European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment, which would put in statutory form what has grown into an important convention. I would like clarification, which I failed to get in yesterday’s debate, regarding the breadth of the convention. I asked a specific question:

“will the Minister clarify and emphasise that legislative consent would normally be required for any regulation that would be brought in under this Act?”—[Official Report, 20/1/20; col. 958.]

I was referring in particular to Clause 21.

As I did not get satisfaction from the Minister’s reply, I repeated my question later, saying:

“I might be a slow learner, but, following the point made by the noble and learned Lord, Lord Thomas, I would like to know which specific points cannot be dealt with by a Section 109 order.”


A Section 109 order would be a consensual matter, as opposed to one imposed from Westminster. The Minister replied:

“I cannot give the noble and learned Lord the answer to that question, but I can give him the assurance, from speaking to my legal advisers, that in the negotiations that will unfold there will be areas that we think will be under discussion that might stand outside those areas I have touched on regarding Section 109 and the ability to direct Welsh Ministers.”—[Official Report, 20/1/20; col. 964.]


Perhaps now, after some more thought, the Front Bench can give the clarification that I required on how, from the viewpoint of Her Majesty’s Government, the convention would be implemented.

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken about devolution, I have made many points and will not repeat them. However, it is important that the Government do not misinterpret the vote to leave the EU on the back of the slogan of “taking back control” as a vote for yet more concentration of power in the hands of people who work within a mile or so of this building. People want a sense of direct influence over their lives and things that really matter to them.

The amendment simply supports the status quo of the Sewel convention. It respects the relationship between Westminster, the Scottish Parliament and the Senedd. I urge the Government to recognise that it does nothing to constrain their agility in negotiating or their ability to negotiate. If the culture change that the noble Lord, Lord Howarth, spoke about so eloquently today is to happen, surely we must recognise that there are Governments other than the one in this Chamber and at the other end of this building.

[Lord Hope of Craighead (CB)]

My Lords, I should like to reply to the point made by the noble Duke, the Duke of Montrose. I think he suggested that the inclusion of this amendment in the Bill would render the convention justiciable, and that there was something about it that would attract the attention of the judiciary. I have lived with the Sewel convention for a very long time, particularly with the amendment to the Scotland Act, now enshrined in Section 28(8). One of the points made by the Smith commission was that it wanted the Sewel convention to be given statutory effect. I am afraid that that battle was lost because, as Section 28(8) of the Scotland Act puts it, it remains a convention. Indeed, it was made perfectly clear by the Supreme Court when it considered the matter that it is not justiciable; it is simply a convention.

For my part—having, as I say, lived with the convention repeatedly through the 1918 Act—I relied on assurances by Ministers that they would respect the convention. It was not actually written into the Act, as I recall. So, for my part, I shall listen very carefully to what the Minister has to say, because in the past this has been handled by Ministers giving assurances that the House has respected. I am not certain that it is necessary to write it in in this way, but if I do not get that kind of assurance, I might go with the amendment. The words that the Minister uses will be extremely important to me in deciding what to do.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[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.

European Union (Withdrawal Agreement) Bill

Baroness Finlay of Llandaff Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, thank you for allowing me to speak in the gap.

Wales voted to leave. In respecting that, we must maintain the coherence and cohesion of the union and avoid unintended consequences as negotiations progress and in the future. The devolution settlements are in primary legislation, and Wales, having supported Brexit, must not feel that the Government of Wales Act is threatened.

Negotiations which will have a huge impact on devolved policies and functions cannot be conducted without some meaningful involvement of the Senedd and the Welsh Government. It is not about vetoes; it is about real consultation. The Minister kindly met me recently, yet without reassurances to the Welsh Government on these key issues, there is a serious risk of a constitutional crisis if the legislative consent Motion is declined.

The maiden speeches that we heard today were both memorable. We ignore our populations and their devolved Governments at our peril.

Queen’s Speech

Baroness Finlay of Llandaff Excerpts

Wednesday 16th October 2019 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, it is humbling to be here, and the speeches in this debate so far have set a high bar. First, I want to address our ethical duty on the world stage in trade deals that we may enter into, and also ask how the Government will fulfil their obligations at home with the devolved nations over trade.

