of it was more limited in scope.
I do not flatter myself that I had anything to do with this rethink. Indeed, we have heard in all candour from my noble friend the reason for it. He was instructed to make the change by Mr Dominic Grieve.
Lord True
Is it unacceptable? No, I am not giving way. I did not catch the remark opposite but I make the point that it is perfectly reasonable for me to address issues surrounding the same person. Mr Dominic Grieve claims that he does not wish to delay or frustrate Brexit—the same thing that is said by all those in that group. However, it seems to me that he is so assiduous in wanting to that he even takes time to go to the offices of the European Commission to report to Mr Alastair Campbell on progress. He is so worried about leaving the European Union that he declares himself ready to “collapse the Government”. There is no doubt that the noble Lord, Lord Grocott, is right: if the Government were unable to achieve the central purposes of the Administration they would be in jeopardy. “Collapse the Government”—hold that in your Lordships’ minds when you consider with whom you wish to align yourselves. Is that the game that your Lordships, in this unelected House, wish to play?
We hear time and again—we heard it again today from others—that none of their actions is intended to delay or prevent Brexit. However, when I see some of the actions, and hear some of their words, I have to say: you could have fooled me. I doubt that they are fooling the good people of Sunderland or Stoke. All that I ask is this: if they do not wish to delay or prevent Brexit, let them be as good as their words and make it clear that none of the Motions they talk about would frustrate it. I freely accept that my amendment might not be the best way of accomplishing this, but it is one way—one that I hope will be given consideration, if not in your Lordships’ House then by others. My amendment is simply an attempt to reflect in law what the people behind this amendment say they want; that is, not to delay or prevent Brexit.
I will not enter into the constitutional rights and wrongs of my noble friend’s aspiration to give the House of Commons potential control over the Government in negotiations, which an amendable Motion would do. However, I believe that to be utterly impractical and totally unconstitutional. It is ridiculous—utterly ridiculous—to conceive that the House of Commons, with over 600 diverse opinions and meeting in public, is capable of determining effective negotiations with the European Union, or indeed the Republic of Vanuatu. It is inconceivable and absurd.
The simple question before noble Lords on these amendments is whether any resolution or Motion outside an Act of Parliament should be capable of delaying or preventing the United Kingdom’s departure from the European Union, which an amendable Motion of the type proposed by my noble friend may well, or should it not? I submit that it should not. I submit that it is time for us to respect the votes—and listen to the roar that goes up—of 17.4 million of our fellow country- men and women in the referendum. For me, at least, those votes had meaning, profound meaning. I submit that we should respect the 27.5 million votes given at the last general election to parties promising to deliver what the British people had voted for, including the Front Bench opposite, who dive and duck to get out of the commitments that they gave at that general election. For me, those votes at that election had meaning, profound meaning. I submit that no parliamentary manoeuvre, no resolution and no Motion such as my noble friend’s amendment envisages should be permitted to have the effect of removing from the British people or eroding their opportunity to have what they asked for with awful clarity—leave. Frankly, no huddled meeting in Smith Square should be permitted to kick the aspirations of the majority further down the road.
This great House should not, by supporting my noble friend, give those who wish to frustrate Brexit a blank cheque to write on. My own amendment is entirely without prejudice to whatever each of your Lordships may decide on the noble Viscount’s amendment. The real question is on his amendment. Do your Lordships, including noble Lords on the Cross Benches, want to be party to further games of “collapse the Government”, or do we accept, as I do, that the Government have in Motion F made a serious attempt to compromise on which the House of Commons should now be allowed to decide? For my part, I think that the Government have gone far and tried long to meet the concerns expressed in another place, in your Lordships’ House and outside—further, actually, and longer than some of us might wish. But the Government are to be commended for that, and I shall support them on their amendments.
I add one final thing. Look at the Marshalled List and the width and breadth of the amendment laid by the Government in line with Motion F. It is perfectly possible that that amendment from the Government goes back to the other place and perfectly possible for the other place to amend and offer an amendment in lieu. The matter can be decided. It is time for each and every one of us to be clear where we stand, and where we think this House of Lords should go. This House has gone a long way and made its voice heard; it has carried many of the arguments for the remainer cause. Do we wish to go on delaying, preventing and prevaricating when the Government have made the offer on the Marshalled List that we have today? Do we wish to be accessories before the fact in parliamentary games to delay resolution and weaken this country’s negotiating position for months and months ahead, or do we say, “My Lords, it’s time enough—let the Commons decide on the matter that the Government have put before us in lieu”? I beg to move.
Lord Howard of Lympne (Con)
My Lords, this is not a debate about the integrity of Mr Dominic Grieve, and I shall do my very best to avoid mentioning his name again. It is a debate on the terms of the amendments before your Lordships’ House this afternoon. My noble friend the Leader made a cogent and compelling case for the government amendments and I do not intend to elaborate on it at any length. She made it clear that the effect of the amendment in the name of my noble friend Lord Hailsham would be to confer on Parliament a negotiating power that has always resided in the hands of the Executive in our country. That is why, as my noble friend the Leader said, Professor Vernon Bogdanor has described the amendment as a “constitutional absurdity”. It is a measure of the weakness of the case put forward by my noble friend Lord Hailsham that he was driven, in the end, to impugn the validity of the Article 50 vote in the House of Commons—a vote passed by a very large majority in the very House whose cause he purports to champion as the basis of his amendment.
I want to elaborate briefly on a point just made by my noble friend Lord True. My noble friend Lord Hailsham said, at the very outset of his speech, that the purpose of his amendment was to give the House of Commons the opportunity to consider it. It is a simple and irrefutable fact that the House of Commons will have that opportunity without passing my noble friend’s amendment. The House of Commons will have that opportunity if the Government’s amendment is passed, because that amendment has not been considered by the other place. So, when the Government’s amendment comes to the other place, it will be open to them to accept it, reject it or amend it. They can amend it in the terms of the amendment put forward by my noble friend Lord Hailsham. The very purpose of his amendment—
Lord Howard of Lympne
I will give way when I have finished my sentence. The very purpose of the amendment put forward by the noble Viscount can be achieved without its passing.
Baroness Smith of Basildon
I apologise to the noble Lord for interrupting, but I may be helpful on House of Commons procedure. If an amendment goes from this place to the House of Commons and is amended, the chances are that the only amendment that could be voted on is a government one. At the moment of interruption, only government amendments are voted on. Back-Bench amendments would not be voted on.
Lord Howard of Lympne
The operative phrase in the noble Baroness’s observation was “the chances are”. I believe that, if the House of Commons wished to consider the amendment in the terms put forward by the noble Viscount, it would be able to do so.
Lord Cormack
The noble Baroness was right. It should be desirable that the other place could do what my noble friend wants, but the rules of that House would preclude it.
Lord Howard of Lympne
I am afraid that I disagree with my noble friend. As we know, the Speaker of the House of Commons is very eager these days to allow all sorts of amendments to be put.
Baroness Boothroyd (CB)
The noble Lord is sometimes very eager to give way. The noble Baroness the Leader of the Opposition is absolutely correct in what she says.
Lord Howard of Lympne
The noble Baroness said “the chances are”; that was the operative phrase in her remarks.
It is often said in our debates that the purpose of the amendment put forward is to give the other place the opportunity to think again. It is a powerful argument, which has influenced many of your Lordships in putting forward amendments and in voting for them. I submit that it is not necessary to defeat the Government to achieve that objective with these amendments.
I shall say one more thing before I sit down. Many of your Lordships—conspicuously not my noble friend Lord Hailsham—have vociferously denied any intention to delay Brexit. The amendment tabled by my noble friend Lord True gives effect to those denials. The only people who need have any concern about the effect of the amendment put forward by my noble friend are those who indeed desire to delay Brexit. I therefore congratulate my noble friend on his amendment, and should he wish to test the opinion of the House on it, I for one will vote in its favour. The one thing that should not happen is that a message goes out from this House that this unelected Chamber is determined to delay the implementation of the wishes of the British people.
Lord Lamont of Lerwick (Con)
My Lords, I support the Motion moved by the Minister and oppose that put forward in both versions by my noble friend. He spoke with enormous force and eloquence; he left very little for the day of judgment. I am going to have Sunday lunch with him in a few days’ time, and I shall make sure that I am at the other end of the room, at the other end of the table.
Lord Lamont of Lerwick
I am going there for a family celebration—his family.
There has been an extraordinary set of manoeuvres in the House of Commons. I see that my noble friend Lord Dobbs is in his place. As the author of “House of Cards”, he must have wondered whether he had been given a whole lot of new episodes when we saw the Chief Whip, not chucking people off the roof of the Palace of Westminster but crawling on his knees, rather like a courtier at the court of the King of Siam—the role of the king being played by the right honourable and learned Dominic Grieve.
After all these negotiations—I cannot comment on what was said or not—it is clear that the Government have moved a very long way indeed. If we take Grieve I, version 1, the Government have accepted proposed new sub-paragraphs (5A) and (5B), which would have been inserted at line 37, although there is still some difference on proposed new subsection (5C) of Grieve I. I appreciate that my noble friend Viscount Hailsham has also moved in his latest manuscript amendment, because he has moved away from the specific word “direction” to the issue of amendment instead; I have a question for the Leader of the House about this, which I will put to her in a few minutes. One is bound to ask, as the noble Lord, Lord Grocott, hinted, why we have this extraordinarily convoluted process here, with a codification of what will happen at each stage. I know that people are very suspicious, but is this really necessary in parliamentary procedure when we could easily, at any stage, have Motions of censure or Motions of no confidence? The very prospect of a Motion of no confidence is bound to concentrate the Government’s mind. There are many ways in which the House of Commons can hold the Government to account and, as the noble Lord, Lord Grocott, said, there are many ways, other than this very complicated process, in which the Government can be held to account.
