European Union (Withdrawal Agreement) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 13th January 2020
(4 years, 11 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 16-I Marshalled list for Committee - (13 Jan 2020)
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, it is indeed an honour to open today’s debate on a Bill of such historical significance and I am delighted that we have been able to secure our departure from the EU with a deal that gives certainty to businesses, protects the rights of citizens and ensures that we regain control of our money, our borders and our laws.
This Bill, which has passed its stages in the other place with a substantial majority, prepares our country to leave the EU at the end of this month by implementing the withdrawal agreement in domestic law and ensuring that the government can honour our international obligations. It also allows us to meet our commitments in the separation agreement we have concluded with EEA EFTA states and the agreement on citizens’ rights with Switzerland.
Before I turn to the Bill in more detail, I would like to take this opportunity to pay tribute to the valuable work of the Select Committees of this House that have now re-formed. Their work throughout the EU exit process has been insightful and I look forward to engaging constructively with them during the passage of the Bill. I am also grateful to those Peers across the House who have already taken the opportunity to engage with myself and ministerial colleagues on this important legislation.
Part 1 of the Bill covers the implementation period. The withdrawal agreement sets out that during the implementation period EU law will generally continue to apply in the UK as it does in member states, thereby providing certainty to businesses and citizens as they will have to prepare for only one set of changes. The Bill will save and modify the legal effect of the European Communities Act 1972 for the duration of that period; it will preserve EU-derived domestic legislation and ensure that it continues to operate properly during the implementation period; and it provides a supplementary power to make any further technical modifications that may be needed.
The Bill prohibits an extension of the implementation period: it will end on 31 December 2020. With clarity on the timetable that we are working to, the UK and the EU will be able to progress negotiations and use the implementation period in order to secure the future relationship. This Government will work with the scrutiny committees in both houses to ensure appropriate parliamentary scrutiny of new EU law made or proposed during this period.
Part 2 gives the withdrawal agreement the same legal effect in UK law as it will have in EU law, as required by Article 4 of the withdrawal agreement. It means that individuals and businesses will be able to rely directly on the withdrawal agreement as a matter of domestic law. This is replicated for the EEA EFTA and Swiss separation agreements.
Citizens’ rights have been our greatest priority throughout the EU exit process. Giving legal effect to the agreements is a critical step in providing certainty to those who have chosen to make the UK their home. This Bill also takes a number of delegated powers to allow for changes to be made in relevant areas; for example, enabling the establishment of a permit system for frontier workers, providing for routes of appeal and ensuring that professional qualifications continue to be recognised and that social security co-ordination operates for those covered by the agreements. I reassure noble Lords that these powers are tied to the relevant articles of the agreements which they implement.
The Bill will also formally establish the independent monitoring authority which will oversee the rights of EU citizens and citizens of Norway, Iceland and Liechtenstein who reside in the UK. This new UK-wide public body will be able to launch inquiries, receive complaints and bring legal action. It will be fully independent of government. The Bill requires that the IMA’s board must contain appropriate expertise on citizens’ rights in relation to Scotland, Wales and Northern Ireland, and the devolved Administrations will play a central role in appointing those board members.
The Bill also provides the mechanism to pay the negotiated financial settlement. This will take the form of a standing service provision until 31 March 2021. The majority of the remaining obligations will then be met through the annual supply process, bringing it in line with other government expenditure.
In addition, the Bill covers other separation issues. These provide clarity about what happens to processes and arrangements that are ongoing at the end of the implementation period. Many of the details give effect through the main provisions delivering the agreements in Clauses 5 and 6. However, technical changes will need to be made in certain scenarios. We have therefore taken a delegated power, limited to being able to implement Part 3 of the withdrawal agreement and the EEA EFTA agreement only, which ensures that, for example, our rulebook works for goods being placed on the market before the implementation period concludes.
The withdrawal agreement Bill will make provisions to deliver the protocol on Ireland and Northern Ireland. The deal that the Government have negotiated with the EU protects the constitutional and economic integrity of the United Kingdom. It ensures that the whole United Kingdom leaves the EU customs union and that Northern Ireland remains in the UK customs territory. It also upholds the Belfast/Good Friday agreement. I know that the issue of the access of Northern Ireland goods to the rest of the UK is of great concern to many Members of this House and the other place. The protocol is clear that there is nothing in it which prevents the UK ensuring the unfettered access of Northern Ireland goods to the rest of the UK. Let me reassure the House that the Prime Minister’s commitments in this regard, as well as the commitments made in our manifesto, are clear and that the Government stand by them. Indeed, these commitments were reiterated in last week’s joint UK-Ireland publication New Decade, New Approach, which laid the foundation for the restoration of the Northern Ireland Executive over the weekend, something which I am sure noble Lords agree is a very positive event.
