Brexit: Legislative Timetable

Baroness Hayter of Kentish Town Excerpts

Monday 7th January 2019 Lords Chamber

[Lord Callanan]

I assume that the noble Baroness did not listen to the answer I gave earlier, and not for the first time the Liberal Democrats have got their figures wrong. We have already tabled more than 50% of the required statutory instruments, as we informed the two sifting committees before Christmas.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the Government have wasted a full month by pulling the December vote and yet they are coming back with exactly the same deal. We still have seven Bills and only 600 SIs to deal with. Despite the urgency, the Prime Minister has today decided not to turn up in the House of Commons to explain what has been going on, which sounds like a Government in hiding. Can the Minister guarantee that the Government will heed the demand of 200 or more MPs, including some from his own side, to rule out no deal? Further, will he ensure that the Government will engage with business, with consumers and with the Opposition to find a way forward that is acceptable to the people of this country and to Parliament?

Brexit: People’s Vote

Baroness Hayter of Kentish Town Excerpts

Wednesday 12th December 2018 Lords Chamber

[Lord Callanan]

The short answer to the noble Lord’s question is no. I do not know where he gets his figures from about the incredible number of messages, because I certainly have not seen any.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, 48 messages were sent about Mrs May and were able to lead straightaway to an election, so other votes are now awaited. We need votes in the other House on the withdrawal deal and a vote on this Government for their mishandling of Brexit, the NHS waiting lists, the universal credit shambles and much else besides. Will the Minister perhaps undertake to this House to advise Mrs May that the correct way forward for a Prime Minister who has lost control of the Cabinet, the Commons and the country is to call a general election?

[Lord Callanan]

I am sure that the Prime Minister will be very grateful for the noble Baroness’s advice. If I get the opportunity, I will, of course, pass on her fond regards.

Brexit: Economic Forecast

Baroness Hayter of Kentish Town Excerpts

Wednesday 28th November 2018 Lords Chamber

[Lord Callanan]

I refer my noble friend to the Answer I just gave the noble Lord. We had a referendum on the subject and the country decided to leave the European Union. That referendum was authorised and legislated for by this Parliament, our notification of withdrawal was legislated for by this Parliament, and we have now ratified the withdrawal Act, which legislates for our withdrawal date of 29 March next year.

[Baroness Hayter of Kentish Town (Lab)]

Given that that analysis is based on the Chequers deal and not on the deal that has been negotiated with the EU, when will we have an economic analysis of the deal that is to be put in front of this House, and when will we get the legal advice?

[Lord Callanan]

The agreement of the political declaration will now be followed by negotiations on the legal text. We and the EU both recognise that this means that there could be a spectrum of different outcomes, and have agreed that it should be as ambitious as possible. On the legal advice, my understanding is that there will be a Statement in the House of Commons next week.

Brexit: Proposed Agreement

Baroness Hayter of Kentish Town Excerpts

Wednesday 14th November 2018 Lords Chamber

[Lord Callanan]

I thank the noble Lord for his compliment but no, I do not agree with him. At the general election, both we and the Labour Party stood on manifestos saying that the result of the referendum should be respected. Indeed, the leader of the Opposition confirmed that last week. Over 80% of votes were cast in that general election for parties that said that they would respect the outcome of the referendum.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, does the Minister agree that, in addition to the 550 pages, the impact assessment should also be made available before this House debates the meaningful vote? Will he also ensure that our committees have time to predigest it so that we can benefit from their advice?

[Lord Callanan]

I have discussed this with the noble Baroness before, but following the conclusion of the negotiation and ahead of the meaningful vote we will make available to all Members of the House a full, reasoned position statement laying out both the political and legal position of the Government on the proposed withdrawal agreement, including any protocols that might be attached to it.

Brexit: Article 50

Baroness Hayter of Kentish Town Excerpts

Monday 29th October 2018 Lords Chamber

[Lord Callanan]

As the noble Lord will be aware, the extent and length of the implementation period was agreed. It was green text in the withdrawal agreement. I understand that the possibility of extending it has been raised in the discussions in Brussels but no agreement has been made and discussions on such matters are continuing.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, since we know that Brexit is valued by the Government at only 50p—which is what they are going to produce on exit day—the question just raised about the WTO schedules is vital. We understand that only 14 of the deals that we have as part of the EU have so far been rolled over. The prospect of the crisis if we crash out without a deal is so serious that is it not time that the Government started paying more attention to getting a deal which is good for the country and acceptable to the House of Commons, rather than spending £150 million on consultants on how to deal with no deal?

