European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I ask the noble and learned Lord, Lord Wallace of Tankerness: assuming the amendment proposed on the status of EU law brought into this country’s law is passed—in other words, if it became primary legislation—what would be the relationship between that and the amendment?

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have heard repeatedly and correctly in the Chamber, given the Government’s assurance that all the rights enjoyed by British citizens on 29 March next year will still be in place on 1 April, that our task is to make sure that is the case. Clearly that is what these amendments are framed to do: ensure that the rights to equality we presently enjoy in accordance with EU law are enshrined in domestic law after exit day. That is needed because we have that safety net at the moment, which means that those rights cannot be removed, but, as I think the noble and learned Lord, Lord Wallace, said, we will need our own homegrown safety net to ensure the rights are protected. As we have heard, Amendment 70A sets the standards that all individuals are equal before the law and all individuals have a right not to be discriminated against by a public authority, which I am sure we all accept. As my noble friend Lord Cashman reminded us, we cannot take those for granted. He dealt with Amendments 161 and 259, so I will not repeat that. I repeat the words of my noble friend Lady Whitaker: we must make sure that there can be no retrograde move away from where we are now.

I feel fairly sure that the Minister concurs absolutely with what we are trying to achieve. I hope he can either accept this method or undertake to provide a similar one so that it can be written into the Bill and does what he and others want: to preserve all the rights we have, so that, on April Fools’ Day next year, we are not April fools.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

80: Clause 7, page 5, line 39, leave out subsection (3)

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will speak also to Amendment 82, which itself is amended—or, in truth, corrected—by Amendment 82A.

Amendment 80 is pretty simple and is very much in line with the amendments we have debated today, which aim to restrict the very wide powers that Ministers—be they Minister number 1 or number 109 —have dreamed up for themselves in this Bill. The amendment would remove from Ministers the discretion to extend the definition of what constitutes a deficiency in retained law. That is important, given that Ministers have taken considerable powers to correct what they consider to be deficiencies. So it would be a two-way gain for Ministers: first, they could extend what they define as a deficiency and then they could use their powers to correct it.

The main thrust of Amendment 82 is to prevent secondary legislation under Clause 7 from being able to change the Equality Act 2010 or subordinate legislation made under that Act, or, indeed, later legislation, as in Amendment 82A. Again, it is about not reducing the rights and remedies that are available under EU retained law. While we were drafting Amendment 82 we also put in wording to restrict the ability under Clause 7 to impose taxes, fees, charges and to create quangos or introduce new criminal offences under secondary legislation. However, as I have alerted the Minister, we will not deal with that at this point because three separate groups are coming up and we will discuss the issue of criminal offences and fees later. The important thing for now is not allowing Ministers to extend the definition of deficiency or to use the regulations under Clause 7 to change the Equality Act and the subordinate legislation that flows from it. I beg to move.

[Baroness Ludford (LD)]

My Lords, I support Amendment 80 in the name of the noble Baroness, Lady Hayter. I cannot speak for her, but my remarks will also encompass Amendment 80A in the name of my noble friend Lady Bowles who, as the Committee will appreciate, is not in a fit state to speak to her amendment, although it relates to Clause 7(3).

Clause 7(3) is rather strange. It was inserted by the Government on Report in the other place. I am trying to resist the word “sneaky”, but the Government gave with one hand and took with another. On 16 January, David Lidington said in the other place:

“The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)”.—[Official Report, Commons, 16/1/18; col. 838.]


Amendment 14 was the one that led to the change in Clause 7(1) to put in “are” instead of “consist of but are not limited to”. So it was more specific on what ministerial powers could cover.

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[Baroness Goldie (Con)]

My Lords, this has been a short but interesting debate covering an important point. When my ministerial colleagues in the other place moved the amendment that inserted into the Bill the subsection that Amendment 80 would remove, the Government’s reasoning was accepted by the other place without a Division. That is an onerous responsibility upon me, and I hope I can replicate that performance and satisfy any concerns the noble Baroness has.

As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, was as said then, the Government are looking forward to using the expertise of this House to tighten any slack in the power and ensure that it is capable of neither too much nor too little. I have just addressed the importance of retaining Clause 7(3)(b), but I repeat that the Government believe we can be a responsible Government only by ensuring that we can provide for all the types of deficiency we discover.

Subsection (3)(a) provides that the meaning of “deficiencies” in Clause 7 includes those of a similar kind to those set out in subsection (2). The noble Baroness, Lady Ludford, and the noble Lord, Lord Beith, asked what this means and whether there are any examples. This ensures that, for example, deficiencies relating to arrangements between public authorities in the British Overseas Territories and the EU and its member states, or between the UK and the EEA and EFTA states are caught by the definition of a deficiency. They are not included in the list in subsection (2) but are very much of a similar kind to the types of deficiencies listed, and it is important that the power is wide enough to allow the Government to correct them. This House accepted at Second Reading the principle of resolving all the deficiencies in retained EU law using the power in Clause 7, and we cannot do this without both a type of sweeper—I think the legal term is “ejusdem generis”—and a power to provide for additional kinds of deficiency if they are later identified. I say to the noble Baroness, Lady Ludford, that that is why the clause is drafted the way that it is.

May I seek clarification from the noble Baroness, Lady Hayter? I was not quite clear whether she wanted to speak to Amendment 82 or whether she is forgoing that for the moment for the purposes of this debate.

[Baroness Hayter of Kentish Town]

I am speaking to only a part of Amendment 82 and to Amendment 82A —in other words, to the bits about not using Clause 7 to remove any rights and standards or to repeal or revoke the Equality Acts 2006 and 2010 or any subordinate legislation made under them. There is obviously much more in Amendment 82. There is stuff about criminal sanctions, raising taxes and setting up public bodies. I was making the point that I am not talking about those now because we have separate groups on those topics. The bit of Amendment 82 and Amendment 82A are about not using this power to make any changes under the Equality Acts.

[Baroness Goldie]

I am very grateful to the noble Baroness. I am looking at my speaking notes. It is a little difficult to disentangle the points to which she has just alluded. If the Committee will indulge me, I will perhaps try to cover the general points.

[Baroness Hayter of Kentish Town]

I emailed the Minister’s advisers very early this morning and spoke to them earlier, so I would hope they had got the Minister’s notes in the right place.