I would like to take a moment to focus on the powers in the Bill, and in doing so I thank the Delegated Powers and Regulatory Reform Committee for its report. In particular, I am pleased that the Committee agrees with the Government’s use of the word “appropriate” rather than “necessary” in the construction of the powers. I seem to remember that this was a subject of much debate in this House during the passage of the withdrawal Act in 2018. In fact, I am reliably informed that it even sparked a fashion trend among our department’s lawyers who had tote bags produced bearing the word “necessary” on one side and “appropriate” on the other. Never let it be said that lawyers do not have a sense of humour.
The Government understand the remaining concerns around the use of delegated powers across the Bill and note the committee’s recommendation regarding a sifting mechanism. However, I hope that noble Lords will see that the circumstances are very different from those we found ourselves in with the European Union (Withdrawal) Act 2018.
First, the volume of statutory instruments made under this Bill will be significantly lower than that under the 2018 Act, meaning that there will be sufficient time for the normal scrutiny procedures to apply and for debates to be held, should noble Lords find them helpful.
Secondly, as the committee’s report recognises, the scope of each power is naturally constrained by the articles of the withdrawal agreement that it seeks to implement. For example, the power at Clause 7 can be used only in relation to setting the deadline for the grace period. The Government have also noted the concerns raised by the DPRRC about the clauses to implement the protocol. I understand noble Lords’ concerns but we are confident that our approach is the best way to ensure that the UK can fully implement the protocol and fulfil its international obligations.
The DPRRC has recommended that the consequential power at Clause 41 be moved to the affirmative procedure to enable Parliament to scrutinise any amendments to primary or retained direct principal EU legislation. However, I remind noble Lords that the negative resolution procedure does not prevent such scrutiny taking place and that Members will still have the opportunity to pray against such regulations, should they consider them inappropriate. Members can see examples of the kinds of consequential amendments that will be made to legislation in Part 1 of Schedule 5 to the Bill.
I should now like to focus on the question of legislative consent. The Bill touches on a number of areas of devolved competence, including important powers granted to the devolved Administrations to protect citizens’ rights. We have sought legislative consent from the devolved legislatures in Scotland and Wales for those areas, in line with the Sewel convention.
It is indeed disappointing that the Scottish Parliament has already refused its consent to the Bill, particularly as the vote took place even before the Bill had completed its Commons stages. I should note that the Scottish and Welsh Governments’ consideration of whether to recommend consent to this Bill turns not on the clauses for which we have sought legislative consent but on reserved matters. I reassure noble Lords that there has been substantial engagement with the Scottish and Welsh Governments before and throughout the legislative consent process, and we are committed to continuing to work collaboratively with all the devolved Administrations.
I turn to Clause 26 on the subject of historic CJEU case law, which I know has raised some interest, particularly among noble and learned Lords. We want to provide legal clarity. We have no intention of undermining the fundamental principles of hierarchy, precedent and judicial independence that are so central to our world-renowned legal system. Nor is this about giving the Government a permanent power to review this matter; the power will expire at the end of this year. My noble and learned friend Lord Keen is of course prepared to respond to any points raised on this subject when he closes the debate later.
I take this opportunity to reassure noble Lords—in particular, the noble Lord, Lord Dubs—that the Government are fully committed to the principle of family unity and to helping and supporting the most vulnerable children. Our policy on this has not changed. That is why the Bill places an obligation on the Government to lay a policy statement before Parliament in relation to a future arrangement between the UK and the EU regarding family reunion of unaccompanied children seeking international protection.
This country receives approximately 15% of all asylum claims from unaccompanied children in the EU, making the UK the third-highest intake country. The Bill does not change that. Our policy is unchanged, but the Bill removes a statutory requirement to negotiate. That is entirely appropriate because these negotiations have already been initiated. Clause 37 makes it clear that supporting the most vulnerable children remains of the utmost priority.