[Lord Callanan]

We are able to multitask as a Government and we are doing both. We are concentrating all our efforts on getting a good deal but we are also mindful that it may not be possible to get a deal and therefore we are stepping up our preparations for no deal. Actually, the EU is doing the same. I really do not understand the position of the Opposition that we should do nothing at all to prepare for something that has a possibility of happening.

Brexit: Preparedness for EU Exit

Baroness Hayter of Kentish Town Excerpts

Thursday 25th October 2018 Lords Chamber

Asked by

[Baroness Hayter of Kentish Town]

To ask Her Majesty’s Government whether they will reassess their level of preparedness for not reaching a negotiated agreement with the EU in the light of the report by the National Audit Office, The UK border: preparedness for EU exit, published on 24 October.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, extensive work to prepare for no deal has been under way for two years. Robust plans are in place to ensure that the border continues to operate from the day that we leave. We will always ensure that we have the necessary resources to keep the border secure. That is why we are recruiting over 600 Border Force officers to prepare for the day that we leave, in addition to the 300 officers who will be deployed by the end of 2018.

[Baroness Hayter of Kentish Town]

My Lords, the Prime Minister said no deal is better than a bad deal, but now the NAO says the border and HMRC systems needed under WTO rules simply cannot be implemented in time. Business cannot prepare; the car industry warns about the catastrophic impact that no deal would have on its manufacture; ports would be jammed, even without Mr Grayling’s flotilla; and medicines would be in short supply—to say nothing of the urgent legislation required in this House. Is it not irresponsible, even reckless, to continue to threaten no deal? Having got to the cliff edge and looked over, should the Government not be saying, “Better not”?

[Lord Callanan]

I am not sure what the noble Baroness is asking us to do here. We do not want no deal, but as a responsible Government, we need to prepare for it. Is the Labour Party saying that it would accept any deal given to it? We want a deal, we are working for a deal, we are negotiating for a deal, but putting in place preparations in case there is no deal is the responsible thing to do. That is what a responsible Government should do.

Brexit: People’s Vote

Baroness Hayter of Kentish Town Excerpts

Thursday 25th October 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in addition to thanking the noble Lord, Lord Campbell, for the timeliness of this debate and the historical approach he took, may I also pay tribute to the near three-quarters of a million who took to the streets on Saturday, calling for people to play a part in decisions about the future of our country, and asserting their right to have their voices heard? Agree with them or no, it was testament to the importance of this issue, to the demand for proper engagement from every region of the country, and to the energy of young people—and some not so young—in their desire to influence the outcome of the negotiations. It was also a vote of no confidence in the Government, and a reflection of the fear that the Prime Minister is leading us to an outcome that no voter envisaged on 23 June 2016, with a hard exit from nearly 50 years of close co-operation with our continental allies—an outcome that would damage the economy, jobs, our children and grandchildren’s prospects, even our security and policing, let alone the rights of our citizens resident abroad, and EU citizens living here.

As we saw in the Standard poll last night, public confidence in the Prime Minister’s ability to negotiate her way out of a paper bag is at an all-time low. No wonder when she cannot unite her own party and appears to dismiss Whitehall advice, pleading from business, farmers, supermarkets, ports and airports, the International Chamber of Commerce, consumers and haulage firms, and stark warnings of no deal both in the Government’s technical notices and from the NAO, as we heard earlier.

No one envisaged us leaving without a deal. As the CBI shows, 15% of the companies that have prepared no-deal contingency plans intend to shift jobs overseas. Medicines and fresh food would quickly be in short supply. Travel would be hampered and international driving licences and visas needed. We know the list; we have read the documents. Last week in Dover, I heard from port authorities that with 500 lorries passing through every hour, they have no facility to hold them for even two minutes to check contents, tariffs or VAT, or to ensure that the correct person or vehicle is going through. So do not expect fresh food in your shops if we fail to get a deal.