[Baroness Goldie]

I thank the noble Baroness. I shall soldier on as best I can with the material I have. By way of general comment on Amendment 82, I hope I can reassure the Committee that I understand the concerns many noble Lords have regarding the scope of the powers we are seeking to take in the Bill. I shall use this opportunity to allay, I hope, some of the concerns as we look at the general premise of this amendment in relation to the Clause 7(1) power.

The general concern is about the ability to create new public authorities, which was alluded to by the noble Baroness. Let me make it clear that we have been listening to Members of this House and the other place; the noble Baroness is not alone in having these concerns. As such, we have made it a priority to find a solution that will satisfy both Parliament and the objectives of the Bill, and the Government are looking very closely at whether the key powers need to be drawn as widely as they are in this regard. We will revisit this matter in more detail when we reach the amendments in the name of the noble Lord, Lord Newby, but I hope this satisfies the noble Baroness on this point for now and signals our commitment to listen to the concerns of noble Lords.

The noble Baroness, in her amendment, expressed some concerns about the power to create criminal offences. We will come back to this in more detail later in the debate on these clauses when we respond to the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Viscount, Lord Hailsham. If the noble Baroness wishes me to do so, I will deal with that in more detail now, but perhaps that is one of the areas she is happy for us to deal with later.

The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.

The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make it clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.

To reassure noble Lords of the Government’s commitment to ensuring transparency around any amendments made to equalities legislation, we tabled an amendment in the other place that will require Ministers to make a statement in the Explanatory Memoranda of all SIs made under this power and the Clause 8 and 9 powers confirming that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010.

Would the noble Baroness like me to respond on data protection? It is very helpful to get that reassuring shake of the head. In conclusion, I thank the noble Baroness for perhaps simplifying the matters immediately before us. I hope that the points I have raised in addressing her first amendment, and then those parts of her Amendment 82 she is concerned about, are enough to demonstrate the need for the power to have such scope and to be able to address all the deficiencies, including those alike to the types listed in Clause 7(2). In these circumstances, I urge the noble Baroness to withdraw her amendment.

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[Baroness Goldie]

I am not one to spurn the comments of attractive gentlemen, particularly when they are honeyed compliments uttered by the noble Lord, Lord Adonis. As I have said in previous debates, I may not always be able to acquiesce on points that he makes, but I understand that my noble friend the Minister is prepared to look again at the creation of new bodies. I cannot provide further detail at this stage, but it is an area where we have an open mind.

[Baroness Hayter of Kentish Town]

I thank the noble Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public bodies—perhaps even tonight. I will deal firstly with the amendment to take out Clause 7(3) on page 5. I was a little worried when the Minister said that it allowed some flexibility—which I take to mean wriggle room, or wanting to do something that is not quite allowed for. The noble Baroness, Lady Ludford, described the problem of subsection (3) better than I could. Our concern is partly that we are again back to the implications of where the Minister considers something—which is a very wide way of saying that where a Minister considers, without any test, they can then define something as “similar” to another deficiency. We may have to return to this, because I do not think that it is robust enough.

Her particular example did not help her case, given that Clause 7(2)(d)(i) involves the EU, an EU entity, a member state, or a public authority and a member state. EFTA and NATO must be the only other two bodies: could we just not write those in? To put in a whole clause just to allow for EFTA does not seem to me, with all that discretion, very appropriate. So I think we may want to return to that.

Amendment 82, as amended by Amendment 82A, is very much about not using regulations to amend, repeal or revoke either the Equality Act 2006 or the Equality Act 2010—or, indeed, to reduce any right conferred on a person by retained EU law, if it were to be made less favourable. The Minister may have said that that was not the intention but, without the words in our amendment, clearly that would be possible. For the moment, I hope that we can revert to the specifics, such as public bodies, taxes and criminal offences and put that to one side. However, we may need to return later to subsection (3). I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

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[Baroness Bowles of Berkhamsted]

My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.

[Baroness Hayter of Kentish Town]

In the absence of my noble friend Lord Bassam, I just want to encourage the Minister—though I am sure it is already in his notes—to comment on Amendment 244, which appears in this group. It requires that:

“The statement under sub-paragraph (2) must include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit, and that no policy decisions are being made”.


I appreciate that the Minister and other Ministers have said all the way along that this is not about making policy, so it should be an easy certification on this occasion for a Minister to sign. I hope that that might be accepted.

[Lord Callanan]

My Lords, Amendment 81 in the name of the noble Baroness, Lady McIntosh of Pickering, concerns the core concept of this Bill, namely that it preserves and makes functional the law at the moment of the UK’s exit from the EU. As the long and learned debates in this House and the other place demonstrate, this is of course something much simpler said than done. We can all agree that the law in the UK should not be considered deficient simply because the EU adopts a new law once the UK has left. The Bill reflects that with the provision in Clause 7(4) and, therefore, this would not constitute a valid trigger for the use of the power in Clause 7(1).

It is also the case that the law is not deficient simply because EU law, as is often the case in some areas, contains provisions that are adopted before our withdrawal but only come into force or apply after exit day. This reflects the approach taken in Clause 3, which provides for the conversion of direct EU legislation that is operative in the UK immediately before exit day. As the Government set out when we debated Clause 3, we believe that it is right that we incorporate only that law which is operative at the time of our exit. It is surely not taking back control to this Parliament and the devolved legislatures if we simultaneously preserve the automaticity of new provisions of what was EU law becoming operative in our law, months or perhaps years later. It would be unacceptable for EU law provisions to flow automatically into the UK many years after we have left and would undermine the clarity and certainty this Bill is designed to provide. That is why Clause 3 preserves only the law as individuals and businesses were bound by it immediately before exit day, and why that decision is reflected in Clause 7(4), which makes it clear that the law is not deficient simply because it does not contain planned future changes to EU law. In preserving EU law, the Government have drawn a line in the legal sand on exit day. Wherever the line was drawn, the outcomes would, of course, please some and not others. I note that the controversial ports regulation, although already in force, will enter into application only days before exit day. Clause 7(4) merely reflects this line in the legal sand.

--- Later in debate ---

Let me go back to the questions posed earlier by my noble friend Lady McIntosh. On who will determine whether the law is deficient, the answer is Ministers, as constrained by courts and Parliament, in line with normal responsibilities. The SIs will be made largely before exit, to come into force on exit day—it may be redundant to say this, but they will be made largely between Royal Assent and exit day. I hope that has addressed her concerns and I hope noble Lords will feel able not to press their amendments.