With approximately 80 contributors on the speakers’ list—although that has now come down to about 72—I will draw my remarks to a close. As always, my noble and learned friend Lord Keen is here and stands ready to address noble Lords’ contributions at the end of the debate. Passing this Bill will allow us to honour the result of the 2016 referendum, get Brexit done and focus on our other national priorities. I beg to move that the Bill now be read a second time.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin by acknowledging the powerful maiden speeches delivered by my noble friend Lord Barwell and the noble Lord, Lord Mann, in whose speech there was nothing with which I could have possibly disagreed. I believe that every Member of this House would embrace both the content and sentiment that he expressed.
This Bill is of the highest importance and consequence for the country and is vital in delivering our withdrawal from the European Union at the end of this month. In opening, the noble Lord, Lord Newby, was candid and—I would venture—generous in acknowledging the position in which we stand since the general election. This Bill is not about whether or not we will leave the European Union; it is not about determining the terms of our departure from the European Union; it is not about the future relationship. The Bill ensures that the withdrawal agreement and the associated agreements under the EEA, EFTA and Swiss separation agreements are implemented in domestic law in order that they can be given full effect and thereby allow the Government to fulfil their obligations under international law.
I echo the sentiment of my noble friend Lord Callanan in acknowledging the work of all our Select Committees, including that of the Constitution Committee; the noble Baroness, Lady Taylor, indicated that it would deliver its report tomorrow, and we appreciate the speed with which it has addressed these matters. I also thank all noble Lords who contributed to today’s debate and discussion, although it will clearly not be possible for me in the time available between now and midnight to respond to each and every point that has been made.
The noble Earl, Lord Kinnoull, the noble Baroness, Lady Hamwee, my noble friend Lord Cope and other noble Lords raised the question of the prohibition the Bill places on the extension of the implementation period. The general election has clearly shown that the public want no further delay in our exit from the European Union, let alone potentially the 40 years’ delay of Exodus, as cited by the noble Lord, Lord Beith. The prohibition in this statute binds the Government to their manifesto commitment not to extend the implementation period beyond December 2020.
However, I reassure noble Lords that all parties have committed to using good faith to secure agreement on our future relationship by the end of 2020, and we will work with great energy to achieve this. Indeed, article 184 of the withdrawal agreement refers in particular to the obligations on all parties and, in turn, refers to point 135 in part five of the political declaration, where the parties themselves express the intention to have the agreement in force by the end of 2020.
The matter of citizens’ rights has been raised by a number of noble Lords, in particular by the noble Lords, Lord Newby and Lord Oates, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Teverson—I will come on to the particular point he raised in a moment. EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here. We have already provided certainty to over 2.5 million people who have been granted status through the EU settlement scheme. The scheme is free, there is plenty of support for applicants, and they have until at least 30 June 2021 to apply to it.
I understand that the issue of presettled versus settled status has generated concern in some quarters. I make it clear that presettled status is a pathway to settled status, because those with presettled status can move straight to settled status by making an application once they reach five years’ continuous residence in the United Kingdom. I hope that puts some minds at rest. Indeed, we are taking a very pragmatic approach in trying to deal with applications, both of presettled and settled status. If an applicant needs to use the full five years of their presettled status, they will also receive an automatic reminder to apply for settled status before their leave expires. There is therefore no question of people being overlooked in this context. To that end, I understand that the Home Office’s automatic status checker uses the government database to help applicants secure the right form of status in a smooth and effective manner.
Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is of course not a matter of domestic law and is therefore not a matter for the Bill, which is intended to implement the international legal obligations which we have undertaken pursuant to the withdrawal agreement. Therefore, the status of UK citizens in the EU will be the subject of the future relationship negotiations.
Questions were asked, particularly by my noble friend Lord Leigh of Hurley and the noble Baroness, Lady Ludford, about the status of the IMA. I assure noble Lords that the Bill guarantees that the IMA will be fully independent of government. As the Bill sets out, the IMA will be run by an independent board and contain the appropriate expertise on citizens’ rights, and the Government will have no role in its day-to-day running or in its decisions. The noble Baroness, Lady Ludford, suggested that, pursuant to the provisions in Schedule 2 to the Bill, the IMA could be abolished. That is simply not the case. There can be a transfer of the IMA’s functions at some point, but those functions must be continued and carried on. After a period of eight years, it will be possible for the UK to negotiate with the EU on the matter of whether the IMA is still required, but the obligation to maintain it is one that we have undertaken in international law, pursuant to the withdrawal agreement, and one to which we as a Government will adhere. So, there is no question of the unilateral abolition of the IMA.