Even in leave areas, no one voted for a catastrophe or to rupture our relationship with the EU, trash our economy and see jobs exported or investment fall. Rather, as we heard, voters were promised a stronger economy, money for the NHS, the exact same benefits and sunny, sunny uplands. The Government getting it wrong in the Brexit negotiations is letting down Brexit voters even more than remainers, who never expected anything good from us leaving.

In addressing the Motion, I start with the possibility of no deal. I would like to think that we do not need to waste our time on this, but we must continue because some people still seem to threaten, or even welcome, it. If the Government fail to secure a deal, a democratic, ethical and constitutional responsibility falls to Parliament, particularly to the Commons. Knowing what we do, it would be unforgivable for Parliament to permit a no-deal exit on 29 March. Due to the Act that went through this House, if there is no deal by 21 January, the Commons has to vote on that absence of a deal—when, I assume, MPs would reject such a course of action. What then? Clearly the Government would be honour-bound to resign, having been overturned on perhaps the most significant post-war failure of any Administration. Then we would have a public vote, but in that case it would be a general election and there would be an extension of Article 50 to allow for it.

The more pertinent question today is, what if we get a deal? The first vote on a deal must lie with Parliament. From the start, your Lordships’ House called for this: making Parliament’s voice statutory rather than the simple, non-binding vote in both Houses originally suggested by the Prime Minister. We in this House helped to achieve this legal requirement of Commons endorsement for ratification of the deal to take place. Nothing in the call for a public vote on the deal should diminish that role for Parliament. If Parliament agrees the deal, we hear no demand for it then to go out for an affirmative plebiscite, although my noble friend Lord Judd suggested that it would take an election at that point.

What would happen should the deal be rejected by the Commons, which looks increasingly likely? The question is whether there should then be a public vote. Our view is that there must be a general election in that case, as my noble friend Lord McKenzie said, because the Prime Minister would have lost the confidence of Parliament on a highly significant national issue. However, should the Government insist on hanging on—I trust that they would not do that—and refuse an election, all options to break the impasse must be on the table. That includes the possibility of a public vote, although this time with 16 and 17 year-olds taking part; here I disagree with the noble Lord, Lord Tyler.

I acknowledge the difficulties of arranging that. The UCL paper showed how challenging it would be in terms of needing a Bill, Electoral Commission approval of the question and a 10-week campaign. However, that could be overcome with cross-party consensus and political will, although it still leaves open what question should be on the ballot paper and whether there should be two or three options between deal, no deal and remain.

The Government have got themselves and the country into a serious mess. They adopted red lines before they understood the task. They failed to heed the advice of civil servants, industry or their allies, who also have skin in the game. They are in hock to the ERG and DUP and weakened by their foolish 2017 election. They failed to engage the Opposition to find a deal which we and the country could support.

I finish with some advice to the Minister. He should resist his normal dismissal of those whose views differ from his, acknowledge the size, legitimacy, validity and passion of Saturday’s marchers and heed advice more widely than from just his political friends. I suggest that he should listen to his noble friend Lord Finkelstein especially. He should dismiss Tory MEP Daniel Hannan’s call for a “mass boycott” of any second referendum. Hannan told Al Jazeera—not a particularly democratic channel—that a second referendum would be “utterly illegitimate”, even if it was legislated for in Parliament. That does not respect this House at all. I hope that even at this late stage the Minister will also engage more constructively with this House, its committees and its experienced Members, who we have heard from today, to respond more positively than hitherto on the major questions facing UK plc.

European Union (Withdrawal) Act 2018 (Consequential Amendments) Regulations 2018

Baroness Hayter of Kentish Town Excerpts

Wednesday 24th October 2018 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for introducing the first of what I hope is going to be a very small and select group of DExEU orders. Indeed, luckily for myself, for the noble Baroness, Lady Ludford, and for the Minister, I think the vast majority of these Brexit orders will be handled by other departments. However, I do wonder how on earth our colleagues covering those departments will cope, given the near 800 they will have to handle between now and March. They have not exactly got off to a great start: since the Act received Royal Assent on 26 June this year, a mere 71 have been laid, and only two have completed their passage through Parliament.