[Baroness Hayter of Kentish Town]

Although Amendment 244, in the name of my noble friend Lord Bassam, asks for,

“a certification that the regulation does no more than make technical changes … and that no policy decisions are being made”,

I take the point that policy choices may be being made. Although it is not in this group, Amendment 244A says that there would be a certificate saying that either the change was just technical or a policy choice has been made. That amendment may not be in this group, but I am interested whether the Minister is closing his mind to the idea that there should be a certificate from the relevant Minister. That is what this amendment aims to do.

[Lord Callanan]

No. As I have made clear throughout the Bill, our minds are not closed on many of these matters. I think I gave the noble Baroness an example. It is a difficult distinction to draw about what is making policy or what is a policy choice. As I said, the choice between two regulators can be said to be a policy choice, but it is certainly not our intention to use any of the power in the Bill to massively expand on different levels of policy. It is our intention to impose a snapshot on exit day and ensure that the law is compliant and tidy, as we have said.

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[Baroness Hayter of Kentish Town]

My Lords, I think the good news is that we heard a hint earlier that this might be one of the areas where we are going to hear a bit of movement tonight. If the Chief Whip will allow us to go home after this group, we will be sent home in a very happy mood.

My name is also on these two amendments and I will not make the case again, because the noble Lord, Lord Newby, made the clearest of cases against the use of secondary powers to create new quangos, with others adding similar reasons for why this is not just a power too far but is in breach of government guidelines.

I will add only two points. First—this is a slight gripe, I am afraid—in answer to my Written Question as to whether there were other examples of NGOs established by secondary legislation, the noble Lord, Lord Young of Cookham, said that it was not possible to answer other than “at disproportionate cost”. But the Government must have known why I was asking this Question—they have a brain—and I would have thought that if there were some public bodies set up by secondary legislation they could have found a few examples. This was some time ago. Unfortunately it is an undated letter—like many I get from the Government —but it is HL1651, so I think it was probably last year that I asked it.

My second point—and in a sense it is really the point touched on by the noble Lord, Lord Beith—arises from my experience both as a consumer representative and as a former member of various regulatory bodies set up always by statute. It is simply to say that the very way we establish those bodies—whether it is the Charity Commission, the Competition Commission, the Legal Services Board or the National Consumer Council of which my noble friend Lord Whitty was such an eminent chair until the Public Bodies Act abolished it—affects how they do their job. The founding statute will spell out their task and set out the “have regards to” that influence how they set about their work. It will also define who sits on their boards, how they are appointed, to whom they report and whether, for example, they have a duty to heed consumers in the relevant industry, the regulated industry itself, the employees, the wider social considerations such as the environment or things like that—and indeed their degree of independence from the Government. It is a crucial part of the function of many public bodies.

Such limitations on the powers of those public bodies, and the requirements for how they operate, are written in primary legislation. They can be discussed carefully, they can be amended—as we did before with others, as the noble Lord, Lord Beith, said—they can be debated in this Chamber or in the other place, and they could have pre-legislative scrutiny. For example, setting up a new public ombudsman—as the Member in the other place Mr Jenkins has been recommending—could come by a Bill and could be amended after consultation with the relevant interested parties. That is the way that we should set up public bodies. Instead, this Bill says to a Minister, “Well, you decide. You decide how to set it up; you decide how its board will be established; you decide who to appoint it—probably you could decide to appoint your friends to it”—and Parliament will nod it through. That is not good enough and this power must be dispensed with.

[Lord Callanan]

My Lords, I welcome the opportunity to respond to the debate, if only to confound all the prejudices of the noble Lord, Lord Adonis, that I am some inflexible hardliner who never gives him anything he might want and that only my noble friend Lady Goldie can—I was going to say “satisfy him”, but perhaps I should not use that word. He could not put a cigarette paper between us, by the way. She might do so with more charm than me, but we are saying essentially the same thing.

I understand that a number of noble Lords are concerned about the scope of this power and I reassure your Lordships that the Government are listening to those concerns. When Clause 7 was drafted, we thought it would be only sensible for the sake of contingency to include in its scope the ability to establish new public authorities to ensure, as many amendments in the other place sought to ensure, against losing any important functions as they are transferred over from the EU, as no such public authority may currently exist in the UK. Certainty and continuity are, after all, the watchwords of the Bill.

We have been clear that our preference will always be, where possible, to transfer any functions returning from the EU to existing bodies in the UK, but it has proven necessary to legislate in parallel with negotiations because of the strict Article 50 timeline. Therefore, we do not know at this stage exactly which functions are returning. We must make this legislation without prejudice to those negotiations, where, as the Prime Minister said in her Mansion House speech last week, we are looking to continue a productive relationship with various EU bodies as part of our deep and special partnership.

The noble Lord, Lord Whitty, asked about our strategy towards the agencies. Where there is a demonstrable national interest in pursuing a continued relationship with any EU body or agency, the Government will consider carefully whether we should do so. However, as he knows, it is ultimately a matter for negotiations. We remain committed to keep Parliament as fully informed as possible without prejudice to our negotiating position.

However, we already know of one function that we expect to return to the UK and which it is agreed does not sit happily with any existing public body: our environmental protections. This prompted the Secretary of State for Environment, Food and Rural Affairs to announce our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on the environment—we discussed this extensively earlier—stepping in when needed to hold these bodies to account and enforce standards. As such, we need to retain the power until we can be confident of delivering all necessary legislative changes without it.