I listened to the concerns expressed across the House, particularly by the noble Lord, Lord Newby, in relation to the delegated powers in the Bill. The original sifting mechanism introduced in the EU withdrawal Act was a response to the exceptional circumstances we then found ourselves in. The situation now is quite different and it would not be appropriate to include a sifting mechanism in the Bill in this instance.
I listened also to the concerns expressed in relation to the power contained in Clause 21 to implement the protocol on Ireland and Northern Ireland. I also took note of the comments of noble and learned Lords on the DPRRC in this regard. But we in this space must be aware of what occurred in the other place and have regard to the response from the Government Benches to the concerns raised there. The Government have stated that providing certainty and reassurance to people and businesses in Northern Ireland is of paramount importance to them. The power contained in the Bill to implement the protocol provides that reassurance.
Furthermore, as my noble friend Lord Callanan pointed out at the beginning of the debate, the Bill’s approach to implementing the protocol is the best way to ensure that the United Kingdom can fulfil its international obligations and make the necessary arrangements to implement the protocol in the time available. Any other approach would risk jeopardising the Government’s ability to fully implement the protocol and would inevitably send a negative signal to both businesses and individuals in Northern Ireland. I hope that the House will agree that the fulfilment of these two aims—namely, ensuring that the Government can fully implement the protocol and reassuring businesses and individuals in Northern Ireland—should not be undermined.
Noble Lords asked about Parliament’s oversight of the future relationship negotiations. It was interesting to observe the different views that came from different sides of the House. For a while, many noble Lords expressed concern about the removal of parliamentary oversight. I believe that I noted both my noble friend Lord Bridges of Headley and the noble Lord, Lord Darling, expressing the view that, at the end of the day, negotiation of such matters as international relations had to be a matter for the Executive, essentially, and not one for Parliament to be directly involved in—albeit that, at the end of the day, myriad pieces of legislation will require to be approved by Parliament and put in place in order that the future relationship can be established and maintained.
The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis. As the Prime Minister said in the debate on Second Reading in the other place, Parliament will be kept fully informed on the progress of these negotiations. Both Houses will have access to all their usual scrutiny tools, including Select Committees and the questioning of Ministers, and I have no doubt that the House will take full advantage of them. So, in these circumstances, we do not consider that there is a requirement for any additional statutory role. Furthermore, we are giving the EU Committee the ability to trigger debates on new pieces of law proposed by the EU that raise matters of national interest during the implementation period.
I turn now to the matter of unaccompanied asylum-seeking children, which was touched on by the noble Lord, Lord Dubs, and mentioned by a number of other noble Lords. Of course, concerns have been raised over family reunion for unaccompanied asylum-seeking children. I wish to make clear that the Government are fully committed both to the principle of family reunion and to helping and supporting the most vulnerable children. The Government, as my noble friend Lord Callanan observed, have a record of providing protection for vulnerable children, receiving 15% of all asylum claims from unaccompanied children in the EU.
Clause 37 does not represent a change to that existing government policy. It removes the statutory requirement to negotiate. This is appropriate as the Government have demonstrated their intentions by already writing to the European Commission to commence negotiations on this issue. It is vital that the Government are not legally constrained in those discussions. We are restoring the traditional division of competence between Parliament and the Executive when it comes to international negotiations. This clause fulfils the essential function of allowing us to continue negotiating a comprehensive agreement and rightly ensuring that Parliament is informed of the Government’s policy intentions in respect of our future arrangements.
I shall move on to deal with the question of the case law of the CJEU. I have noted the concerns that have been expressed here. While clearly EU case law is a defined body of law, it is important that our courts are not eternally bound by historic decisions of the EU Court of Justice after the implementation period has expired. Let me provide some important points of reassurance. First, the approach that we have taken is consistent with our international obligations. Clause 26 already provides for how the separation agreements must be interpreted and nothing that we do here will cut across that. Secondly, we want to approach this matter in a sensible way.
Let me be clear that there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom. We must consult with the senior judiciary before making any regulations, and the clause provides for the Minister to consult with others as is appropriate. What we intend is that the power will be used to ensure that retained EU case law is a living law rather than one preserved in aspic. There will be legal clarity at the point when any case concerning this body of law is heard. The power can be used only until the end of the implementation period, and the courts will be interpreting retained EU law only after that period. So we have the period of the implementation time in which to address this issue and it will then apply from the expiry of the implementation period. But I repeat that there is no intention on the part of the Government to extend the power to every court and tribunal in the land. We recognise the uncertainty that would be a consequence of such a move.