The delay is slightly hard to understand if the bulk are indeed to make relatively simple, perhaps technical amendments. Why then have we only seen such a tiny proportion of them so far? I assume that the pace will quicken in the coming months, but the tardiness to date means that while 45% of the time between Royal Assent and the supposed exit day has passed, only 9% of the likely total number of orders have so far been laid. Can the Minister therefore confirm that proper time will be allocated to those of our colleagues who will have to handle this to do the necessary scrutiny, that full consultation will take place with all outside stakeholders—this was something we discussed a lot during the passage of the Bill—and that feedback from those stakeholders will be available to our colleagues as they go through the various statutory instruments?

The sheer number of orders exposes the sheer scale of the legislative challenge facing Parliament. It also puts into perspective the Prime Minister’s claim that Brexit is 95% complete. As far as our work is concerned, that is clearly not the case. I have a slight problem with the 95% figure anyway. I am reminded of the man falling from the 10th floor of a building. After going past the first nine floors, he said, “So far, so good”. I hope that we are not facing the same crash that he did after the 10th floor. Aside from this particular order, I know that work is now gathering pace in the Secondary Legislation Scrutiny Committee: I can say only good luck to the committee.

Turning to the order in front of us, while it may be what the Minister calls “technical in nature”—which I think means “hard to understand”—it gives effect to decisions taken by both Houses during the passage of the withdrawal Act. As has just been mentioned, during debates on that Act, there was quite a bit of confusion over the new category of “retained direct EU legislation”. The provisions in Schedule 2, which respond to our Delegated Powers Committee, will, we hope, provide some certainty about the exercise of the relevant powers, particularly for our learned friends: I trust that they are clearer now about the significance of how those powers will be used. We certainly welcome the confirmation that the withdrawal Act powers to make secondary legislation will be exercised under the normal rules for SIs, with which we are familiar.

I want to raise one other point, absolutely unrelated to this one but within the broad remit of Brexit. Yesterday we read that Sir Bernard Jenkin said:

“While some SIs may need to be rushed through with less consideration, they can always be amended later”.


First, we simply must not rush these through. I am sure that is not the intention of the Government. On our Benches and those of the noble Baroness, Lady Ludford, it is not something we would want to happen. Secondly, and perhaps more substantially, given how important some of the SIs will be to maintaining standards on environmental, consumer and workers’ protection, and that they will include some quite important decisions about the supervision and enforcement of those standards, that comment from Sir Bernard Jenkin—I recognise that he is not a Minister—seems to fly in the face of the government assurances we received many times during the passage of the Bill that any such change to any of these standards or anything else would be by primary and not secondary legislation. We were very clear, I think, that secondary powers were going to be used for a lift and shift so the existing rules could be brought across but not for changes. Perhaps the Minister could confirm what I know he has said before—but now that we are into the SIs it is important for him to say it again—that from the point of view of the Government there is absolutely no intention to allow any backdoor changes to legislation in the way suggested by his honourable friend in the other place.

Of course, the order is based on the assumption that we will have a deal. Given the wishes of some of the Minister’s close friends that we should not have a deal and the inability of the Government so far to strike a deal, the risk of no deal looks alarmingly likely. All of us in this Room, because we are a bit sad, have read all the technical notices about what would happen in the event of no deal, but it is not clear what the task facing this House would be in those circumstances in relation to statutory instruments that would need to be got through very quickly. If the Minister has any information on that, perhaps he could share it with the Committee.

As your Lordships will have gathered, the order itself presents us with no problems. I hope that that will be the case for all the others that will come our way.

[Lord Callanan]

I thank the noble Baronesses for their comments and questions. I will try to deal with as many as possible and then write to them on any that I have not answered.

The noble Baroness, Lady Ludford, asked: are there limits to the ability of SIs to amend primary legislation? The noble Baroness, Lady Hayter, touched on this point as well. The consequential power is a standard power to make consequential amendments as appropriate—that famous word again, about which there was much debate during the passage of the legislation. These amendments may repeal or revoke but of course the use of that power will be strictly constrained. Provisions in the European Union (Withdrawal) Act speak about the scope of that power.

