Wednesday 15th January 2020
(4 years, 10 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 16-III Third marshalled list for Committee - (15 Jan 2020)
Baroness Ludford
Member’s explanatory statement
This amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.
Baroness Ludford (LD)
My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.
When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with
“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”
arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.
In the Explanatory Notes, the Government had said that
“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”
That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.
Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that
“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”
It reminds us that
“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,
as I earlier cited. It concludes:
“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”
That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.
The delegated powers memorandum says about the justification for taking the power:
“These amendments are necessary to allow the power to function in the revised context of the implementation period.”
We were always going to have an implementation period. I simply do not understand this next sentence:
“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”
We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.
I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase
“not clear in its effect as a result of the operation”
gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.
Lord Tunnicliffe (Lab)
My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.
During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?
The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.
As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.
The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.
Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.
Lord Tunnicliffe
Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?
Baroness Ludford
The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely
“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?
Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?
Lord Callanan
Of course it may be possible to continue to use that power but until we see how the legislation works out—how it is introduced during the implementation period—we will not know that exactly. We therefore think it appropriate to extend the sunset period, et cetera, to give us the new powers to correct upcoming or future legislation that may be introduced during the implementation period.
Baroness Ludford
I was not talking about the length of the time of the powers but about extending the scope. Amendments 24 and 26 are relevant to the provisions that would insert new subsections (2)(ea) and (9), which widen the criteria for finding a deficiency. If there were a change in telecoms legislation, the existing Section 8 in the 2018 Act seems perfectly adequate because the Government could say that there is a failure of retained EU law to operate effectively, because telecoms legislation has changed. That is enough. We do not need the new, widened scope to find a deficiency.
Lord Callanan
It is certainly the view of our legal advisers that we would potentially need the new, widened powers to be able to do that, but I can write to the noble Baroness with further details of why it is necessary.
Baroness Ludford
I have probably made it fairly clear that I do not find the Minister’s assurances terribly convincing, and I look forward to his letter. Perhaps the legal advisers can explain to him why it would be necessary in my example. Our Constitution Committee has consistently warned us against wide powers in this area—things where there could be mission creep outside technical corrections to policy changes. I think its alarm bells are flashing on this, which is pretty convincing to me. The Government giving themselves a power to correct deficiencies because something
“is not clear in its effect”
and has something to do with
“any aspect of that withdrawal”
is pretty wide in scope.
I have to confess that I have not been reassured or convinced by this short exchange, but that is probably all I will get until we see further information. I beg leave to withdraw Amendment 24.
“Oversight of negotiations for future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means— (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“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 with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statement
This amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.
As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.
Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.
Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.
Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.
Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.
The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that
“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]
Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.
The Earl of Kinnoull (Non-Afl)
My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:
“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”
It runs through that procedure and says, in paragraph 10:
“The European Parliament shall be immediately and fully informed at all stages of the procedure.”
That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:
“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.
That is at paragraph 23. It goes on:
“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”
Lord Wallace of Saltaire (LD)
My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:
“This Bill is of the highest constitutional significance.”
One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.
The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.
The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.
The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.
We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.
Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.
There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.
Lord Hamilton of Epsom (Con)
My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.
As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.
Lord Wallace of Saltaire
My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.
Lord Hamilton of Epsom
Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.
Lord Hannay of Chiswick (CB)
My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.
This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.
Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.
Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.
Lord Liddle (Lab)
My Lords, I support the amendment moved by my noble friend Lady Hayter. I particularly support the speech of the noble Earl, Lord Kinnoull. He is already establishing himself in this House as an excellent chair of the EU Select Committee, succeeding a previous excellent chair. My only regret is that I am no longer on that committee to serve under his chairmanship.
In my experience from my four years on the committee, the attitude of successive Secretaries of State towards the committee was always one of good will but they made promises they never kept. At one stage, we were told, “Oh yes, every month you’ll see me and I’ll come to answer your questions.” My recollection is that we saw David Davis at intervals of perhaps five months during his time as Secretary of State. I think that we saw Mr Raab once; I might be wrong about that. Mr Barclay was the most attentive towards the committee. He seemed keen to improve in the next phase of the EU negotiations on his own degree of accountability. He saw maximum transparency in the conduct of the negotiations as being in the Government’s interests. I am sorry that No. 10 has decided to go for breach of promise on all this. That is a great shame.
Whenever the issue of the European Parliament’s rights to scrutiny is raised, you get a vigorous shaking of the head from the Minister, the noble Lord, Lord Callanan. I would love to hear his explanation of why those rights are not what we all know them to be. He seems to reject the notion that the European Parliament has many more rights than the British Parliament to access information and question officials to find out what is happening, but that is the case. The role of the European Parliament was greatly strengthened by the Lisbon treaty, and again by the ECJ judgment to make it easier for the Commission to negotiate on the EU’s behalf on services as well as on goods. It has also been strengthened by the brouhaha over the Canada agreement; a stronger role for Parliament clearly would have prevented the difficulties that the agreement then ran into in its ratification in member states. I think it is in the Government’s interests to be more transparent.
Yes, Brexit is happening—as I said in my Second Reading speech, I fully accept that—but the Government do not yet realise what trade negotiations are really like, because they have not done them for half a century. Having served for three years in DG Trade, or at least in the cabinet of the Commissioner, I can tell you that they are brutal. The people in charge of the EU side in these negotiations stand up for EU interests with tremendous firmness. I suspect that this is what we will encounter once we have allowed ourselves to become a third country, which in a few weeks we will be. They will treat us like any other third country.
One has to be transparent about the trade-offs. I will cite just one example. How do we rate the relative importance of the fishing and car industries? The fishing industry has tremendous political profile and thinks that as a result of Brexit it will get much more fishing in British waters and that we can keep continental boats out—but it represents 0.5% of GDP. How much are we prepared to sacrifice in our negotiating position for the fishing industry? The car industry employs up to 1 million people in this country, when you look at the supply chain. If we do not achieve the kind of customs partnership that Mrs May said she was in favour of, there is a real risk that inward investment by the overseas companies that rebuilt the car industry in Britain will go elsewhere over time. There has already been a lot of talk of that on their part. This would be a devastating blow to one of Margaret Thatcher’s main achievements in the 1980s and 1990s in being able, as a result of creating the single market, to attract to Britain huge amounts of foreign investment, which has greatly benefited our people. I repeat: 1 million jobs.
If there is not transparency, how do the Government explain to people that they are not guaranteeing the future of 1 million jobs but have put all their negotiating eggs in the basket of trying to give a few more opportunities—not actually saving any jobs—to our fishing? We need openness if we are to have a proper debate in this country about where our interests lie. That is what we need in the coming 12 months if we are to have any hope of a harmonious outcome to these rushed negotiations.
Viscount Trenchard (Con)
My Lords, I will comment on the views of the noble Lord, Lord Liddle, about the European Parliament and the relative degrees of parliamentary scrutiny. He has much more experience of Brussels; I have worked there, but not for nearly as long as he did. It is not correct to say that the European Parliament’s rights in this matter are greater than the United Kingdom Parliament’s. Article 218 of the Treaty on the Functioning of the European Union states that the European Parliament must be kept
“immediately and fully informed at all stages of the procedure”,
but does not give it a role in deciding the substance of the negotiations. However, it must pass the final agreement by a simple majority vote. So it has to agree at the end, but it appears not to have the right, stage by stage, to dictate to the Government what they are to do as they negotiate.
Lord Liddle
I never claimed that. I claimed that the Parliament was so fully informed that it had a grasp of the trade-offs that it would have to make in deciding whether to vote for this deal at the end of the day.
Viscount Trenchard
As far as I understood, the noble Lord said that the European Parliament had much more say in dictating the mandate, but perhaps I misunderstood him. In any case, it appears that during the last three years the UK Parliament has been exercising power to control the Executive, and the Executive have not been seen by their interlocuters on the European side as having the right to negotiate, because all the time noble Lords opposite, and others, were saying to individuals in Brussels, “Don’t worry, Parliament isn’t going to allow the negotiating team to do this. We will reverse it.” Now the people have spoken and the House of Commons has a strong majority of 80 Conservative MPs, all committed to a real Brexit. That is known. This amendment is designed to obstruct because the House of Commons will not accept it, and noble Lords know this well.
Lord Wigley (PC)
My Lords, I very much agree with the points made a moment ago by the noble Lord, Lord Liddle. In Wales during the 1970s, 1980s and 1990s, we were fortunate enough to attract more than 200 American companies and more than 50 Japanese companies to invest in Wales, largely through the work of the Welsh Development Agency. They came to Wales in order to sell to the European market: there is no question about that, and therefore these questions are of mainstream importance to the National Assembly for Wales. That is why Amendment 40, standing in my name, covers the matters involved in Amendment 27 and brings into the loop a role for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly. I concur very much with the points made by the noble Baroness, Lady Hayter, in opening this debate.
Amendment 27 provides, in subsection (4) of the proposed section entitled, “Negotiations for future relationship,” that:
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless … a statement on objectives for the future relationship with the EU has been approved by the House of Commons.”
My Amendment 40 extends the same principle to the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly.
The lead Amendment 27 does indeed bring in the three devolved legislatures, to the extent that it provides that copies of the proposed progress reports should be provided for each devolved legislature, and to the relevant Ministers of those three nations. The general arguments in favour of my amendment are similar to those for Amendment 27, so I will not repeat them. I support everything stated by the noble Baroness, Lady Hayter. However, I will again press that the devolved legislatures should be fully in the loop and that their approval should be obtained. They have as valid a right to be in the picture as Members of the European Parliament; it impacts directly on their work.
I realise that the Government may withstand the whole concept of getting prior parliamentary approval for their negotiating position with regard, say, to trade in sheepmeat, but they contend that the Government can negotiate exactly what they like, and they have it in their power to do so. In reaching their negotiating position and their proposals, they will no doubt have discussed their strategic objectives with their ministerial colleagues in charge of sheepmeat issues in England. It would be amazing if they were not to do so; indeed, it would be a chronic dereliction of duty. But, unless a provision along the lines of Amendment 40 is brought into play, the government team in charge of negotiating with the EU on the future sheepmeat trade will be totally ignorant of the views of Wales, Scotland and Northern Ireland. These need to be systematically built in.
Lord Bowness (Con)
My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.
I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.
The parliaments of Denmark and Sweden, to name but two—
Lord Hamilton of Epsom
Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?
Lord Bowness
It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.
Lord Hamilton of Epsom
The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.
Lord Bowness
That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.
I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.
I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.
It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.
Lord Howarth of Newport
My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.
It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.
When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.
I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.
Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.
I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.
It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.
There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.
Lord Kerr of Kinlochard (CB)
The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.
Lord Howarth of Newport
It was desperate expedient. The Government had no option, given the parliamentary arithmetic.
Lord Kerr of Kinlochard
That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.
The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.
I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.
Lord Howarth of Newport
Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.
Lord Kerr of Kinlochard
Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.
Lord Wilson of Dinton (CB)
My Lords, I am pleased to follow my noble friend Lord Kerr.
This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.
I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.
Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.
The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.
Lord Hamilton of Epsom
Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?
Lord Wilson of Dinton
I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.
Baroness Finlay of Llandaff (CB)
My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.
The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.
The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.
The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.
Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.
Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.
Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no, we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.
The Lord Bishop of Leeds
My Lords, I think that the context has changed. When the Benn amendment went through, it was suspected of having the intention to thwart or delay Brexit. We are not in that position now: Brexit is going to go ahead. Surely, then, it is the job of the whole of Parliament to defend and promote its own interests and those of the Government in the negotiations going forward. So, in a perverse way, this amendment strengthens the hand of the Government by bringing in Parliament to back it and provide support as they embark on their negotiations; it does not diminish it.
Baroness Wheatcroft (Non-Afl)
My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?
My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.
Lord Butler of Brockwell (CB)
My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.
However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.
We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.
Lord Mackay of Clashfern (Con)
I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide
“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,
which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and
“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”
Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.
Lord Callanan
Amendments 27 and 28 in the name of the noble Baroness, Lady Hayter, and Amendment 40 in the name of the noble Lord, Lord Wigley, would all introduce new clauses with a similar purpose. They seek to create statutory roles for Parliament, the devolved Administrations and the devolved legislature in overseeing the future relationship negotiations. It is the view of the Government that the general election has shown that the public support the vision of the political declaration for a comprehensive and ambitious free trade agreement with the EU, and indeed this gives us the mandate to begin negotiations.
As this House will be aware, under the Royal Prerogative the negotiation and making of international trade agreements is a function of the Executive, as indeed in the EU it is a function of the European Commission, a point well emphasised by the noble Lord, Lord Howarth. This enables the UK to speak with a single voice in negotiations and ensures—
Lord Bowness
Just in the interests of clarity, is it not true that the European Commission acts on a mandate from the Council—that is, the elected heads of government?
Lord Callanan
Yes, it is. I am not quite sure what point the noble Lord is making. It usually acts on a mandate although it is not clear to what extent or what detail will be provided in that mandate.
Lord Hannay of Chiswick
If I can help the Minister, the point that my friend the noble Lord, Lord Bowness, was making is that the Minister said it was in the hands of the Commission. He has now said that it is in the hands of the Council, which is correct.
Lord Callanan
As the noble Lord is well aware, it is the role of the Commission to do the negotiating. It will report back to the Council and the Council will provide steers on how it will do that, but the detailed negotiation is a matter for the European Commission.
Lord Liddle
There is a meeting every fortnight of officials from member states that monitors what the European Commission is doing.
Lord Callanan
There is not a direct analogy between the position of the UK and that of the EU. The UK is one member state and the EU is 28—shortly to become 27—member states. My point is that this enables the UK to speak with a single voice in negotiations and ensures that partners can have faith that the Government’s position is the position of the United Kingdom.
It goes without saying that the Government will of course support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations. Both Houses will have all the usual arrangements for scrutinising the actions of the Government. I find incredible the statements that have been made about how little a role Parliament will have to play in these negotiations. This House alone has spent over 650 hours on debates on EU-exit-related themes since the 2016 referendum—believe me, from my point of view sitting on the Front Benches, it has sometimes seemed even longer. I find it difficult to believe that noble Lords will not want to question and interrogate me or whichever other Minister is in my place at the time on these negotiations. Indeed, committees of this House have already published three reports on this Bill after fewer than 10 sitting days of this Session.
Let me address the points made by the noble Earl, Lord Kinnoull, and the noble Lord, Lord Liddle, on the role of the European Parliament and the famous Article 218. The noble Baroness, Lady Ludford, is sadly not in her place but we have served in the European Parliament and know the reality of these matters. It is important not to draw unhelpful comparisons between the Commission which, as I said, negotiates on behalf of the 27 member states, and the UK Government on how negotiations are conducted. The information provided by the Commission to the European Parliament is carefully calibrated to not put the EU at a disadvantage in the negotiations. The detail of what information shall be provided to the Parliament is left entirely to the discretion of the European Commission.
The European Parliament will, as this Parliament often does, try to insert itself into the negotiations and want to influence their conduct through its various committees and organs. That is entirely right. It happens in the European Union and I suspect it will happen in this country as well. However, we need to be careful not to overstate what Article 218 does. It is not specific on reporting requirements and that compares very well with the Prime Minister’s commitment to keep Parliament fully informed about the progress of these negotiations. Article 218 does not specify what documents will be available or when.
Of course, it also bears saying that this Bill is not the final word on engagement between Parliament and the Government. As I indicated to the noble Earl, Lord Kinnoull, when we met and as I have said a number of times, the Government will want to start a process of discussions with Parliament into exactly how the various committees and organs in both Houses will scrutinise the work of the Government in this area. In our view, there is no need to set out bespoke statutory reporting requirements in the Bill or impose a statutory duty on a Minister to provide public commentary on the likely outcome of confidential negotiations at a fixed point, as was proposed in Amendment 28. In our view, this risks seriously disadvantaging negotiators acting for the United Kingdom.
I also note that setting out requirements of this type in legislation might well not have the desired effect, as an attempt to pre-empt outcomes and timings can be easily overtaken by events. Let me give the House an example. Last week, I delivered an update in this House on the Government’s negotiations and on Article 50, as required by Section 13 of the European Union (Withdrawal) Act 2018 and the Benn Act which many Members in this House spent many hours telling us was essential. For that debate, which took place at 10.30 in the evening, virtually the only people in the House to debate these matters were myself and the noble Baronesses, Lady Ludford and Lady Hayter. Many of the Members who insisted on passing the Benn Act and introducing these statutory reporting requirements did not trouble themselves to come along and take advantage of the legislation they had passed. There were only three speakers in that debate, myself and the two noble Baronesses.
Baroness Hayter of Kentish Town
Does the Minister agree that he did not actually cover the negotiations but covered only why that requirement was no longer needed? He did not touch on the negotiations at all.
Lord Callanan
The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.
The Earl of Kinnoull
I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.
Lord Callanan
I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.
I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.
I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.
We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.
Lord Hannay of Chiswick
I think the Minister referred earlier to anything that is agreed being preceded by the CRaG process to ratify or conclude it. It is hard to believe that the sort of agreement the Government seek and which, as he rightly says, they have support for seeking will not include such matters. Does he not agree that if anything that is in an agreement includes changes to the UK’s domestic law, it will require primary legislation before it can be concluded? Can he just be clear on that?
Lord Callanan
I did not hear the first part of the question, but if the noble Lord was asking me whether I agreed that some parts of the agreement may well require domestic legislation to implement, the answer is yes.
Baroness Hayter of Kentish Town
My Lords, there are two parts to what we have been talking about. One is about the mandate and the other is about oversight of the ongoing negotiations. As I think has just been clarified, the EU Commission negotiators seem to manage very well by being given a mandate from elsewhere —that is, from the Council—and reporting back there, so it really should not be difficult. The Minister seemed to be quoting the Treaty on the Functioning of the European Union by saying that the European Parliament did not have the powers that other noble Lords have suggested. I think he will find that there is an institutional agreement going rather further, and that is what gives it the grip.
During the discussion on the mandate, my noble friend Lord Tunnicliffe, who of course is an old hand at negotiating, said that his definition of the mandate that he used to work with was “Whether I’d get away with it”. It sounds as though our Government are trying to do that, which is rather the problem. Given that the Government have a majority of 80 in the other place, I really do not see what they are afraid of by our requiring that they should put the mandate, and report on the negotiations, to a House where they obviously control the numbers. They cannot be that afraid of your Lordships’ House, so it is slightly hard to imagine why they are so resistant to this.
The noble Lord, Lord Hamilton of Epsom, championed the existence of Statements. Those work quite well for someone like me on the Front Bench, because I get my fixed and protected time to question a Minister when they come with a Statement. But if there are only 10 or 20 minutes, or even 40 minutes, on a Statement for Back-Benchers when this House has a plethora of real experts and we are talking about something as detailed as negotiations, our Statements at the moment do not really provide the sort of scrutiny that your Lordships would expect on such a vital matter.
Lord Hamilton of Epsom
Does the noble Baroness not accept that the Opposition has Opposition day debates as well, which can spell this all out at much greater length?
Baroness Hayter of Kentish Town
I do, absolutely, but I was referring particularly to experts. I will try not to offend my colleagues now, but many of those experts do not sit on my Benches yet are absolutely in that part of the House that we so value. We have great experts from not just international negotiations but industry and trade. They do not just sit in the Opposition and do not have the grip to be able to take a debate like that. Even if what the noble Lord, Lord Hamilton, suggests were written into the Bill, there would be a day’s debate every month or two, or that sort of thing. We think it important to have more than just a Statement without a vote, particularly in the other place.