Yesterday was World Bioethics Day—I declare an interest as an instigator of this UNESCO day—which has taken off around the Commonwealth precisely in large part through the influence that we have globally in health sciences. But will future trade agreements live up to the standards that we have set, or will we fudge dropping standards in making trade deals, as my noble friends Lady Cox and Lord Hylton, and the noble Baroness, Lady Tonge, raised yesterday? One area is organ donation—no, we do not trade in human tissue. At home, Wales has led on opt-out organ donation, or soft presumed consent, and England and Scotland are following. We have set an international standard and we export our expertise and our training of transplant teams.

The Commonwealth Games will be an important launch pad for working with other countries in the Commonwealth on ethical practice. With India, a memorandum of understanding is in place between the MOHAN Foundation and NHS Blood and Transplant, but it needs to be expanded to those countries with poor or non-existent transplant practices. But it is not always easy to know what is going on further afield. There is alarming circumstantial evidence that some places with whom we have massive trading arrangements still have very worrying approaches to transplantation, including using taken—so-called “harvested”—organs from prisoners, including prisoners of conscience.

We trade with countries that still have the death penalty, and with countries whose respect for human life is deeply questionable, but we must not sink to their level. Why do we do so little when our loyal Kurdish allies and their babies and children are deliberately injured and killed? We must maintain and drive up ethical standards because, if we do not, we compromise our own civilisation standards. Others have already referred to our need, as the gracious Speech stated, to play a role in global affairs, defending our interests and promoting our values. When those values slip, we lose all moral authority.

We expect our Armed Forces to act based on that moral authority. We claim to maintain respect for human rights and values, and to do that we send our forces into terrible situations. They are young, and trained to be physically strong and react quickly, and many are deeply traumatised. When they return, they may have been injured physically, mentally or both. Thrown back into civvy street, some do not survive the stresses and end up with broken relationships, self-medicating with alcohol or other substances or escaping with gambling and so on.

For anyone in the country convicted of an alcohol-fuelled crime, the announced rollout of the sobriety scheme is very important and to be welcomed. It will be a fundamental plank in supportive rehabilitation, rather than compounding trauma with a prison sentence that is devoid of services that help the person tackle the underlying issues driving their behaviour. Amendment to legislation in 2011 to pilot the sobriety scheme has shown great success, with 92% fully compliant with the sentence and remaining in the community to address their underlying problems, free of the mind-clouding damage of alcohol.

The British Crime Survey shows that, year on year, alcohol-fuelled crime accounts for 40% to 60% of all violent crime. Overall, the economic cost of alcohol-related harm was £20.5 billion last year. Our hospital emergency departments are overflowing, and half are in crisis, yet our Brexit obsession has resulted in around one-third of our European doctors leaving or planning to leave, further exacerbating the workforce crisis. Yes, Brexit is breaking the NHS. More money and hospital beds are greatly needed—but the NHS also needs staffing. I caution against thinking simply that a revision of the Mental Health Act or other legislation will result in better care. The Treasury has to realise the damage to clinical care that has already happened in the last two years because of the pension cap change.

There are several major issues over trade that affect the devolved nations, particularly Wales. First, can the Minister explain how the business support project Kingfisher will provide support and funding specifically for Wales, and in particular how business sectors specific to Wales will be taken into account and not neglected? Secondly, how will the needs of vulnerable people be considered in a discretionary system that can provide benefits at a secondary level, particularly for those least able to withstand the predicted rise in food prices and those who are most vulnerable during the winter pressures on the NHS? Thirdly, what additional post-Brexit funding will be available to boost infrastructure investments and support public services, particularly to cover inflationary costs on public sector budgets, in the devolved nations?

Fourthly, what is the action plan to proactively involve the devolved Governments in negotiations over overseas deals, particularly in areas such as agriculture and fisheries, where the devolved nations will be required to implement the agreement on the ground and deal with all the practical issues that may arise when environmental standards differ or when the deal may threaten the environment? One example may be the use of glyphosate, the herbicide widely used in the US, the UK and across Europe and known commercially as Roundup, among other names. There is mounting evidence of serious adverse impacts on human health, and that it is contaminating food and also damaging pollinators. Will our coming environmental standards be so flexible in trade deals that they become meaningless, or will we drive food production standards higher than ever and lead the rest of the world? I hope the latter.