The noble Baroness’s second question concerned protocols to do with Croatia and Ireland. The answer is that even though the power to make the regulations is going, the regulations that were made under that power will carry on as appropriate. She also asked about the 1946 Act and why the SI applies only to powers conferred on Ministers and not to powers conferred on regulators. The SI makes consequential amendments to the Statutory Instruments Act 1946. The Act applies only to SIs made by Ministers, government departments, Welsh Ministers or the Privy Council. It is less common for legislative powers to be delegated to other individuals or bodies such as regulators, and where legislation confers on a regulator the power to make legislation it also makes special provisions as to how the power is to be exercised and scrutinised. In this case, the SI does not address those particular powers.

On the question of the consequential amendments made in the withdrawal Act for Scotland but not for England, Wales or Northern Ireland, the Act addresses a wide range of issues and impacts on the application of a large number of existing pieces of legislation. As far as possible at the time, those were addressed in the Act. However, it was also recognised that it would be impossible for the Act to identify and address every single amendment that was needed to existing legislation, and that is why at the time the Act conferred on Ministers the limited power to make regulations containing those amendments that are appropriate as a consequence of that Act.

The noble Baroness asked me what happens to the implementation of the Croatian and Irish protocols when the ECA is repealed. The protocol/treaty will still apply until exit day and in a no-deal scenario since those protocols/treaties presuppose EU membership and the protocol will become retained EU law unless repealed, which goes back to the point that I made earlier. So even though the power to make those regulations is being repealed, the regulations and Acts that were originally made under them still apply.

I turn to the comments from the noble Baroness, Lady Hayter. I totally accept her point about the considerable number of SIs that are required. I shall give her some numbers if that is helpful. As the drafting, legislation and negotiations have progressed, departments have had a clearer picture of what legislative requirements are needed by exit day. This has meant that we currently anticipate that the number of SIs might actually be fewer than the figure of 800 to 1,000 that was quoted and that I used many times during the passage of the Act. However, the exact number of SIs needed will depend on a number of factors and the total number is fluctuating; some are able to be combined into one while others will require a number of different individual SIs. Departments began laying Brexit SIs straight after Royal Assent and over 70 have already been laid. Our aim continues to be to be prepared for all scenarios. Again, without harming the negotiations, some SIs would be applicable in both deal and no-deal scenarios, some are applicable only to a deal and some are applicable only in a no-deal scenario.

We expect that the number of SIs being laid will significantly increase from this month onwards, and we are working closely with departments to try to ensure a manageable flow throughout so that Parliament has the proper time to scrutinise them and we have the critical legislation that is required in place by exit day. The secondary legislation programme is on track and we remain confident of the passage of the required number of exit-related SIs before exit day. I said there had been about 70; the exact number as of Friday 19 October is that 72 SIs have been laid or made, with 38 in July, 34 before the Recess, four in August, 10 in September and 19 so far in October. That includes the 43 proposed draft negatives that have been submitted to the sifting committee for consideration.

The noble Baroness referred to comments made by Bernard Jenkin in the House of Commons. I have not seen those particular remarks but I assure her that we have no intention of tabling SIs and then altering them later. We are doing a considerable amount of work to improve the quality of statutory instruments and to ensure that Parliament is appropriately informed and that the appropriate back-up documents, briefing documents and statements are provided along with the SIs. There is no question of back-door changes to legislation. Actually, we would have had the power to propose this particular SI as a negative procedure—it would have been legally possible—but we thought that as it potentially alters legislation of constitutional significance, it would be appropriate to be up-front and take it as an affirmative statutory instrument, so this is legislation by the front door. I hope she will accept that.

Once again I thank both noble Baronesses for this good debate and for their contributions. This statutory instrument aims to make consequential amendments to legislation in order to clarify how new powers and duties in retained direct EU legislation and new powers in regulations made under the European Union (Withdrawal) Act will work within our existing legal frameworks. The instrument will also repeal some provisions of primary legislation that are redundant due to the commencement of provisions in the European Union (Withdrawal) Act that were brought into force by commencement regulations made on 3 July 2018. The instrument will also make some transitional and savings provisions in relation to those repeals. With that, I beg to move.

Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Baroness Hayter of Kentish Town Excerpts

Wednesday 17th October 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

It is always a pleasure to follow the noble Baroness, Lady Ludford. I am afraid we are becoming a bit of a double act. I am not sure it is one the Minister always appreciates, but there you are—it is his penalty in life.

I also thank my noble friend Lady Kennedy of The Shaws, and her committee, for yet another insightful, clear and informative report. Like the noble Lord, Lord Hannay, I only wish that the Government could be as clear and incisive—and also, perhaps, speedy, as the noble and learned Lord, Lord Hope, so politely put it—on how they propose to deal with the issues raised in the report.

Perhaps the most urgent issue raised in the paper—although there is competition for urgency—is the one on which the Government have said the least, which considers any disputes arising from the withdrawal agreement. Both my noble friends Lady Kennedy and Lord Anderson of Swansea have quoted Michel Barnier as calling this the second most difficult issue after Ireland.

I remind the Minister that, on Monday, the Prime Minister claimed that real progress had been made on the withdrawal agreement, with,

“the shape of the deal across the vast majority … now clear”.—[Official Report, Commons, 15/10/18; col. 409.]

Yet the response to this report from the Government states that the dispute resolution mechanism “is a matter for negotiation”.

So I ask the question, along with that posed by the noble Earl, Lord Kinnoull: if it is subject to negotiation, how is that going? Has it been negotiated and, if so, what is it? Is there to be an arbitration panel, or is the ECJ itself to do the dispute resolution during transition? As my noble friend Lord Judd said, in case anyone has forgotten, time is getting very short. We should by now have rather more detail than we have been given, both about the withdrawal Joint Committee and also about any arbitration panel being discussed. Who will be the members, particularly on the Joint Committee? What will be its terms of reference? Will it be a transparent body? Will its meetings be open? Will its decisions, and the reasoning behind them, be made public?

The Joint Committee, as we know, has the,

“power to adopt decisions and to make recommendations”,

and that power is to be reached “by mutual consent”. But what if such an accord cannot be reached?

Anyway, one must assume that the committee—which, I assume, will be made up of political persons appointed by the two sides—will not actually be independent, but will be a purely political negotiating entity. The question arises: who could take issues to that Joint Committee? Given that businesses, and indeed citizens, may want to challenge both the interpretation and the implementation of the withdrawal agreement, will they have access to that Joint Committee, or to any arbitration panel that is established, should the implementation disadvantage them? If they do not have that direct access, will our Government have a mechanism for referring any business disputes to an arbitration panel, or some other way of enabling those issues to be raised? As my noble friend Lady Kennedy said, while the Government seem to accept that dispute resolution should be accessible, they have given no information on how this might be achieved.

Turning to the Joint Committee itself, which—if we have read it correctly—might only meet once a year, does the Minister actually think that this is going to be adequate to deal with all the queries that could arise? Will the Minister also say something about the enforcement mechanism for any finding from the Joint Committee or, indeed, from any arbitration panel?

The EU agencies of which we are currently members have been mentioned. When is it envisaged that we would leave these, assuming that there is a deal? Alternatively, if, in transition, we remain members and the Government accept that we would abide by the rules and “respect the remit” of the CJEU in that regard, would that also entail businesses being able to take relevant issues to the CJEU if they were party to any of the cases being held there? As with the withdrawal agreement query, would businesses and citizens have the same rights as now, not only for their disputes to be heard but to any remedy should a case be found in their favour?

The EU Committee noted that the Government seemed rather sanguine about being subject to the CJEU in certain circumstances while having no UK judges there. Whether or not the Government think it would be helpful to maintain a UK presence there, has the issue even been raised in negotiations? I have heard suggestions that this would not be completely unthinkable. As raised by the noble Lord, Lord Anderson of Ipswich, should a longer transition now be envisaged, that matter might become even more pertinent. It would therefore be helpful to know whether such discussions have taken place with the EU. Will the Minister also give some thought to the interesting proposal from the noble Lord, Lord Thomas of Gresford, for a special committee in the CJEU? It is beyond my remit to comment on the legality of such a proposal.