It is for this reason that I am sorry to say that we will not be accepting Amendments 83 and 94 in the name of the noble Lord, Lord Newby, which seek to remove this ability from the scope of the power. The Government have a responsibility to safeguard against the potential disruption and confusion caused to businesses and individuals as we exit the EU, and we believe that the ability to create new public authorities plays a big part in ensuring this. However, the Government also recognise their responsibility to Parliament in listening to Members’ concerns regarding the legislation it seeks to pass. Therefore, I can assure noble Lords that the Government are working hard on finding a resolution to this matter that will satisfy the concerns of noble Lords—maybe even the noble Lord, Lord Adonis—and we will revisit it on Report. In the meantime, with those assurances, I hope the noble Lord will be able to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Adonis]

My Lords, I am afraid we again get into the Alice in Wonderland world here, as we were in the debates on Erasmus and Euratom. My understanding from discussions with the European Investment Bank when I was chair of the National Infrastructure Commission is that if the Government were to wish to stay a member of the European Investment Bank, that might be possible. There are lots of legal issues which would need to be addressed, but it might be possible. However, it is the Government’s policy, as a matter of principle, that we will withdraw from the European Investment Bank because it is seen as a European institution and apparently the instruction from the British people two years ago was that we must withdraw from it for exactly the same reason that we must withdraw from Euratom: it is seen as a European institution and we are supposed be withdrawing from all of them or else Brexit does not mean Brexit.

We are engaging in self-inflicted harm purely for an ideological purpose by choosing not to be part of an institution which has “Europe” in the title. What has concerned the Committee so much in our debates is that sector by sector, area by area, we are committing to policies that are going to make the country worse off bit by bit. The cumulative effect of all this is going to be immensely serious. Where it is possible to not engage in that self-inflicted harm, it seems to me to be just a matter of common sense not to do so. I would be very grateful if the Minister could tell the Committee the Government’s policy in respect of lending currently made by the European Investment Bank and whether it might still be open.

I am constantly encouraging, and we have the more emollient face of the Government responding to the debate in the noble Baroness. I always have very high hopes of her because she sounds so reasonable when she replies. It may just be that she is so practised at doing these things, but I very much hope that she might give us a commitment that the Government will consider remaining a part of the European Investment Bank and not putting this essential investment in the future infrastructure of the country at risk, as appears to be happening at the moment.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I do not like to start by contradicting my noble friend, but I have not heard the Government ask that we leave the Eurovision Song Contest, so there is one thing they are content with despite the name containing “Euro”.

This amendment is important not simply for the amount of money being spoken about but what it is used for. I think I heard the noble Lord, Lord Callanan, say from a sedentary position “It is our money”, somewhat missing the point of the amendment, which is about having regard to the principles of social and economic cohesion which we signed up to, welcomed and have benefited from. In fact, it is particularly important given the drive to equality whether in this country, Europe or both. The noble Lord, Lord Wallace of Saltaire, reminded us that England has the deepest regional disparities of any country in Europe. That is why it is not just the money, although I will come on to that, but what we want to use it for and how, and the need for a long-term aspect, as my noble friend Lord Adonis said.

This article enables funds to be used in a way that particularly led to our disadvantaged regions benefiting enormously from the Cohesion Fund, the European Regional Development Fund and the European Social Fund. In the period 2014 to 2020, they will have brought £12 billion our way, and it is not simply the money but the way it is aimed to reduce disparities and concentrates on what the EU calls less developed, transition or other regions. These are significant amounts, but it is the aims and objective that are important. They help create jobs, with start-up businesses, and with research and development. They have had a particular impact in Cornwall, west Wales and the valleys—some of us have to declare an interest there. We have heard of particular cases which have already benefited from this sort of money, including through the environmental impact of some of them, as mentioned by my noble friend Lady Young.

The important thing now is to look forward. As we have heard, the Government, in preparing for our departure from the EU, committed themselves to what they call a,

“UK Shared Prosperity Fund … using money returning to the UK from European structural fund”—

if it has not already gone to the NHS or anywhere else. The idea, as laid out in the Conservative manifesto, is to use that same amount of money. The Exchequer Secretary, Robert Jenrick, promised,

“to consult widely ahead of its launch”.

However, he did not commit to matching ERDF funding after Brexit, so the consultation would presumably be about its use. We have been told:

“The design … is currently being considered, including its funding arrangements, and further details will be set out in due course”.


Although he is not replying to this amendment, the Minister often reminds me that in a year and a month today, we are due to leave. That is not much time for getting these details, even in draft form, let alone for consultation or beginning to think about how people might use these funds. There is undoubtedly some urgency.

I hope that we could maybe have that detail from the noble Baroness as well as the basis on which the Government are planning to allocate the money. Will it be, as we heard suggested, under the Barnett formula, which is on a per head rather than per need basis? Will it be long term? What will the other attributes be? Will it be whoever wants matching funding or something else? Will it be concentrated in the same sort of areas as before? These are important questions, as I am sure she appreciates. It is a matter of funding, otherwise we might lose £8.4 billion from the sort of work that has been done to reduce inequalities. We need to know not just the amount but that it will be targeted towards achieving the same sort of ends as Article 174.

[Baroness Goldie (Con)]

My Lords, first, I thank your Lordships for a genuinely interesting and very helpful and useful debate. I particularly thank the noble Lords, Lord Foulkes, Lord Judd and Lord Wigley, for the amendment to which they put their names. I again thank the noble Lord, Lord Adonis, of course for his kind remarks, although I fear he will dismiss me as a huge disappointment when he listens to my observations. I will try to deal with the points raised, because the amendment raises a very important issue, around which numerous very legitimate questions arise. I do not dispute that for one moment. Although I will not be able to answer every point raised in detail, I will do my best to try and give a helpful—I hope—indication of the direction of travel.

I know the amendment is well intentioned, but I shall endeavour to argue that, with the existing proposals which the Government have put in place, it is unnecessary. I will explain that in greater detail and expand on that proposition. The Government have an industrial strategy that covers many of the areas of cohesion policy and, as numerous noble Lords mentioned, are developing a new UK shared prosperity fund, which will replace EU structural funds. Furthermore, existing legal powers in place in this country in our domestic law already cover some of these issues, and I shall expand upon that.

To reassure the noble Lords, Lord Foulkes, Lord Wallace of Saltaire and Lord Judd, who all referred to this, I say that the Government have a manifesto commitment to replace cohesion policy funding with a new UK shared prosperity fund. It will reduce inequalities and raise productivity across our four nations, and we shall engage extensively with the devolved Administrations on that fund later this year.

European Free Trade Association

Baroness Hayter of Kentish Town Excerpts

Tuesday 27th February 2018 Lords Chamber

[Lord Callanan]

My noble friend is of course correct. It is a basic factor of all EU negotiations that nothing is agreed until everything is agreed. Having said that, we are a law-abiding country, and when we make agreements, we do not rat on them.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am sorry I ran into the Chamber, but it was because I had been to inspect the border between Camden and Westminster. When I told my noble friend Lady Blood that this morning, she was delighted—she cannot wait for the Tube to be put there, from northern to southern Ireland. Is this level of understanding in the Minister’s department about how a border between north and south would work actually the level of discussion going on there?