The grip is needed to make sure that this happens. Until my noble friend Lord Liddle said so, I had not realised that not every Secretary of State was as good at turning up—although I remember an occasion when one Secretary of State did not turn up twice, having been expected by the EU Committee. Again, offers of good will are perhaps not quite sufficient.
What is important in this came in the example about America—I think it was from the noble Lord, Lord Kerr—but also from the right reverend Prelate the Bishop of Leeds. Parliamentary approval actually strengthens, not diminishes, the Government’s stance; that is worth listening to. The taking back of control was meant to be by Parliament, not just by the Government, but we are surely at our strongest where the two work together. The noble Lord, Lord Wilson of Dinton, said two things. One was that when the Government are strong, they can make mistakes; he also urged the Government to work with Parliament, not set themselves against Parliament.
The noble Lord, Lord Bowness, suggested that a simplified version of what we tabled might be more acceptable to the Government. I urge the Government not to turn their back on that. The Minister will have heard, with only a couple of exceptions, the real feeling that we will do our job best if we can do it in a way that is written into the Bill. We will then be confident that the negotiations will be able to fully engage this House and, more importantly perhaps, the other House as this vital matter continues. I have a feeling that we will return to this on Monday or Tuesday but, for the moment, I beg leave to withdraw the amendment.
Lord Newby (LD)
My Lords, Clause 33 amends the withdrawal Bill to debar any Minister from agreeing to an extension of the implementation period beyond 31 December this year. Such a possible extension is provided for in article 132 of the withdrawal agreement, which says that
“the Joint Committee may, before 1 July 2020, adopt a single decision extending the”
implementation,
“period for up to 1 or 2 years.”
My co-signatories and I object to this clause standing part because we believe that ruling out an extension of the implementation period in all circumstances is impractical and against the national interest. We do not believe that it will be possible to negotiate a comprehensive agreement covering trade, security and the other issues covered by the political declaration by the end of the year and, this being so, the logical and sensible thing to do is to allow for the possibility of an extension.
Why do we believe that such an extension will be necessary? I will concentrate on trade, although reaching agreement on other matters such as security will be equally contentious and time-consuming. What is the evidence that it will be impossible to conclude an agreement on time? Let us first be clear about what we mean by “on time”. The EU will decide on its negotiating mandate next month, so no talks will be possible at all until towards the end of February. The withdrawal agreement makes it clear in article 184 not only that the negotiations have to be concluded by the end of December but that ratification has to take place before the end of the year, so that the negotiated agreement can come into force, as far as practically possible, by 1 January next year.
Any comprehensive agreement will be a so-called mixed agreement, which will require it to be ratified not only by the EU Council and the European Parliament but by all national Parliaments and a number of regional assemblies. In the case of the Canadian trade agreement, the one we are told is closest to what the Government now have in mind, ratification itself took over five years. But to be very generous, let us assume that it might be possible within two months. This would mean that the agreement must be concluded by mid-October, giving a maximum of eight months for the negotiations.
It is well known that all trade negotiations, so far in human history, normally take years to complete. The Canadian agreement took more than five years, for example. The Government rightly claim that these negotiations will be different because we are already in full trade and regulatory alignment with the EU, so it will be easier than starting from scratch. While this may be true, it is absolutely clear that the negotiations will not be straightforward.
The head of the Commission, Ursula von der Leyen, said last week in London that it would be impossible to reach a comprehensive deal within the timetable. Even the Prime Minister yesterday said that, while he thought reaching a deal would be “epically likely”, he did not rule out the possibility of a failure to do so because of, as he put it, a possible
“complete failure of common sense.”
I looked up “epically” because, when I first read it, I thought it was a spelling mistake—it is a word that I have neither seen nor used before. It does not mean what the Prime Minister thinks it means. It means
“in a lengthy, grand or important way”.
He is in fact more correct than he probably realises, because this will definitely be done “in a lengthy way”.
What evidence is there to support the Commission’s view and to doubt the Prime Minister’s breezy optimism? It is worth looking at the Canadian deal to get some clues. First, despite the fact that that deal took many years of negotiation, it does not even give full tariff and quota-free access, something that the Government say is absolutely the first building block of what they are looking for. In the case of Canada, there remain quotas on poultry, eggs and meat and tariffs on beef, pork and wheat. This difficulty over agriculture is before we get to the even more difficult issue of fishing rights. The idea that we can easily reach agreement is simply false.
Secondly, on services, according to the Government’s own estimate produced in the document that we were allowed to read only by submitting our phones and going into a windowless room in January 2018, the Canada deal includes over 550 individual restrictions on the trade in services. Yet the Prime Minister says he wants the deal to cover all services. It might be possible in some areas, but the idea that there is a possibility of agreeing 550 concessions that were impossible to reach with Canada within the period that he is discussing is wholly implausible.
More generally, the Government want to minimise the cost of trading with the EU. This assumes a particular importance, because it applies not only to trade between the UK and the EU but also, now, to trade between Great Britain and Northern Ireland. We had a fascinating debate last night on the amendment of the noble Lord, Lord Hain, in which he sought assurance that there would be no restrictions on trade between Northern Ireland and the rest of the UK— restrictions, incidentally, that are envisaged, and indeed set out, in the Northern Ireland protocol. The Minister, the noble Lord, Lord Duncan, made a valiant attempt to argue, in line with the Conservative election manifesto, that there will be unfettered trade, but could not give a definition of “unfettered” consistent with the terms of the Northern Ireland protocol, which clearly provides for customs and other checks. Incidentally, “unfettered” is now the word when it comes to trade. For how many years, and how many hundreds of times, have we heard the Minister talk about “frictionless” trade? How much of a tactical retreat “unfettered” is from “frictionless” is an interesting semantic issue. There is something in it, but the fact that the Government are not even pretending that they are trying to seek frictionless trade says something.
The noble Lord, Lord Duncan, who was masterful—as was his Sir Humphrey-inspired brief—had to admit that achieving even unfettered trade across the Irish Sea would not be straightforward. This means that it will take time. If noble Lords wonder whether the kind of checks that may well be necessary in future between Northern Ireland and Great Britain and between Great Britain and the EU matter, I would direct them to the impact assessment produced by the Government on 21 October last year to coincide with the publication of the withdrawal agreement Bill. On customs declarations alone, HMRC produced estimates of administrative costs—nothing to do with tariffs—of between £15 and £56 per declaration for goods going from the UK to the rest of the world.
Lord Bridges of Headley (Con)
My Lords, just before the noble Lord sits down, I quickly ask him something on a point of information. He spoke for 10 minutes and did not mention two words: “Salisbury convention”. I am sure he knows that, on page 5 of the Conservative Party manifesto, there is a clear commitment not to extend the implementation period. Does he agree that this amendment is in contradiction to the Salisbury convention?
Lord Newby
No, because it does not require the period to be extended at all. If the Prime Minister is correct and we pass this amendment, there is absolutely no let or hindrance to the Tory party manifesto being adhered to. Deleting this clause will, I fear, make the Prime Minister’s life easier. He should welcome it.
Viscount Hailsham (Con)
My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.
The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.
Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.
I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth, was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.
This is a profoundly unwise provision in the Bill and we would do well without it.
Lord Howarth of Newport
My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.
That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.
Baroness Bennett of Manor Castle (GP)
My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.
Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.
There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.
Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.
Baroness Hamwee (LD)
My Lords, can I ask my noble friend a question? If he were negotiating any sort of agreement and learned that the other side had a self-imposed time constraint, would he not regard that as a huge advantage?
Lord Davies of Stamford (Lab)
My Lords, the noble Lord, Lord Newby, made an unanswerable case. Human beings have been conducting negotiations since the beginning of time, and over that period there have been certain common conclusions about the sort of approach to negotiations that leads to a favourable outcome and the sort that, on the whole, does not. That is part of the common wisdom of humanity. Part of that is that you are at a great disadvantage in any negotiation if you have time constraints greater than those of your counterparty. What we have here is a Government who want to impose on themselves a time constraint greater than that which applies to their counterparty, which is most extraordinary. Mr Johnson may feel that, after all these millennia, he can revolutionise human psychology, and that the conclusions that have been drawn from human experience up until now are no longer valid. I have had quite a lot of experience of negotiations in my life, both as part of a team and from conducting negotiations myself as a diplomat, as an investment banker, as a Minister and so forth. I know that most of those common wisdoms of humanity are valid and correct, and one veers away from them at one’s peril. If somebody behaves entirely irrationally, as appears to be the case in the Government at the moment, one has to ask whether there is perhaps some Machiavellian plot behind the behaviour that explains this irrationality. That is what worries me, because the obvious explanation of Mr Johnson’s behaviour is that he does not want a successful outcome at all. He wants a hard Brexit or a bare-bones solution. He does not want to say so; he does not want to take responsibility for saying so.
A bare-bones solution would leave out altogether these very important issues of our relationship on security matters with the rest of the European Union, the future of the common arrest warrant, the pooling system of information exchange, and so forth. It would leave out a number of very important matters that appear in other amendments on the Marshalled List today: such things as the Euratom relationship, the European Medicines Agency relationship, the future rights of British subjects living abroad to receive their full pensions in the country in which they have taken residence, and the availability of medical cover to British people finding themselves elsewhere in the European Union. All these are very important matters and of course they would be set aside at a stroke if there were a bare-bones solution. There would be no chance of regaining those benefits. It could be that Mr Johnson actually wants that outcome and does not want to be held responsible for the consequences—human, economic, et cetera—of that solution.
Baroness Hayter of Kentish Town
My Lords, at Second Reading I mentioned my “I told you so” speech that I have already prepared for when the Government have to come back and seek some additional time to negotiate the future relationship, the complexity of which we have heard about from my noble friend and others in this debate.
I am not an expert on negotiations, but I hear from those who are that they are not simple. They are brutal, according to my noble friend Lord Liddle in the last debate; tough and vigorous was how the noble Lord, Lord Wilson, described them; and fixed deadlines tie one’s hands too much. Indeed, my noble friend Lord Davies of Stamford said about fixed deadlines at Second Reading on Monday that,
“the one thing you do not want to do is to tell your opponent that you are in a terrible hurry. It also means that you cannot use certain ploys … You cannot walk out for two or three weeks … You cannot try to halt proceedings while you undertake a study of a particular subject”—[Official Report, 13/1/20; col. 513.]
which could be a very difficult subject. The noble Lord, Lord Boswell, described this as the high-wire approach to negotiations.
For a Government who have resisted sensible amendments on the basis that they would tie the hands of negotiators, the prohibition on extending the transition period seems a bit nonsensical. Let me be clear, since not all reports have been entirely accurate, that we know we are leaving the European Union at 11 pm on 31 January. Our objection to the clause is nothing to do with the date of Brexit but is because it places an unnecessary constraint on our negotiators. Why would we tie the hands of our negotiators if another few hours or days could get a better deal over the line? Our EU Committee says that concluding talks by December will be “extremely challenging” and warns—this is something we need to know—that should no extension be agreed by July, it is not clear there is any legal route under the withdrawal agreement to extend it, whether by days or weeks, for whatever essential reason. So that one-line Bill may not actually work: it may work in this Parliament but not on the other side of the negotiations.
Not only that, but the new free trade agreement might need its own implementation period. Processes for customs and VAT, physical checks, rules of origin regulations and schedules—which will be enormous, with all the paperwork—licences and permits, contracts and new systems will need to be set up. Mrs May understood this well and chose the December 2020 date accordingly, but assumed it would be 20 months from when we left. It is now only 11 months from when we leave to the December deadline, but with equally challenging demands—indeed, probably more challenging, given the different regulatory and technical rules on opposite sides of the Irish Sea as a result of the new withdrawal deal. It is very hard to understand why the date for the end of the implementation period has not been changed now that we are leaving in January 2020, rather than in March 2019. The original timeline would have allowed the implementation of the deal, and we now simply do not allow for that.
There is an understandable fear that the hard deadline is not to force the EU to move at speed but because, as the noble Baroness, Lady Noakes, who is not in her place at the moment, helpfully clarified on Monday, a time limit has an “implicit no-deal outcome”. That may be what it is all about, as the noble Baroness, Lady Bennett, and my noble friend Lord Davies have suggested.
One small point on a different issue is that while the Bill disapplies CRaG, it has been pointed out by legal experts in Scotland, I think, that this does not seem to apply to the related EEA, EFTA and Swiss agreements, which were implemented under Clause 6. This means that CRaG continues to apply in those circumstances, so time might be needed for these agreements to pass through CRaG. Will the Minister respond to that issue raised by the Scottish Law Society?
The Government’s majority of 80 leads them to think they do not need to take account of this House. I do not understand why they still seem to need to take account of the ERG, for whom this clause has clearly been inserted. This is unnecessary, as we heard from the noble Lord, Lord Newby. Removing Clause 33 does not undermine the manifesto, because we can still leave and end the implementation period on 31 December. However, as I also said earlier in the week, we will let the Government take ownership of this. We will leave the EU shortly, but on their head be it if the negotiations mean they have to come back to ask for more time. In that case, we will give it with a smile, but also possibly with an “I told you so” note.
Lord Callanan
I am grateful to the noble Lord, Lord Newby, the noble Baroness, Lady Hayter, my noble friend Lord Hailsham and others who have contributed to this debate. I think the key point was made by noble friend Lord Bridges: the manifesto on which my party won the election that delivered a substantial majority for this Government was absolutely explicit in ruling out any extension to the implementation period. The general election has clearly shown that the public support that vision. I say gently to the noble Lord, Lord Newby, that his party put forward an alternative vision that was comprehensively rejected by the public. This clause implements that provision. It binds the Government to this commitment by enshrining in statute that Ministers may not agree to the extension of the implementation period beyond 2020.
I reassure noble Lords that in the withdrawal agreement both sides—we and the EU—have committed to using their “best endeavours” to negotiate a future partnership. Moreover, both the EU and the UK committed to agreeing a deal by the end of 2020 in the political declaration. It is worth quoting from paragraph 135, which says that,
“it is the clear intent of both Parties to develop in good faith agreements giving effect to this relationship and to begin the formal process of negotiations as soon as possible after the United Kingdom’s withdrawal from the Union, such that they can come into force by the end of 2020.”
This clause provides both parties absolute clarity on the timetable for negotiations. This will help ensure that our negotiations can progress at pace and that we have our future relationship agreed by December 2020. It is in the interests of the UK and the EU to agree a deal that supports the flow of goods, the provision of services and business being done. That is what we are going to do.
In sum, this clause delivers on our manifesto commitment to the British public not to extend the implementation period beyond 2020.
Viscount Hailsham
Would my noble friend tell the House whether he thinks there are any negotiating advantages that flow from this clause?
Lord Callanan
It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.
It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister, but what has worried me in listening to this debate is what happens if there are impediments to negotiations from the other side which absolutely cannot be resolved by 31 December. Do the Government think that they may have to leave without a deal?
Lord Callanan
No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.
Lord Newby
My Lords, the Minister has in a sense just given the game away. They “hope” to reach an agreement. The Commission has said that it is impossible. The Prime Minister said yesterday that it was not inevitable. The key question which this amendment seeks to address is what happens if you cannot get to that point. When asked whether this could mean we leave without a deal, the Minister said no. So what happens if there is no deal? Is he accepting a bare-bones deal? I do not remember seeing that in the Conservative Party manifesto.
The Minister has done nothing to reassure me that there is anything in the Government’s approach that makes reaching a deal in this timetable even vaguely possible. In those circumstances, as I said in my speech, I do not believe that it is in the interests of anyone—neither economically nor in terms of the national interest, given the security and other issues covered by the political declaration—for the Government’s hands to be tied by law in this way. Therefore, I am wholly unpersuaded by the Minister. For today we will not put this issue to a vote, but we will return to it.
Lord Dubs (Lab)
My Lords, I will argue that Clause 37 should not stand part of this Bill. I think I have had three sets of discussions with Ministers about this, for which I am enormously grateful: once on the phone and twice in meetings face to face. I am grateful for the time they have given me. Indeed, I was quite flattered on one occasion that there were three Ministers and seven officials—I thought the odds were just about even on that one. At any rate, I have had plenty of chances to make my points.
Regarding the Salisbury convention, as it was mentioned in the last discussion, it is fairly clear to me that it would allow us to move this amendment—to do what we like—on unaccompanied child refugees, because they were not given any mention in the Conservative Party manifesto. Indeed, it was quite a shock to many of us when we saw the Bill that Clause 37 was there at all, as we had had no previous warning.
Lord Kerr of Kinlochard
My Lords, my name is on the amendment because I regard it as the most important matter of honour that we must deal with in the Bill. The whole House admires the stamina with which the noble Lord, Lord Dubs, has pursued this issue. I declare an interest as a trustee of the Refugee Council, which was run by the noble Lord for many years and still runs on Dubs energy and still gets his constant support.
On this issue, the House was persuaded by the noble Lord’s arguments in 2016, and again in 2018. We are now in a curious position where the Government say that the 2018 provision is undesirable and needs to be replaced with this new one. The most important thing about the Government’s proposed new Clause 37 is that it kills Section 17 of the 2018 Act. What is the difference between the two? The 2017 Act laid on the Government the obligation to “seek to negotiate”—not to negotiate, because we cannot do that because a negotiation has two sides—a deal for these children. Everything else in the proposed new clause is the same as in Section 17, except that we now find that the Government must make a statement to us on what their policy is.
I am not terribly worried about the Government’s policy here. I believe the assurance given by the noble and learned Lord, Lord Keen, at Second Reading, that the Government’s policy has not changed. I believe that the Government want this to happen. However, I am not clear about what priority the Government attach to it and I am very suspicious that they wish to use it as a negotiating card. That is what is most alarming to me and, to be honest, most disgusting. The fate of these children should not be seen as a matter for negotiation.
The noble and learned Lord, Lord Keen of Elie, on Monday night made one substantive argument against this amendment, apart from saying that government policy has not changed—on which, as I say, I believe him. He said:
“It is vital that the Government are not legally constrained in those discussions.”—[Official Report, 13/1/20; col. 554.]
Implicitly, that means that the Government might not wish to pursue this and might wish to try to trade willingness to do this for some concession by the other side. That seems particularly offensive.
Baroness Hamwee
My Lords, I too have my name to this amendment. The noble Lord, Lord Dubs, has been very measured, as ever, in his introduction to this debate and it seems the noble Lord, Lord Kerr, gives an unarguable analysis of the position.
I have said of other provisions of this Bill and of the Conservative manifesto that they are dog whistles. If somebody thought that this was a useful dog whistle as a replacement for the 2018 legislation, they got it wrong. Like the noble Lord, Lord Dubs, I believe that the concern in this House for unaccompanied asylum-seeking children reflects public concern. We see them as children and seekers of asylum, not as immigrants whose numbers are to be kept down, and not as in any way other.
The Minister, the noble and learned Lord, Lord Keen, at the end of our day of the Queen’s Speech debate said that Section 17 of the last Act was no longer appropriate because the negotiations have already been started by other states. I cannot read into Section 17 that it refers to those negotiations. The noble and learned Lord is far too skilled a lawyer and wedded to good law to be comfortable with dog whistles in the form of legislation, and I am sure the same goes for the noble Baroness, Lady Williams of Trafford, if she is the one to be answering this debate. I hope this can be explained in more detail—unless, of course, I have misrepresented it. Laying a statement of policy—the requirement of this clause—is not getting the job done.