Our trade relies in large part on services of all types, particularly education and training, and the sales and profits from scientific and other inventions or creations. The original concept of copyright legislation was British—from the Statute of Anne 1710. It set the world standard, and now more than 160 states are parties to the Berne convention. However, a body of EU law deals with substantive and procedural rights over intellectual copyright. When negotiating future trade arrangements involving intellectual property rights, the Government must respect the United Kingdom’s existing domestic and non-EU international laws and obligations, including the Patents Act 1977, which gives effect to the non-EU European Patent Convention. Otherwise, any commercial benefits from our discoveries or creations may be jeopardised. Can the Minister assure the House that such consideration will be embedded in negotiations?

Whatever happens next, we are at the beginning of a journey that must be paved by high ethical standards. It must be respectful of the world and of the rich diversity of nature and people, and not be isolationist and selfish. The journey starts at home and we must live well.

--- Later in debate ---

[Lord Callanan]

Yes, of course. That is our policy. It is a matter of legislation now. Both our parties supported the introduction of that legislation.

[Baroness Finlay of Llandaff]

I hesitate to come in so late, but I have been listening very carefully to the Minister’s reply. Can he confirm—because I do not think I heard it—that in negotiations the Government will undertake to ensure that intellectual property rights are considered; and that where any implementation of any arrangements requires implementation through the devolved nations, they will have been involved proactively in negotiations rather than being informed later on?

[Lord Callanan]

The noble Lord, Lord Wigley, approves of that comment. This is something that we are in consultation with the devolved Administrations about. At our meeting last week, we discussed exactly how we would structure the negotiations, the involvement of the devolved Administrations, and how we can ensure that they get the opportunity to feed into negotiating mandates and the policy that negotiators will pursue. They are cognisant of that, as indeed are we.

Ahead of this week’s European Council, I emphasise that this Government’s priority has always been to honour the result of the 2016 referendum and secure the United Kingdom’s departure from the European Union on 31 October without any further, pointless delay. I thank noble Lords for their attention, and beg to move that this debate be now adjourned.

European Union (Withdrawal) (No. 6) Bill

Baroness Finlay of Llandaff Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, my noble friend Lady Bull outlined some of the problems very clearly. I want to build on the comments made by the noble Lord, Lord Oates. On reciprocal healthcare, we must remember that 27 million people hold a UK-issued European health insurance card. If the 190,000 UK pensioners who live elsewhere in the EU were to return to the UK, the cost of their healthcare alone would be between £500 million and £1 billion per year. Yet nowhere have we seen provision for this kind of movement happening.

The BMA has just published a document—I declare my interest as a past president—entitled A Health Service on the Brink: The Dangers of a “No Deal” Brexit. It is littered with questions that should have been answered during the years since the referendum. We have nearly 22,000 European graduate doctors in the UK, a third of whom have said they are considering leaving. We need reciprocal arrangements for their qualifications. We have 10,000 medical vacancies already. If a third of those doctors go, we will have even more. When people turn up with their sick child or another family member, and have an even longer trolley wait than they have now, or when their relative dies because they cannot get the healthcare they need, the headlines will change dramatically. Sadly, I worry that some implications for individuals in our society have not hit home, in part because we have not told them, openly and honestly, what the implications are.

I have been privileged enough to be a member of the European Advisory Group to the Welsh Government. As the noble Lord, Lord Wigley—I would say “my noble friend”—knows only too well, the concern over farmers is enormous. The concern over fair distribution of food in the event of shortages, because of our rural areas, is huge. We have many SMEs that create component parts, which will almost certainly become non-viable in the event of no deal. Our ports have been trying hard to make provision for the future, but the sudden catastrophe of no deal will jeopardise our economy in Wales. As is known, Wales already has socio- economic problems that go back a long way through our history.