I turn to matters pertaining to devolution, which arose in a number of different contexts. First of all, the noble Duke, the Duke of Montrose, raised questions about the CAP and an agriculture Bill. I assure noble Lords that the CAP will continue to the end of the implementation period, by which time we will have taken forward the agriculture Bill. The noble Duke also referred to the frameworks, and perhaps I may remind noble Lords of the importance of these frameworks in the context of our relations with the devolved Administrations. Between October 2017 and March 2018, we published what was termed a common frameworks analysis, which set out about 153 areas in which EU law intersected with devolved competence. After discussion we have reduced that number, but have carried on an analysis of these areas with the devolved Administrations and continue to work closely with them on these issues.
One example of that is fisheries, which have already been mentioned in this debate, where we proposed a new UK framework to ensure access for UK fishing fleets throughout UK waters. That has been taken forward through discussion with the devolved Administrations and has been governed by principles agreed at the joint ministerial conferences. I give the detail of that just to underline the extent to which we are engaged with the devolved Administrations in this context.
As was suggested early on, the engagement between the UK Government and the devolved Administrations over the Bill has been rather unusual, because the recommendations coming back from the devolved Administrations have been principally concerned with reserved matters. The devolution settlement involved the reservation of specific matters to the United Kingdom Parliament. It was never intended that in the conduct of such reserved matters—for example, international affairs—the United Kingdom Parliament could be inhibited or frustrated by the devolved Administrations. That would not be normal under our devolution settlement, and that is reflected in the terms of the Sewel convention. For our part, the Government have followed the spirit and letter of the devolution settlement throughout the process pertaining to this Bill. The engagement of the devolved Administrations—
Baroness Hayter of Kentish Town
Does the Minister accept that while the negotiations may indeed be for reserved matters, in many cases the implementation is not reserved? That is why they are particularly worried about the lack of consultation.
Lord Keen of Elie
There are clearly circumstances in which the implementation of the withdrawal agreement will impact on the scope of executive competence of the devolved Administrations, and they are well aware of that, but those are not the issues they have sought to address with the UK Government in this context. They have sought to address matters that are reserved. As I say, the fundamentals of the devolved settlement, going back to 1998, never intended that where the UK Government were exercising a reserved function they should be inhibited or prevented from doing so by the devolved Administrations. It is important to bear that in mind.
As I say, we consider that we are taking appropriate steps to engage with the devolved Administrations, and we will continue to do so. Indeed, we continue to hope that the Welsh Government in particular will reflect on this and revise their recommendations to the National Assembly on legislative consent. At the end of the day, what we are doing here is implementing an international treaty obligation; that is the role of the United Kingdom Parliament.
I will now touch on one or two additional points in the limited time remaining. The noble Baroness, Lady Thornton, raised a number of issues with regard to health. Clearly, nothing is going to change before the end of the implementation period, and thereafter it will be a matter for the negotiation on the future relationship. It is not a matter for this Bill, which is intended to implement the present withdrawal agreement. She also made reference to the clinical trials directive. I should observe that the new EU clinical trials directive has not yet been adopted, so we do not even know where the EU will be with regard to that. Of course, once we do know, it may form the subject of negotiations on the future relationship.
The noble Baroness, Lady Crawley, made a powerful point that, after 46 years of being subject to EU law, women have still not secured equal pay. I certainly hope that we will do better after we leave the EU.
The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.
The noble Baroness, Lady Donaghy, referred to UK worker rights. I notice that, in many respects, UK worker rights are much higher than the norm within the other EU 27 states. One has only got to consider such issues as paternity and maternity leave, and other related issues, to appreciate that what we may hope for after exit is that the EU is able to catch up with us.
I look forward to tomorrow’s Committee stage, where we can enter into more detailed scrutiny and debate on the issues that have been raised today. This Bill ensures that we honour the result of the 2016 referendum and leave the EU on 31 January, on the terms of the withdrawal agreement. It ensures that the agreements have full effect in domestic law and that, accordingly, the Government can discharge their obligations in international law.
Once the Bill is passed and the withdrawal agreement ratified, we will proceed to the completion of a free trade agreement with the EU by the end of December 2020. We can then go on to focus on other national priorities, such as the National Health Service, education and skills, and ensuring that we make our country safe. I commend the Bill to the House.