The noble Lord, Lord Kerr, said there are no other changes. There is one change in the way the terminology is used that I am puzzled about. The reference to the child’s “best interests” has moved from coming to the UK to joining a relative in the UK. I am puzzled about it, but even more bothered. What significance should we read into this? Noble Lords will realise that I do read significance into this. Again, can the Minister help? The new clause must mean something different from the original—which, as has been said, is very modest. In non-technical terms, it means a signal that the UK Government are rowing back from working internationally to protect a rather small number of children who have undergone and are undergoing experiences that few of us could cope with—or, of course, that they are bargaining chips, as has been suggested. I understand that suggestion. It is not just about leaving them stranded on a journey to sanctuary in appalling circumstances; it leaves them vulnerable to exploitation, abuse and the particular risks of getting across the channel. Withholding the right of family reunification is not the way to tackle the scourge of people smuggling and people trafficking. Please let no one say that it would be a pull factor, because it is the push factors that we need to have in mind.
To be positive, I have some questions. What can the Minister tell us about the progress of negotiations on the arrangements, given that the Government have expressed commitment to the principle of family reunion and supporting the most vulnerable children? I think all children are vulnerable. Surely it is not about putting this on the back burner. What discussions are they having with organisations that support families to reunite about the design of a replacement for the Dublin system? What plans are there for necessary domestic legislation? Of course, I would welcome their adoption of my Private Member’s Bill, but I know that is not how these things work.
Earlier this week, other noble Lords may have had an email from a group of “kids”, as they style themselves, from Sherington Primary School in Charlton. I cannot read all their letters, but I will read just a little from one:
“I can’t imagine what it would be like to lose my home, my parents and to have to leave my country. These children are completely alone and terribly vulnerable. Surely we can’t just turn our backs on them. I thought my country was better than that. Please reconsider.”
That is a kid from year 6 of a primary school. I thank the 14 kids, whose names I am not reading into the record for safeguarding reasons. They may be kids, but they display a very clear understanding of the importance of safe and legal routes.
The Lord Bishop of Worcester
My Lords, I am pleased to support this amendment, to which my friend the right reverend Prelate the Bishop of Durham has put his name. He is sorry not to be able to be in the Chamber today. A few weeks ago, we celebrated the story of Christmas. In the nativity, the happy events in a Bethlehem stable were followed by the more dramatic flight of the holy family to escape the violent persecution of King Herod. As we discuss this amendment, that story of the child Jesus and his parents fleeing from violence to a foreign land resonates loudly.
Children are among the most vulnerable victims of conflict, persecution and violence around the world. We all know that they do not choose to become refugees separated from their families. We as a nation can choose to reunite some families torn apart by conflict by offering children shelter, hope and a future. That is what I believe the majority of people in this country wish, and I am sure that is what the Government wish. This amendment seeks to ensure it by guaranteeing a safe, legal, effective and managed route for child refugees to join their families in this country.
As we prepare to leave the European Union, the United Kingdom has an opportunity to decide what kind of nation it will be and, very importantly, to communicate that to a watching world. The legislation we agree will send a powerful signal about what and who we value.
As has already been observed, this clause has provoked much concern. At a ministerial briefing yesterday, intended to reassure those of us who are concerned about it, I found myself puzzled. We were told of the Government’s excellent record, and that it will continue. That is good, but why then remove the family reunion obligation from primary legislation? We were told that the latter was constitutionally odd, and, further, that the Government need to ensure that their hands are not tied during Brexit negotiations. At the same time, we were assured that refugee children would not become bargaining chips in negotiations about anything else. We were told that there is a need for reciprocity, although the numbers of children going in the opposite direction, from this country to others, is minimal.
As I understand it, the Government maintain that this clause will not change anything. If that is the case, why not remove it? This amendment would reassure those who are nervous that this country will continue to be a place of safety and sanctuary for the most vulnerable refugees fleeing persecution and conflict: children. It would reassure everyone that the Government will uphold their commitment to those children and provide a measure by which we may all be held accountable for our shaping of this nation as a place of hospitality and welcome. That is surely worth a bit of constitutional oddity.
The story of Jesus and his parents fleeing their homeland for a place of safety is a story repeated millions of times over in our world today. Can we assure everyone that this country will continue to be a place of safety for children, especially those who have been separated from their families?
I commend this amendment and ask the Minister: will the Government reinstate their commitment to protect the most vulnerable of refugees: children?
Baroness Butler-Sloss (CB)
My Lords, we should be ashamed, listening to the noble Baroness, Lady Hamwee, reading out what a primary school child is reminding us about. We are adults: many of us are parents, all of us are in some way related to children, and for goodness’ sake, we were once children ourselves.
I am quite taken aback. Here we are, as adults, debating what should happen to these children. Section 1 of the Children Act 1989 said that the welfare of children is paramount, but we must also remember that people are vulnerable, and children are vulnerable young people. This small group of children about whom we are speaking have rights. This Government are proposing to take away their rights, because in the 2016 legislation of the noble Lord, Lord Dubs, which I strongly supported, and in the 2018 withdrawal Act, the rights of this small group of children were upheld. Now the Government are taking them away, even from the latest withdrawal Act.
I am sorry that because of family affairs I did not attend the meeting yesterday, and I am afraid that I did not see the Minister’s letter, but it was extremely helpful to hear what was being said. What I find extraordinary is that it is part of existing law. As for the idea that it is an oddity and we should not be legislating, this House supported the House of Commons to legislate for children with rights to rejoin their families in this country in 2016 and 2018. I make no apology for repeating this. For goodness’ sake, it is existing law. We are not talking about going out on a corner or something unusual; we are talking about retaining what this House and the House of Commons have already passed. This is one point which the Government have not met. It is existing law. The children have rights under Dublin, but they also have rights under English law, and this Government are intending to remove them.
The Government’s proposals seem to me to be peanuts. They do not in any way reflect what has already happened in Parliament, and that is not good enough. Coming back to what a primary school child in year 6 was saying, are we going to fail our own children, let alone the children with rights to come to this country?
I did not want to support amendments to this Bill, because I recognise that we have got to get it through, but this is a separate issue. It bears no resemblance to the rest of the withdrawal Bill, but my goodness, it matters. It is not only the children under the trees in Calais and Dunkirk—I saw them last year, and former MP Fiona Mactaggart and I wrote a report about it—but also the fact that they have a right to come here. Are we just going to let it go by the board?
Baroness Nicholson of Winterbourne (Con)
My Lords, the compassion in the speech of the noble Lord, Lord Dubs, makes it extremely difficult to oppose him —but oppose him I do. Despite the wonderful statements by Cross-Benchers of enormous eminence who know more about children’s law than anyone else, my work in international children’s care tells me that this way lies danger. I have worked with children on all continents of the globe. I used to be a director of Save the Children and have worked with almost all international children’s organisations, and perhaps the heartland experience that I wish to offer the Minister is on child trafficking.
When I was fortunate enough to be the rapporteur for Romania, and when working in other countries on this, I saw the deep underbelly of the filthy trade that happens when you begin to move children away from their own jurisdiction. Whether a child is deemed to be a refugee or is labelled as part of a family, child trafficking is the fastest-growing sector of organised crime on the globe today. The European Union legislation has not only failed to protect those children but has, in some ways, made things worse. I will give a clear example of a Member of the European Parliament—from France, incidentally, although this is not a criticism of France as such. When we were having this debate in the European Parliament, he could not understand why the free movement of children should not take place, since the European Union allowed the free movement of camions. Noble Lords will remember that “camions” means lorries.
That is exactly what happens: once you start moving children around, there is no stopping it. It does not help to say that they are coming to the United Kingdom. One of the most traumatic cases I had to deal with was that of a child from Romania. When I went there, there were 30,000 children who had been trafficked in eight years: no names, no pack drill, just numbers on a computer. One of them was a boy who came as a refugee to London on a false passport. In London, that false passport was changed and he managed to get an American passport. When he arrived in America, he was met by eight men, and he has never been seen again. Thanks to one of those wonderful efforts by the FBI, the CIA, Scotland Yard and the Romanian police, 11 men were captured. They were said to be the biggest child trafficking ring for pornography on the globe.
I beg the Minister to retain Clause 37. We need to protect these children, to help them to stay in their own jurisdiction, not to move them around like this. They are unprotected as soon as they leave their own jurisdiction. We cannot manage it. We in Britain are very poor at managing unaccompanied children of our own. Look at the ones in the Midlands, for example. We have thousands of children coming in every year from countries trying to dump their children here. Others then pick them up and sell them.
I have another very good example, although there are too many to give all of them. When I went to Bucharest originally, there were 12 trafficking agencies—
Baroness Nicholson of Winterbourne
I will give way. I will have difficulty, as I cannot hear, as noble Lords know. Somebody will have to tell me.
In Bucharest there were 12 trafficking agencies, and when we pushed them out, they went over the border to Moldova, and they are now bringing in children from China.
Baroness Nicholson of Winterbourne
If noble Lords will forgive me, I will ask someone to interpret for me, because I was born deaf and will not pick it up.
Baroness Jones of Moulsecoomb
I have been to Calais and met unaccompanied children: on one occasion my noble friend Lady Bennett and I were together in Calais. Does the noble Baroness accept that the children most at risk are the unaccompanied children? The children we are talking about are coming to their families. They do not have a jurisdiction; they do not have a family unit. They are coming to their families.
Baroness Nicholson of Winterbourne
Lack of a jurisdiction is not quite the case. They have not lost their own jurisdiction, unless they have been signed out of it. You can therefore get them back home to their own jurisdiction. That is why my work, and the work of most people who, like me, work internationally, is to try to look after those children at home, to support the families and to bring clean water and food and everything else. Of course children can be signed out—by their own judges, for example—but most of the children that the noble Baroness is describing will not have been signed out at all; they will just have moved.
So I will merely say that we know all too well what happens to children when they are moved around. We in this House should not do anything to encourage that movement. That is why, from the heart, and from all my experience, I urge the Minister to retain Clause 37.
Lord Scriven (LD)
My Lords, I have sat and listened to the debate on the Bill in this House, which has been wise—and sometimes entertaining, sometimes depressing, depending on one’s view of leaving the European Union. For the past two days I have stayed quiet and reflected on what has been said. For me it has been a surreal debate at times. Last night we had a debate in which all sides of the House pleaded with the Minister to keep one single market in the United Kingdom, and the Minister could not agree that that could be guaranteed. Earlier today there was an amendment about the rule of Parliament, and taking back control of the sovereignty of Parliament and not the sovereignty of the Executive. In the previous debate the Minister said that our hands should not be tied in negotiations—but the Government are tying their own hands by putting a false deadline on the negotiations.
However, I have to stand up now, because we have moved from a surreal debate to a cruel and heartless debate. Now we are talking about children who have family in this country. They are segregated; they will have seen war and persecution; some of them may have seen their mothers raped; some will have seen things that we cannot understand. And we already have a law in this land that says that, as a guarantee and as a matter of principle, they will come here now. Clause 37 takes that away. The Minister shakes her head, but it does. Basically, it says that rules will be laid before Parliament in two months’ time. It stops the existing provision and tries to put in a new provision—and we know not what that new provision will be.
Sometimes in politics, you just do the right thing. You do a thing as a matter of principle. I see nothing at all wrong in bringing here, as fast and as safely as possible, unaccompanied children who have family in this country. It is the right thing to do practically, and it is the right thing to do in principle. I must say to the Minister that this is a political decision. It is not a legal decision; there is nothing impeding negotiations. What is more, it is the right thing to do. I do not care what the other 27 countries do. As a British citizen, I want my values to be that we accept these children as a matter of principle. If the other 27 do not wish to do that, that is about their values—but this country, and this Parliament, should stand steadfast in saying that this is the right thing to do, and we want it to happen now.
I tried to think why the Government would not just allow this to happen. Why would they want to put a two-month staging post in place? Do they not want to do it? The Minister and the Government keep telling us that they do want to do it, and that it will happen. Fine. Are they not quite sure how it will happen, so they want to change the rules and the policy? The Minister shakes her head. So why have they not shown us what the new policy will be? Why the two-month gap? What are we waiting for? If nothing is going to change, the existing provision should stand.
Are we saying that we are putting in a provision for a two-month wait and nothing will change? Yet there are children across the country who need our support and help. Or are we going to use these young, vulnerable children as a negotiating chip? What a disgraceful position for us, as a country, to get ourselves into—that we could use the most vulnerable of the vulnerable as a negotiating position to try to get the other countries to agree to do something, we know not what? There is no reason for this clause—other than the possibility that there is something, however slight it may be, that the Government wish to change. I do not believe that that is the British way, I do not believe that those are British values, and I do not believe that that is what the British public will support.
I will end with what Robin Walker said when he was a Brexit Minister in the other place. He said that this was a matter of principle. I agree: it is a matter of principle—and it is time to put principle into action and stop the fake negotiation.
Lord Mackay of Clashfern
My Lords, I think my credentials in legislation for children are fairly long and fairly clear—or at least I hope so. Before we start to think about children in principle, it is vital to think about the provision that we seek to replace. The Clause in the 2018 Bill gives children no rights whatever. It does nothing more than require the Government to enter into negotiations with regard to those children. That is all, which is very important.
However, the question is: is Parliament entitled to tell the Executive what they must negotiate for? That is the language of the part of the letter to which the noble Lord, Lord Dubs, referred. In other words, it is said that, as a matter of principle—I will elaborate on that principle in a minute—it is not right that the Government’s hands should be restricted by Parliament before the negotiations. It is the Executive’s responsibility to do the negotiation; it is for Parliament to call the Executive to account on how they have done it.
I shall refer to this only briefly, but your Lordships will remember that in the decision of the Supreme Court in relation to Prorogation, it pointed out that the important thing was the accountability of the Executive to Parliament. That makes an important distinction between the Executive and Parliament, because the Executive have the executive function, and then Parliament has the right to call them to account for the way in which they have carried it out.
The provision in question—Clause 17 in the 2018 Bill—is precisely that. It is an instruction to the Executive to open negotiations in a certain way. I understand from what we have heard already that the Executive have entered into such negotiations. However, the point made in the letter is a general one, of the kind I have just mentioned.
Baroness Jones of Moulsecoomb
My Lords, I support the noble Lord, Lord Dubs. Unlike him, I have not had any explanation from the Government about this, because an explanation—I looked it up in a dictionary just in case—involves explaining. We have not heard explanations, but we have heard excuses. Those excuses narrow down to three matters. First, the existing law in Section 17 of the European Union (Withdrawal) Act is perfectly all right and reflects the will of this House and Parliament generally; it has passed. The change cannot be interpreted as anything but a watering down. It is either a watering down or, as we have heard, a bargaining chip—something to trade when the negotiations happen.
The worst explanation is that this is a dead cat. It is an issue that the Government purposely know will excite much of this House; it will raise a lot of concerns and we will, I imagine, push it hard. The Government are therefore narrowing down the matters that we will push hard on when we come to Report. Whatever it is—whether it is a watering down or a bargaining chip, which would be absolutely wrong, or a dead cat—the conclusion is the same: we must remove this clause from the Bill. The Green group here, if I can call us that, supports the noble Lord, Lord Dubs, in his efforts.
Baroness Blower (Lab)
My Lords, it is a pleasure to support my noble friend Lord Dubs in this matter. For me, this is a moral and ethical matter as well as a political one. Why would a Government resile from a clear provision to facilitate the reunification of refugee children with their families, particularly when it had already been passed into law?
A noble Lord opposite, who is not currently in his place, said that a Government with a majority of 80 might make some big mistakes, and the inclusion of Clause 37 would be just such a big mistake. As my noble friend Lord Dubs said, the British people are essentially humanitarian. The Government would be seen to be lacking in their will for social justice and basic humanity if any inhibition was put in the way of ensuring that that small number of children—who are already out of whatever their jurisdiction might be deemed to be, but find themselves in difficult and, for us, unimaginable circumstances—are reunited with their families in this country.
It is often said that a society is judged by how it treats its most vulnerable, its weakest and those in the most difficult circumstances. We would be found wanting if we were not to oppose the introduction of Clause 37; we would be treating badly those who are already extremely vulnerable. I would much prefer to be well considered in how we deal with, consider and treat the most vulnerable.
Baroness Sheehan (LD)
My Lords, I cannot believe we are here again. It is like déjà vu, or a bad dream. I thought we had put this issue to bed. It took a long time previously and I have not forgotten how hard NGOs and people on this side of the House—and, of course, the noble Lord, Lord Dubs—had to work to make Dublin III work for unaccompanied asylum-seeking children who had family here. It was not an easy legal trip but, through JRs and so on, we got it to work eventually, and the thought that the system might be dismantled is too depressing for words.
It seems that Conservative Governments pass up no opportunity to try to prevent us abiding by our legal duty to uphold the rights of the child. I fear that views sometimes articulated by the right-wing press make some Members on the government Benches think they are being taken for a ride. One such view is that these children are sent here as a way to cleave open the system, so that the rest of the family may follow. Can they produce the evidence to back that up? No, because there is none. Children are more likely to stay quiet about where their family is because they fear that retribution might be visited upon them.
Another such view, referred to by my noble friend Lady Hamwee, is that allowing family reunification creates a pull factor that will encourage others to make the trip. I suggest that anyone who truly holds that view visits some of the refugee camps and speaks to people there. I am sure that listening to their human stories—such as that of Adam, whom I know well—will encourage them to think differently. Adam is not his real name. He fled north Darfur at the age of three with his family. He was orphaned but made it to a refugee camp where he lived a hand-to-mouth existence until the age of 14, in constant fear that the Janjaweed militias would one day succeed in taking him away. There was no school and no hope, just fear. At the age of 14 he took the decision to leave to try to make his way to Europe because the risk was worth it. He was driven to take the risk by desperation. His is just one story. There are many more children like Adam who desperately need our compassion and our kindness but, most of all, our commitment to international rules of law that protect the best interests of the child and, in particular, to the continuation of the Dublin III regulation once we have left the EU for good.
Removing our commitment to Dublin III from the Bill with a promise to make good later is not good enough. These children, and in particular their advocates, need to know that a system that has finally been made to work will not be dismantled. Starting from scratch to set up another system that works legally will mean that time will be lost, and lost time means that lives will be damaged. I think the Government will agree that there will be a gap in legislation and they cannot know how long it will be. Please let us leave things be.
Lord Mackay of Clashfern
The Dublin III arrangements will continue until the end of this year. The Government’s purpose is to make arrangements that will take effect immediately after that. That is what this is about. It is not about taking anything away. It is about construction after the end of this year, assuming that—I am assuming what was said in the last debate—still stands.
Baroness Sheehan
I thank the noble and learned Lord. The Government say that they will, but the question is when. There is no guarantee that there will not be a gap through which—
Lord Mackay of Clashfern
There is no guarantee that anything is going to happen particularly, but Dublin III is in and the Government have expressed their intention to replace it with an arrangement that applies to children here who have family in Europe and to children in Europe who have family here.
Baroness Sheehan
If, as the noble and learned Lord said, nothing is going to change, let us leave things be.
Lord Elton (Con)
I have just a small point. I understand that under Dublin III “specified family members” refers not just to parents but to grandparents, aunts, uncles and siblings. When she replies, will the Minister slip in a word because that would make it easier for some of us to follow what is happening?