Finally, when considering the implications of no deal, remember all those groups that we will suddenly drop out of. The European Reference Networks look at rare diseases. They are the eyes and ears looking at where disastrous epidemics, pandemics and new diseases are emerging. Without that intelligence, strange conditions will just turn up in emergency departments around the country, with no information ahead of time. For those and many other reasons—the debate has been long and interesting—I strongly endorse the comments made by my noble friend Lady Bull and support this legislation.

[The Earl of Listowel]

May I ask my noble friend about implications for the structural funds from the European Union? I understand they have been helpful to Wales in the past. Is she confident that they will be replaced?

[Baroness Finlay of Llandaff]

I am grateful to my noble friend for that question because, no, I am not confident that they will be replaced. I know that the Welsh Government have asked the Westminster Government for evidence that the funding will come through. A Statement was made by the Minister about CAP funding for farmers, but many other areas are of concern. People in Wales may not have been as aware of some of the implications as they might have been, nor of how important that infrastructure funding has been in previous years.

No-deal Update

Baroness Finlay of Llandaff Excerpts

Tuesday 3rd September 2019 Lords Chamber

[Lord Callanan]

My noble friend will understand that I view it as a considerable failure that I have not managed to reassure him and contribute to his happiness. I will do my best in the days and weeks ahead to bring that unhappy state of affairs to an end. To be serious, he makes a very valid point about Northern Ireland. We are incredibly conscious of the need to protect the peace process. For the avoidance of any doubt, I restate our total commitment to the Good Friday agreement and our commitment that there will not be a hard border in Northern Ireland; certainly, that will not be imposed by this Government. We are very happy to enter a legal commitment to that effect should it help the negotiations.

The noble Lord also makes a very good point about EU nationals. The settled status scheme that we have introduced has been incredibly successful. I said in the Statement that over a million citizens have applied under that scheme. When I checked last week, applications were running at over 15,000 per day. I do not think anybody has been refused under that scheme. The guarantees we have offered to EU nationals in this country are excellent. We guarantee all their existing rights, including access to healthcare and benefits. It would be nice if EU member states were prepared to offer to UK citizens living in their countries the same guarantees that we have offered. That would help to take the process forward.

Lastly, with regard to publication, we continue to make available a wide range of documentation. If my noble friend wants to consult GOV.UK, he will see the extensive documentation and guidance available for businesses and individuals on all manner of scenarios, with case studies. We will, of course, link this to the publicity campaign to try to make people—businesses, hauliers and others—aware of what they need to do to get ready for Brexit.

[Baroness Finlay of Llandaff (CB)]

My Lords, the Minister has mentioned planning a great deal. Can he confirm that planning for agriculture is not restricted to Northern Ireland—the subject of the paragraph where it was mentioned—but also applies to Wales and other hill farmers around the UK? Can he confirm that money will be available on 1 November to support those farmers who have been dependent on EU funding to maintain their ongoing viable production? Can he confirm that there is commitment to equitable food and medicine distribution across the UK, not only in England, particularly considering the logistics of the rural areas of Wales?

How much money is being allocated specifically to support the needs of Wales, where there are more SMEs per head of population than in other parts of the UK? They need money to tide them over. The first-tier producers who are trading are already seriously squeezed because they find themselves at a disadvantage in both food manufacture and component manufacture. The Welsh Government need to know that there is a firm commitment to funding.

My final question concerns whether the Cabinet will allow the Welsh Government to process the settled status to remain, a request that they put through some time ago but was previously refused. It would allow European passport holders resident in Wales to be assured of being processed rapidly.

[Lord Callanan]

There were a number of questions there; I think I wrote them all down but I am sure the noble Baroness will remind me if I forget any. On agriculture, I am happy to confirm that the Government have said that all existing CAP payments will be continued after we leave the EU. Indeed, it is possible that additional payments will be available to farmers if required because we recognise that one of the challenges that the farming community will face is the application of the EU’s common external tariff, which, because of the protectionist nature of the EU, is particularly high with regard to farming products. We recognise that agricultural communities face a particular problem.