Turning to the civil, family and commercial issues—including insolvency, as stressed by the noble Earl, Lord Kinnoull—will the Minister update the House on negotiations relating to the recognition and enforcement of judgments across the EU after exit day, with particular reference to divorce, maintenance, adoption and child custody, in the way described by the noble Baroness, Lady Shackleton? There is real urgency in this—the committee said it had “significant concerns” in its recent letter to the Lord Chancellor—because families form or change according to timetables completely unrelated to the Government’s priorities. As we have heard, lawyers in this field worry that children will be badly affected if there is any uncertainty at the time we leave.

Regarding lawyers themselves, the Government’s response to the report states that during the transition,

“our lawyers will maintain their rights of audience”,

at the CJEU. Can the Minister confirm that this has been agreed by the court and the Commission and that it applies to all cases, not just those to which the Government are a party? Will he also inform the House what discussions have taken place regarding the ability of UK lawyers to retain rights of audience at courts within member states, on the same sort of fly-in, fly-out basis as now, during the transition period, where a UK national or business is party to a case in one of those domestic tribunals?

There are big issues facing our country and our negotiators, both today, as we have heard, and in the days and weeks ahead. There are political challenges within the Prime Minister’s own party and there has been a failure—so far—to agree a deal likely to win support among the EU 27 and, indeed, in the House of Commons. It would be unpardonable to complete a deal without having in place robust, open and transparent mechanisms for ironing out future difficulties and disagreements, and even more so to leave our citizens—such as families dealing with adoption, maintenance or divorce—or businesses without clear, reciprocal, fair and transparent legal processes to replace those now in operation, as described by the noble Lord, Lord Bilimoria.

This report covers some of these issues, as have others by the same committee. Answers from the Government are needed in order to offer certainty to everyone likely to face difficulties as a result of our withdrawal, even assuming that we have a deal. Needless to say, however, the no deal scenario is even more worrying, with very little comfort coming from the Government’s technical notices—as I think they are called—on handling civil legal cases involving EU countries, in that situation. As we have heard, tried-and- tested EU rules currently determine which country’s court will hear cross-border civil, commercial or family law cases, and how judgments in one member state are recognised and enforced in another, mainly on the basis of reciprocity. Without a deal, such co-operation will fall away, possibly on 1 April.

This paper—the so-called advice from the Government—states only that any party to such a cross-border dispute would need to consider the effect of these changes on any existing or future cases, or seek professional advice. It is, however, precisely the professionals who need to hear what the Government intend, because they will be unable to advise their clients without that clarity. Family lawyers are highly alarmed about the implications of the sudden withdrawal of co-operation, recognition of judgments and lack of enforcement. We are talking about families—families who are divorcing, dividing assets or arguing over custody of their children.

Some Brexiteers may say that no deal is perfectly bearable, probably because they will not suffer the costs. It will be families that take the hit if the negotiators fail in their task, or give in to extreme Brexiteers who seem to think that no deal is acceptable to the UK. Will the Minister, therefore, take these concerns back to those of his friends who are in that group? Will he make sure that we do not face that outcome?

However, assuming for the moment that there is a deal—let us be positive—we, and indeed the businesses or individuals who may be affected by it, still need far more clarity on the issues raised today about disputes over either the interpretation or the implementation of the withdrawal deal. We look forward to the Minister’s response.

Brexit: EU Commission

Baroness Hayter of Kentish Town Excerpts

Wednesday 10th October 2018 Lords Chamber

[Lord Callanan]

I am afraid I am unable to give a precise timescale at the moment. We are negotiating. At this moment our negotiating teams are meeting in Brussels and we are confident of a deal. As soon as we have one that we can share with the noble Lord, I will be sure to let him know.

[Baroness Hayter of Kentish Town (Lab)]

I note that the Minister continues to use the words “implementation period”. Will he now admit that after the end of March we will still be in negotiations and it will be a transition period because negotiations will be carrying on and we will not have the sort of deal that simply needs implementing? Does he agree that in future it is about a transition not an implementation period?

[Lord Callanan]

No I do not agree with the noble Baroness. It is an implementation period. We expect to agree the withdrawal agreement and the future economic partnership in the next few weeks—in the autumn—and the implementation period will be about implementing that deal.