It is important to be clear about the exact differences. There have been many modifications, with Grieve I, Grieve II and the amendment put forward by the Government, but what are the differences from the changes that have been made? One is that they give the Government more control over the timetable, and another is the use of the word “neutral”. The Leader of the House, in moving the government Motion, referred to it being neutral simply to avoid it being amended. By that, does she mean that, if it were amended, that would be tantamount to a direction, as in the original version of Grieve I? Can she comment on the point raised by my noble friend Lord Hailsham about whether that would be justiciable? There was a suspicion—I say suspicion but of course it would be a very good reason—that the Government had put forward a neutral Motion as an option because they did not want this to be justiciable and did not want to get into the maze of the courts. I strongly agree with that but I would very much like to hear her comments on it.
What is the motive for this extraordinarily convoluted process? The right honourable and learned Dominic Grieve has said several times that it is to stop what he calls—the word was repeated by my noble friend Lord Hailsham—the “calamity” of no deal. On 12 June at col. 764, Dominic Grieve said that the purpose of his original amendment, if there is no deal, was to provide a mechanism whereby it goes to the House. However, I cannot think why the right honourable and learned gentleman, distinguished as he is, thinks that the Government, in the event of no deal, could avoid having to discuss it with Parliament. Obviously it would come to Parliament—it would be a major event. Do we really have to write it down with all these complicated provisions?
Lord Lamont of Lerwick
Noble Lords opposite are living in a slight fantasy land if they think we could reach no deal without there being a very long debate and a whole set of arguments in the House of Commons.
At no stage have I been an advocate of no deal in the negotiations, but not advocating no deal does not mean that we should rule it out in all circumstances, and it does not mean that you should rule it out as being on the table as a negotiating tactic. If, as Dominic Grieve has suggested, we make no deal completely unthinkable, we in effect undermine the position of our negotiators. If our negotiators cannot walk away from the table or if the other side—Monsieur Barnier and so on—know that they cannot do so, all the other side has to do is to sit there rejecting things until we eventually agree with everything it wants. Ruling out no deal completely as an option, even as a theoretical negotiating objective, would place the Government in an impossible position.
Lord Adonis (Lab)
My Lords, the amendment we are discussing does not rule out no deal; it lays down what will happen if there is no deal. There is a fundamental difference between the two.
Lord Lamont of Lerwick
But we are also talking about Motions and amendments, and the distinction was the very point I was making. Although my noble friend Lord Hailsham has removed the word “direction”, we have to consider what is meant by having amendments and the purpose of insisting that a Motion that the Government bring forward should be unamendable.
The second reason put forward, in addition to making no deal an impossibility, is parliamentary sovereignty. I do not wish to be too aggressive about this but to many of us this seems a very ironic reason when, for year after year in European matters, parliamentary sovereignty has just been ignored. A fundamental point, however, that we cannot forget is that on this issue we have ceded sovereignty to the people of this country. That is what we did when we held the referendum. Noble Lords talk about a meaningful vote but it seems that they want to make the vote on the referendum meaningless; the vote on Article 50, meaningless; and the election itself in which—
Lord Lamont of Lerwick
I will give way in a minute. Noble Lords want to make meaningless the result of the election, in which the overwhelming majority of people voted for parties wanting to support the result of the referendum. These were all meaningful votes as much as anything that is proposed in this amendment.
Lord Reid of Cardowan
I am grateful to the noble Lord. Can he elaborate on a statement he has just made? Four months ago, I asked the noble Lord who will be responding tonight to make it absolutely clear that the sovereignty of Parliament is supreme over everything that happens in this country, subject always to alliances, and that the sovereignty of Parliament could not be undermined by a referendum or by two referendums. Incidentally, for four months, the Minister has refused to respond to communications on this subject. The noble Lord has just said that we “ceded” sovereignty to the people though a referendum. Does he stand by that? Is parliamentary sovereignty no longer supreme in this country?
Lord Lamont of Lerwick
Parliament held a debate, Parliament voted, and Parliament decided to hold a referendum on this issue and to be bound by that referendum. Whatever the theoretical constitutional position of a referendum, many statements were made on both sides that we would be bound by the result of that referendum.
Lord Garel-Jones
Parliament authorised the referendum but it did not authorise the outcome of the discussions. That is what the Supreme Court has ruled.
Lord Lamont of Lerwick
That of course is what Article 50 was about but it is also true that, during the election and during the referendum campaign, many commitments were made over and over again that we would honour the result of the referendum.
The most objectionable part of the original amendment, Grieve mark I, was the use of the word “direction”. To my mind, it obviously was impractical for Parliament to direct the Government in every aspect of the negotiation if there were a situation in which there was no deal. It is one thing for Parliament to direct our own Government as to what they can accept or propose, but what it has no control over is what the other side will accept. Therefore, by saying that Parliament would direct the negotiations, we would be forcing the negotiators to go to the other side with a list of things that we knew it would be able to accept, and, as I say, all flexibility would be removed from the negotiations.
Then we have the question: if Parliament is going to be directed, how will it be directed? There are 650 different Members of Parliament—
Lord Lamont of Lerwick
I would like to make a little progress, if I may. How would the will of Parliament be determined? It would be determined through political parties in the normal way, put down in the form of Motions in the House of Commons. I put it to the House that, really, this long and convoluted procedure would have little difference from the way Parliament would behave without this amendment being put in place at all.
Subject to the clarification from the Leader of the House about the Motion being justiciable and the reasons why we want it to be unamendable, I strongly support the amendment tabled by the Government and urge the House to reject that put forward by my noble friend Lord Hailsham.
Lord Pannick
My Lords, the noble Lord asks about justiciability. It is one of the most fundamental principles of our constitution that the courts do not and will not regulate proceedings in Parliament. Therefore, a court would presume, in the absence of the clearest statement to the contrary, that none of these amendments—in particular Amendment F3—is intended to depart from this fundamental principle. That is especially so when the mover of the amendment makes it clear that he does not intend to depart from that fundamental principle. In answer to the question from the noble Lord, Lord Lamont, it seems to me that the sanctions for any breach would be political, but they certainly would not be legal.
Lord Pearson of Rannoch (UKIP)
My Lords, I remind the noble Viscount, Lord Hailsham, and those noble Lords who, in reality, want us to stay in the European Union, that a referendum in 1975 confirmed our membership of the then European Community and that our recent referendum decided we should leave it. A Written Answer to me on 9 January this year revealed that some 20,000 pieces of EU law have been imposed on this country since 1973 and there was nothing the Commons or your Lordships’ House could do to stop it. The noble Lord, Lord Lamont, referred to this. How do those who accepted the result of that first referendum and approved all those laws from the anti-democratic EU law-making system now think that Parliament should decide the manner of our going?
I wonder how many of our people understand how anti-democratic that system is and whether the result may have been even more in favour of leaving if they had known it. Indeed, I am tempted to wonder how many of your Lordships’ understand it. To test that knowledge, I ask noble Lords who know what COREPER is and what it does to raise their hands—former Eurocrats excluded. Not many—in fact hardly any. I will explain what it does. It is our most—
Lord Hannay of Chiswick
I merely wish to ask the noble Lord whether he is asking the House to play a game of Trivial Pursuit.
Lord Pearson of Rannoch
My Lords, the pursuit will be far from trivial when the answer is seen.
It is our most significant law-making body. After all EU legislation has been proposed, in secret, by the unelected Commission, it is then negotiated, still in secret, in the Committee of Permanent Representatives, or COREPER. Now most of your Lordships know what it is. When it has finished, the legislation goes to the Council of Ministers, where the United Kingdom has been outvoted on every single piece of legislation that we have opposed in the past 10 years. That is the system which has resulted in those 20,000 laws being passed, with our Parliament wholly irrelevant.
I look forward to an explanation from the noble Viscount, Lord Hailsham, or one of his noble remainer friends, as to why they want to go on with it and how they have the nerve to pray Parliament in aid of their desire to do so.
Baroness Ludford
My Lords, as the noble Viscount, Lord Hailsham, said, it is in the national interest that Parliament should not be faced by a take-it-or-leave-it vote. It must be able to prevent a slide into a disastrous no deal outcome. I say to the noble Lord, Lord True, that is not an arcane interest because many ordinary citizens would be hugely harmed, including those who voted for Brexit, if that happened.
Was not the referendum fought by the leave side partly on the basis of a need for the Westminster Parliament to take back sovereignty? It is truly ironic that many of those who said that oppose a meaningful vote for Parliament now. Indeed, some noble Lords opposite who have spoken want specifically to hobble Parliament by barring it from amending a Motion. This is not a remainer cause. It is not about destroying or sabotaging Brexit—that is a distortion and misrepresentation—but about whether Parliament has a constitutional right and duty to call the Government to account and should have a decisive political role on the course of Brexit. The idea that that undermines the Government’s negotiating position is farcical.