Of course these guarantees apply across the entire nation. I can say with particular regard to Wales, but also with regard to Scotland, that the devolved authorities have been involved in all our planning. Indeed, Ministers from the Scottish and Welsh Governments, together with Northern Ireland civil servants, were present at our XO Cabinet committee meetings last week. Jeremy Miles from the Welsh Government was there last week.

I have to say that I did not understand the noble Baroness’s question about the settled status scheme. Obviously, EU citizens in Wales can apply to the Home Office for settled status, just as they can in every other part of the UK. I am not sure that there would be any particular benefits in having a separate process for those EU citizens living in Wales. I did not quite understand the point of that. Perhaps the noble Baroness can talk to me afterwards and we will try to resolve that issue.

Brexit: Date of Exit

Baroness Finlay of Llandaff Excerpts

Monday 8th April 2019 Lords Chamber

[Lord Callanan]

I agree with my noble friend that there were extensive debates on all aspects of the European Union (Withdrawal) Bill at the time—at late hours of the day and night—and the matter of the date was of course discussed. It would of course be preferable to have all-party agreement across the House, if we can, and we are trying to get that.

[Baroness Finlay of Llandaff (CB)]

My Lords, how much collaborative working have the Government undertaken with the devolved nations’ Governments? They may be of a different political persuasion, but they have good working relationships with many countries within Europe, which could be helpful in the negotiations.

[Lord Callanan]

I assure the noble Baroness that there are extensive discussions with the devolved Administrations—in fact, I was in a Cabinet sub-committee meeting only last week with the First Ministers of Scotland and Wales. I chair one of the joint working arrangement groups on ongoing EU business, involving all the devolved Ministers. So there is extensive collaboration going on.

European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

2: After Clause 4, insert the following new Clause—
“Public health
The duties imposed on the EU under Article 168 of the Treaty on the Functioning of the European Union apply with equivalent effect to public bodies in the United Kingdom after exit day.”

[Baroness Finlay of Llandaff (CB)]

My Lords, I begin by thanking the Minister and the noble Lord, Lord O’Shaughnessy, their officials and the noble and learned Lord, Lord Mackay of Clashfern, for the frank and open meetings we have had to discuss the issue of public health. I declare my interest as an honorary fellow of the Faculty of Public Health and I thank Mark Weiss and Angus Baldwin from the faculty, who have been most helpful.

We discussed this vital issue at some length on Report. At that stage, the noble Lord, Lord Hunt of Kings Heath, requested that we return to it at Third Reading. We are grateful to the Minister for agreeing to that so that we can return to the protection of the public’s health being part of retained EU law, as it affects Brexit negotiations and us after we leave the EU. My noble friend Lord Warner led on this principle and, in the light of the Minister’s reassurance, withdrew his amendment at the time. The assurances given on Report were important. I want to quote what the Minister said then, if I may, because I think that it clarifies where we are going now:

“All EU legislation in the area of public health which becomes part of retained EU law and domestic legislation implementing EU public health requirements will, by virtue of Clause 6, continue to be interpreted … by reference to relevant pre-exit case law and treaty provisions”.—[Official Report, 23/4/18; col. 1387.]


This means that Article 168, which was described by the High Court, in a case that went to that court, as at the epicentre of EU policy-making, would be available to our domestic courts in future.

The Minister went on to make it clear that the effect of Article 168 in the domestic law of this country before exit will continue after exit. However, although he had said that in effect Article 168 would be available in the future for UK courts to draw on, conflicting legal advice subsequently obtained by the coalition that had been promoting this is causing concern within the public health and wider health sectors. Since Report further organisations, including the Academy of Medical Royal Colleges, have joined the coalition. There are now 62 major organisations calling for watertight reassurance.

This Brexit-neutral amendment would ensure that both the present Government and future Governments continue to have regard to the Article 168 duty of a,

“high level of human health protection”

as we leave the EU, and ensure that we do not row back on the progress we have made in public health during our time in the EU. The amendment would place in the Bill, and therefore beyond doubt, the fact that Article 168 will be retained law after we leave the EU.