[Lord Callanan]

I am not aware that anybody in my department has said anything of the sort. The point the noble Baroness is referring to is that of course we want no border in Ireland between the north and the south. We are committed to the Good Friday agreement. It has been the basis of lasting peace and prosperity in Ireland, and it is important that we come up with suitable arrangements in future negotiations with the EU to ensure that there is no border.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Baroness Ludford]

Actually, there is growing support in the opinion polls for people taking control themselves. I think it was the noble Lord himself who talked about how it is the people who decide, not us—and especially not us in this unelected House. I totally agree with him that it is the people who are now showing through opinion polls that they want to take control of the decision on what should happen to this country and on whether to give a verdict on the Brexit deal.

This has been an extremely valuable debate on the crucial decisions about the single market and the customs union. My last remark will be to mention, as my noble friends did, that being in the EU has not stopped other EU countries, such as Germany, exporting many more times the value of British exports to countries such as India. In fact, Germany is India’s top trade partner in the EU and its sixth biggest overall, and the UK is only India’s 18th-biggest trade partner. Even Belgium has a trade surplus with India, unlike the UK. So being in the EU has certainly not prevented other EU countries making a greater success of trade with India than we have. It is the problem of visas that has prevented a deepening of the trade relationship with India.

I cannot resist mentioning that the noble Lord, Lord Marland, who I understand is the Government’s trade envoy to the Commonwealth, was quoted recently as saying that it would be easy to do trade deals with Commonwealth countries such as Singapore, Malta and Cyprus. Malta and Cyprus of course are in the EU and are not free to do individual trade deals—so good luck with that.

To conclude, I give my full support to the amendments in this group which, one way or another, seek to keep us in the single market and the customs union, which is vital not only to the integrity of the United Kingdom, particularly on the intra-Irish border, but to the economic future of this country.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this has been a valuable and, indeed, an enjoyable debate, but it is particularly important for two major reasons. The Bill is not about whether or not we leave but about how we leave, and there are two important aspects of why we have debated and heard these views today that we should not forget.

One is that Article 50—and its author is here, as always—by which we are leaving, requires that we have the framework for our future relationship with the European Union. That is what all these amendments are about. But the second reason we have to discuss that today is because the Government have absolutely failed to tell us what their vision for that framework is. That is why we are doing this now and why these amendments are key. Indeed, as has just been mentioned, it is only tomorrow that the Prime Minister will finally lock her little brood into Chequers for what the Financial Times today described as “Mission Impossible”, to thrash out some sort of consensus about the future of our country. Meanwhile, both in the UK and among our partners in the EU 27, there is a complete lack of clarity about the direction of travel. We need to know, as my noble friend Lord Adonis said, what is going to happen as we go into the negotiations.

What I have found rather strange is that, instead of the Prime Minister bringing her brood together earlier after the referendum 20 months ago, as we have just been reminded, she sent out her little chicks, and, indeed, a Fox, to make speeches far and wide—in fact, almost everywhere other than in Parliament—on their competing visions of what that post-Brexit future will look like. They are mostly doing that without a proper dialogue with consumers, with trade unions, with industry or with farmers. I will not have been the only one listening to “Farming Today” this morning to hear the responses to Michael Gove in Birmingham yesterday, when NFU members—not, incidentally, members of the Labour Party—lined up to say: “Where’s the beef”? They had heard his speech; they still did not know what was going on and wanted to know where this Government are taking us. They do not know whether they can sell their meat tariff and quota free in 13 months’ time. The fishermen in Newlyn have also been given little detail about their future and are beginning to worry about that, too.

Critical to this is the big issue: do we want tariff and barrier-free trade with the EU? Do we want no customs posts, particularly but not solely in Northern Ireland, no checks at borders and smooth, duty-free transit? The ports of Dover, Holyhead and Fishguard would like to know the answer to that, but so indeed would Calais and Rotterdam. But checks and paperwork will be avoided only if we produce and sell according to the same regulations, and if our internal systems of checks on food and manufactured goods are recognised and respected by the importing countries. Frankly, that means regulatory alignment. If that is not what the Government envisage, they must decide pretty quickly so that the plans, buildings, documentation, computer systems and, yes, the personnel can be put in place.

The big political question facing us is one that the Prime Minister seems not to dare ask those chicks: “Do we want to maintain our current, pan-EU high standards?” The Fox seems to think not. Reliable sources in his department—and I mean reliable sources—suggest that they hope trade deals with third countries will become materially easier when there is “less pressure”, in their words, to stick to the high levels of regulations required by the customs union and the single market, and easier because the so-called political factors, which I gather is departmental code for having less respect for human rights, would be “less of a problem”. Furthermore, the secret documents in Room 100 that have been referred to—I also saw them on the first floor—were, incidentally, reported in the Independent, so I am not giving any secrets away. My quotes are from that paper, which describe areas being explored where “maximising regulatory opportunities” are possible. It cited particularly what, as we have heard, was said by the Minister in an earlier life about the opportunity of ending the working time directive.

However, that is not what we heard from the Chancellor at Davos, nor what we heard from Austria yesterday when the Brexit Secretary stressed his support for,

“the principle of fair competition”,

which I would argue implies no lowering of standards to gain competitive advantage. Mr Davis said that the UK and EU should be able,

“to trust each other’s regulations and the institutions that enforce them … Such mutual recognition will naturally require close, even-handed cooperation between these authorities and a common set of principles”.

So the Viennese version is that standards and regulations are the building blocks of free trade. This is of course in contrast to the Foreign Secretary, who asserted:

“The great thing about EU regulation is that it is not primarily there for business convenience, it is not primarily there to create opportunities for companies to trade freely across frontiers, it is primarily there to create a united EU”.


There was not quite the same line coming out of Vienna.

We have also read—perhaps the Minister could confirm this when he comes to reply—that British and American conservative groups, including the Initiative for Free Trade founded by Daniel Hannan MEP, who I gather is his friend, are working on an “ideal trade agreement” that would allow the import of US meats such as chlorinated chicken and hormone-raised beef, along with drugs and chemicals currently banned in Britain. Is that the vision that they want?