Lord McNicol of West Kilbride (Lab)
My Lords, I rise to explain why Clause 37 should not stand part of the Bill. There is very little to add after the dozen contributions and the eloquent speech by my noble friend Lord Dubs, so I shall keep this short as we wait to hear from the Minister. I hope that her words will be positive.
The Government’s inclusion of Clause 37, which reneges on their previous binding commitment to seek to negotiate reciprocal agreements with the EU to facilitate the safe passage of child refugees with family in the UK is unnecessary and unjust. We will shortly be told that the Government’s commitment has not changed and that their policy remains the same. Your Lordships’ House was not convinced by this argument during consideration of the withdrawal Bill, which is why it voted overwhelmingly to insert the negotiating objective, and I am sure this House will not be convinced by the argument now, although we wait.
The provisions in the 2018 Act have been in place for 18 months and were not opposed by the Government. That surely means that they cannot be considered hostile or as examples of Parliament unfairly asserting itself over the Executive. The closest parallels I can see to the Dubs provision are the environmental ones in Section 16 of the 2018 Act. These required the Government to do something. Ministers fulfilled the requirement and that section has now been replaced. Ripping up prior commitments in the face of such opposition is not how a new Government should start their term in office. It is not too late for the Minister to accept the amendment or to bring forward the Government’s own text ahead of Report. I hope the Government will do the right thing. However, if they do not take note of this debate, we will certainly bring back the substance of it on Report.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have taken part in this debate and, in particular, the noble Lord, Lord Dubs. I have had many discussions with him, as he outlined. We do not always agree on how we are going to get to places, but we certainly agree with the end. I think Parliament and the Government are in absolute agreement that we are all fully committed to the principle of family reunion and to supporting the most vulnerable children in the world. Our policy on this has not changed. I want to underline that point because noble Lords seem to think that perhaps the policy has changed. It has not. On the point the noble Lord, Lord Dubs, made on the manifesto commitment, it is writ large in our manifesto:
“We will continue to grant asylum and support to refugees fleeing persecution”.
We intend to keep to that commitment, and I am sure Parliament will hold us to account if we do not.
Clause 37 underlines that. We could have just deleted Section 17 and, by turn, Clause 37. We did not because we wanted to outline that commitment again in legislation. The commitment builds on the Government’s proud record of providing protection to vulnerable children. Since 2010, the UK has granted protection to 41,000 children—7,500 of them in the year ending September 2019—most of them because of our obligations under the refugee convention and the wider commitments that we have made. It is mostly nothing to do with EU structures.
More than 5,000 unaccompanied children are being cared for by local authorities in England alone—an increase of almost 150% since 2014. The noble Lord referred to local authorities, and he knows that the Government wrote to local authorities in good faith, and that whenever we heard about additional places being available, we took note and upped our number under Dubs. We have granted 27,000 family reunion visas under the refugee family reunion Immigration Rules over the last five years. This is not a mean Government or a mean country, and I am very proud of our record.
In 2018, the UK received more than 3,000 asylum claims from unaccompanied children, accounting for 15% of all such claims across the EU. That makes ours the third highest intake in the European Union. On national resettlement schemes, we take more children than any other country in the European Union. It is worth saying this because sometimes, if you listen to debates in this House, you would think that we do not do anything. It is important to outline our record, which reflects the unique importance of protecting unaccompanied children and preserves the principle of family reunion, which will continue. I commend this House on its strength of feeling on this issue—we are all humanitarians, and I assure noble Lords that the Government share an undiminished commitment to addressing these issues.
Clause 37 concerns only whether there should be a statutory duty to negotiate an agreement on family reunion for unaccompanied children who have applied for international protection in an EU member state, and who have family in the UK, and vice versa. The debate is not on wider issues relating to refugees, asylum or family unity. It does not represent a change of Government policy—as I said at the outset—it simply removes the statutory requirement to negotiate. We remain fully committed to providing protection to vulnerable children, and noble Lords might note that we have already committed to taking 5,000 people from beyond the MENA region, in dangerous areas of the world with vulnerable children, in the next year alone.
Noble Lords will be aware that, as part of the negotiation and making of treaties, including international trade agreements, this is a function of the Executive. It is interesting that the noble Lord, Lord Newby, said in the previous group that he did not want to tie the Government’s hands, but in the group before that, the noble Lords, Lord Butler and Lord Howarth of Newport, said that Parliament should not tie the Government’s hands. My noble and learned friend Lord Mackay of Clashfern made a good analogy with the Prorogation decision.
A statutory negotiating objective is neither necessary nor the constitutional norm. It is unnecessary because the Government have already written to the European Commission on 27 October to commence discussions on this issue. It is vital that the Government are now able to get on with it. The UK has existing and extensive legal provisions to guarantee family reunion, and one noble Lord—it may have been the noble Lord, Lord Scriven, but I apologise if I am wrong—spoke of no guarantees going forward, yet this legislation already exists, and is not affected by EU exit in any way. Furthermore, the UK will continue to be bound by the Dublin regulation during the implementation period, as my noble and learned friend pointed out.
Lord Scriven
That is a bit perplexing. If the guarantee is already in law, what is this clause about?
Baroness Williams of Trafford
The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.
The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.
Lord Howarth of Newport
As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.
Baroness Williams of Trafford
No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.
The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.
Lord Hannay of Chiswick
I am grateful to the Minister for giving way. Could she be clearer about this correspondence with the Commission? The Minister said in the meeting we had yesterday, and again just now, that a letter went to the Commission in October, to which there has been no reply. It is perhaps not surprising, since the Commission does not have a mandate to negotiate until after we have left the European Union. Perhaps that is a perfectly innocent explanation, but surely the amendment being moved will actually strengthen the Government’s hand when they come to negotiate in March or April, by demonstrating the high priority which Parliament gives to it?
Baroness Williams of Trafford
The reason we have not had a reply is probably, as the noble Lord pointed out, to do with the fact that we have a new Commissioner. I do not agree with the noble Lord’s point—this amendment ties the Government’s hands in negotiation, and we do not wish to see that. We want to articulate our commitment through the manifesto and in Clause 37.
Lord Kerr of Kinlochard
I am not quite clear on how it ties the Government’s hands. If we leave what is now on the statute book in place, there is an obligation on the Government to seek to negotiate. The Government say that they have already started seeking to negotiate, so I am not sure how it ties their hands.
I am left suspicious. I am with the noble Baroness and am prepared to agree that policy has not changed. I reject dog whistles and dead cats, and I believe the Government’s policy has not changed. What bothers me is that I do not know what priority they attach to it in the coming negotiations, and I fear that we are into bargaining chip country, which is really offensive.
Baroness Williams of Trafford
The fact that the Home Secretary wrote to the Commission underlines our commitment, as does the fact that we put it in the manifesto and in Clause 37. The amendment to Section 17, to which the noble Lord referred, was an instruction to the Government, and I do not think that the Government should be bound by that.
I want to pick up on the noble Lord’s point about bargaining chips. Section 17 of the 2018 Act talks about seeking to negotiate. In one context—the way in which the noble Lord, Lord Dubs, puts it—that is noble, and I have absolutely no criticism of his intentions. On the other hand, when the Government say that they will write to the Commission and seek to engage with the EU in the coming year, that is seen as using children as a bargaining chip. I am not entirely sure how the Section 17 amendment, which talked about seeking to negotiate, and what the Government are proposing, which the noble Lord feels very sceptical about, are in any way different when it comes to bargaining chips.
Lord Kerr of Kinlochard
If the Government say, as they did on Monday night, in terms, that that amendment will not do because it is vital that the Government are not legally constrained in these discussions, that seems to imply that the Government might not pursue this point if the EU 27 decide to strike some sort of bargain with us which entails our not pursuing this point. If the statute book remained unamended—if the 2018 Act, which binds the Government only to seek to negotiate, remained in force—in what way would the Government be legally constrained unless they intended to negotiate in bad faith, which I do not think is the case, or to regard this as a lower priority, as a card that could be played? I find that very offensive.
Baroness Williams of Trafford
I would find it offensive if the Government saw children as bargaining chips. I do not think that any Member of this House or the other place sees a child as a bargaining chip. The Government are seeking to undertake an arrangement in which there is reciprocity. It makes absolute sense that we have reciprocal arrangements with Europe. We might be leaving the EU but we are certainly not leaving Europe, and children here will have family in the EU, just as children in the EU will have family here. We are seeking reciprocity, and Dublin III, as my noble and learned friend said, will be ongoing to the end of the implementation period. Please let us have no more comment about bargaining chips, because the legislation seeks to do the best by all children, whether they be in the EU or the UK.
Baroness Hamwee
Before the Minister moves on, I do not understand the answer to the noble Lord, Lord Kerr, although perhaps reading it will help. None of us wants to think the worst of the Government over this matter. It might be helpful if noble Lords could see a copy of the letter that went to the Commission in October. It has been referred to several times but I do not think that it has been seen by any noble Lord.
Baroness Williams of Trafford
I am not sure that I can give that undertaking but I will certainly request it. I will also come on to the noble Baroness’s question about the words “best interests” appearing in subsection (1)(a) but not in (1)(b). The phrase “equivalent circumstances” in subsection (1)(b) duplicates that. She might like to take a look at that and, if she is not content, I will be happy to go through it with her.
The noble Baroness, Lady Sheehan, talked about the gap, and my noble and learned friend Lord Mackay pointed out that Dublin III will exist until the end of the implementation period. My noble friend Lord Elton asked for the definition of “relative”. I think that there has been another misunderstanding—that all the relatives were listed in Section 17 but do not appear in Clause 37, although they do. A relative in relation to an unaccompanied child means
“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 … a parent, grandparent, uncle, aunt, brother or sister of the child”.
That is quite an extensive list and I hope that that helps my noble friend.
I shall finish on the words of my noble and learned friend Lord Mackay. Section 17 in and of itself gives no rights to children. Through Clause 37 we are attempting to lay out our intentions. We have done so in the manifesto and have already started talks with the EU on this subject. Our commitment to children has not changed.
Lord Dubs
My Lords, perhaps I may say a few brief words. I am grateful to all noble Lords who have taken part in this debate, which has been quite illuminating in the main, but perhaps I may comment on two or three specific points.
First, I want to refer to what the noble Baroness, Lady Nicholson, said. I very much respect her important work with Save the Children and other organisations overseas, but I think she is quite wrong on the trafficking argument. Where there are no legal routes to safety, people will allow themselves to be trafficked and will come illegally. Surely, by having legal routes to safety, we are making the position of traffickers much more difficult and making it much easier for people to achieve safety. Therefore, I am sorry but I do not agree with her on that.
Perhaps I may also return to the point that the noble and learned Lord, Lord Mackay, made. I do not have the wording of Section 17 of the 2018 Act in front of me but it has been referred to. It says that the Government should seek to negotiate on a particular basis. We have already talked about Clause 33 of this Bill, which would add something to the 2018 Act. It says:
“A Minister of the Crown may not agree in the Joint Committee to an extension of the implementation period.”
That is telling a Minister of the Crown exactly what he or she may or may not do, which is totally at variance with the argument that we have heard on Clause 37. I do not understand. On the one hand, the Government are saying in their own Bill that Ministers may be told what to do; on the other hand, they are using that as an argument against my amendment.
I am sorry to quote the Minister’s letter again but one paragraph seems to be at variance with other points and I wonder whether the Minister would like to withdraw it. It includes the words,
“so that the traditional division between Government and Parliament be restored”—
that is, by removing Section 17—
“and the negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas.”
That goes a lot wider than what we have been talking about tonight. It seems to me that this is meant to talk about some relationship between government and Parliament, which in any case Clause 33 disproves, and it refers to
“an appropriate manner across all policy areas.”
I am sorry but I cannot interpret that in the way the Minister suggests.
I want briefly to make two or three other comments. I agree that the manifesto talks about a commitment to refugees but it says nothing about child refugees. It says nothing at all that would enable the Government to invoke the Salisbury convention against my wish to remove Clause 37 from the Bill. If the Minister would like to meet me to talk about local authorities, I would be very happy to do so. I know that local authorities are very helpful. I know of Northern Ireland organisations that will want to help now that the Government there has been restored. The debate is going on in the Channel Islands and the Isle of Man, although no decision has been made there yet. It seems to me, however, that there are more local authorities. In addition, Safe Passage, one of the NGOs with which I am working closely, has written to all local authorities and we have got quite a lot of positive answers. This shows that local authorities are willing to take more.
When we debated Section 67 in 2016 and the amendment that I put forward about child refugees with no people here, there was a fierce battle. I was asked time and again to withdraw my amendment. The Home Secretary asked me to withdraw my amendment. It got through, despite the Government’s wishes, and it got through the other House, despite their wishes. Then we had the amendment to the 2018 Act that we are talking about now. Again, there was a big vote fairly late in the evening; the Government did not want it. In opposition, we had to argue for amendments on behalf of refugees and now the Government seem to be taking credit for that. I am sorry, but that is not the way the world has been. I appreciate that the Minister is totally sympathetic to refugees, but that is not how the Government have behaved. They have resisted all these amendments and all we have in opposition is the chance to move amendments in the hope of making our point. That is why we have had these arguments.
I shall not press this issue tonight, but particularly in the light of the discussion, I might wish to return to it on Report.
“Publication of further legislation relating to EU exit
(1) The Secretary of State must, within the period of three months beginning with the day on which this Act is passed, publish draft Bills relating to the—(a) agricultural arrangements,(b) employment rights,(c) financial services legislation,(d) fisheries arrangements,(e) healthcare arrangements,(f) immigration arrangements for EU nationals,(g) monitoring and enforcement of environmental protections, and(h) trade remedies arrangements,that will be in effect in the United Kingdom after IP completion day.(2) When publishing these draft Bills, the Secretary of State must make a statement outlining the steps they will take to seek the timely passage of such legislation before IP completion day.”Member’s explanatory statement
This amendment would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions, as well as requiring Secretaries of State to outline how this legislation will be passed before the end of the implementation period.
Lord McNicol of West Kilbride
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Jones, and the noble Viscount, Lord Hailsham, for adding their names to this amendment. If passed, it would require the Government to bring forward versions of the Brexit legislation published but not passed during the last two parliamentary sessions.
During the 2017 to 2019 Session, the Government published a variety of Brexit Bills. These often stalled in the Commons due to the Prime Minister’s lack of a majority and ultimately fell when the parliamentary session ended. These pieces of legislation are listed in my Amendment 30. They covered agricultural arrangements, employment rights, financial services, healthcare arrangements, immigration arrangements for EU nationals, monitoring and enforcement of environmental protection and trade remedies arrangements. These are vital areas where businesses and the country need clarity on the future direction of travel. These Bills have not yet resurfaced and it is not clear what form they will take once they are published.
Many noble Lords from across the House—from the Government, the Opposition, the Liberal Democrats and the Cross Benches—spent many hours debating, discussing, negotiating and voting on complex details relating to these areas. For example, in relation to trade, we do not know whether the new trade Bill will include the scrutiny provision previously inserted by your Lordships’ House. We do know that the Bills are coming because they were reannounced in the Queen’s Speech, but it is not yet clear when we will see them and what their timetables will be. Amendment 30 requires the Secretary of State to outline how the legislation will be passed before the end of the implementation period.
This House has agreed to consider the Bill before us over the next few days on a truncated timetable due to the pressing need to ratify the UK-EU withdrawal agreement, and we understand that. However, I hope that the Minister can assure noble Lords that this truly is an exceptional case rather than one that sets a precedent for Bills in the year or 11 months ahead. I know that the Minister will resist this amendment, but I hope that, in doing so, he will outline approximate timetables for these Bills, including giving an indication of whether any of them will begin in your Lordships’ House.
In the past, the noble Lord, Lord Callanan, has refused to be drawn into such debates, simply stating that all required legislation will be passed by the relevant deadlines. As he has been reminded several times over the last few days, the implementation period will come to an end in just 11 months’ time. Now is the time for the Government to provide more detail and instil some confidence that proper time for debate and deliberation will be given and that we will not, in this House, hear the tired old argument that dissent and debate have to be stifled to get Brexit done. These base arguments—as we have heard many times over the last three days—try to remove from this House its function as a revising body where we have often brought good sense to help ailing or deficient Bills. I beg to move.
Lord Warner (CB)
Perhaps I might make a brief interjection. Following on from yesterday’s discussion on immigration, many of us were left a little uncertain as to what the Government were going to do with their new immigration system. So it is very important that we come back to the detailed legislation on immigration as quickly as possible.
Baroness Bennett of Manor Castle
My Lords, my noble friend Lady Jones was absolutely delighted to sign this amendment. I know that she, before I arrived in this House, did a great deal of work on many of the Bills referred to here. Your Lordships will all remember to some degree being a student at school, university or college, and that last-minute rush to write the essay. I am afraid that we have seen far too much of that kind of operation from the Government. Under normal conditions, the timetable here in this amendment would be a huge rush, but what we are saying is, “Let’s not have an even bigger rush than this provides.” These Bills have appeared in three Queen’s Speeches; surely they are oven-ready by now and we could have them very soon. They are going to be big meals that require lots of digestion. Please let us have a timetable that is clear, so people know where they are going.
My noble friend Lady Jones asked me to mention the latest reincarnation of the Environment Bill. We need to know when the environment enforcement body will be established. We have been told that it will happen as soon as possible; surely that has to be now.
Lord Callanan
My Lords, I am grateful to the three speakers that we have had in this debate on Amendment 30: the noble Lord, Lord McNicol, the noble Baroness, Lady Bennett, and, briefly, the noble Lord, Lord Warner. I can be brief on this one. The procedures for introducing and scrutinising Bills are, of course, very well established, and those procedures are not without reason. All the Bills mentioned will be introduced with adequate time for scrutiny. To ask for so many Bills to be published in draft is unprecedented, as it is for the Government to commit to a statement on the amount of time each Bill might spend in Parliament. Let me reassure noble Lords directly, however, that this Government are committed to ensuring that all the necessary legislation is passed by the end of the implementation period.
As the noble Lord intimated in his speech, versions of the Bills covering many of the areas noted in his amendment have already been published in previous Parliaments and are publicly available for study. Others were mentioned in the Queen’s Speech. However, I am sure that the House can appreciate the tremendous amount of work being done to make sure that these Bills best achieve their policy aims. In some cases, this means that the Bills will differ slightly from the previous versions. I can assure the House that the Government are committed to proper scrutiny and that we will balance the need to have the necessary Bills in place by the end of the implementation period with adequate time for Parliament to scrutinise them.
I suspect that the noble Lord got the answer he was expecting, so I hope he will feel able to withdraw his amendment.
Lord McNicol of West Kilbride
My Lords, I thank the noble Lords who have taken part in this very short debate, and I thank the Minister for his response. The reason for launching this is that we want to secure proper time for scrutiny, debate and discussion. The Trade Bill was my first Bill in this House. My noble friend Lord Stevenson and I put a lot of time and energy into that Bill and this House made some good, sensible changes to it. It would be a shame for that to go to waste. I beg leave to withdraw the amendment.
“Non-regression in relation to environmental and animal welfare matters
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—“16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) the environment,(b) food safety standards,(c) registration, evaluation, authorisation and restriction of chemicals, and(d) animal welfare.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a level of protection provided for in retained EU law, or(b) weakens governance processes associated with that protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish protections in retained EU law relating to the environment and animal welfare.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Lords who have added their names in support of this amendment on a cross-party basis. It would ensure that, post Brexit, the actions of Ministers and public bodies must not have a regressive impact on the environment, food safety, REACH and animal welfare. The amendment is necessary as the Government have seen fit to remove the provisions previously agreed in the 2018 withdrawal agreement, which provided for a legally binding commitment to non-regression in most areas of environmental law. The Government have said they remain committed to the principle of non-regression, so it is not at all clear why these provisions have been actively removed.