If the Minister cannot accept the proposed new clause—which would be the simplest solution—I hope he will be able to make a clear commitment to this House that Article 168 will be retained EU law after we exit the EU. I also ask him to confirm that the case law itself can be used to hold any Government, now or in future, to account, and that such a statement on the official record of this House can be used in court. Such reassurances would provide additional certainty and clarity about the tone and guiding principles for the UK’s Brexit negotiations across the board, including our future trade negotiations. I am, of course, aware that further legislation will come forward. I beg to move.

[Lord Warner (CB)]

My Lords, as the author and architect of the earlier amendment on public health, I think that I should say a few words. I thank the Minister: we had a number of spirited discussions, and he also had helpful meetings with the noble and learned Lord, Lord Mackay of Clashfern. When I read them carefully after Report, I was satisfied with the assurances that he had given. I think the Government shifted their position from saying that such an amendment was not necessary to recognising that there was case law suggesting that they should make the position absolutely clear on the Floor of the House—and when I had time to read the assurances the Minister gave on Report, I thought that he had done that extremely well.

As my noble friend Lady Finlay has said, there is a good deal of anxiety out there about whether there will be a drop in standards after Brexit. The debate on the previous amendment showed that there was still a mountain to be climbed—not by the Minister himself, but by the Government—to reassure people that many of the pre-Brexit safeguards will be in place, and standards will be met, post Brexit. I think there will be an issue when we deal with any trade Bill in this area: people will want to look very carefully to see that there is no backsliding on public health standards and protections. But for the meantime I thank the Minister for what he has done; I have no wish to make his life any more difficult than it already is.

--- Later in debate ---

[Lord Duncan of Springbank]

I always welcome interventions of this nature. On this occasion I think that the Government position is clear—I hope so as I look to the noble Baroness—and provides the necessary and useful support and words of comfort. I think that on that basis it should be understood by all who read today’s remarks and engage directly with the Government on this matter that what they are seeking is provided for and will be available: as it is today, so shall it be after Brexit day. I hope that those words are of comfort to the noble Baroness on this occasion.

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to everyone who has intervened. As someone who has felt passionately about tobacco control I am glad to be able to tell noble Lords that I am now involved in working with Hong Kong on its tobacco control measures. UK public health has indeed led the world in many ways and nobody wanted to see that jeopardised. I am particularly grateful to my noble friend Lord Warner for generously sharing some of the background to all this with me, and of course the noble and learned Lord, Lord Mackay of Clashfern, who gave me a tutorial on some of the issues around EU law shortly before we came into the Chamber.

I am confident that the Government’s reassurances today will offer the legal certainty that the sector is seeking; I am sure they will be warmly welcomed by the whole health community and all those organisations which signed up to the coalition. They are 62 major health and welfare organisations and it sends a very strong signal that this Government are committed to the health and well-being and individuals, of communities and of the country during the Brexit negotiations and after we leave the EU. It signals that future Governments must retain this as a highest priority. Therefore, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I had the privilege of hearing the noble Lord, Lord Warner, explain the position in Committee. When I heard him speak, it roused in my mind the thought that the decision in the packaging case was extremely important. In particular, the doctrine that the noble Lord, Lord Warner, seeks to establish must have been relied upon by the Secretary of State to defend that decision; important rights of the tobacco companies were at issue as well, such as complicated trademark legislation. When I looked at this, I thought it was absolutely clear that Mr Justice Green was relying upon Article 168 and the principle of the high value of human health in his judgment in favour of the Secretary of State. Therefore, that must have been part of our law at the time when Mr Justice Green was deciding the case, which was in 2016. If it was part of our law then, it will remain part of our law in light of the provisions in the Bill when Brexit comes along.

I was not privy to the earlier situation which the noble Lord, Lord Warner, described, and there may have been some difficulty in having this clarified. Mr Justice Green was deciding this in the High Court. The case went to the Court of Appeal, where in one judgment given by three judges—they say that they all contributed to the judgment—they absolutely affirm that the judge was right and that his approach was in accordance with EU law. That is EU law as it was; part of the law of the United Kingdom in 2016. Therefore, I consider that it must be preserved by the retention of the EU law that we have here. In my view, what the noble Lord the Minister has now said makes it clear that the Government now accept that position. It does not depend so much on the Government’s word as on the fact that the courts recognise this principle as part of EU law applicable in 2016. I cannot see any answer that can be given to try to rule it out. Therefore, I am content with what the Government have come out with and glad they gave me the opportunity to discuss this with them this afternoon. There were quite a number of members of the department there and we had a fairly frank discussion which has, I am glad to say, produced what I think is a reasonable result.