--- Later in debate ---

[Lord Callanan]

I understand that the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA. Our aim is to ensure continuity with international partners and the EU during the implementation phase and certainty for businesses and individuals. This approach will mean that we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states. Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people. As I have said to my noble friend, once the implementation period ends we will no longer participate in the EEA agreement. We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein. I hope I have made the Government’s position clear, and I hope as a result the noble Lord, Lord Wigley, will feel able to withdraw the amendment.

[Baroness Hayter of Kentish Town]

There were a number of other questions, such as the one I raised on regulations, that are absolutely pertinent to the Bill. We will come later to how the regulations will be brought over and put into our law, and we will have debates on that on days three, four and five, I think. The question I asked the Minister specifically is: does he know about the work being done by Conservatives, along with Americans, to change regulations to assist a different form of trade? This is relevant to this Bill because we will be coming on to how we secure those regulations and their status in our law. I think the Minister’s understanding of those discussions is relevant today.

[Lord Callanan]

My Lords, there is a huge amount of work being done by various economists, lobby groups, institutions and think tanks on regulation and various agreements. I am not aware of the specific work the noble Baroness talks about. Of course I know some of the individuals she mentioned—they are good friends of mine—but I am not aware of all that work. Now she has mentioned it, I will go away and have a look at it. I am sure it is very good, but I cannot comment until I have seen it.

--- Later in debate ---

[Lord Callanan]

I realise that. I apologise if the noble Lord is disappointed but I was trying to address what is actually in the Bill. As I said, further legislation will follow. We have spent three and a half hours so far debating one grouping of amendments, and we have eight further groupings to get through this evening on the timetable agreed by all the usual sources.

[Baroness Hayter of Kentish Town]

I am sorry to say this, but the amendments were taken by the Public Bill Office as being in scope. They are therefore relevant to the House.

[Lord Adonis]

My Lords, before the Minister finishes after the very short intervention that he has just made, I point out that he did not respond at all to the points made by noble Lords from around the Chamber about the Good Friday agreement. Would he give the view of the Government, since it appears to be in question at the moment, about the future of the agreement and whether he agrees with the former Secretary of State for Northern Ireland who said it had now served its purpose?

--- Later in debate ---

[Baroness Ludford]

My Lords, this issue is linked to those under Clauses 9 and 14 about the withdrawal agreement and the exit day in that context. No doubt we will come back to some of these issues, because they are all interlinked and it is quite difficult to get a holistic view. The noble Lord, Lord Liddle, is quite right: one key issue is what we are going to be exiting to. Flexibility is one thing but an excess of uncertainty is another—particularly, as my noble friend Lord Tyler said, when it is coupled with ministerial discretion.

We have the exit date, we have the date when the treaties cease to apply, and we can add on the layer of what is going to be in the transition terms—I have not had time to read the Government’s proposal today. We also have the question about whether Article 50 might be extended, and the question of whether Parliament might want to put the deal to the citizens for a final say. There is also the question of the post-dated cheque. So, all in all, they went all round the houses in the other place—no fixed date, then an attempt to fix it, then a date movable by Ministers. In all this brew, the amendments raise a very reasonable point about Parliament being in the driving seat—something that has been the theme of so many of our debates in the last year and a half.

We have no idea exactly what being subject to EU law, or even respecting the remit of the ECJ, whatever that will turn out to mean, during transition and even in the longer term—because that was the implication of the Prime Minister’s speech on Saturday—means. That sits uncomfortably with the Bill as a whole, and especially with the specification of exit day. We are being asked to fall into a black hole and trust Ministers to get it right—which on current experience is not a very wise thing to do.

The amendments have been described as probing, but answers from the Government—I am sure that the Minister is about to give very precise answers—will be very helpful to our understanding of how the jigsaw will fit together. At the moment it all looks far too uncertain for anyone to be comfortable.

[Baroness Hayter of Kentish Town]

My first question to the Minister is: why did the Government slot in the calendar date at Committee stage, when that was never foreseen in the original Bill? Was it for some good legislative reason, or was it, as my noble friend Lord Hain suggested, to satisfy a certain hard Brexit group of MPs sitting on the Prime Minister’s shoulder, rather like the 60 who have been writing her helpful letters today? It certainly looks as if this was more to do with party management, in the words of the noble Lord, Lord Triesman, than being in the national interest, which we have been advised should control everything we do.

Secondly, I ask the Minister to comment on the point discussed a few moments ago—the exact wording of Article 50. The Bill as it stands would allow the date specified to be extended in exceptional circumstances, but this probably deals only with the possibility of an extension to Article 50, which, as the noble Lord, Lord Kerr, has said, provides:

“The Treaties shall cease to apply to the State in question”—


that is us—

“from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification … unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The date could be amended in accordance with what is in the withdrawal agreement. We indeed might come to an agreement that, for some other reason, chooses an earlier or a later date. Or we might want to amend the date if the withdrawal agreement were not finalised. On the evidence of negotiations so far, it is quite unlikely that this divided Government, seeking to negotiate something which, I have to say in all fairness to them, has never been undertaken before, will keep to their timetable. They should therefore want the flexibility.

There is another issue. Even if we had a deal, what would happen if the European Parliament voted it down? I understand that that vote could be as late as one year from now; it could be as late as February 2019. And the European Parliament has the right to vote any deal down. Guy Verhofstadt told Andrew Marr at the weekend that a thumbs down from the European Parliament meant exit with no deal. So if in a year’s time the Parliament were to vote a deal down, I assume that we would be out a month later, on WTO terms with no transition deal, which would also mean no safeguards for EU citizens—either ours living in EU countries or theirs living here. I do not think that the European Parliament would do that, but my judgment is that if it did, the 27—or indeed the 28, with our Government as well—would speedily get themselves into a room and row back from that. I cannot imagine that we, or they, would want to be in that position. Again, that would mean a change in the date, so the flexibility needs to be there.