The noble Lord, Lord Spicer, said that the essence of why he opposed staying in the EU is that the nation state is the best unit for democracy, that Britain is the home of democracy and that it offers a forum for accountability. That is the point. That is what Motion F3—I avoid “Grieve II”—achieves. It is not a negotiating power for Parliament but a power to call the Government to account for how they are conducting the Brexit negotiations. Its purpose is to prevent or at least manage a crisis by thinking ahead of that time and what the structures would be. The virtue of writing this into the Bill is that we will then know what mechanisms need to be followed if a crisis arises. As the noble Viscount, Lord Hailsham, said, it is important to give the Commons the opportunity to vote on what the Government apparently agreed last week.
I have great admiration for Dominic Grieve as a parliamentarian and constitutional lawyer of the highest calibre and integrity. He is a loyal Conservative, much to the regret of some of us because we would like him to be a little more of a rebel. I associate myself with the remarks of the noble Viscount, Lord Hailsham, about the character of Mr Grieve and that the hatchet job on him by the Daily Mail was a total disgrace. It showed the degradation of our political media culture and discourse.
The noble Lord, Lord True, said that his amendment was not the best way to accomplish what he wants. I do not need to elaborate any further. It would unhelpfully complicate matters. I will accept the guidance of a former Speaker, the noble Baroness, Lady Boothroyd, on Commons procedure, which I do not understand, that it is necessary to pass Motion F3 to allow the other place to consider how it wants to proceed.
Viscount Younger of Leckie (Con)
My Lords, I believe the House now wishes to hear from the Front Bench.
Baroness Hayter of Kentish Town
My Lords, we heard a sad story from the noble Viscount, Lord Hailsham, about the saga that has gone on. I say to the noble Lord, Lord True, who said that this was about playing parliamentary games, that no, this is much more serious. If anyone wants to know how big the issue in front of us today is, they should look around the Chamber.
Last week we heard, around the debate in the Commons, that the Prime Minister had conceded that within seven days of the Government agreeing a withdrawal deal with Brussels, a Motion to approve the deal would go to the Commons; and, should there be no withdrawal deal by 30 November, the Government would have to seek approval for their next course of action from MPs—not direction, approval.
We then learned that the various Conservative Back-Bench MPs who were concerned were given to understand that Mrs May would consider how to capture those demands and table the necessary amendment here in your Lordships’ House today. Instead, in the Government’s Motion F1, we have no proposal for a vote on the Brexit deal but simply a vote on a Motion—in neutral terms, I understand from my parliamentary draftsmen advisers that this is not a term that exists anywhere else in law, but be that as it may—that the statement on the deal has been considered. There would be no seven-day commitment or any other time commitment to a vote, no indication of what would happen should the Commons reject the Motion, and no indication that the Commons would have any say over what should follow if there is no deal.
Astonishingly, government Motion F1 gives the elected House of Commons less of a say than the European Parliament will have on the deal. Under Article 50, the European Parliament has to give its consent to the negotiated deal; that is, not just a Motion to say that it has considered the deal—rather, it has to give consent. We want what the European Parliament has: a meaningful vote. I do not know which part of the word “meaningful” the Government do not understand. I am a bit simple-minded because I think it means something that means something; in other words, something happens as a result.
What we want today is really quite straightforward. We want the House of Commons to be able to consider the Hailsham amendment, so we need to pass it today. Moreover, we should pass it without the amendment in the name of the noble Lord, Lord True, as the whole point is to send to the Commons the agreement which Dominic Grieve and others thought they had reached with the Prime Minister. We have not tried to tinker with or improve it, but to place absolutely our support behind the Hailsham amendment which encompasses what they thought they were being offered. That is what this represents and is what we had expected from the Government. So we will not support Motion F4 if it is pushed to a vote.
Let me briefly put to rest the idea that the Hailsham amendment could risk what the Prime Minister and David Davis—perhaps quite rightly, along with the noble Baroness, Lady Evans, today—say they do not want, which is to hamper the negotiations. The whole point is that the vote would come at the end of the process, after the negotiations, to vote on the outcome. It is exactly the same as what the European Parliament’s vote to consent will be: it will be on the final—albeit at that point unsigned—deal.
Perhaps I may also put to rest a misunderstanding that we have heard from Jacob Rees-Mogg—he is meant to be an expert, but never mind. He asserts that Parliament will get its vote on the deal by agreeing or not agreeing to the withdrawal and implementation Bill, which he claims is the device for bringing the treaty into our law. This is fundamentally to misunderstand both that Bill and the deal. Under Article 50, the withdrawal agreement must also take account of the framework of the future relationship between the parties. However, that will not be included in the implementation Bill because it will cover only citizens’ rights, possible payments, Northern Ireland and the transitional arrangements. In other words, the withdrawal and implementation Bill is the divorce proceedings—it is not the long-term relationship. That Bill will not be the confirmation of the withdrawal agreement and is not a substitute for what we are asking for today. Unless and until this Bill guarantees a proper vote on the deal, the long-term future of this country will remain solely in the hands of the Prime Minister and her extremely divided Cabinet, not in the hands of Parliament.
Without the amendment in the name of the noble Viscount, Lord Hailsham, we will be in a position where the European Parliament has to give its consent—that is, to approve the deal for it to take effect. However, the British Parliament would simply be able to pass a Motion that it had considered the deal. What sort of democratic deficit does that leave this Mother of Parliaments with?
This is an area where I am sure that even the noble Lord, Lord Spicer, would agree with me. We agree on very little, although I have to say that every time I see him in his place, I feel the need to sharpen my arguments because I know that he is watching me. I hope that this is not the last time we hear from him, but I think that the one point he would agree with me on is that this Mother of Parliaments should get a sovereign vote on this issue.
The Government have offered us an unamendable Motion on a statement, but no say on the deal itself. As has been made clear, we need the House of Commons to have a say on the Hailsham amendment; it needs to have that in place. However, the only way we can do that is for this House to be able to give MPs that opportunity by passing this amendment. It is then up to them what they do with it.
Baroness Evans of Bowes Park
My Lords, the Government have fully engaged with the issues that have been raised by Parliament and have come back with a fair, practical and constitutionally sound offer. Given that my noble friend Lord Hailsham has not moved his original Amendment 19M, I shall simply reiterate my concerns about his manuscript amendment. Your Lordships’ House has a reputation for high-quality scrutiny of the legislation put before it, including much good work that we have seen on this Bill, but hastily drawn up manuscript amendments do not show this House in its best light.
My noble friend Lord Howard of Lympne was correct to say that if this House agrees to the Government’s amendment, the other place will be able to take its own decision. As we have heard, how it does that is of course up to that House, in particular Mr Speaker. But what I can say is that if the other place wants to consider amendments to the Government’s position, it will.
Importantly, I would point out that the Government’s amendment satisfies many of the objectives of my noble friend Lord Hailsham’s original amendment. Subsection (5A) calls for a Motion on any statement required under subsection (4); the government amendment provides for that. Subsection (5B) calls for a Motion in the event that no deal has been reached with the EU by a particular deadline. The government amendment, while pushing back that deadline by a month and a half, provides that too. The only subsection we have not incorporated is subsection (5C) which would provide Parliament with the power to give binding negotiating directions to the Government. As I have said, that is constitutionally and practically untenable, and both sides accept that it should not make it on to the statute book. I repeat again that the Government’s amendment before the House today covers the three situations that the amendment of my right honourable and learned friend Dominic Grieve sought to achieve in the other place and which is covered by the amendment in the name of my noble friend Lord Hailsham: first, if Parliament rejects a deal; secondly, if the Prime Minister announces before 21 January 2019 that no deal can be agreed with the EU; and, thirdly, if no agreement has been reached by the end of 21 January 2019.
I turn briefly to the amendment in the name of my noble friend Lord True. Let me say now that I understand the reasons he has tabled it and I thank him for doing so. He has also helped to bring an important balance to today’s debate. However, one of the reasons we are not supporting my noble friend Lord Hailsham is the fact that this needs to be settled in the House of Commons, not this House, and that applies to his amendment. I hope, therefore, that he will not press it.
My noble friend Lord Lamont asked whether an amendment to one of the Motions in the Government’s amendment would be tantamount to a direction as in Grieve I. This would not be the case as it would not be legally binding, but it would still seek to instruct the Government in an international negotiation and would therefore fail the Prime Minister’s test of not seeking to tie the Government’s hands in negotiations.
On the point of justiciability, I refer to—
Lord Bilimoria (CB)
I thank the noble Baroness the Leader of the House for giving way. She has mentioned that agreeing to this amendment would hamper the Government’s negotiations. The noble Lord, Lord True, has said exactly the same thing. We have known right from the beginning that in Europe’s view, the European Parliament and the European Council will get a vote on the final deal. Has that ruined their negotiating position? Not at all—they are in a very strong negotiating position. As for Dominic Grieve, he deserves the parliamentary equivalent of the Victoria Cross.
Baroness Evans of Bowes Park
On the point of justiciability, I refer to the noble Lord, Lord Pannick, who expressed the position correctly.
I hope that noble Lords will support the Government’s serious proposals before them rather than the amendment tabled by my noble friend Lord Hailsham. Should the House agree to the amendment in lieu, which has been tabled by the Government, the House of Commons will be given the chance to decide the procedure it wishes to follow for a vote. I ask whether it really is the right thing for this House, at this stage, to seek to push this issue further. It should be left to the House of Commons to take its decision. I think that this House needs to reflect very seriously on the decision it is about to make.