It goes without saying that there has never been a more important time for strong environmental legislation. The world is facing a climate change emergency, with global warming impacting food production, rising sea levels destroying habitats and catastrophic floods and fires threatening human life and livelihoods. The Government have signed up to the UN climate change conference political declaration, but those promises need to be backed up by binding and robust action. The Government have said that they want an ambitious environmental programme—indeed, the Conservative manifesto promised to legislate for high standards of environmental protection—so it seems strange that their first act is to water down a Bill that would have helped to achieve those high standards. Our amendment would put the non-regression principle back into the Bill where it belongs, and where other environmental principles remain via the withdrawal agreement.
The great advantage of a non-regression clause is that it would give reassurance for the longer term. It would protect current and future generations against the weakening of environmental standards once the issue drops out of the headlines and out of the list of government priorities. It would also help the Government to hold public bodies to account in achieving their environmental standards.
It is still not clear why the Government have taken the clause out of the Bill. If, as the Minister claimed in the Commons, the Government are committed to non-regression, why not leave it in? If the Government plan to put it in the environment Bill instead, what is the harm in having it in both pieces of legislation? If, as the Minister claimed in the Commons, the plan is to diverge from EU environmental principles and go it alone, who will judge whether the outcome will be as good as the environmental benefits that we have enjoyed in the past or that we should have enjoyed in the future?
As I said at Second Reading, over the years our environment has hugely benefited from EU directives and regulations, with over 80% of our environmental legislation derived from the EU. It is the main reason our habitats and birds have been protected and our water, air and soil quality have improved. The Government are expecting us to take a leap in the dark with their commitments to becoming a world leader in environmental protection outside the EU regime. If they are so committed, it is still not clear why they cannot accept a non-regression clause. Surely that is the minimum promise that they ought to be able to make if they are so ambitious for the future.
I hope the Minister will feel able to support our amendment. If not, I hope he can spell out in some detail what kind of non-regression guarantees are being proposed for the environment Bill. These questions were posed by a number of noble Lords at Second Reading, so far without a response. I hope that on this occasion the Minister can rectify that and give us some guarantees. I beg to move.
Lord Randall of Uxbridge (Con)
My Lords, I was very happy to add my name to this amendment because the whole question of environmental standards and what will happen after we leave the EU is something that concerns many on all sides of the House, as well as the general public. The environment, as the noble Baroness opposite said, is very high on people’s agenda.
I put my name to the amendment because, like the noble Baroness, I wondered why this issue was not going to be part of the Bill. However, I have to say that I have spent some time in detailed discussions with the Secretary of State and Ministers down the other end as well as with Ministers in this Chamber. I do not think I could ever be described as naïve, although I have been led astray sometimes by government Ministers on all sides, but I do not doubt for one minute this Government’s thorough commitment not only to maintaining the environmental standards of the EU but to going beyond that. This is a very useful exercise to reinforce to my noble friends on the Front Bench that no excuse will be taken if those standards are not maintained when the environment Bill comes forward, and I will be looking for improvement.
With that in mind, I have always regarded this more as a probing amendment—I have learned today that in Committee that tends to be what happens—but I do not at all regret adding my name to it because this is a matter of great importance.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I rise to speak to Amendment 31, to which I have also added my name. I fully support the comments made by the noble Baroness, Lady Jones of Whitchurch. Many contributions today have been extremely legalistic, but for me this amendment is much simpler.
Many noble Lords will be wondering why it is necessary to have this amendment in the Bill. The Government have committed not to compromise on environmental standards. An undertaking was in the previous withdrawal agreement Bill but was removed from the Bill that passed through Parliament in December 2019. If the Government have committed not to compromise, why was it necessary to remove this undertaking from the Bill? Despite being asked, the Government have provided no clarity on how environmental standards are to be protected.
As we can see from what is happening in other parts of the world, not least Australia, the environment is very fragile. Animal and plant species are constantly under threat from the effects of what used to be known as freak weather conditions. These excessive droughts, floods and temperature rises are having a devastating effect on animals and humans alike. They are no longer occasional disaster events but have become yearly occurrences. Unless the UK engages completely with preserving, maintaining and enhancing our environmental standards, we are likely to see an increase in flooding and fire damage in our villages and on our moors.
Ensuring food safety should be paramount when the Government come to broker trade deals with countries outside the EU. The UK consumes large quantities of chickens, and I am sorry about the next bit. Currently we import chicken breast meat and export darker leg meat. This trade currently goes to Europe, where we know standards of food protection are the same as ours. We could be self-sufficient in chickens if the British housewife could be persuaded to consume more dark meat and slightly less breast meat.
On a purely personal note, I am extremely reluctant to find myself having to buy chlorinated chicken that has arrived from America, be it whole chicken, breast or leg meat. A lowering of food safety standards has had dramatic effects on our country in the past; the BSE crisis springs to mind.
As stated at Second Reading, the UK currently has high standards in habitat protection and product safety. These standards have been developed with our European neighbours so that we now benefit from cleaner beaches, safer food and the best regulation of chemicals in the world. While these will pertain at the point of exit, are we really going to leave ensuring the maintenance of these standards to the joint committee? We have heard that the joint committee has the ability to amend the withdrawal agreement itself should it choose to do so, with no parliamentary oversight.
Baroness Bennett of Manor Castle
My Lords, from comments I have made on other matters, your Lordships’ House will know that democracy is one of my pet concerns. When we are discussing this excellent amendment from the noble Baroness, Lady Jones of Whitchurch—I endorse everything she said in introducing it—it is important that we make clear what we are talking about. Non-regression has now become part of our common parlance in your Lordships’ House and perhaps in the other place as well, but what does that actually mean? If we are looking for a definition in commonplace terms, I would suggest that it means not losing the hard-fought gains that we have won over decades. The Green Party and green campaigners have fought very hard for the level of standards that we now enjoy under the European Union. We have often been critical of those standards and said they should be higher, but we know they are much higher than in many other jurisdictions, most notably the United States of America—with which, of course, we know the Government are very keen to get a trade deal.
A few days ago, I asked your Lordships to think about the climate strikers, the young people who have been out on our streets, who will no doubt be out on our streets again. I ask noble Lords who want to reject this amendment—and the Government, if they want to reject it—to think about how those people will feel when they are told that what has already been won, which they would say is inadequate, will not be guaranteed. I think we know what their reaction would be.
With all the Henry VIII, secondary legislation making and judicial erasure powers that the Bill currently provides, the Government are going to find themselves in an unprecedented position to rewrite enormous parts of UK law at will. We are told that, “There is no intention to reduce standards; we’re going to try to improve them.” Of course I applaud those words, but if that is the case, why not accept this amendment? It should not be contentious, just as provisions to protect workers’ rights, which are part of the same kind of package, should not be contentious.
We have all had a long day, but I think everybody in this House from all sides has at some point fought to support some protection covered under EU legislation. Please let us protect and keep them all and not lose the work of the past and of decades of campaigns.
Baroness Parminter (LD)
My Lords, I rise to support this cross-party amendment in its entirety, but particularly to cover the issues I raised on Monday at Second Reading and, if I may, to have the right of reply to the noble and learned Lord, Lord Keen, who made reference to my speech from earlier in the debate in his closing remarks. He said:
“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.”—[Official Report, 13/1/20; col. 556.]
That is factually correct and I entirely applaud the Government’s intention of doing something about that important issue. However, with the deepest respect for the noble and learned Lord, that is completely irrelevant to the point I made. There is nothing in a non-regression clause which stops the Government raising standards. What it does do, as other noble Lords have rightly said, is ensure that standards are not lowered. That is the issue we are collectively concerned about as we face the worrying prospect of these free trade agreements, with all bar one of the countries proposed having lower welfare standards than ourselves.
My noble friend Lady Bakewell of Hardington Mandeville talked about chicken legs and breasts. I want to talk a little about eggs because, as it stands at the moment, the United States of America has no standards whatever on the welfare of hens used for laying eggs. Therefore, if we allow the American market access to ours, we will face eggs coming in to be used in food products with standards far lower than those produced by British farmers. Our farmers will rightly argue that their welfare and production standards are higher and cost more and that they are therefore at a competitive disadvantage. They will press the Government to reopen the battery cage directive, which has been with us for so long as part of our membership of the European Union and guarantees higher farm welfare standards.
If the Government were to lower those standards, I would like to ask the Minister whether my understanding of the following is correct. Given that we have gone through this process of nationalising all this EU legislation through statutory instruments, sitting through hours and hours in the Moses Room, is it correct that, if the Government were to lower our animal welfare standards for battery hens, for example, the Government would need only to introduce a statutory instrument and would not require primary legislation? That is my understanding. It is a real worry to those of us right across this Chamber who have, as the noble Baroness, Lady Bennett, just said, fought so hard and for so long for high animal welfare standards that those could be lost by a simple statutory instrument.
The right reverend Prelate the Bishop of Worcester, who is not in his place, spoke movingly, in the debate on the amendment from the noble Lord, Lord Dubs, about the Government needing to set out their vision for Britain in the post-Brexit world. He articulated it very well. What is the Government’s vision for Britain? If they want Britain to be a world leader in animal welfare, they have to demonstrably deliver that through all their legislation, trade deals and marketing. Look at the example of New Zealand, which has said that it wants to be a world leader and is a world leader—it has done just that. This is in every piece of legislation and every trade deal and it is in their marketing strategy.
This is the first piece of legislation of the new Government which mentions animal welfare and yet, by not accepting a non-regression clause, they are basically saying that standards could be lowered as a result of trade deals in the future. Therefore, it begs the question: how will the Government guarantee that animals will not suffer lives compromised by lower animal welfare standards if the Government will not accept a non-regression clause in the withdrawal Bill?
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, I am grateful to the noble Baroness, Lady Jones of Whitchurch, and other noble Lords for raising issues which come within Defra’s responsibility. I entirely respect the sincerity of all the points that have been made by noble Lords.
The UK has a long and proud history of high standards for environmental protection, including chemicals, food standards and animal welfare. It is of the utmost importance that these are maintained as we leave the EU. The Government have been clear that we will not weaken protections in these areas when we leave, but rather we will maintain and enhance our already high standards.
This Bill is focused on putting the withdrawal agreement into domestic law. This amendment is about what happens to our environmental policy and others after our exit from the EU. We do not believe that that is appropriate for this Bill.
These matters were debated extensively in the passage of the 2018 Act, when the Government were clear that the regression of the type the noble Baroness fears would not be within scope of the key Section 8 power of the 2018 Act. Those Section 8 powers can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal from the EU. The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit. The Government cannot use the powers for the purposes of simply rolling back standards and protections.
Where substantive policy change is required, appropriate legislation will be brought forward. I underline this when I say that, if a Government were to introduce legislation to reduce protections, Parliament would be able to have its say at that point. This would allow for more effective and tailored scrutiny. In any case, I want to assure the noble Baroness and all noble Lords who have spoken—as I have done many times from this Dispatch Box—that this Government have absolutely no intention of introducing legislation that would have that regressive effect.
As I have said, the UK has this long and proud history of environmental protection. The UK was the first country in the world to introduce legally binding emission reduction targets. In 2019, the UK became the first major economy in the world to set a legally binding target to achieve net-zero greenhouse gas emissions. The UK is also the top performer in the EU on resource efficiency and is demonstrating leadership on the circular economy and smart taxes to reduce landfill.
The noble Baroness, Lady Bakewell of Hardington Mandeville, was absolutely right in talking about the world’s fragility, and I think we are absolutely seized of that imperative. That is why the Government will shortly introduce the environment Bill—I say this specifically to my noble friend Lord Randall but also to the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville—which is about strengthening environmental protections. That Bill will enshrine environmental principles in law and will also include measures to improve air and water quality, tackle plastic pollution and restore habitats. I should say, going off script, that we may have been subject to all sorts of EU directives and regulations, but we, the EU and the world have to do a great deal more. The point about that Bill is that it will create legally binding environmental improvement targets and establish a new independent office for environmental protection to hold the Government to account.
We are planning for the OEP to be operational from 1 January 2021. That may slightly answer the question the noble Lord, Lord McNicol, posed in an earlier debate. I want to emphasise that there will be no governance gap. This will collectively ensure that environmental ambition is at the heart of government once we leave. I am in absolutely no doubt that all of your Lordships who have spoken—and many more—will take much interest in that Bill, and I think that is tremendously important.
Regarding the UK’s effective regulatory system for management and control of chemicals, as mentioned in the amendment, this is partly based on the REACH regulation, which is widely seen as a gold standard worldwide. The environment Bill will have provision to amend REACH to make sure our chemicals management remains fully up to date. Any change must remain consistent with the fundamental aims and principles of REACH, including the precautionary principle. There will also be a series of protective provisions that cannot be changed, such as the last-resort principle on animal testing—I think that is a matter the noble Baroness, Lady Parminter, has expressed concern about before, so it is important to say that.
Baroness Jones of Whitchurch
I am grateful for everything the Minister has said. I did ask—I do not know whether he specifically addressed this point—whether there will be a general non-regression clause in the environment Bill. He has talked about there being legally binding targets for improvements in some areas. I understand all of that—the Government will have improvements on air or water quality or whatever it might be—but the great advantage of a generalised principle of non-regression is that it applies to everything: not just the Government’s priorities today but the things that are not sexy today and that might be on the back burner. It encompasses everything, and I am not sure whether the Minister has given me that reassurance. Maybe it was buried away in his script, but it would be helpful if he could say it again.
Lord Gardiner of Kimble
The environment Bill has not been published yet, but it will not be long. I am not in a position to start talking about the detail of some of the clauses tonight, but that is why I spent some time on this. I say directly that I cannot start suggesting what the clauses of the Bill will be about, because I am not in a position to do so.
As I have tried to set out in this explanation, I obviously understand the points that have been made, but I am not sure I agree with all that the noble Baroness, Lady Bennett, may have said about some of these matters. Yes, of course we should endorse the work of the past, but I sometimes sense a determination that either this Government or the party I represent would find it impossible to be positive and strengthening about the subjects we are discussing. I would regret that, because the whole focus of what I have tried to explain in detail—it is why I was asked to deal with this amendment—is precisely to show that this department and the Government are absolutely committed to maintaining and enhancing our already high standards, including through the legislation which will come forward very shortly.
As regards any Section 8 regulations made under the withdrawal Act, noble Lords already have the ability to scrutinise any changes which those regulations might make to retained EU law. This Bill is a vehicle to implement the withdrawal agreement, not, in our view, to legislate for environmental policy.
I am grateful to the noble Baroness and to all noble Lords for this important debate. I have gone on rather longer than I think I was requested to because I felt it important to set out some detail on the measures that the Government will bring forward, and to highlight what is a clear direction of travel. Our intention is to move forward. I therefore hope that the noble Baroness and other noble Lords will accept my firm commitment on behalf of the Government and the department, and that she will feel able to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank all noble Lords who have spoken in support of our amendment. I should say at the outset that the Minister will know, as we have said before, that he is held in high regard by this Chamber. We obviously do not doubt his intentions and commitment on many of the things he talked about. A lot of our concerns arise not from the intentions of Defra, or even perhaps the intentions in a future environment Bill, but through the pressures which will come from elsewhere. We can only anticipate or guess those pressures at this stage—from future trade Bills and future deals that might be wanted done.
Our anxiety is not about the Minister’s good intentions; we can see what is in the Conservative manifesto and the good words that have been written about all this. Many of us have worked on a number of the animal welfare issues that the Minister talked about, so, again, we do not doubt his good intentions or his record on all that. But we are going into an uncertain future, and deals will have to be made outside our immediate remit. I suppose that is where our concern comes from.
I am particularly grateful to the noble Lord, Lord Randall, for sticking his neck out on this issue, even if he back-tracked slightly. I had intended this to be slightly more than a probing amendment, and we have had a good debate as a result of it. We want to believe in the Government’s commitments in the way that he described.
Our particular concern about non-regression, which I know that the Minister felt he could not really respond to in the detail that we would have liked, was that it would give us that underlying safety net when everything else is moving around quickly, as it will be in the next year. I am still sorry that we were not able to go as far as we would have liked on that issue. The noble Baroness, Lady Bennett, was absolutely right: these progresses in policy that we have made over the years are hard fought for and hard won, and we all hold them very dear.
I have gone as far as I can at this point in the evening in probing the Minister. We are looking forward to the environment Bill. If it is anything like the draft we have already seen, it will be a long tome and we will spend many happy hours debating it all. I hope that we will see in writing the legal commitments that the Minister implied we will get at that point, so I look forward to the publication of and debate on that Bill. In the meantime, I beg leave to withdraw the amendment.
“Reporting of progress on achieving a data adequacy ruling
After section 15 of the European Union (Withdrawal) Act 2018 (publication and rules of evidence) insert— “15A Reporting of progress on achieving a data adequacy ruling(1) A Minister of the Crown must, before 31 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s discussions with the EU on a future data adequacy ruling.(2) The statement under subsection (1) must include—(a) a report of the discussions carried out to date or since the last report,(b) a declaration of whether, in the Minister’s opinion, a data adequacy agreement can be secured from the European Commission in order to take effect immediately after IP completion day, and(c) the policy of Her Majesty’s Government in the event of a data adequacy agreement not being secured to take effect immediately after IP completion day.””Member’s explanatory statement
This amendment requires a Minister to provide updates on the UK’s discussions with the EU regarding the granting of a data adequacy decision.
Lord Stevenson of Balmacara (Lab)
My Lords, Amendment 32 is in my name and I thank the noble Baroness, Lady Ludford, for her support. I am also pleased to see the new Secretary of State in her place. Although I think she will not respond to this debate, I am sure she is learning from the process and we look forward to further interactions with her in due course, not least the opening Question Time, which I see is now on the timetable—it should be fun.
This is a probing amendment, by which I seek to draw attention to two things. One is the importance of the personal data sector; that may not need to be said, but it is worth reminding ourselves of its importance. The other is the implications for our economy if the Government are unable to persuade the EU to agree a data adequacy decision within the tight timetable that we have. But I also want to raise concerns about the future of this sector in light of the Government’s plans for further changes to the law, some or all of which might reduce the chances of us obtaining a positive data adequacy outcome.
The facts are that 43% of EU tech companies are currently based in the UK and 75% of the UK’s personal data transfers are with EU member states. It is therefore vital that a data adequacy agreement is reached within the timescale proposed under the withdrawal agreement. But quite apart from the timescale, achieving a positive adequacy decision for the UK is not as uncontentious as the Government seem to think. For a start, any adequacy agreement requires the European Commission to consider a wide array of issues, such as the rule of law, respect for fundamental rights, and legislation on national security, public security and the criminal law in that country. As was pointed out during the passage of the Bill, the surveillance practices of the UK intelligence services may indeed jeopardise a positive adequacy decision tout court. But there are particular difficulties and it is worth reflecting on these.