Brexit: EU Customs Union

Baroness Hayter of Kentish Town Excerpts

Wednesday 7th February 2018 Lords Chamber

[Lord Callanan]

I thank my noble friend for his question. He is, of course, right. Leaving the EU offers us the opportunity to have our own independent trade policy not contracted out to the European Commission. There are many opportunities that will present themselves, and eliminating some of the extremely high tariffs on agricultural products is one of them.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in an open letter this morning the British Chamber of Commerce has almost begged the Government to spell out what they actually want from the relationship with the EU. It said quite bluntly that those who are elected to govern now have to make a choice—it is make your mind up time. Will the Minister send a little memo to the Brexit sub-committee which is meeting today to urge it, for the sake of the country’s economy and not just for party unity, to look at jobs first and decide that whatever is best to get jobs and the economy going will be what drives the negotiations?

[Lord Callanan]

I totally agree with the noble Baroness that of course we should have regard to jobs created in the economy. No doubt she will be delighted to know that last week we announced the lowest unemployment totals in the UK for 42 years. I am sure that the Labour Party will want to join us in welcoming that record.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this has been the most extraordinary debate, has it not? We have heard from former judges, Permanent Secretaries, EU Commissioners, MEPs, Cabinet and Brexit Ministers, and former Speakers, Leaders and Chief Whips of your Lordships’ House. We have heard from former ambassadors, negotiators, Attorneys-General, high commissioners and governors, party leaders, Chiefs of Defence, trade unionists, farmers, a police commissioner, a Clerk of the Commons and a Lord Chancellor—to say nothing of current lawyers, Bishops, academics and medics. It is a reminder to our detractors that what this House brings to our democracy is not final decision-making but the wisdom of years of experience and public service devoted to the future of our nation and the interests of citizens. Decry their expertise, and the Government risk losing both credibility and help.

Hearing virtually all 188 speeches has been a privilege, as well as quite a bit of fun, with the call for help from the noble Baroness, Lady Northover, from “Hope, Judge and Pannick”; the discomfort of the noble Earl, Lord Sandwich, at his father’s posthumous victory over him in the referendum outcome; the salivation of the noble Lord, Lord O’Donnell, at the thought of raising tax by secondary instruments; and the invitation of the noble Lord, Lord Lisvane, to three imaginary aunts to see “Reservoir Dogs” or “The Texas Chainsaw Massacre”, conjuring up images of the nights of relaxation spent by the noble Lord, Lord Callanan, when released from the Chamber. But there was also some solemnity. Few will forget the words of the aunt of the noble Lord, Lord Krebs, his only family member to have survived the war in Nazi Germany, who said that it was mad,

“to begin to take apart the structure that we put in place to prevent this happening again”.—[Official Report, 30/10/17; col. 1427.]

That was a poignant reminder of what the EU is all about, as my noble friend Lord Radice recalled from his 1955 bike trip across Europe. Perhaps that is why Clause 1 is like a dagger to the soul of the noble Lord, Lord Butler.

Meanwhile, the right reverend Prelate the Bishop of Leeds invoked Martin Luther King with:

“If we do not know what we … die for, we have no idea what we … live for”,


then asked:

“Once we have done Brexit, then what? What was it for? Who do we think we are?”.


He stressed that the answer should be about human flourishing and a common good. He also lamented the atmosphere around Brexit, where arguments that are inconvenient are ridiculed, and where there has been a,

“normalisation of lies and … demonising of people who … venture to hold a contrary view”,—[Official Report, 30/1/18; col. 1386-87.]

with an “undisguised language” of suspicion, denigration and vilification. As he said, our media have not helped. I also challenge our country’s so-called leaders to get a grip on this.

With only the rare exception, these near-200 speeches have all said that we are not questioning that we will leave the EU and that, to do so, we must have everything ready in time. But the Bill is not yet—in the words of the noble Lord, Lord Hague—in its “perfect, finished form”, able to bring EU law into our legislation. It fails to give Parliament its rightful say. We need, in the words of the noble Lord, Lord Cormack, an assertion not an abdication of parliamentary democracy.

As the Constitution Committee said:

“The Bill as drafted is constitutionally unacceptable”.


In seeking to meet the “essential” but “unprecedented” task of converting EU law into domestic law, it risks “fundamentally undermining legal certainty”, causing,

“constitutionally problematic uncertainties and ambiguities”.

Furthermore, the Bill,

“represents a challenge for the relationship between Parliament and the Executive”,

and grants Ministers “overly-broad powers” and,

“greater latitude than is constitutionally acceptable”.

To quote the right reverend Prelate the Bishop of Leeds—I am sorry, he is popular today—again,

“if ‘taking back control’ by Parliament is to mean anything, it must mean refraining from bypassing the essential scrutiny that Parliament is … required to provide. Hard parliamentary scrutiny might be inconvenient … but the … consequences of granting Ministers unprecedented powers … must be considered, as they will … change our assumptions about democracy”.—[Official Report, 30/1/18; cols. 1386-87.]

The Minister would be well advised to heed such words. The noble Lord, Lord Bridges, warned that such powers might become the mother of all Henrys, referring, I gather, to Elizabeth of York.

Much has been said, so I will touch on just five areas. First, despite the Government saying that they would bring over all current rights and protections, the Bill in fact specifically excludes the Charter of Fundamental Rights, as covered by my noble and learned friend Lord Goldsmith. It also fails to guarantee that protections cannot later be weakened by secondary legislation. We will work to give the retained law the solidarity of primary legislation. Secondly, it fails to respect the devolution settlements, grabbing back to Westminster non-reserved areas that reside in Cardiff, Edinburgh or Belfast. Thirdly, still on power grabs, it takes to Ministers, rather than Parliament, swathes of decisions relating to the returning law, while creating legal uncertainty. Fourthly, there remain big questions as to whether the future of the Good Friday agreement has been factored into the Government’s thinking. Fifthly, it would be for Ministers alone—not Parliament —to decide on the withdrawal deal, on any transition accord and on the framework for our future relations with the EU. That is not acceptable.

Just as, with Article 50, a court decided that it should be for Parliament, not the Crown prerogative, to take that momentous step, so it must be Parliament—not No. 10—that takes these enormous decisions that will impact across the nation on our future trading, security, and every other relationship with the EU 27. This is also why I cannot support the amendment from my noble friend Lord Adonis.

We need to amend the Bill to give Parliament the say on these complicated, vital issues—Parliament, where Ministers can be challenged, as the noble Lord, Lord Bichard, said, where the implications of the deal can be examined and debated, and where decision-makers are then accountable for their deeds. Perhaps at that stage the elected House of Commons might judge that it needs a people’s mandate, but that is for them, then.