Lord True
My Lords, I listened carefully to the debate and I thank all noble Lords who took part. It ranged a bit more widely than my amendment and I can see that the House wishes to get to a vote on the main question. At some point it would be useful to show publicly, by name, what individuals in this House think about the specific issue—but that can be addressed in a different way on another occasion. I accept the point made by my noble friend the Leader of the House that ultimately these questions should be decided in the House of Commons; I am grateful for what she said.
However, repeating what I said at the outset, we have heard a lot about Commons procedure. The reality is that, under Commons procedure and the control of Mr Speaker, it would be conceivable for this matter to be addressed as an amendment in lieu without the support for the amendment of my noble friend Lord Hailsham. As the Leader of the House said, it is not necessary for your Lordships’ House to align itself with a faction in the House of Commons with an axe to grind—
Lord True
Well, if it is not an axe it is something else. To ensure that the House of Commons is able to decide this matter it is simply not necessary for this House to vote on my amendment or to support my noble friend’s amendment. Having heard what my noble friend said, I beg leave to withdraw my amendment and I will support the Government on the amendments that follow.
Viscount Hailsham
My Lords, I sense that this House wants to come to a very early conclusion, so I will conclude by saying a word to my noble friend Lord Spicer. He is a very old friend and a very distinguished chairman of the 1922 Committee. I will be very sorry indeed if he ceases to appear in this House, because he has had a very distinguished political career. I know that your Lordships want to come to an early decision; I wish to test the opinion of the House.
Lord Callanan
That this House do not insist on its Amendment 20, to which the Commons have disagreed for their Reason 20A.
The Commons disagree to Lords Amendment 20 for the following Reason—
Lord Callanan
My Lords, in the other place, much was made of the constitutional and practical concerns that applied to the amendment in the name of the noble Viscount, Lord Hailsham, on parliamentary approval of the outcome of negotiations. These concerns extend also to the amendment in the name of the noble Lord, Lord Monks, on parliamentary approval of a mandate for future negotiations.
Let me begin by setting out once again that Parliament has a critical role in scrutinising the Government’s negotiating position. It is our responsibility as a Government to provide both Houses with ample opportunities for scrutinising both the approach that we are taking to exiting the EU and any implementing legislation. And we have done so. This has included the Secretary of State’s Oral Statements after every negotiating round; committee appearances; ministerial and Prime Ministerial speeches; position and future partnership papers—I could go on. Most recently, we have committed to produce a White Paper on our proposed future relationship with the EU, which we have said will be published next month.
The scrutiny received during these parliamentary appearances, and in the multitude of reports from the committees of this House and the other place, have been of great value and done much to help inform the Government’s work so far. There has also been a wide range of engagement activity by government with key stakeholders across business, civil society and other interested groups.
Debates in this place and the work of the committees of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have used Parliament’s input to shape our approach to the negotiations. While some think that Parliament should have a greater role in setting the terms of our negotiations, this cannot be accepted for either principled or practical reasons.
Practically, we simply cannot hold up the already tight negotiating timetable by providing for a further approval process prior to negotiations ending. On principle, as the Secretary of State said in the other place, the Government cannot demonstrate the flexibility necessary for a successful negotiation if their hands are tied midway through the process. That will do nothing but guarantee a bad deal for this country. It must be for the Government, not Parliament, to set our goals for the negotiations on the UK’s exit from the EU and to conduct them.
Of course, the Government are always mindful of the fact that further legislation will have to be introduced where it is needed to implement the terms of the future relationship in UK law. Any such legislation must, of course, make it through both Houses of Parliament.
It is a long-established constitutional principle that the Government set the direction during international negotiations, and that principle exists for good, practical reasons. The other place recognised this when it voted down the amendment in the name of the noble Lord, Lord Monks. As the House of Commons has clearly taken this view, I hope that noble Lords will agree that we should not insist on the amendment. I beg to move.
Lord Monks (Lab)
My Lords, I am disappointed that this amendment did not gather more support in the other place than it did; it was rather crowded out in the shadow of the previous amendment, on which the vote has taken place. My co-signatories and I wanted Parliament to give a steer to the Government on the approach to take in the talks about the future relationship between the UK and the EU. I do not accept that that is unconstitutional. The British constitution evolves, changes and moves. It was not so long ago that Parliament insisted on having a say when Britain went to war, which was unprecedented in our history. This initiative was therefore justifiable.
At present, the Government are flying rather blind in the negotiations. The Cabinet is split; the White Paper has been delayed again. I understand that there is to be another brainstorming session at Chequers soon to see whether the Cabinet can find agreement on what that future relationship should be. Parliament cannot just sit in the stand and watch this fumbling go on in government, the Cabinet and the Conservative Party.
We will therefore return to these matters when the White Paper is eventually published. We will hope to see what criteria the Government and others have in mind to judge the final deal, whether it is a good deal, a not-so-good deal or a turkey. In those circumstances, Parliament will have to step up to the mark and cannot just pretend that it has nothing to do with it until the final deal’s shape emerges.
Lord Callanan
I thank the noble Lord, Lord Monks, for his speech. I did not agree with the sentiments, but I take his point. We are fully committed to involving Parliament throughout the process of our negotiations to leave the EU. We have given what may be an unprecedented level of parliamentary scrutiny of Ministers across the Government and of the preparations and negotiations on exit. However, this amendment is not the right way for Parliament to scrutinise the negotiations. The House of Commons has taken a clear decision on it and I urge noble Lords therefore not to insist on it.
Lord Duncan of Springbank
That this House do not insist on its Amendment 24 and do agree with the Commons in their Amendments 24A and 24B in lieu and do propose Amendment 24C as an amendment to Commons Amendment 24A—
“Family unity for those seeking asylum or other protection in Europe
(1) A Minister of the Crown must seek to negotiate, on behalf of the United Kingdom, an agreement with the EU under which, after the United Kingdom’s withdrawal from the EU, in accordance with the agreement—
(a) an unaccompanied child who has made an application for international protection to a member State may, if it is in the child’s best interests, come to the United Kingdom to join a relative who is aged 18 or over and—
(i) is a lawful resident of the United Kingdom, or
(ii) has made a protection claim which has not been decided, and
(b) an unaccompanied child in the United Kingdom, who has made a protection claim, may go to a member State to join a relative there, in equivalent circumstances.
(2) For the purposes of subsection (1)(a)(i) a person is not a lawful resident of the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it.
(3) For the purposes of subsection (1)(a)(ii), a protection claim is decided—
(a) when the Secretary of State notifies the claimant of the Secretary of State’s decision on the claim, unless the claimant appeals against the decision, or
(b) if the claimant appeals against the Secretary of State’s decision on the claim, when the appeal is disposed of.
(4) In this section—
“application for international protection” has the meaning given by Article 2(h) of Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third- country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted;
“protection claim” has the same meaning as in Part 5 of the Nationality, Immigration and Asylum Act 2002 (see section 82(2) of that Act);
“relative”, in relation to an unaccompanied child, means—
(a) a spouse or civil partner of the child or any person with whom the child has a durable relationship that is similar to marriage or civil partnership, or
(b) a parent, grandparent, uncle, aunt, brother or sister of the child;
“unaccompanied child” means a person under the age of 18 (“the child”) who is not in the care of a person who—
(a) is aged 18 or over, and
(b) by law or custom of the country or territory in which the child is present, has responsibility for caring for the child.”
“( ) section (Family unity for those seeking asylum or other protection in Europe),”
Lord Duncan of Springbank (Con)
My Lords, the strength of feeling on this important issue has been evident each time your Lordships have discussed it. It is important that I begin by paying tribute once again to the noble Lord, Lord Dubs, for bringing forward this important opportunity for us to speak on these key issues. I should also again thank UNICEF UK, the British Red Cross and others who have helped contribute to the evolution of this amendment. I must be clear at the outset that we are here discussing asylum seekers and not refugees. Throughout the process the Government have been eager to ensure that the clause was phrased in such a way as to enable us to deliver the intended outcome. For that reason the Government have brought forward an amendment in lieu of that of the noble Lord, clearly stating that it will be a priority for the UK, in negotiations with the EU, to safeguard the rights of unaccompanied asylum-seeking children. However, it is important that we are clear that the amendment today is a framework for those negotiations.
The Government have listened to concerns raised in the other place. Following commitments given by my right honourable and learned friend the Solicitor-General, the Government have tabled a further amendment stating that we will seek to negotiate an agreement under which unaccompanied asylum-seeking children in the EU will be able to join parents, grandparents, siblings, spouses, aunts and uncles lawfully resident in the UK, and vice versa. Further, we will not seek to put an age limit on the sponsors of reunification under this agreement.
This clause establishes a clear grounding for the negotiations yet to come. I must remind your Lordships, however, that it will be the final agreement, and if necessary its implementing legislation, that will lay the legal basis for unaccompanied asylum-seeking children to be transferred here. Nothing in the Bill will confer leave to enter or remain in the UK. It is the basis upon which we will enter negotiations with the EU and nothing can be achieved unless and until we reach such an agreement.