Further modifications of the GDPR, as it was legislated for, are possible in the UK after Brexit using the powers in the European Union (Withdrawal) Act in areas such as rights, principles, definitions, powers of regulators, and fines. This means that the European Commission will have concerns on how secure the adequacy decision will be. Can the Minister say what guarantees will be under consideration in these areas? One problem with the UK’s version of the GDPR is that the Government resisted calls from this side of the House to include the recitals in the legislation. However, somewhat ironically, much of the ICO guidance on the GDPR is linked to the recitals and references are made to all of them. How will the Government square that anomaly whereby, after December 2020, those recitals will relate to the EU version of the GDPR but not specifically to the UK version? It has been argued that several of the exemptions in Schedules 2 to 4 to the DPA 2018 are not mirrored in other EU member states’ national data protection law, such as immigration and national security references, which might diminish the rights and freedoms of EU nationals in the UK. Can the Minister say how the Government will resolve this?
As was discussed at length during the passage of the Bill, the Investigatory Powers Act 2016 and the amount of bulk personal data collected routinely in the UK are generally accepted as a problem. Do the Government have any thoughts on how to address these issues? The status of codes of practice produced by the Secretary of State under the Digital Economy Act 2017 and the framework for data processing by government raises the question of whether the ICO is an independent regulator. Does the Minister accept that this may cause problems for the data adequacy ruling?
There are important provisions within the withdrawal agreement in relation to data protection over the transition period and I accept those. They include the fact that the GDPR and related EU privacy laws will continue to apply in the UK during that transition period and that there will be no immediate change in UK law on exit day. The UK must continue to interpret and apply the GDPR and related EU laws consistent with wider EU legal principles. The UK courts will therefore continue to apply decisions of the Court of Justice of the European Union and changes in EU law through the transition period, though presumably there will not be that many. The CJEU will continue to have jurisdiction in the UK, and decisions on the GDPR may be referred to the CJEU during the transition period.
We have all that as a base, but what happens if either we find that the EU will not grant an adequacy agreement or that it is significantly delayed? The current thinking is that impacted organisations—there will be a lot of them—will need to adopt specific legal safeguards to support the lawful transfer of personal data to the UK and that they will use standard sets of contractual terms and conditions, which the sender and the receiver of the personal data must both sign up to. But SCCs cannot be used to safeguard all transfers, and redress would of course be a civil and not a criminal matter in the courts, with all that that implies. The question is whether the Government have in mind to legislate to provide certainty for this possibility. Can the Minister comment on that?
The Government have ambitious plans, which we broadly support, to respond to increasing concern about the use and misuse of personal data, particularly as these affect children, but also including online trolling, fake news and undue influence on political issues. The Government are also considering how and in what way data companies are covered by competition and other regulations that apply to media companies.
Baroness Ludford
My Lords, I support this amendment, of which I am a co-signatory. I very much agree with what the noble Lord, Lord Stevenson, said, though I fear I might add a few questions for the Minister. As he said, free data flows across borders are an essential foundation of many key sectors of our economy, not just the tech industry as such but manufacturing, retail, health, information technology and financial services. It is vital that the free flow of data between the UK and the rest of the EU continues post Brexit with minimum disruption.
The European Union Select Committee, in its recent report on the revised withdrawal agreement and political declaration, pointed out that there was a lowering of ambition in the political declaration compared to what we have now as part of the EU’s digital single market. We have free flows, whereas the political declaration talks only about the “facilitation” of data flows. That is not the same as “freedom” of data flows. A host of organisations and the Information Commissioner have all persuasively argued that we need to ensure that our data protection legislation and practices are ruled as adequate. That is why it is so important that we get these regular reports and, as the amendment says, that we discover what the policy of HMG is if we do not have a data adequacy agreement after the end of transition.
We cannot take such a decision for granted merely because the GDPR more or less forms part of UK law. A major obstacle to an adequacy ruling is, of course, the bulk data provisions in the Investigatory Powers Act 2016, particularly in the light of the European Court of Justice decision in Tele2/Watson, the case brought by David Davis and Tom Watson over the legality of GCHQ’s retention and bulk interception of call records and online messages. That judgment ruled that UK mass surveillance laws breach the Charter of Fundamental Rights.
Just today there has been an opinion from the Advocate-General, the court’s legal adviser, who tends to get followed in 80% of ECJ cases, on a case which involves Privacy International, and a reference from the Investigatory Powers Tribunal. The Advocate-General has reinforced EU privacy law against mass retention and access to customer data by GCHQ, MI5 and MI6. I think this concerns provisions in Section 94 of the Telecommunications Act 1984. So we may get a second CJEU ruling, which will be problematic for any adequacy ruling given the very explicit requirements of Article 45(2)(a) of the GDPR, requiring the commission to consider
“respect for human rights and fundamental freedoms”,
as well as
“national security … and the access of public authorities to personal data … and … international commitments”.
They will probably want to look at any potential transatlantic transfers agreed with President Trump.
It is already clear that many aspects of the Investigatory Powers Act fall short of satisfying the CJEU criteria. The purposes of retention are not limited to fighting serious crime, data retention is not targeted to what is strictly necessary, prior independent review or judicial authorisation is not required in all cases, and there is no provision for informing individuals.
What are the Government going to do in the area of the powers of intelligence agencies to satisfy the European Commission—and the European Parliament, where I had some experience of this, particularly in the era of the Edward Snowden revelations, when many in the Parliament were jumping up and down about GCHQ but there was nothing they could do about it while we were in the EU? Once outside, we actually get much stricter scrutiny about our interception practices than when we are inside; it is something of an irony, really. Then there is the problem about the exception for immigration data in the Data Protection Act 2018. The EU will no doubt closely monitor how the Home Office reviews settled status applications and whether data subjects can obtain full access to their personal data if there are disputes or problems about their status.
In addition, we discussed earlier today the accusation —it seems stronger than that—that the UK has illegally copied, and therefore misused, the Schengen Information System database by copying it into a national database and even sharing it with private companies. The commission report says that UK practices
“constitute serious and immediate risks to the integrity and security of SIS data as well as for the data subjects”.
That is another area where we are going to be under strict review. There is the trust issue, which we also discussed earlier today about the criminal records fiasco—I think one would have to use that word.
There are lots of questions and challenging reviews that the Government will have to answer in seeking data adequacy decisions. We need to know what steps they have taken so far to achieve this decision. Will they apply to continue to participate in the European Data Protection Board? What will they do if we get turned down for a data adequacy agreement? Anything else is second best. Have the Government thought through what their strategy will be if they do get refused? Will they change the legislation on handling personal data for national security purposes? Those are a lot of questions, but it is a very significant area of the negotiations with the EU 27. From past experience, I know that the European Commission will be very much on the ball— not least because of the eagle eye that the European Parliament will have on this area—so the Government have to be as well.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)
I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Ludford, for this amendment, which seeks to add additional scrutiny to the data adequacy assessment process by introducing a bespoke statutory reporting requirement. It has certainly been very useful in drawing attention to the importance for both the UK and the EU of the UK pursuing and obtaining positive data adequacy decisions to enable the free flow of personal data after we exit the EU. It is also helpful that the noble Lord highlighted the success of our tech sector, which I thoroughly echo. I am sure that my noble friend the Secretary of State shares that view.
The free flow of personal data is an important feature underpinning the UK and the EU’s future relationship for economic and security purposes. The UK is currently a global leader in strong data protection standards, and protecting the privacy of individuals will continue to be a priority. The noble Baroness, Lady Ludford, referred to a lack of ambition. I do not think there is any lack of ambition on the part of the Government in this area. The Data Protection Act 2018 strengthened UK standards in line with the EU GDPR and law enforcement directive, providing a unique starting point for these discussions. The UK is ready to begin the adequacy assessment process and we are pleased that the EU has committed, in the political declaration, to the Commission beginning its assessment of the UK as soon as possible after our withdrawal, endeavouring to adopt adequacy decisions by the end of December 2020.
Before I try to answer some of the questions posed, I hope it will be helpful to touch briefly on some of the preparation that has been going on in government for the last two years for this eventuality. The Government established a data adequacy negotiation hub which sits within the Department for Digital, Culture, Media and Sport. It was set up early in 2018 and includes experienced experts in both data protection and negotiation. They are ready and waiting and keen to start negotiations with the Commission now.
This amendment would introduce a bespoke statutory reporting requirement, as we heard, covering the assessment period. However, as we heard very eloquently from my noble friend Lord Callanan earlier, there is a need for flexibility of reporting during what will be at times, I am sure, sensitive negotiations. While the Government are absolutely clear in our responsibilities to keep Parliament updated on that progress, and that obviously includes your Lordships’ House, we do not believe that such a rigid regime is appropriate. Obviously, both Houses have an array of tools at their disposal to scrutinise the Government, including through their Select Committees: I refer to the recent report of the Lords EU Committee, which scrutinised the revised withdrawal agreement and political declaration and concluded that the provisions on data protection were to be welcomed.
In this context, we believe there is no need for further bespoke reporting requirements for data adequacy, particularly as setting these out in legislation may have unintended consequences, as was discussed earlier this afternoon. I shall now try to address some specific points, but I am very grateful to the noble Lord, Lord Stevenson, for his offer that I might write to cover some of them.
In a sense, both noble Lords asked about the spirit which would underpin our approach to moving forward in these negotiations. Our aim is to try to find the right way to safeguard privacy while both promoting trade and innovation and protecting citizens from crime and terrorism. All those things are crucial to fully realising the opportunities from the data economy.
Baroness Ludford
I am sorry to interrupt the Minister, but the fact is that the CJU has condemned our regime under the Investigatory Powers Act. The European Commission will have to take account of that, so to say that we and the EU have common high standards is not entirely borne out by the facts. The CJU has criticised, in a full judgment, the Investigatory Powers Act. How will we cope with that in the search for data adequacy?
Baroness Barran
As the noble Baroness understands very well, the adequacy discussions will be broader than strictly personal data and data protection, and will cover these issues. It will be our role to explain to and convince the EU of that, which we are confident we can do.
Similarly in relation to immigration data, which the noble Baroness raised, we believe that there are some misunderstandings about how this provision works. Rather than going into that detail tonight, I can write to her on this. However, we are confident that the provisions included in the Act are fully compatible with EU law, although clearly we recognise that they will be closely scrutinised.
The noble Lord, Lord Stevenson, asked about the independence of the Information Commissioner’s Office. We believe that the ICO is a strong, independent and effective regulator and that its relationship with DCMS upholds that independence. We really do not have concerns that this will be an issue in relation to adequacy.
The noble Baroness referred to the opinion received today from the Advocate-General of the EU; as she said, the opinion is non-binding and the impact will happen only when we have the court’s judgment, although I note her comments on the probability of that. Since the opinion was published only a few hours ago, my officials are currently digesting it, so noble Lords will understand that our ability to comment on these proceedings is limited.
The noble Lord, Lord Stevenson, asked about recitals in the future UK GDPR which still include the EU terminology. Recitals are non-binding in both EU GDPR and future UK GDPR. They are there only as an aid to interpretation and we do not believe that the references to the EU will be confusing.
The noble Baroness, Lady Ludford, referred to the Schengen Information System. I understand that the House will discuss the UK’s access to several EU law enforcement databases on the next amendment. If she will permit it, I think it would be easier to return to that question then.
Both noble Lords asked what will happen if an adequacy decision has not been granted at the end of the implementation period. Obviously both sides have committed clearly, and it is an absolute priority, to make this work, but in the event that an agreement is not reached, the Government have already done a huge amount around no deal, working proactively to communicate companies’ responsibilities in this area—particularly in relation to smaller companies, which we know might find this more challenging. The Information Commissioner’s Office produced a portal to support organisations preparing the standard contractual clauses referred to by the noble Lord, Lord Stevenson.
I fear that time may not permit me to answer any more questions but I will endeavour to write and cover all the important points made. I hope that I have managed to reassure the noble Lord that, once adequacy discussions are under way, both Houses will continue to use all the available scrutiny tools at their disposal to ensure that they are absolutely appropriately informed on the Government’s data adequacy progress and policy. I hope that he will feel able to withdraw his amendment.
Lord Stevenson of Balmacara
Before the Minister sits down, I hope that she can respond to one section of what I was asking about, on the interaction between existing responses to the data adequacy question and the new legislation that the department is working on. Does she feel that the new legislation as previously conceived—and, indeed, as set out in her party’s manifesto—is being progressed and that there is no adverse fallout from that?
Lord Stevenson of Balmacara
My Lords, I thank the noble Lords who have contributed to this short but good debate. It was a robust response. I thank the Minister for the various points that she was able to cover and I look forward to her letter.
I did not raise it, but sitting a bit behind those on the Benches opposite is the question of why such a mess was made on the age-verification issues relating to children’s safety online. In a sense, that is why I asked about future policy in relation to where we were. This is a moving target. I do not want to be critical about this in any sense because it is right that we keep things moving and do not stick on where we were, in some sort of pre-Brexit mode. We must move forward. Life is changing, attitudes are changing and technology is moving forward at a huge pace.
We must be ready to anticipate that but it must not be at the expense of some hard-won decisions that were reached after a lot of debate. They were good decisions in relation to the Bill; both the Home Office and DCMS were heavily involved in them and I am sure that they are joined at the hip over this wonderfully named data adequacy hub. I wish it well in its future negotiations; I am sure that it is raring to go and that it will be very successful.
That leaves us with a bit of an information gap. Yes, the existing arrangements for getting information can be used, but they are never as efficient or effective as the Opposition want and are probably too frequent and difficult for the Government to respond to. How much better if we had a plan where we could say, “Every two months, you’re going to stand up and say something about it.” Perhaps we can make this work but I hope that this important issue is kept very much at the forefront of the department’s work, that there is an all-government response to this because it applies across the piece, and that we see something positive come from it. With that, I beg leave to withdraw the amendment.
Lord Paddick
“Implementation period negotiating objectives: security partnership
(1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve equivalent outcomes to—(a) continued UK participation in the European Arrest Warrant;(b) continued UK membership of Europol and Eurojust; and(c) continued direct access for UK agencies to the following EU data-sharing mechanisms—(i) the Second Generation Schengen Information System (SIS II);(ii) the European Criminal Records Information System (ECRIS); (iii) the Prüm Decisions;(iv) Passenger Name Record (PNR); and(v) the Europol Information System (EIS).(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek a comprehensive security partnership as part of its negotiations for the future relationship with the EU.
Lord Paddick (LD)
My Lords, Amendment 33 is in my name and that of my noble friend Lady Ludford.
At Second Reading, I alluded to the amendment as a means of mandating the Government to deliver on their promise that the UK would be as safe and secure outside the EU as it has been within the EU by specifying what the Government should seek in a comprehensive security partnership with the EU.
Various EU measures and mechanisms that are currently available to us as an EU member state are valuable to UK law enforcement. At a briefing given to the APPG on policing in 2017, the National Crime Agency lead on Brexit outlined what these were, what the alternatives might be and the impact on the UK’s safety and security were they no longer available. They were the Schengen Information System II, sharing information about terrorist suspects, those wanted under the European arrest warrant, stolen vehicles and similar information; the European arrest warrant, allowing rapid extradition without political involvement; Europol, pan-European strategy development to counter serious and organised crime; ECRIS, sharing information about criminal convictions handed down by any court in the EU; Prüm, rapid electronic comparison of DNA, fingerprints and vehicle registrations held on the databases of each EU state; cross-border surveillance, allowing surveillance of UK suspects in the EU and vice versa; and joint investigation teams under Eurojust, prosecuting pan-European crime.
He concluded that there were “workarounds”, but that these would be less efficient and effective than the existing EU mechanisms. For example, if Interpol were used instead of Prüm to try to match DNA found at a UK crime scene with DNA profiles of criminals held on EU member states’ databases, it would take months—and in some cases no response would be received at all—compared with seconds up to 24 hours using Prüm. He anticipated that extradition agreements would need to be negotiated separately with each of the remaining 27 EU states and that these would require political involvement, as opposed to the European arrest warrant where the decision is made by a judge. He concluded that the UK would be less safe and less secure if, rather than relying on existing EU mechanisms, it had to work on the basis of non-EU workarounds.
It was therefore reasonable to conclude that if these EU mechanisms were no longer available to the UK when we left the EU, alternative mechanisms would need to be put in place that delivered the same outcomes as efficiently and effectively as the existing EU mechanisms. Otherwise, the Government would have failed to deliver on their promise that the UK would be as safe and secure outside the EU as it had been inside. The amendment would require a Minister of the Crown to update Parliament on progress in achieving these outcomes within four months, and regularly thereafter.
Why do we consider this so important? First, as Andrew Marr put it on Sunday to the Security Minister, the right honourable Brandon Lewis MP, the European arrest warrant and Europol, for example, rely on the European Court of Justice to resolve disputes between participants, and it is a red line for the Government that the ECJ should play no part in UK affairs after Brexit. The Security Minister replied that Europol has United States of America involvement, and clearly the US is not a member of the EU. What he was actually referring to was an agreement between Europol and the United States to share information within strict limitations—an agreement that can be terminated by either side at three months’ notice—not active involvement as an equal partner in Europol, deciding on the nature and scope of Europol’s activities, and nothing to do with the ECJ. Neither the USA nor any other third-party country has a say in Europol’s operations.
The Security Minister did not comment on the European arrest warrant, which more clearly and obviously requires the ECJ to adjudicate between participating states where a warrant is issued but another state refuses to extradite. The Security Minister did not comment on the EAW, probably because he knows that we are very unlikely to continue to be part of the European arrest warrant after Brexit. For example, Germany changed its constitution to allow the extradition of its own nationals under the European arrest warrant, but limited extradition to other EU member states. As I mentioned at Second Reading, Iceland and Norway applied to participate in a limited variation of the European arrest warrant in 2001, but that has yet to take effect, and they are both within the European Economic Area and the Schengen area.
Lord Warner
My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.
The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.
We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.
Lord Tunnicliffe
My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.
I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a
“broad, comprehensive and balanced security partnership.”
However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.
Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.
In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that
“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]
Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.
To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.
Baroness Williams of Trafford
I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements of co-operation that are so crucial in keeping our citizens safe.
It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.
On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.
The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.
I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.
Lord Paddick
My Lords, I thank the noble Lord, Lord Warner, for his support and his perspective, from his experience in the Home Office, on how important this issue is. He made an important point about the Government acknowledging the weakness already of the UK criminal justice system without losing these EU mechanisms. I am also grateful for the support of the noble Lord, Lord Tunnicliffe.
It is all very well for the Minister to keep putting matters off by saying, “This is going to be negotiated and I can’t say what the details of the negotiations will be.” Time is running out. That excuse will not be available in less than 12 months’ time and we are concerned that our law enforcement agencies will be handicapped as a consequence of losing some, if not all, of these EU mechanisms, as the National Crime Agency lead for Brexit told us in a briefing a few years ago.
I am grateful for the correction on the modified European arrest warrant arrangements with Norway and Iceland, which apparently came into effect on 1 November last year. That means that they took 18 years to come into effect. If that is the kind of timescale we are looking at to get a similar agreement between us, as a third-party country, and the EU, we are in serious trouble. However, at this stage I beg leave to withdraw my amendment.
“Mobility framework
It is an objective of Her Majesty’s Government to take all necessary steps to secure an agreement within the framework of the future relationship of the United Kingdom and the EU which includes a mobility framework that enables all UK and EU citizens to exercise the same reciprocal rights to work, live and study, including the ability while resident in one state to work with ease across borders.”Member’s explanatory statement
This new Clause would require the Government to seek reciprocal rights for UK and EU citizens to work, live and study.