[Baroness Finlay of Llandaff (CB)]

My Lords, it is most helpful that the Minister has given a reassurance and further clarified the position. However, I have a lingering concern about what happens if we do not have Article 168 in the Bill. If a trade deal and negotiation end up going to court, something has already gone terribly wrong. The advantage of having this stress on public health in the Bill is to strengthen the arm of the Government to make sure that public health is not inadvertently compromised.

I found a recent review of the Trans-Pacific Partnership Agreement, which looked at the health impact in the context of trade negotiations. Particular areas of concern related to food labelling, alcohol labelling, tobacco control and the cost of medicines. As this House knows, we have a major problem with obesity in this country. If people are to make real, sensible choices over what they are buying, they have to know that food labelling covers all aspects of food safety, including exposure to toxic pesticides, herbicides and so on, and animal husbandry methods, which have been of concern.

Our producers may not want that degree of labelling because it may damage their profits. I can see that in negotiating trade deals there will be, at times, a balance between profits and establishing the trade deal and holding back in some areas because of public health. The same may happen with atmospheric pollution. and so on. So while I fully accept the intention of the Government to make sure that as, in that article, public health protection and health improvement will remain unequivocal and at the centre of things, I have a lingering concern that there may be drift over time and difficulty in negotiations if we do not have this formally in the Bill.

[Baroness Jolly (LD)]

My Lords, I shall speak very briefly. I totally agree with what the noble Baroness has just said. This debate seems very much like the one we had during the passage of the Health and Social Care Bill about parity of esteem for mental and physical health. We were told by the Government that we did not need to have it in the Bill; we could assume that they would treat mental and physical health equally. That patently had not been the case. You might wonder whether they are treated in the same way now but the intention to treat them the same way was put in the Bill and so is on the record. This is very similar. The Government are saying: “We do not need this. You can trust us”. We might possibly trust the current Government. I see no reason why in most instances we should not trust them, but there are Governments coming down the track who may not be as reliable and trustworthy as the current one. So my instinct at the moment is to listen to what the Minister says when he winds up the debate on this amendment, but I would rather that it was in the Bill than not.

European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I added my name to this amendment and I am grateful to my noble and learned friend Lord Hope for the way that he introduced it and for the remarks which have subsequently been made. It is very important that we follow up on what the noble Lord, Lord Tyler, said: we must find a way forward by the time we get to Report.

In previous debates, we have discussed common frameworks and there was the suggestion of creating a new schedule to the Bill—indeed, I said that I would try to draft one—to clarify the intersection between EU law and the devolved legislative competences. There are, though, areas that remain for dispute. Like the noble Baroness, Lady McIntosh, I suggest that there is not simply a dichotomy between consultation or consent, but that there is a phase of needing negotiation and trying to reach agreement between the Governments concerned. I refer the Government to a Welsh government document which I do not think has been referred to previously in our debates, Brexit and Devolution. It was produced some time ago but it has a section on what happens,

“if agreement cannot be reached at all through normal procedures”,

and lays out the need to recognise,

“a backstop arrangement as part of the overall operating procedure”,

and that it may need “independently managed arbitration”.

The noble and learned Lord, Lord Mackay, has proposed a very elegant potential solution to move forwards. Some reservations were expressed about that last phase, which was that if there could not be an agreement reached there would be another problem linked to that: that there needs to be an overall responsibility for a UK-wide market and governance responsibility for the way in which things are conducted. Ultimately that will have to rest with one person, who I venture to suggest will be the Prime Minister because that is the overall and overarching point of responsibility. That does not mean that we would go from one to the other without many stages of careful negotiation in between and on the way.