Finally, I reiterate the comments made by my right honourable and learned friend the Solicitor-General in the other place. We will approach the negotiations on the basis that, as is currently the requirement under the Dublin regulation, extended family members—by which I mean grandparents, aunts and uncles—will need to be able to demonstrate that they have adequate resources and are able to care effectively for the child in order for a transfer to take place. The overriding objective must be that any transfer is in a child’s best interest, and the requirement to demonstrate adequate resource is a fundamental part of this. Similarly, where the unaccompanied child is seeking to join a relative in the UK who is also a child, there must be adequate reception conditions in place before that transfer can take place. We will therefore seek an agreement which reflects that not only must a transfer be in the child’s best interest but there must also be an identified, funded place in the care system for them in the country to which they are to be transferred. This is an important safeguard. Just as we should not bring children to the UK if they have nowhere to stay and receive care, we also must not transfer children to EU countries unless and until we are satisfied that their care needs will be met there. Any agreement must reflect that.
I hope that this House will recognise the commitment the Government have shown in bringing forward further amendments to provide greater reassurance to vulnerable individuals. I therefore ask the House to accept these amendments as sent to us from the other place. I beg to move.
Lord Dubs (Lab)
My Lords, I am grateful to the Minister and his colleagues for what he has said and for what the Government have done. I could not have improved on what he said. It is an important day for child refugees. We have tried to keep the campaign on behalf of unaccompanied child refugees on a cross-party basis. We saw that in this House and there are some Conservative MPs who are very supportive in the Commons as well. Without that, we would not have got to where we have. I believe that there will be quite a number of child refugees in Europe who, through this amendment, will, I hope, be able to have a better life in this country.
I have always argued that we should not take responsibility for all child refugees, but this amendment deals with those who have a connection through family members and relatives in this country, just as there are child refugees in other countries who, under the present system, have the right to join their relatives there—for example, a Syrian boy in France could join an uncle in Stockholm. This would safeguard the position as regards that agreement when we leave the EU. I am very grateful to the Minister and to all those in all parties who have supported this. I believe the cause of child refugees is, by and large, supported by most people in this country—although not by everybody. I think that if one puts it to people in this country they will say that, in terms of our humanitarian traditions, it is right that we should give support to child refugees. Public opinion is on our side and I am grateful that the Government have been so helpful in what they have done today.
Baroness Altmann (Con)
My Lords, I too congratulate my noble friend for what I think is absolutely the right decision. I am really pleased to welcome the Government’s changes and of course I congratulate the noble Lord, Lord Dubs, on his persistence on this issue of child refugees, an issue for which I think there is much support across the House. I thank my noble friend.
Lord Berkeley of Knighton (CB)
My Lords, I think the humanitarian aspect of Brexit, especially in so far as it affects children, is something, as the noble Lord, Lord Dubs, mentioned, that the general public feel very strongly about. I am delighted to be able to congratulate the Government and the noble Lord, Lord Dubs, on reflecting that very important view.
Lord Goldsmith
My Lords, I add our thanks to the Minister for the tribute that he paid to my noble friend Lord Dubs. We entirely endorse that.
Lord Duncan of Springbank
My Lords, I think we are in full agreement in paying tribute not only to the noble Lord, Lord Dubs, for his diligence, his commitment and his compassion, but to all those across all parties who have recognised that, irrespective of Brexit, we must recognise our obligations and duties across Europe to the reunification of asylum-seeking children. It is also important to stress that across Europe, and indeed across the world, others are wrestling with this challenge and some are not doing very well. I believe we have established the right outcome here.
Lord Duncan of Springbank
That this House do agree with the Commons in their Amendments 25A to 25E.
Lords Amendment 25
“Continuation of North-South co-operation and the prevention of new border arrangements
(1) In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must—
(a) act in a way that is compatible with the terms of the Northern Ireland Act 1998, and
(b) have due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.
11 (2) Nothing in section 7, 8, 9 or 17 of this Act authorises regulations which—
12 (a) diminish any form of North-South co-operation across the full range of political, economic, security, societal and agricultural contexts and frameworks of co-operation, including the continued
15 operation of the North-South implementation bodies, or
(b) create or facilitate border arrangements between Northern Ireland
17 and the Republic of Ireland after exit day which feature—
(i) physical infrastructure, including border posts,
(ii) a requirement for customs or regulatory compliance checks, (iii) a requirement for security checks,
(iv) random checks on goods vehicles, or
22 (v) any other checks and controls,
23 that did not exist before exit day and are not subject to an agreement between Her Majesty’s Government and the Government of
25 Ireland.”
Lord Duncan of Springbank
My Lords, I hope I can be brief, as befits the hour. I thank again my noble friend Lord Patten for his amendment and all the work he has undertaken since it has been lodged. Indeed, I thank all noble Lords who spoke on Report. When we first addressed this amendment, we made clear that, while we agreed with the spirit and intent of the amendment, its language was potentially too loose and perhaps the Bill was not the most appropriate home for such an amendment. Since then, we have reflected further. Ultimately, we acknowledge that it is difficult to justify opposing something with which we almost entirely agree. On that basis, as the Government stated in the other place on Tuesday, we are happy to accept the thrust of the amendment. The only reason we return it to your Lordships’ House is to ensure that the amendment we accept in principle is fit for the statute book.
To achieve that aim, the other place has agreed amendments in lieu of those tabled by my noble friend Lord Patten. These amendments do three things. First, they ensure that the amendment reflects the reality that the withdrawal agreement will be concluded between the UK and the EU, not the UK and Ireland. It is important to reflect this reality, because otherwise the amendment risks contravening the principle of consent in the Belfast agreement, an issue raised when we debated this matter by the noble Lord, Lord Empey, and my noble friends Lord Trimble and Lord King of Bridgwater. The Belfast agreement does not provide for joint authority over Northern Ireland between the UK Government and the Irish Government. That is why the Government replaced the reference to the Government of Ireland with a reference to the EU.
Secondly, the changes tabled in the other place ensure that we refer back to the Northern Ireland Act when we talk about north-south co-operation, rather than creating a new definition. Thirdly, the changes tabled in the other place tighten the amendment. The wording in the original amendment was not legally watertight, so the Government’s reductions are important in ensuring that this amendment sits appropriately on the statute book. Ultimately, this amendment in lieu still refers to “checks and controls”, so covers the different types of checks and controls listed in my noble friend’s original amendment. I stress that this amendment is only about the powers in the Bill, and applies only in relation to the agreement we reach between the UK and the EU. Its effect does not stray more widely. As we have said before, the Northern Ireland border will be dealt with in the withdrawal agreement, which will be implemented in domestic law by the withdrawal agreement and implementation Bill.
In conclusion, I hope I have the support of your Lordships in backing the amendment in lieu from the other place to ensure that this otherwise sensible amendment can complete its journey to the statute book.
Lord Cormack
My Lords, I think this is a very fine illustration of what this House has been able to do to the Bill. Of course, tomorrow all the focus, all the razzmatazz, will be concentrated on the vote that took place less than half an hour ago, but there has been real progress and a real meeting of minds. Clearly, we are very much in debt to my noble friend Lord Patten for his initiative, but the Government have responded in kind and that is something for which we are all grateful. It also underlines the fact that this House was able to give critical scrutiny to the Bill and the Government were able to recognise, on many occasions, that points of real substance had been made and real advance had been achieved.
I hope that when people look back on this, all the ridiculous accusations of betrayal and treachery and enemies of the people—all that rubbish—will be forgotten and what will be remembered is that your Lordships’ House devoted many hours of painstaking scrutiny to a Bill that we all recognised had to go on the statute book, and we improved it significantly. I am quietly proud of what we have done in this House. I hope all your Lordships will be. I hope that those outside who comment on these affairs will recognise the constructive role of this House of Parliament.
Lord Hain (Lab)
My Lords, the profound uncertainty about the UK’s future relationship with the EU is the very reason why, last December in their joint report, the UK and EU agreed that the Good Friday/Belfast agreement,
“must be protected in all its parts”,
throughout the Brexit process. It is also why, in that report, Britain affirmed its commitment to,
“the avoidance of a hard border, including any physical infrastructure or related checks and controls”.
I therefore welcome the Government’s concession and I would like to think that the Minister, who is held in high regard in this House, was instrumental in that change.
However, I am sorry to say that the Government’s failure to accept a key part of the Lords amendment and instead substitute a minimalist subsection makes me suspicious, because it focuses on physical infrastructure as the only problem. But this infrastructure and the associated checks and controls are the symptom, not the cause, of a hard border. Regulatory arrangements, common standards and compatible rules of origin are all absolutely essential to ensure a frictionless border. This was recognised in the original Lords amendment, which I stress did not specify UK membership of the European Union customs union and single market but stated clearly that there must be no regulations which,
“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature … physical infrastructure, including border posts … a requirement for customs or regulatory compliance checks … a requirement for security checks … random checks on goods vehicles, or … any other checks and controls … that did not exist before exit day”.
For what reason have these clear and specific details now been excluded? Perhaps the Minister can explain to the House.
Indeed, the wording of the Commons amendment is characterised by some ambiguity, even as it is more restrictive in its scope. As we know, there is already some limited infrastructure at the border, such as automatic number plate recognition cameras. Are these amendments sufficient to protect against the expansion and reappropriation of this infrastructure for much more intrusive and ambitious use—for example, enforcing a hard customs or regulatory border? If this were to be the case, not only would it be an incitement to civil disobedience or worse, it would constitute a gross betrayal of the trust of the Irish Government and, most importantly, the people of Northern Ireland. Such trust has been hard won and carefully fostered. It is vital to the long-term stability of the peace process.