Lord Fox
I thank my noble friend Lady Ludford and the noble Earl, Lord Clancarty, for their support.
Earlier the Minister spoke about the teams of people working hard on drafting legislation, so if the Government felt moved to accept the spirit, if not the content, of this amendment then the drafting of the immigration Bill may be made simpler.
The amendment essentially reproduces an amendment to the Trade Bill which was passed in your Lordships’ House. As your Lordships will remember, it never went any further because it was never put in the next stage to the other place. With that in mind I shall keep my comments to a relative minimum. I beg noble Lords’ indulgence as I shall talk a little about some of the statistics that I related to that amendment last time. If we look at the statistics about economic migrants from the Migration Advisory Committee in autumn 2018, it found that migrants had little or no impact on the overall employment or unemployment of the UK-born workforce. Migration was not a detriment to the wages of UK-born workers. The MAC noted that migrants had a positive effect on productivity and innovation and that EEA migrants contributed more than they consumed in health services and social care.
The Earl of Clancarty (CB)
My Lords, I have added my name to this amendment. I wish to say something about services since this amendment in significant respects covers their operation for UK workers living in this country and in Europe. I feel that we should be moving on from making the case to considering the details of the solution, yet services is an area that right through the Brexit debate has not been given the proper attention it has deserved, and continues not to be given it. Services are 80% of our economy, account for 40% of our exports, and most services go to Europe.
This is urgent. We are, for example, already losing large numbers of jobs in tourism in Europe, and Carolyn Fairbairn, director-general of the CBI, referred in May of last year to:
“Creative and tech firms that should be the foundation of our future economy moving their headquarters to Europe.”
This is before the transition period has even started. As I said last year in the debate on a similar amendment to the Trade Bill that the noble Lord, Lord Fox, mentioned, services are the canary in the coal mine. The problem is that the free movement of people is integral to the success of services, because so many individual citizens, including freelancers, not only drive these industries but are in many respects the product itself.
It is not just the financial industries—which the noble Lord, Lord Ahmad, who is not in his place, singled out in his reply to my Question last week on this area—but creative, IT, translators, tourism, and many more. I ask the Minister whether any impact analysis has been done on the effect of Mr Johnson’s Brexit deal on our trade in services with the EU. The sense from industry is that unless a mobility framework is put in place, the result is going to be devastating for those industries. As one IT worker put it this week, “A deal without a mobility framework for professionals delivering services in person will mean enforced redundancies and loss of income for thousands of people.”
Many of the sectors that will be affected have many of the same or similar concerns. What consultations have the Government had with relevant sectors to list and compare requirements? How much have they talked to the creative sector, to IT, and so on? There has been a lot of discussion about transparency and consultation today. In many ways it has been the theme, but those working in services currently feel that they have no idea what the Government intend to fight for on their behalf. EU companies do not know either.
A solution needs to be found that neither discourages European employers or clients—as indeed is unfortunately already happening—nor is impractical or costly for UK workers. More fundamentally, even at this stage, the Government need to look more closely at the effect of the loss of free movement on our hugely important services. For their continuing success, UK and, through reciprocity, EU workers urgently need an appropriate mobility framework.
Lord Warner
My Lords, I want to add a couple of words to the points made by the noble Lord, Lord Fox, in his amendment. As far as the NHS is concerned, if the Government do not allow more people to come in and work in a highly labour-intensive industry, then they will not be able to spend the money that they are promising to put into the NHS in a way that is useful to patients. But that is not my main point.
My main point is to emphasise the extent to which there is continual movement between the UK and European countries, as part of big research projects in medicine, science and technology. People can freely move around Europe for six weeks, a month, a week or a weekend, and many of these projects have EU money, which has come to this country to be used to set up and run projects, but not all the work is done here. The work may be done with partners in other parts of the EU, and there is a constant flow of people. If we put barriers in the way of that movement around Europe of expert people—and many are not highly paid professors but PhD students who have come to this country—working on joint research projects, not only for basic research but for translational research, we will get ourselves ostracised. We will not be a partner that people want to play with, because it is difficult for people from other countries to move around Europe as part of those projects. We will cut off our nose to spite our face. We need something like this amendment to ensure that mobility and a mobility framework get the attention that they need for the future.
Baroness Hayter of Kentish Town
My Lords, the Minister—the noble Baroness, Lady Williams, who is now not in her place—spoke earlier about our seeking reciprocity with regard to children. I assume that the same is true as regards reciprocity for UK citizens abroad and EU citizens here. Thus far, the Government have singularly failed to negotiate successfully to secure the same rights for UK citizens as they have now to work, live and move across the EU. It is true that they can continue to live and work where they are at the moment at the end of the implementation period, but UK citizens will then lose their current right to move elsewhere across the EU—something that is, as we have just heard, at variance with the right of other EU citizens. Therefore, they will be disadvantaged compared with their fellow workers who are EU citizens already here, be they researchers, as referred to by the noble Lord, Lord Warner, artistes, mentioned by the noble Earl, translators, interpreters, freelancers or a number of other specialist staff who tend to move around because of the nature of their jobs. Under the agreement so far reached, they will only be able to live, stay and work in one of those 27 countries but will lose their freedom to move elsewhere.
Therefore, it is vital that we raise this matter higher up the Government’s negotiating aims. This is urgent as well as important. It is time that the Government did more to defend their own citizens’ interests rather more robustly than they have succeeded in doing thus far.
Baroness Ludford
My Lords, I just want to add briefly that the wording in the amendment reflects the wording in the White Paper of July 2018 on the future relationship. I do not know whether that White Paper has become “paper non grata” under the present Government but it talked about a framework for mobility providing reciprocal arrangements, which is broadly what the amendment refers to. That is what we want to hear about—a framework for mobility.
The noble Baroness, Lady Hayter, prompted me to think. To the extent that we have EU citizens with settled status, assuming that they do not feel that they have to seek British citizenship, they could be working on a research project based in the UK and, because they will retain their EU citizenship, they will be able to travel around 27 countries. However, the UK citizen may well not be able to do that, so will be second class compared to a work colleague who is an EU citizen and has a passport from one of the EU or EEA countries, unless a mobility framework with reciprocal arrangements and rights encompasses the ability of those UK citizens to work across the EU 27. Therefore, it is relevant to UK citizens living here but of course also highly relevant to UK citizens living in the EU 27. Many face difficulties in getting their residence finalised in an EU country but a lot are also very worried that they are losing their ability to work across borders. The fact is that nothing can be as good as EU free movement. The same applies to the security partnership —nothing is as good as EU membership. Therefore, we are trying to approximate as far as possible what we have at the moment, even though it falls short of that, but a key point is encapsulated in the final words of the amendment, which are:
“including the ability while resident in one state to work with ease across borders.”
My other point concerns pensions, pension uprating and healthcare arrangements, which are absolutely crucial to UK citizens in the EU 27. This is hugely important for the UK economy and for individuals—whether they are EU citizens or, perhaps even more, UK citizens resident here and resident in the EU 27 —who need to be able to move around where their work takes them.
Baroness Bennett of Manor Castle
My Lords, the noble Lord, Lord Fox, used a few key words when he quoted from the respected committee. This is a regression. This is going backwards for the people of the United Kingdom. Far too often, this has been seen as an issue that concerns people from other parts of Europe coming here. We need to look at this the other way around, and far too little has been discussed about that. When this issue has been discussed, it has often been seen as an economic issue. The noble Lord, Lord Fox, made some powerful arguments about that. But the fact is that this is much more than an economic issue. The noble Lord, Lord Warner, made arguments about the NHS. Of course, we know that if you meet an EU citizen in the NHS, they are far more likely not to be in a queue with you seeking treatment but to be treating you.
I will focus very briefly on young people. There is a principle that young people should not have fewer freedoms and opportunities than their parents. They should be able to live, work and love wherever they want to be. It is a quality issue, because rich, wealthier young people from more privileged backgrounds will always have those options; it will be people from poorer and more disadvantaged backgrounds who will lose those options. The noble Baroness, Lady Ludford, talked about where we are going. What we are trying to do here—collectively, all of us—is to end up with the least worst Brexit, and the best possible mobility that we can have will ensure the least worst Brexit.
Lord Callanan
My Lords, I thank the noble Lord, Lord Fox, for his amendment and for raising the important subject of a mobility framework. I also thank the noble Earl, Lord Clancarty, the noble Lord, Lord Warner, my main interlocutors, the noble Baronesses, Lady Ludford and Lady Hayter, and the noble Baroness, Lady Bennett, for their contributions.
We are all aware that free movement of people between the EU and the UK will end as we leave the European Union. I am sure that noble Lords will appreciate—even if they do not necessarily agree—that seeking to mandate the Government to negotiate further free movement provisions goes against our entire approach. As we have previously announced, the Government will be introducing a new points-based immigration system built around the skills and talents that people have, not necessarily based just on where they are from.
I appreciate the desire to secure rights to travel, work, study and live in the EU in the future. We recognise the importance of mobility for economic, social and cultural co-operation, and we committed to agreeing the best deal for the whole of the United Kingdom. The political declaration that we have agreed sets out the aspects of mobility that the UK and the EU have committed to discussing in the future-relationship negotiations. These include: providing for visa-free travel for short-term stays; mobility for research, study, training and youth exchanges, and securing mobility for business purposes.
The noble Lord’s inclusion of the right to work across borders is well intentioned, but in our view unnecessary. The agreements that we have reached on citizens’ rights with the EU, EEA/EFTA countries and Switzerland protect the rights of these so-called frontier workers. These are UK nationals who are living in the UK or a member state but are working in another member state, or EU citizens living in the EU and working in the UK. That will take effect at the end of the implementation period.
For example, this will protect an individual who lives in London but works in Paris or Brussels, and vice versa. I hope that I have been able to reassure the noble Lord on this point. However, as we have argued in other amendments, in this situation it is not helpful for Parliament to set a negotiating objective for the Government in statute. This would limit the Government’s flexibility in negotiations and, as I said, the detail of future mobility arrangements with the EU is set out in the political declaration and will be discussed in the next phase of the negotiations.
The noble Baronesses, Lady Hayter and Lady Ludford, raised the important subject of the onward-movement rights of UK nationals in the EU. We recognised at the outset that this was a vital subject for those UK nationals who are living in the EU. I have to tell both noble Baronesses that we tried very hard to get it included in the negotiations, but the EU refused to discuss it in the withdrawal agreement and said that it was an issue to be discussed in the future relationship negotiations—so that is what we will do. I assure noble Lords that we tried very hard to get it included in the negotiations, and it was not for the lack of trying on our side that we were not able to conclude an agreement on that. On that basis, the details of future mobility arrangements will be subject to negotiations in the next phase of the talks.
I hope that I have been able to satisfy the noble Lord, Lord Fox, with my response to his amendment—although I suspect that I have not—and that he will feel able to withdraw it.
Lord Fox
I thank the Minister for his response. Frankly, I had not expected a great melding of minds. It is clear that from these Benches, and seemingly from all the other Benches, that we think the Government are wrong on this. The Government of course have a majority and therefore have the right to pursue their wrong-headed policies, but there will be many of us who will continue to remind them of, and take opportunities to change, that wrongness. As time unfolds and the Government begin to attempt to implement a complex points-based system, as they call it, they will find that they have neither the personnel nor the systems to do so quickly, and pretty soon they will find that we are accessing and bringing in at least as many people as we are now, if not more. Personally, I welcome that, but it stands against many of the things that the Government have said in the past. That said, I beg leave at this stage to withdraw the amendment.
“Implementation period negotiating objectives: level playing-field
(1) It is an objective of Her Majesty’s Government within the framework of the future relationship of the United Kingdom and the EU to secure agreements that achieve the following outcomes—(a) close alignment with the EU single market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution; (b) dynamic alignment on rights and protections for workers, consumers and the environment so that UK standards at least keep pace with evolving standards across the EU as a minimum; and(c) participation in EU agencies and funding programmes, including for the environment, education, science and industrial regulation.(2) A Minister of the Crown must lay before each House of Parliament a progress report on each of the outcomes listed in subsection (1)(a) to (c) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek close alignment with the EU single market on key level playing-field provisions such as workers’ rights and environmental and consumer standards and protections as part of its negotiations for the future relationship with the EU.
Lord Fox
Oh dear, it’s that man again. Amendment 35 concerns the level playing field. We have heard a lot about standards and regulation over the last day and a half. This is not about going through all those standards and regulations and whether they are being regressed or otherwise. It is about the overall effect that the playing field, as we have called it—we will talk about that—will have on the negotiation stance. This is very much a probing amendment to try to find out how the Government will deal with what seem to me a number of conflicting circumstances in their positions.
We have heard a lot about regression but we are not going to talk about the individual issues here. Amendment 35 seeks to require the Government—those words again—to seek alignment of their regulations, institutions and objectives for the future FTA with the EU. My noble friend Lord Newby talked about whether we are talking about unfettered or frictionless access. A key element to access to the single market will be the level playing field, which is why this is a really important element. I am keen to hear the Government’s intellectual thoughts here. For the avoidance of doubt, we are talking about workers’ rights, environmental regulations, state aid, food and product safety, data rules and the whole framework by which people do business and live their lives. It is not a small issue. Picking out just one of those—employment regulation—I note with surprise that the Prime Minister is quoted in the Financial Times as describing employment regulation as “back-breaking”. I come from an agricultural background and it was the absence of employment regulation that caused backs to break. The point I am trying to make is that regulation is often seen as harmful and terrible, but it has had a beneficial effect on many people’s lives. You have only to ask agricultural workers alive today to see how employment regulation has improved their lives. That is just one small example.
These rules matter to people, the environment, business and many other things. But they will also matter to the EU trade negotiation; in fact, they will make or break it. The non-binding political declaration on the future EU-UK relationship makes it clear that there is a direct link between Britain’s regulatory regime and market access; we know that to be true. That is picked up in the wonderful report from the European Union Select Committee, which I have already referred to. It talks about where there has been a substantial rewrite, which we have heard about in other cases. The report says that the declaration, in adding the issue of the
“geographic proximity and economic independence of the parties,”
adds more doubt about how this will go forward.
In the event that the EU eventually agrees to a UK-wide customs union, which it may, member states will require the UK to sign up to level playing field provisions. What is a level playing field? Most people who talk about them are usually trying to tip one in their direction at the same time; that is of course the subject of the negotiation, and I would not dream of seeking to tie the hands of the Government on that. By the definition of the negotiation, a level playing field is the price of any zero-tariff, quota-free and rules-of-origin-free access to that very important market for the United Kingdom. Anything less will create friction, or perhaps fetter access to that market. That is what our major industries fear. If noble Lords talk to major industries, as I am sure they are doing, they will hear that the issue of data, which we heard about two amendments ago, is frightening the fintech industry to death. Questions about rules of origin are frightening the food industry. Chemical and pharmaceutical companies fear, among other things, how the chemical regulations will pan out. Aerospace and automotive are famously concerned about how their industries will survive in this remit.
There are many other examples of when the Government and Ministers have said the right things—I praise them for that. The Government have worked with the words and talked about balance and regulatory alignment. However, the noble Baroness, Lady Jones of Whitchurch, talked about the pressures on the Government that will come. There are also examples of the Government painting a picture of a much more freewheeling approach. We have heard people worrying in other debates about regression of rules and regulations and there are those quotes from different Ministers in different places, particularly the Prime Minister, who sometimes chooses to set out a Britain on the edge of Europe, with lighter regulations. Before the election, DExEU signalled an openness to “significant divergence”. This all adds to people’s distrust of the Government’s intentions.
In Johnson’s case, his ambivalence seems determined by his proximity to the United States: the nearer he is to President Trump, the more free market he is in what he says. We should note that talk of the US trade deal really makes the level playing field issue with respect to the European Union very difficult. We talked on a previous amendment about some of the food security issues which the United States could create, so there is a big challenge here. These mixed messages from Government could be constructive ambivalence before we go into a negotiating period, or there could be splits or confusion. Perhaps the Minister can define quite why all these different messages are coming forward.
From the EU’s perspective, there is no such thing as a little bit of a level playing field. From its perspective, it is level or not level. I think a lot of the talk has been about having some levelness, but not all of it. I think that is to misunderstand the approach that the European Union will take when it comes to negotiations. Theresa May’s deal agreed a relatively generous level of provisions around taxation, labour and social standards and environmental protection. We are now in a different place, so I think we need some delineation from the Minister of which areas will be the focus for negotiations because I am sure that those Theresa May provisions will be, at the very least, a starting point from the European Union’s perspective.
Viscount Trenchard
My Lords, the noble Lord, Lord Fox, has talked at great length about a level playing field. The level playing field he refers to is the EU level playing field. It is not any other level playing field, such as the House of Lords level playing field, which seems to suit the Liberal Democrats, who are overrepresented in your Lordships’ House by 67% on the basis of the proportion of votes cast at the last general election.
Viscount Trenchard
That is my pleasure. Proportional representation has its place but it may not be applicable everywhere.
I am very surprised that the noble Lord has sought to require the Government to adopt his amendment seeking a level playing field with the EU on workers’ rights and environmental and consumer standards. Is he not aware that it was a manifesto commitment of the Conservative Party, to which all Conservative candidates signed up, that the Government would get a proper Brexit done and that we would leave the customs union and the single market? It is essential that we do that to have the flexibility we need to develop and maintain our own independent trade policy, and to negotiate free trade agreements with third countries.
The noble Lord’s amendment requires close alignment with the EU single market, underpinned by shared institutions and obligations. “Shared institutions” sounds to me as though we could still be regulated by EU regulators even after we had left. The EU will seek to export its regulatory framework and standards to us in return for providing market access. Dynamic alignment on workers’ and consumers’ rights would completely subjugate us to the EU, ruling us out as a potential trade partner for others and denying us the benefits and upside of Brexit. We know that the noble Lord does not want to leave the EU but surely he understands that, given that Brexit is going to happen anyway, we should make sure that we can play on a level playing field at the global level. That means freeing ourselves from EU strictures, such as the noble Lord’s amendment would make worse.
Lord Warner
I am sorry to interrupt the noble Viscount’s flow but I cannot resist asking him, even at this time of night, whether the Prime Minister’s new best friends in constituencies in the north of England and the Midlands will welcome his robust approach to workers’ rights at the next election.
Viscount Trenchard
I believe that the policy which my right honourable friend the Prime Minister used to persuade his new supporters in the north of England and elsewhere to support is one that will produce more prosperity for the United Kingdom and a brighter future for all, and that those who voted for him in the north of England will see that it is in their interests to continue to vote for him and his successors, because his policy will have so clearly worked. Furthermore, since we will be free of the cash drain and the regulatory strictures of the EU, which have progressively stunted the United Kingdom’s voice in global fora—I speak as someone who has spent a large proportion of his working life outside the UK, looking in—the new supporters of the Conservative Party in the north will, I hope and trust, wish to continue to support it.
The noble Lord, Lord Fox, talked a lot about regression and standards. He is always trying to bind the Government not to resile or retreat from the high standards set by the EU. But standards are not about high and low; they are about what is proportionate, what properly balances the interests of the innovator with those of the consumer, and what sufficiently but properly protects the consumer against risk. EU regulation in many fields relies so much on the precautionary principle that it has a very negative effect on innovation. That places at risk the UK’s position as the best country in the world in which to conduct medical and scientific innovation, so for all those reasons I would resist the noble Lord’s amendment.
Baroness Ludford
Before the noble Viscount sits down, can I point out that the reputation he just mentioned, as the greatest country in the world in which to develop medical and other research, has been acquired while we have been in the European Union?