The contents of this amendment were referred to in annexe A of a letter that was sent to me, and I think to other Peers, by the noble Lord, Lord Bourne of Aberystwyth, on 21 March, signalling a wish to move forwards. Following the question about the continuity Bill, I would like to put it on record that I received a letter on 23 March, last Friday, from David Rees, the Assembly Member who chairs the External Affairs and Additional Legislation Committee. He says in that letter:

“We appreciate the UK Government’s willingness to propose a solution to the impasse we currently face on the treatment of devolved areas of competence once EU law restrictions are lifted from them”.


He goes on to point out,

“the failure to acknowledge a role for the Assembly in the control of powers for which it is responsible”.

That was a problem but, he says:

“We note that the amendments were debated before being withdrawn or not moved in the House of Lords on 21 March … and hope that further progress can be made in the coming weeks”.


I wanted to quote from that letter because there is an atmosphere of good will and a recognition that there needs to be a way forward. I hope that this amendment will contribute towards the Government’s move—it was debated at some length last week when we debated the frameworks—and that we can find a way forward, but it will need dispute resolution processes to be clearly laid out because, even though the EU competencies may fall centrally or to the devolved legislatures, there will still be difficulties at the intersection of many of those broad headlines. We have already had the very helpful table set out by the Government following the deep drives into the legislation but, with all due respect to everyone looking at this, I suggest that we should formally consider laying out some form of dispute resolution so that we do not revisit the impasse we had.

[Lord Thomas of Gresford (LD)]

My Lords, I strongly support the call by the noble and learned Lord, Lord Mackay, that primary legislation should be used to form the necessary frameworks. I made that point at Second Reading when I suggested that Clause 11 and all devolved matters should be taken out of the Bill altogether. It might then not have required any consent from the Scottish Parliament and the Welsh Assembly, the whole matter would have been considerably simplified and the focus could have been put on the very difficult issues that arise with devolution. The original architecture which the Government put forward, which of course they have changed now, was that the powers that were to come back from Brussels—or, as the noble and learned Lord, Lord Mackay, said, the restraints upon the devolved Administration, which is a simpler way of looking at it—should go to the UK Government and then be parcelled out and conferred upon the devolved Administrations. Which powers and when—the timing and the nature of those powers—would be virtually at the whim of the Minister who would decide what was appropriate. It would be done by secondary legislation, either statutory instruments or Orders in Council. We have had debates about that.

The conferred powers model has never been used in relation to the Scottish Parliament. It has always been reserved powers. That is to say that in specific cases of policy, all those powers go to the Scottish Parliament, save those that are named, enumerated and held back— reserved—by the UK Government. Precisely that reserve powers model is about to be employed in Wales under last year’s Wales Act. It is to commence in April. To come forward with a scheme in which, in effect, powers are conferred not by the UK Parliament but by a Minister merely by statutory instruments, which cannot be amended, or by Orders in Council, was clearly inadequate and has given rise to a great deal of difficulty and angst, certainly in Wales.

I shall quote from the evidence that appears in the report of the Committee on the Constitution. It was given by Professor Richard Rawlings of University College London, who has given very valuable advice, in Wales in particular, on devolution issues. What he said about the original architecture was that,

“this process does not establish positive duties on the part of the UK Government to devolve. Legally-speaking, suggested ‘transitional’ elements could so easily become permanent features”.

That is the which and the when. He continued:

“Nor need one be an expert in game theory to appreciate the way in which clause 11 stacks the cards in favour of the centre when negotiating the different design choices with common frameworks”.


If the devolution of powers is simply within the control of the Minister of the UK Government, then the Scottish Parliament and the Welsh Assembly have lost their bargaining power in the creation of frameworks. The point was made that while UK-wide frameworks will be necessary in a number of policies, they should be agreed on a parity-of-esteem basis between the Governments and legislatures of the United Kingdom, not imposed by the UK Government even on a time-limited basis.

I hope that indicates what the real, critical matter is. It is not just Welsh, Scottish and possibly Northern Irish people whingeing or seeking to stand up for their own individuality—it is nothing like that. It is that they should have equal bargaining power with the UK Government in the construction of the UK frameworks, which everyone agrees are necessary. I wholly support the amendment.