Twenty years on from the agreement, the success of the peace process is evident in the fact that co-operation across the Irish border is multi-layered, complex and embedded in daily life on both sides. We know from the mapping exercise conducted by the EU with the British and Irish Governments that there are a reported 142 areas of north/south co-operation, ranging from services providing specialist autism and cancer care to those dealing with waste management and environmental protection. Are these amendments sufficient to protect all such areas? No, I fear they are not. They are rather grudging and minimalist, purporting to avoid a hard border but not actually guaranteeing that, and therefore the Government are in real danger of abandoning the very spirit of the Belfast agreement that they profess to protect—and, indeed, is contained in the Lords amendment.
Therefore, I say very seriously that there is nothing—nothing—more important in all the Government’s many duties and responsibilities, not least for the Brexit process, than maintaining peace and continued progress on the island of Ireland. Regretfully, I do not believe that the Commons amendments meet that task. Indeed, I fear they fall well short of that. Although I support what is before us this evening, I regret that the original subsection was not included, because that would have removed all the doubts that I otherwise have.
Lord Alderdice (LD)
My Lords, in Committee I added my name to an amendment with the noble Lord, Lord Patten, and the noble Baronesses, Lady O’Neill and Lady Smith, and was strongly supportive of an amendment that entrenched in the Bill the Good Friday agreement and the north/south co-operation that emanated from it. I did not feel able to give the same support to the amendment which came on Report. I pointed out at that time that there was a border but it was important that it was not obtrusive. However, there were circumstances that were easily foreseen in which, for example, some degree of security infrastructure was necessary, but only in the event that there was a real security requirement for it. My concern was that the wording of the amendment that was passed on Report was too loose and did not address those kinds of problems.
I pay tribute to the Minister and his colleagues. I agree with the noble Lord, Lord Cormack, that the intervention of the House of Lords has been very helpful. It is also the case that the co-operation between the House of Lords and the House of Commons was to try to ensure that what came back to us improved on our improvement, and I think that that is the case.
Sometimes one can have the impression that those who support the Belfast agreement think that there is now no border in Ireland. This is not the case. The Good Friday agreement is absolutely clear. We have addressed the relationships within Northern Ireland, between north and south, and between Britain and Ireland. But the border is still there and anybody who lives close to it knows exactly where the border is and which Government they pay—or in some cases do not pay—their taxes to. Police and others know exactly where the border is because there is no right of hot pursuit. It is important that the border is not obtrusive and obstructive to the free movement of people. The tremendous achievement of the Good Friday agreement and the Irish peace process is that no political party in Ireland, north or south, is asking for a hard border or to in any way obstruct the free movement of people, goods and services. That is a tremendous achievement and we must build on it.
The Commons amendments that have come back to us represent an increased nuance, yet one that is legally tight and does not obstruct us in appropriate checks and balances. I am happy to support them in that light. No doubt there will be other issues in future and we will come back to them. But I pay tribute to the Minister. He has taken things forward from the amendment that went from this House and I appreciate that. I support the Commons amendments.
Lord Empey (UUP)
My Lords, I was not keen on the amendment originally proposed by the noble Lord, Lord Patten of Barnes, and I still think there are issues with the proposal before us.
Reference has been made to the joint report issued in December last year. The problem is that that was completely contradictory. It contained almost mutually exclusive objectives. I feel that putting that into the Bill has its problems. The truth of the matter is that the border as we refer to it on the land is only part of the border. The rest of the border is in the sea. Of course, the vast majority of trade goes across the sea from Irish ports to Welsh ports. That is where the bulk of trade takes place. One statement is that we have regulatory alignment, and the other is that that will not obstruct access to the UK-wide market. That can happen in only two circumstances: either we all remain in “a” or “the” customs union, or Northern Ireland businesses have to have two entirely separate regulatory environments in which to function—one for the UK-wide market and another for the EU-wide market. Anybody who thinks that will be progress is wrong.
With regard to the difference between hard and soft, the terms are unfortunate. The only conceivable way any hard border could arise is if the European Union were to try to force the Irish Government, if disagreement were arrived at, to put in a border to protect the single market. There are no circumstances in which any UK Government will put up infrastructure. I cannot see any circumstances in which an Irish Government could put any physical infrastructure. It is almost totally inconceivable. Unless Mr Barnier is going to bring his breezeblocks and cement with him and build it himself, I do not know who will do it, because we will not and I do not think our colleagues in Dublin will. The noble Lord, Lord Alderdice, may hold their coats, but politically and emotionally it is an impossibility. What we should be doing—perhaps the Minister can update us on where we are with this—is sitting down with our Irish colleagues and Mr Barnier and working out the detail. Only we who live in Ireland can erect it and only we have to live with it, so we have a vested interest.
It is such a shame—I have had this conversation with the noble Lord, Lord Cormack—that Stormont is not functioning because that would open up so many more opportunities for us. We could devolve some issues to Stormont and, with the north-south bodies and the regulatory arrangements we agreed there, there could be a flexible approach that would avoid so many of the difficulties that the Government are now facing. I have to say to the Minister that we have arrived at a position of paralysis and stasis where nothing is happening politically, and that is a mistake. History tells us, and colleagues who have experience of Northern Ireland know, that vacuums get filled with all the wrong people. We are allowing this vacuum to develop and take root, and the longer we leave it the harder it will be to get people around the table to get this fixed. We are moving into local government elections next year. We do not even know where we are in this place with regard to what might happen. It is not the Minister’s responsibility to answer today on this, but if Stormont was working, we could do so much more on these issues to get a resolution that would be satisfactory to the British Government, ourselves and our Irish colleagues.
I attended the British-Irish Parliamentary Assembly the week before last. The noble Lord, Lord Murphy, was there. We talk regularly to colleagues there. There is huge anxiety. We understand that, and why there is anxiety. People have to understand the emotion behind this. This is often misunderstood. I have brought it to the attention of this House that relatively modest amounts of trade go between Northern Ireland and the Republic. It is only about 1.6% of Irish exports and 1.6% of Irish imports, but there is the emotion that goes with that. The main trade goes from Dublin to Holyhead, or from Rosslare to Fishguard and so on. However, that is not the issue for a lot of people. The issue for a lot of people is what that represents. As the noble Lord, Lord Alderdice, rightly points out, it is not that there is no border. Of course there is a border; we are two jurisdictions. We have eliminated the physical manifestation of division, if I may put it that way, and these emotional things are what is driving a lot of our Irish colleagues. It is not always pounds, shillings and pence. There is an emotional issue which we have to take into account.
My only anxiety about where we are with this is the December statement, which I believe has fundamental contradictions that we have not solved. If the Minister, his colleagues and his right honourable friend in the other place could put more pith into their attempts to get Stormont going again, that would add enormous flexibility to what we could achieve in the next few months.
Lord Murphy of Torfaen (Lab)
You can please some of the people some of the time, but never all of the people all of the time. Like my noble friend Lord Hain, I should like to have seen more reference in the amendment to the customs union that has to be in some way adopted to ensure that there is no very hard border. I also agree, however, with the noble Lord, Lord Cormack: the fact that this amendment is before us at all is an indicator of the work of the Government, the Minister and his ministerial colleagues, including the Member for Worcester, who has been dealing with this. The Bill now refers to the Good Friday agreement, north-south ministerial bodies and the need to avoid a physical border with all its trappings. I am sure that in the months ahead the Minister will be able to find some answer to my noble friend Lord Hain in the Trade Bill that will come before us—it is a hugely important issue—but I very much take the point made by the noble Lord, Lord Empey. He, the noble Viscount, Lord Bridgeman, the noble Lord, Lord Bew, and I were at the British-Irish Parliamentary Assembly in County Sligo last week meeting Members of Parliament not just from Ireland and the United Kingdom but from the devolved institutions, and there was unanimous agreement that Brexit is dominating British-Irish relations. No other country in the European Union will be affected like Ireland, and it is very important that we acknowledge that in Parliament as well as in government.
The other point made by the noble Lord, Lord Empey, is also vital. The Government must concentrate their efforts on restoring the institutions in Belfast. Only this week, the Government announced extra money for the National Health Service. The Barnett consequentials of that for Wales and Scotland will be decided by Ministers and Parliaments. Who will decide where that extra money—hundreds of millions of pounds—will go in Northern Ireland when there is no Executive? More significantly in the context of this debate, there is no political voice from Northern Ireland in the negotiations dealing with these important issues. I am sure the Minister will have this uppermost in his mind in the weeks ahead. In the meantime, we accept that this amendment is not everything we wanted, but it is a lot of it, and I hope that the Commons will accept it when it goes back to them. There is absolute recognition that, 20 years after the signing of the Good Friday agreement, we must not allow Brexit to interfere with all the good work that has resulted from that agreement in 1998.
Lord Duncan of Springbank
My Lords, as ever on this issue, we have brought forward some of the key aspects that are important to our relations in Northern Ireland. I shall touch briefly on some of the points raised. A number of noble Lords stressed that there is a border between Ireland and Northern Ireland. There are different jurisdictions for taxation and various other aspects, but we have to recognise that we have made great progress in how that border is viewed and must recognise it going forward. We cannot create further infrastructure on that border.