Viscount Trenchard
The noble Baroness is quite right—it is in spite of our being in the European Union. This precautionary principle regulation increasingly affects international pharmaceutical companies, which have said to me that it is important that we should not allow much more of that or we will be a less friendly place for innovation.
Baroness Hayter of Kentish Town
My Lords, I do not know about this talk of workers’ rights, but I started at 11 this morning, it is now nearly 10 pm and we are starting again at 11 tomorrow morning—sadly not being paid to be here; I am not a worker, so I cannot use the EU regulations. But that is rather beside the point. I am looking forward to the Minister’s “intellectual thoughts” as the noble Lord, Lord Fox, asked of him.
The Government’s aim is for a free trade agreement—“unfettered” trade—which, if we are not to undercut our competitors across the EU, is bound to involve a level playing field of regulations and state aid rules, as the noble Lord, Lord Fox, said. Michel Barnier has repeatedly stated that Boris Johnson’s ambition of a tariff-free, quota-free deal hinges on accepting this, and EU leaders suggest that level-playing-field commitments will be a precondition for the EU to conclude a free trade agreement. Emmanuel Macron has stated that
“the more ambitious the agreement, the more substantial the regulatory alignment”.
That does not mean all the same rules and institutions—we do not go along with that—but this is about the rules by which we can trade with the EU. Macron also said that a level playing field will make the negotiations “go pretty quickly”.
As we know, the Prime Minister keeps saying “Get Brexit done”, but this also means getting an FTA before the end of the year. If we do not uphold workers’, consumers’ and environmental rights, this will not help the Prime Minister to get his Brexit done. Appearing willing to undermine EU standards—and the Government are seen as undermining them—will immediately indicate to the EU that its companies may face unfair competition from ours. The Government’s deletion of the clauses upholding existing rights has already alarmed the EU and companies there, let alone our own workers and consumers.
Amendment 35 inserts the aims already set out in the political declaration—though of course they are not enforceable in that—where the Government agreed to
“maintain environmental, social and employment standards at the current high levels provided by the existing common standards.”
We are asking for this, from the political declaration, to be included in the Bill.
We have had 45 years of progressive integration of our employment rights and other standards alongside the EU. These regulations are good in themselves for the workers and consumers concerned and for the environment, but they are crucial for an open, fair and competitive continental market on whose growth and resilience all our well-being depends. Furthermore, as has been suggested, any future trade deal must incorporate these high levels of alignment and a level playing field with the EU in order to prevent an alternative vision—the deregulatory US deal—taking primacy over the EU deal. It sounds as though that it is something the noble Viscount, Lord Trenchard, would like, but we on this side of the House would not. Let us keep to the high standards that we have.
Lord Callanan
My Lords, I first thank the noble Lord, Lord Fox, for so ably moving his amendment on the issue of close and dynamic alignment on single market rules. I have a sense of déjà vu, because we have of course discussed this subject many times, both during the passage of the previous EU withdrawal Bill and in many debates and Questions in this House. I will probably not surprise him with my answer but I will nevertheless plough ahead with it anyway.
It will, I am sure, not come as a shock to the noble Lord to find that the Government cannot support his proposed new clause in Amendment 35, for the reasons that I will set out. I will say, before that, that we want an ambitious future economic partnership with the EU, one that allows us to be in control of our own laws and benefit from trade with other countries around the world. Adopting his amendment would prevent that. We do not believe that dynamic alignment with future EU rules is in the best interests of this country. It is here in this Parliament, not in Brussels, where decisions should be taken over the laws that govern our country. That is the very essence of taking back control. This view is supported by many of the leading experts in the field, including the Governor of the Bank of England, who recently said in the Financial Times:
“It is not desirable at all to align our approaches, to tie our hands and to outsource regulation and effectively supervision of the world’s leading complex financial system to another jurisdiction.”
Lord Fox
I thank the Minister for his response and noble Lords for their contributions. Whenever I have a feeling of self-doubt, I have only to listen to the noble Viscount, Lord Trenchard, to cure it and I feel a lot better afterwards.
The Minister talks brilliantly on the Government’s regulatory approach, saying that we do not need to follow EU rules to achieve this. That would be true had the Government not done the deal they did on Northern Ireland. That is the point I am making about the internal tension within the regulatory scene in that negotiation. That is his problem and we will be following it very closely. I will read the Minister’s response in Hansard and inwardly digest it, but in the meantime, I beg leave to withdraw the amendment.
Baroness Brinton
“UK participation in the European medicines regulatory network
(1) It is the objective of an appropriate authority to take all necessary steps to implement an international trade agreement, which enables the United Kingdom to participate fully after IP completion day in the European medicines regulatory network partnership between the EU, the EEA and the European Medicines Agency.(2) A Minister of the Crown must lay before each House of Parliament a progress report on the objective in subsection (1) within 4 months of this Act being passed, and subsequently at intervals of no more than 2 months.”Member’s explanatory statement
This new Clause would require the Government to seek to maintain participation in the European medicines regulatory network as part of its negotiations for the future relationship with the EU.
Baroness Brinton (LD)
My Lords, I am moving Amendment 36 as my noble friend Lady Jolly cannot be in her place tonight, given that the arrangements for today changed at very short notice. I thank the noble Lords, Lord Warner and Lord Davies of Stamford, for supporting the amendment.
As a member of the European medicines regulatory network, the UK enjoys a wide range of benefits, including access to a vast network of expertise and the ability to draw on specialists from across member states. It is particularly important in the recruitment of participants for clinical trials, especially for rare diseases. As a lone state we would not have a large enough patient population to carry out meaningful research and produce meaningful evidence. Within the EMRN, the shared reporting of side-effects means that NHS clinicians have instant access to important data regarding the safety of medicines they prescribe to their patients. These benefits cannot be recreated outside this network and if we are to continue to benefit from them, the Government must negotiate continued participation following the UK’s departure from the European Union.
The European Medicines Agency has already relocated to Amsterdam. If we leave the EMRN we will be leaving a body that constitutes 25% of the global pharmaceutical market to be a stand-alone country that makes up only 3% of that market. Pharmaceutical companies will have to submit separate applications to the MHRA to gain UK marketing rights. Evidence shows that countries such as Switzerland, Canada and Australia all receive applications for drug licensing after the EMA, with an average delay of six months. The sad fact is that the UK will not be seen as a priority, and patients will inevitably see delays in accessing new medicines.
There is no way for the Government to replicate the expertise of the EMA and the power of the single market. Therefore, it is essential that the Minister commit to the UK negotiating the MHRA’s full participation in the EMA marketing authorisation on a similar basis to EEA countries’ regulators. Will the Minister confirm that the Government will commit to making this a priority in negotiations? The United Kingdom’s departure from the EMA will damage patients in the UK, who will be collateral damage of our leaving the EU. This is not something that the UK public ever voted for.
Given the discussion on Amendment 34 on more general reciprocal rights, I ask the Minister a further question, of which I have given her advance notice, on the lack of mention of reciprocal health arrangements after leaving the EU. The European Union Committee report, Brexit: the Revised Withdrawal Agreement and Political Agreement, which came out on Friday, notes the lack of any mention of reciprocal health arrangements and says, in the section on mobility on pages 56-57, that clarity is needed on how this will work. Specifically, paragraph 252 says:
“There is no reference in this section of the Declaration to reciprocal healthcare”.
Paragraph 257 says, in bold type:
“We are concerned at the omission of any reference to reciprocal healthcare, including the European Health Insurance Card, as a means of facilitating mobility. We call on the Government to set out, as a matter of urgency, its plans for maintaining reciprocal healthcare arrangements in the context of the future relationship.”
In paragraphs 173 and 174 there is also specific reference to reciprocal healthcare in Northern Ireland and the Republic. I will not repeat it now, but it makes the point that that is vital.
Can the Minister explain why there is no mention of reciprocal healthcare in the Bill and confirm explicitly to the House that the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which many of us worked on, provides for such reciprocal arrangements? Perhaps most importantly, can she confirm that the Government will stand by that Act and not amend or repeal it? I beg to move.
Lord Warner
My Lords, I support this amendment, to which I have given my name, which has been moved so clearly by the noble Baroness, Lady Brinton. I do so as a former Life Sciences and Pharmaceuticals Minister who has stayed in touch with this sector since my time as a Minister.
The UK life sciences ecosystem has thrived, with an EU pharmaceuticals regulator based in this country and a strong medicines research base working closely with other European researchers. Over the years a strong pan-European research collaboration has grown up, which has benefited UK jobs and NHS patients. Every month, 45 million packs of medicines move from the UK to the EU and 37 million packs come the other way. The pharmaceuticals sector invests more in R&D than any other—20% of all UK business R&D. This is an industry with an annual turnover of £60 billion and exports of £30 billion. It employs 63,000 people, of whom 24,000 are working in high-paid jobs in R&D.
I say this because all of this is now at risk of lasting damage, particularly if there is not enough time to agree a well thought out deal during the transition period. There is now the prospect of a very clunky regulatory system, with companies having to deal with two regulators—the EMEA and the MHRA—if they want market authorisations in both the EU and the UK. The Government are saying that they want the UK market authorisations to be obtained first, but the EU is the bigger market and some companies think that they may end up with shorter IP protection in the larger market if they do what the Government ask. A dual regulatory system is likely to mean higher costs, driving up NHS prices and damaging patient access to new drugs. It will mean fewer joint research projects benefiting from EU funds, and UK-based companies are less likely to find the UK Government replacing the lost R&D funds from the EU. Over time, we may well see fewer clinical trials being done in the UK.
That is why this amendment is important. It offers the possibility of repairing some of the damage done by Brexit to UK life sciences and UK-based pharmaceuticals and biotech companies. We need to do our utmost to restore some basis for extensive collaboration and research work between us and the EU in the life sciences, and we need to do the best we can to make the regulatory processes as smooth as possible if we want people to continue to do pharmaceuticals research in this country. The Government have been slow to appreciate the damage they have been doing over the last three years to this British success story. Passing this amendment would start to repair some of the damage.
Lord Davies of Stamford
My Lords, my two colleagues have made a powerful case for the European Medicines Agency. They are perfectly right. The consequences of getting rid of it—of leaving the EU structure—are very serious. There are two parties involved in any introduction of a new ethical compound to the market. One is a pharmaceutical major—and by “major” I mean household names that the House will be familiar with: Pfizer, Merck, Eli Lilly, AstraZeneca, Glaxo, Boehringer, Bayer, Sanofi, Roche—I have left out two or three and a couple of Japanese ones, but you can count them on the fingers of three hands or so. The second is a regulatory agency that provides registration, which is of course the key to licensing, prescribing and selling freely a drug in the jurisdiction concerned.
Baroness Thornton (Lab)
My Lords, let me say how much I welcome the amendment moved by the noble Baroness, Lady Brinton.
When I had the temerity to raise this issue and all the others raised by the noble Baroness on Monday at Second Reading, I sought information and assurance on a range of healthcare matters. I think we can say that I got the bum’s rush from the Minister when he answered my questions. In fact, he did not answer them at all. I hope we might fare better this evening.
The medical research sector has been clear that continued close co-operation should be a priority in the negotiations. Indeed, the Government have recognised the international nature of the life sciences sector. They are committed to aligning as closely as possible with the European Union clinical trial regulation when it comes into effect, safeguarding vital UK-EU clinical trials. Indeed, the political declaration also refers to continued co-operation with the European Medicines Agency, which would help ensure that patients in the UK have swift access to the newest medicine. However, the political declaration has no legal standing, so the noble Baroness, Lady Brinton, is quite right to repeat in the Committee the concerns expressed by the European Union Committee. As it stands at the moment, we cannot see that the European Medicines Agency will continue to benefit patients in the UK.
For some treatments, those of rare diseases, a single authorisation at EU level is vital in providing for cost-effective licensing and distribution of medicines for small populations. If the UK is outside the EU market and companies are required to pay again for separate MHRA licensing, as well as an appraisal by NICE and equivalent bodies in the devolved nations, there must be real concern that some treatments for rare diseases may become not financially viable to launch in the UK, therefore risking patient access entirely.
I know that the Minister absolutely understands all this, so it is very important that she reassures the Committee that these issues will not just be taken into account but will be part of the negotiations and will be successful.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)
My Lords, I welcome the opportunity to discuss this important issue, and I thank all noble Lords for their, as always, thoughtful and expert contributions. During the Government’s preparations for EU exit, this House has discussed on a number of occasions the great value of the UK’s life sciences industry and the importance of ensuring that it remains—as the noble Lord, Lord Warner, rightly said—one of the most productive health and life sciences sectors in the world. As noble Lords will know, this sector alone contributes over £74 billion a year to the UK economy and employs close to 250,000 people. I contest the argument that it has recently been damaged. A report just today shows our leading position in cell and gene therapies, in which ongoing UK trials represent 12% of global trials and have increased by over 45% in the last year alone. That is in the context of Brexit.
The Committee is right that this is a crucial sector to the delivery of healthcare treatments to patients across the UK and will continue to be so in future. We must get this right. I assure noble Lords that the quality and safety of patient care is paramount in the department’s and our partners’ EU exit plans. This has been visible in our extensive efforts and preparations to ensure that the supply of medicines and medical products into the UK remains uninterrupted following the UK’s departure from the EU. This led to the department’s multilayered approach to put in place in the case of a no-deal exit from the EU. It was a substantial approach, which included work to procure additional freight capacity and to ensure buffer stocks and stockpiling; working closely with industry to improve trader readiness; and collectively helping to ensure visibility in the supply chain and, therefore, much more robustly ensuring continuity of supply processes.
While no-deal planning has been stood down, there is no question but that this work will stand us in good stead going forward, given the strategic importance of the supply of medicines and medical products in all scenarios—as the noble Lord, Lord Warner, pointed out. In fact, we are finding that the learning from this work is already helping us to better manage routine shortages, which are becoming increasingly common globally.
During our preparations for EU exit, we have at all times worked closely with our delivery partners. We are committed to doing so in future. Their support, expertise and hard work have been invaluable and will remain so as we enter the next stage of negotiations.
Turning to the amendment moved by the noble Baroness, I hope noble Lords will understand that we cannot accept this proposed new clause. The amendment was originally proposed in the other place and was not accepted there. I do not want to impute motive, but following debate, the sponsor in the other place chose not to move his version of the amendment to a vote there.
I wish to reassure the Committee on some of the questions raised, because it remains our objective to work closely with our EU friends, as we do at present, to ensure that patients continue to have access to safe and effective medicines and reap the rewards of our new relationship with the EU. Our overarching aim for medicines and medical devices regulations at the end of the implementation period is underpinned by the following commitments, which I have given before: patients should not be disadvantaged, which speaks to questions raised around rare diseases in particular; innovators should be able to get products to the UK market as quickly as possible; and the UK should continue to play a leading role in promoting the health of the public. We are in a better position than some of the countries—
Lord Davies of Stamford
All this is fine PR speak. All these principles sound splendid, but what are the Government actually going to do? The answer cannot be simply, “We will stay close to the European Medicines Agency.” Does that mean that we will leave that agency, not leave it or have some new, structured relationship with it?
Baroness Blackwood of North Oxford
As always, the noble Lord gets to the point. As my noble friend Lord Callanan said, the exact relationship with agencies will be subject to negotiation. I have set out the core principles which will be part of our negotiation, and I would also point out the key assets which we bring to the table. The MHRA has real expertise in many areas —licensing of medicines, pharmacovigilance, clinical trials regulation—and already provides benefits to patients across the UK and the EU.
Regarding the points on clinical trials, raised by the noble Baroness, Lady Brinton, as part of EU exit negotiations, we are working to ensure that we will continue to have the best possible environment to support clinical trials. Our overall aim is to ensure not only that patients in the UK have access to the best and most innovative medicines but that we improve UK trials applications—so that they continue to be authorised by the MHRA and ethics committees, as they are now—and that the UK’s ability to participate in multinational trials will not change. We will also have a simpler way of allowing a single application to a single national decision in the UK, which we have been working on very hard.
The Government have set out the key principles of the UK’s negotiations with the EU in their manifesto, and as part of the political declaration. However, as has been said this evening in response to similar amendments, a statutory negotiating objective in primary legislation, as proposed in this amendment, is neither necessary nor the constitutional norm. We cannot accept a statutory reporting requirement either, but the Government will support this House in fulfilling its crucial role of scrutinising the actions of the UK Government during negotiations. The Prime Minister committed at Second Reading in the other place that Parliament will be kept fully informed of the progress of these negotiations. We will have many challenging and robust debates in this place as well, where your Lordships will hold us fully to account on the progress of those negotiations with the EU.
It is important to note that our approach to negotiations with the EU in this area is set out in the political declaration and the Government’s mandate, but this is only one part of our overall support for the life sciences sector. This commitment is also clearly demonstrated through the medicines and medical devices Bill, which was published in the Queen’s Speech and which we will have a lot of debate about in this place. The Bill is to ensure that the UK remains competitive and at the cutting edge of innovation, to the benefit of patients. I look forward to discussing those provisions with the House later this year. I hope that I have reassured the noble Baroness on the Government’s intentions, and on how we intend to take this forward, and on that basis I urge her to withdraw her amendment.
Baroness Brinton
Before the Minister sits down, may I tell her that I passed my question about reciprocal healthcare through to the Whips Office? I also asked in my speech whether the Healthcare (European Economic Area and Switzerland Arrangements) Act would remain in place unamended, which would reassure the EU Committee on its concerns at the fact that there is no mention of reciprocal health rights anywhere in the withdrawal agreement.
Baroness Blackwood of North Oxford
I apologise to the noble Baroness; I passed over that note in my response to the debate. Where the UK, a member state, an EEA or EFTA state or Switzerland is responsible for the healthcare of those in scope of the social security co-ordination part of the agreement, such individuals will be entitled to reciprocal healthcare cover from their competent country. This includes EHIC cover for people with full social security co-ordination rights under the agreements, and cover for people who have previously worked in the UK, another member state, an EEA or EFTA state or Switzerland before the end of the implementation period. Obviously, the specifics in future will be subject to the negotiations that will be forthcoming. I hope that that answers the noble Baroness’s question, and she will feel that she can withdraw her amendment.
Baroness Brinton
I am grateful to the Minister for her comments, and to other colleagues for their contributions. I am particularly grateful to the noble Lords, Lord Warner and Lord Davies, for their expertise, and especially for the intervention by the noble Lord, Lord Davies. The Minister is always courteous, and always gives us her best brief, but I am not reassured at all on the issue of the EMRN, partly because. although there was plenty of talk about trying to maintain the excellence in life sciences, there was no response to the question of how, with only 3% of the pharma market, we would be able to play the same role as we currently do in the EU, with 25%. There was also a complete failure to respond to the major concerns that everybody expressed about patients not being able to access drugs because we suddenly become a very minor player. On that basis, I will withdraw my amendment this evening, but I will consider whether to lay something for Report.
On the other matter, concerning reciprocal healthcare, again, I am not quite as positive as I think the Minister would like me to be. I remain concerned that the phrase “no-deal planning” was mentioned in the context of both parts of my speech. We on this side are concerned about the impact on UK citizens abroad, and on EU citizens here, of the loss of reciprocal healthcare arrangements. That is really worrying. But I am pleased to hear that there is some reliance, at least in the transition period, on the healthcare arrangements Act. I beg leave to withdraw the amendment.