I bring my points directly to those raised by the noble Lord, Lord Hain, who was disappointed that there was not enough of the specificity and designation that he felt needed to be there. In truth, when we talk about checks and controls we are not trying to be ambiguous; we are trying to capture all those aspects. When I spoke in one of the previous debates in your Lordships’ House, I addressed issues raised by the noble Baroness, Lady Kennedy of The Shaws, about the checks that will not happen on that border. There will be no profile and no quixotic behaviour. We need to recognise that the border as is must remain as is. We shall not impose on the border, through either infrastructure or unintentional non-tariff barriers, any restriction that impedes the movement of people or indeed, we hope, of trade and goods. That will of course be developed and resolved in the Bills that come after; there will be opportunities in both the Trade Bill and the withdrawal implementation Bill to address these matters still further.
It is important to reflect on the points raised by my noble friend Lord Cormack at the beginning. This may not be where the razzmatazz of the afternoon is but what we have done here is bring together all sides of the House, I hope, in putting into the Bill that which was not there before: recognition of the vital importance of the Belfast agreement and recognition of north/south co-operation are now in the Bill because of the activities of this House and the other place. There will of course be opportunities to develop those aspects.
There will be challenges, I do not doubt, and it is right to reflect that the absence of an Executive in Northern Ireland is a detriment to the people of Northern Ireland at this critical moment. There are not only the Barnett consequentials on health but many other examples where, too often, we are calling on civil servants to do the job of Ministers. That cannot go on. Equally, there are times right now when the voices of the communities in Northern Ireland would be an asset to our engagement on the wider Brexit question but they are missing.
The noble Lord, Lord Empey, said we should have more pith. Well, I am not going to take the pith any longer. I am going to conclude my remarks and say: I beg to move.
Lord Callanan
That this House do not insist on its Amendments 37, 39 and 125, to which the Commons have disagreed for their Reason 37A.
Lord Callanan
My Lords, we come again to the issue of exit day. Both Houses have debated this issue extensively during the Bill’s passage. There is therefore little new to say about how exit day operates in the Bill. It is an appointed day on which a significant number of the key provisions of the Bill have their material effect. As that provision entered this place, it followed international law clearly and precisely. It was in line with the precise date and time at which we would leave the EU; it was not a date that the Government picked arbitrarily. There was also a mechanism to change the date in the Bill if that were so agreed, with specific reference to the circumstances in which that international law mechanism would be activated.
This House chose to send for reconsideration by the House of Commons amendments that undid the careful consideration and multiple amendments that its Members had provided. I understand that many here wanted to ensure that there was as much flexibility as possible in the Bill but I repeat that it is international law, not domestic law, that determines when we leave the EU. I am afraid that I am not surprised that the other place has rejected our amendments. I hope noble Lords accept that the Commons has had the chance to think again, and has come to the same conclusion that it did previously. I suspect that many knew what the Government’s position would be before they saw it on the Order Paper, but I hope that having framed it in this way it is clear why I am asking the House not to insist on its amendments today. I hope the House is content that it has played its revising role on this point by asking the other place to think again but, having done so, will now let the matter rest. I beg to move.
Lord Hannay of Chiswick
My Lords, I was one of those who proposed the amendment that has not found pleasure in the other place. I recognise that, as the Minister has said, the date of our departure from the EU will actually be determined not by what we put into the Bill but by international law—namely, Article 50. If under Article 50 it is decided that a longer period than the two years is needed, no doubt that will be agreed by common accord with Brussels, and the Minister will be standing at the Dispatch Box telling us that after all 29 March is not set in stone. At that moment, I will try not to remind him of the various times at earlier stages of the Bill when he said it was set in stone.
My own view was that the date has no place in the Bill, and that was actually the view of the Government at the outset. However, they changed their minds as part of a political manoeuvre. As the Minister has said, there is some flexibility built into what is known as the Letwin formula, which is the one that the House of Commons has reverted to, and I do not think we should trouble the scorers any more on this matter.
Lord Callanan
I do apologise; the time is getting late. It is right that this be laid down with clarity and certainty for the public. It is strange that I get Hannay and Kerr, confused, isn’t it? It is also right that our law be aligned with the international law that has determined this date. The Bill reflects both the date on which we and the EU are committed to the UK exiting the EU. I am therefore glad that noble Lords are not insisting on these amendments.
Baroness Goldie
That this House do not insist on its Amendment 43, to which the Commons have disagreed for their Reason 43A.
Baroness Goldie
That this House do not insist on its Amendment 45, to which the Commons have disagreed for their Reason 45A.
Lord Callanan
That this House do not insist on its Amendment 51, to which the Commons have disagreed for their Reason 51A.
Lord Callanan
My Lords, the Commons voted by an overwhelming majority of 201 to reject the amendment tabled by the noble Lord, Lord Alli, which requires continued participation in the European Economic Area to be a negotiating objective for the Government. As set out by the Solicitor-General in the other place, seeking to participate in the EEA agreement beyond the implementation period would not pass the Prime Minister’s test that our future partnership with the EU must respect the referendum result. It would not deliver control of our borders or our laws.
The other place also voted by a majority of 82 to reject the alternative amendment tabled by the Opposition Front Bench replacing the requirement to remain in the EEA with a requirement to make it a negotiating objective for the UK to maintain full access to the internal market. The Commons objected to that amendment for a range of reasons. It did not respect the indivisibility of the four freedoms, it did not deliver control of our laws and it did not respect the referendum result. That is why the Commons, and indeed several members of the Labour Party, chose to vote against it. Instead, the elected House opted for the certainty put forward in the Government’s position, which is not to seek membership of the single market after we leave the EU but instead to seek the broadest and deepest possible partnership, covering more sectors and co-operating more fully than any free trade agreement anywhere in the world today.
The view of the other place is clear and I hope noble Lords will be able to respect it. I beg to move.
Baroness Goldie
That this House do not insist on its Amendment 52, to which the Commons have disagreed for their Reason 52A.
Baroness Goldie
That this House do not insist on its Amendment 53 and do agree with the Commons in their Amendment 53A in lieu.
Baroness Evans of Bowes Park
That this House do not insist on its Amendments 110 and 128, to which the Commons have disagreed for their Reason 110A, and do propose Amendments 110B to 110J in lieu—
(4A) Condition 3 is that the relevant period has ended without condition 2 being met.
(4B) Sub-paragraph (4C) applies if—
(a) a committee makes a recommendation as mentioned in sub- paragraph (4) within the relevant period,
(b) the recommendation is that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made, and
(c) the Minister who is to make the instrument is nevertheless of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.
(4C) Before the instrument is made, the Minister must make a statement explaining why the Minister does not agree with the recommendation of the committee.
(4D) If the Minister fails to make a statement required by sub-paragraph (4C) before the instrument is made, a Minister of the Crown must make a statement explaining why the Minister has failed to do so.
(4E) A statement under sub-paragraph (4C) or (4D) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(4F) In this paragraph “the relevant period” means the period—
(a) beginning with the first day on which both Houses of Parliament are sitting after the day on which the draft instrument was laid before each House as mentioned in sub-paragraph (3)(b)(i), and
(b) ending with whichever of the following is the later—
(i) the end of the period of 10 Commons sitting days beginning with that first day, and
(ii) the end of the period of 10 Lords sitting days beginning with that first day.
(4G) For the purposes of sub-paragraph (4F)—
(a) where a draft of an instrument is laid before each House of Parliament on different days, the later day is to be taken as the day on which it is laid before both Houses,
(b) “Commons sitting day” means a day on which the House of
Commons is sitting, and
(c) “Lords sitting day” means a day on which the House of Lords is sitting,
and, for the purposes of sub-paragraph (4F) and this sub-paragraph, a day is only a day on which the House of Commons or the House of Lords is sitting if the House concerned begins to sit on that day.”
(4A) Condition 3 is that the relevant period has ended without condition 2 being met.
(4B) Sub-paragraph (4C) applies if—
(a) a committee makes a recommendation as mentioned in sub- paragraph (4) within the relevant period,
(b) the recommendation is that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made, and
(c) the Minister who is to make the instrument is nevertheless of the opinion that the appropriate procedure for the instrument is for it to be subject to annulment in pursuance of a resolution of either House of Parliament.
(4C) Before the instrument is made, the Minister must make a statement explaining why the Minister does not agree with the recommendation of the committee.
(4D) If the Minister fails to make a statement required by sub-paragraph (4C) before the instrument is made, a Minister of the Crown must make a statement explaining why the Minister has failed to do so.
(4E) A statement under sub-paragraph (4C) or (4D) must be made in writing and be published in such manner as the Minister making it considers appropriate.
(4F) In this paragraph “the relevant period” means the period—
(a) beginning with the first day on which both Houses of Parliament are sitting after the day on which the draft instrument was laid before each House of Parliament as mentioned in sub-paragraph (3)(b)(i), and
(b) ending with whichever of the following is the later—
(i) the end of the period of 10 Commons sitting days beginning with that first day, and
(ii) the end of the period of 10 Lords sitting days beginning with that first day.
(4G) For the purposes of sub-paragraph (4F)—
(a) where a draft of an instrument is laid before each House of Parliament on different days, the later day is to be taken as the day on which it is laid before both Houses,
(b) “Commons sitting day” means a day on which the House of Commons is sitting, and
(c) “Lords sitting day” means a day on which the House of Lords is sitting,
and, for the purposes of sub-paragraph (4F) and this sub-paragraph, a day is only a day on which the House of Commons or the House of Lords is sitting if the House concerned begins to sit on that day.”
Baroness Evans of Bowes Park
My Lords, appropriate scrutiny of delegated powers is crucial to ensuring that the Government are properly held to account by Parliament, and we accept that this is particularly important in relation to those granted under this Bill.
Last week the other place debated and rejected Amendments 110 and 128. Whatever some noble Lords might feel about the sifting mechanism proposed, it is what the other place favours and it has now demonstrated that across multiple Divisions.
As it stands, the Bill does not provide a statutory basis for a sifting mechanism in this House. I hope that noble Lords will agree that we must do something to rectify this or we will have no provision in the Bill allowing for a sifting process in this House whatever. I am pleased that when rejecting our amendments, the other place, quite rightly, left it up to us to decide whether or not to emulate its own sifting mechanism.
The Government have always believed that this House should have an analogous mechanism to that in the other place, which is why I worked with the Procedure Committee to agree the mechanism by which the Secondary Legislation Scrutiny Committee would conduct the functions which, in the other place, will be conducted by a new sifting committee.
Unfortunately, the Government’s amendments providing for that were pre-empted on Report by the amendments in the name of the noble Lord, Lord Lisvane. As the Commons has now made its view clear once more, the Government are returning to the proposals which this House did not have the opportunity to decide on, as amendments in lieu. Without their being accepted today, the sifting process would be deprived of the weight of expertise in this House on questions of secondary legislation and procedure.
I believe that our amendment strikes the right balance. It will ensure that there is sufficient time for the legislative challenge ahead: a challenge for which we all share responsibility. Although that means that the committees will have to react at pace, we are confident that they are well equipped to do so.
Most importantly, our amendment will put this House on an equal footing with the Commons and ensure that there is every opportunity to make recommendations which the Government are committed to respecting.
I know that there has been concern that Ministers may ignore the committees. I echo the sentiment of my right honourable friend the Secretary of State for Exiting the European Union when he said that there is likely to be a “political cost which will be significant” to going against a sifting committee recommendation.
As I made clear in our previous debates on this issue, the Government have always expected to have to justify themselves to the sifting committees where they agree, with Ministers either being called in person before the committee or writing to explain their views. I hope the House does not think that this is a commitment which Ministers would shirk or seek to shy away from.
However, in order to put this beyond doubt, the Government are happy to put their commitment into statute, and this is reflected in the amendments before us tonight. Ministers will be required to make and provide to Parliament a Written Statement explaining themselves if they disagree with a recommendation from one or both of the sifting committees. Your Lordships can be assured that there will be no hiding place from the light of your scrutiny. I beg to move.
Lord Lisvane
My Lords, it would be extremely churlish of me not to acknowledge the movement which the Government have undertaken on these issues, particularly including your Lordships’ House in the sifting process. During Commons consideration of the amendments, the Secretary of State for Exiting the European Union, deployed a rather familiar set of arguments, if I may put it in that way. Quoting the chair of the House of Commons Procedure Committee, he insisted that the Government proposals, under which Ministers will, despite the statements and other provisions, have the final word on whether the substantial amount of secondary legislation which may be brought forward under the Bill, should be subject to the affirmative or negative procedure. He insisted that that procedure had teeth. If it is really to have teeth, some significant dental work is still required. But these exchanges are not the place to consider matters of that sort. The point has been made and although, in an ideal world, it has not been completely adequately answered, I think we should leave the matter there. The test will be, of course, the first occasion on which the committee’s view differs from that of the Government.
Lord Wallace of Saltaire
I thank the Leader of the House for the generous remarks she made about the role of this House. It is particularly important that she sees it as an important part of her role to defend the role of this House and of Parliament as a whole. We have noticed in recent months, and even more in recent weeks, some pretty anti-parliamentary language in the press. I note that at the end of Quentin Letts’s one and a half page rubbishing of Dominic Grieve, he said:
“The sight of the elite grabbing power from the Queen’s government will rupture trust in the ballot box and could imperil centuries of British support for parliamentary democracy”.
Lord Hamilton of Epsom (Con)
I am very interested in the noble Lord’s remarks. Were they not his remarks rubbishing the Foreign Secretary when he was standing at the Bar?
Lord Wallace of Saltaire
I am not sure that these are in any sense the same. I was merely criticising the Foreign Secretary for not being Foreign Secretary. He does a lot of other things, but certainly does not fulfil the role of Foreign Secretary.
I am now talking about some fundamental constitutional issues, which are the relationship between Parliament and Executive Government. They are at stake in this and very much matter when it comes to how much of a role we play in looking at the detail.
We have seen some rather violent language in the media in the past few weeks. I spoke to a Cross-Bench Peer this morning who said, “It is intimidating and, frankly, I feel intimidated”. I know that many MPs, particularly women MPs, feel actively intimidated by the violence which they get on social media. I think the Government ought now to be saying to the right-wing media that violent language encourages violence. We are in a dangerous situation in which parliamentary democracy—that is to say, reasoned debate within a clear structure of rules—is something which we have to defend.
I note that the Sun on Sunday editorial accused MPs of having contempt for democracy and said:
“Such is the contempt these MPs have for democracy when it delivers a vote they don’t like … they seem neither to know or to care what they will unleash”.
I am worried about what the current atmosphere might unleash. It therefore seems to me that the way in which both sides conduct this debate is very important.
Baroness Goldie (Con)
The noble Lord’s eloquence is very diverting, but will he please speak to the Motion under consideration?
Lord Wallace of Saltaire
I started by welcoming what the Leader of the House said about the sifting committee and defending the role of this House and ensuring that this House plays its role. That is welcome language. We have not heard enough of it from the Government. We should all be worried about the potential deterioration of this debate. I wish merely to underline that the debate has got nasty on both sides. One MP was killed two years ago. Let us recognise that the current violent language may take us that far.
In the way in which we approach our task over the next six months, we will do our bit on the detail. I very much hope that the Leader will assure us that the Government will, all the way through, respect the appropriate constitutional role of this and the other House in dealing with a matter which is not simply decided by the referendum, because there is so much detail in it, and the detail always matters.
Lord Cormack
My Lords, the noble Lord was entirely right to touch on some of those things. I am very grateful to the Leader of the House for the manner in which she introduced the amendment. We have listened to the other place, which it is our duty to do. I am one of those who, although I share some of the misgivings of the noble Lord, Lisvane, like him, I do not believe that we should push this one any further tonight.
We have had a good day’s debate, but it is important that we try to lower the temperature a bit on both sides of the argument. It has got a little unpleasant from time to time, even in your Lordships’ House. We need to respect each other’s integrity and sincerity. There is no one in your Lordships’ House whose patriotism should be impugned as it was this afternoon. We need to work closely together. We are going to leave the European Union. Those of us who are unhappy about that have to recognise it but, equally, those who take a different line have to recognise that a minority of the whole electorate voted to leave and that, of those who voted, 48% voted the other way.
We are leaving, and this Bill is part of that process. However, in accepting what my noble friend the Leader of the House has said, and endorsing what the noble Lord, Lord Lisvane, has said, I urge everyone, present and absent, to try to ensure that future debates are conducted in slightly more of an atmosphere of mutual respect. This House has an honoured and honourable role to play. I believe that it has done its duty extremely effectively over the past few months. I hope that we shall continue to do that and that in doing it we shall not be sniped at by those whose sniping reveals only their own contempt for the parliamentary process.
Lord Newby
My Lords, I am sorry that the Government did not feel able to accept the amendment that your Lordships’ House passed on this issue, but at least we now have a workable amendment.
I have just one question for the Leader. She said that she was confident that the committees would be able to respond “at pace” to the flow of statutory instruments coming before them. I am absolutely confident that they can respond at pace, but can the Government produce the statutory instruments at pace? Furthermore, if 1,000 statutory instruments will be required to implement this Bill when enacted, and given the probability of a transition phase, how many of those 1,000 statutory instruments have to be enacted before 29 March 2019?
Baroness Hayter of Kentish Town
My Lords, I can be very brief, because the noble Lord, Lord Newby, has noted exactly the same words as I have—“at pace”. These words alarmed me, because although some of us feel that we worked very hard on this Bill, it is as nothing to what the people on those committees will be doing. I wish them luck.
My question is related to that: when are we expecting the first of these SIs? Now that we have this, we need to move fairly fast to set that up. I very much hope that the colleagues sitting on the other side of the Leader will accept the Motion that we passed today. In that case this would be our last meeting on this Bill. We have already thanked the Bill team again, but it would be wonderful if they did not have to come back. In the meantime, they have at least another day’s work. For the members of these committees, however, their work has just started.
Baroness Evans of Bowes Park
My Lords, the Government’s amendments deliver to this House parity with the Commons, ensuring that all the expertise concentrated here will be properly available to provide proper scrutiny of the SIs that come under this Bill. The noble Baroness asked about timing. Once this Bill receives Royal Assent, SIs can obviously start to be tabled. Therefore, we are not quite there yet, but like her I hope that we will be very soon.
These amendments will also ensure that any Minister who disagrees—and I may have misspoken in my opening speech by saying “agree” when I meant to say “disagree”; I put that on the record for clarity—with the recommendations of one or both of the sitting committees has to explain themselves.
I can certainly assure the noble Lord, Lord Newby, that the Government will play their part in ensuring that we have a functioning statute book, and indeed the proposal that has come forward under this amendment—to have two committees in order to expand the work on secondary legislation—will also give the House the ability to do its side of things. We will certainly be working together to make sure that we have the functioning statute book that we want. On that basis I hope that noble Lords will agree with the proposition that the Government have put forward.