For the moment, our role is to question the Government’s negotiating strategy—assuming they have one—and examine the secret evidence on which it is based, though as the Times says,

“voters have the right to see what is being done in their name”.

We therefore welcome the decision of the Commons earlier today to require the Government to hand over their impact assessment to the Exiting the EU Committee. Can the Minister confirm that this House’s EU Committee will receive the document on the same terms? Once more people have read it, perhaps many will side with the Justice Minister, Philip Lee, who says that if the figures are right, there is a “serious question” over whether a Government could legitimately lead a country along a path that the evidence and rational considerations indicate would be damaging. In the words of my noble friend Lord Liddle, the thrust of our argument is that we must challenge the vacuum left by this hapless Government and that Parliament must be placed centre stage in the coming negotiations and approvals. Just as the European Parliament has a vote on the deal, so must our Parliament, including on any proposal for the Government to walk away without a deal.

Recently, we have heard a new word—BINO, or Brexit in name only—which the lifelong Brexiteers so fear. I do not know about that. I do not know how long the transition should be or on what terms, or exactly what arrangement would best protect our jobs, health and social services, children’s and citizens’ rights and the future of our grandchildren—and yes, I have a six day-old grandson. So, for Ilyas’s future, this is important to me. Although I do not know the answers to all that, I know that those judgments must not be made simply by a Prime Minister to protect herself from dissidents in her own party, but by Parliament in the interests of the country.

So, as the Minister rises to respond, I ask him: to guarantee that these wider, national interests will guide the hands of negotiators; to listen to the calls from across this House to amend the Bill to restore powers to Westminster, not No. 10, and provide legal certainty for the courts; to ensure that the Government will preserve both the Good Friday agreement and the devolution settlements; to work with noble Lords in Committee to safeguard the consumer, environmental and employment rights from any change without primary legislation; perhaps to respond to the suggestion from the noble Lord, Lord Warner, to pause the Bill while the Government make the necessary amendments; and, above all, to defend the right—no, the duty—of this House to advise him and the Commons on the detail of the Bill. That is not much to ask.

Brexit: Gibraltar

Baroness Hayter of Kentish Town Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Callanan]

I thank the noble and learned Baroness for her question, but I really do not think that the word “veto” should be used in these circumstances. We have excellent relations with Spain and, as I said, we have been discussing these issues with Spain in a constructive and helpful manner. The discussions are going forward well and we expect a positive result.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, last week I met Sir Joe Bossano, the former Chief Minister, who stressed that not only does Gibraltar have a land border with what will be the EU 27 but that many Gibraltarians consider it to be a border with a potentially hostile state that has designs on their territory—and, of course, the ability to close that very short border. Given that, as we have just heard, paragraph 24 of the EU’s guidelines on the negotiations gives Spain an effective veto, will the Minister give an unequivocal pledge both to guarantee the Rock’s sovereignty and to make its future economic prosperity a priority in the negotiations?

[Lord Callanan]

Of course we can give a pledge to the people of Gibraltar on their sovereignty—we have done that many times—but I do not think that using the words “hostile state” is helpful in the circumstances. The discussions have been positive and cordial. We are engaging with the Government of Spain and trying to resolve the issues. The noble Baroness is right to point to the land border, but it is now a Schengen border. Many residents of Spain—something like 7,000 a day—cross that border to work in Gibraltar, so there is a desire on both sides to make the arrangements work as smoothly as possible.

Brexit: European Travel Information and Authorisation System

Baroness Hayter of Kentish Town Excerpts

Wednesday 17th January 2018 Lords Chamber

[Lord Callanan]

No, my Lords, it is not. The noble Baroness is making a whole series of assumptions in her question, none of which may turn out to be true. We are still to have the discussions with the EU on the future relationship in terms of how people will travel backwards and forwards. When we have had those discussions and reached a conclusion, we will be sure to let her know.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, yesterday we had a debate in this House about the question of deal or no deal—indeed, the Minister was here late last night to answer it—and the majority of speakers from the government Benches indicated that they were quite content with the no-deal option, which would mean abruptly crashing out from all EU arrangements and procedures at the end of March next year. Will the Minister confirm that Ministers really would jeopardise British citizens’ rights to travel on holiday visa free, and to work in the EU, as the price of their failure to agree terms with the EU?

[Lord Callanan]

I thank the noble Baroness for her question, but I am slightly surprised that she is coming back to this subject, as we spent about four hours debating it last night. Perhaps it would be helpful to read Hansard. No, we have been very clear that no deal is not an outcome that we want or expect. We are working to get a deal but, as a responsible Government, we have to be prepared for any eventuality. We discussed these issues in great detail last night.

Brexit: Deal or No Deal (European Union Committee Report)

Baroness Hayter of Kentish Town Excerpts

Tuesday 16th January 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I too thank my noble friend Lord Whitty for introducing today’s debate. I thank the noble Lord, Lord Jay, and his committee for their choice of subject and for what I consider is the high quality of the report. I am sorry about the attacks made on it; I think that most were a cover for not liking its conclusions, although I exempt the noble Lord, Lord Bew, from that. I also thank the noble Lord, Lord Jay, for getting this debate today; it is particularly timely as it is of course on the very eve of the first anniversary of the Lancaster House speech when, regrettably, the Prime Minister gave legs to this rather vacuous “No deal is better than a bad deal” nonsense. But I also hope that this debate is in time to influence the Government’s thinking, particularly along the lines of the report’s advice, which is, basically, “Get real”. Both the report and the debate have laid bare the absence of any rationale for suggesting no deal and, of course, its failure to scare the other side to offer us lots of goodies, given that they view it as mere bluster. I will emphasise four points.

First, there is the near unanimity of advice that no deal has no merit. As paragraph 18 notes:

“Very few witnesses identified any positives arising as a result of ‘no deal’”,


while a former Chancellor of the Exchequer struggled to find any country of any significance that traded purely on WTO terms—the no-deal option—which the CBI judged would mean that 90% of our manufacturing exports by value would face tariffs. Yet as my noble friend Lord Whitty has warned, the very repetition of the no-deal rhetoric risks becoming a self-fulfilling prophecy. Indeed, rather oddly, as has been mentioned, even as Ministers insist it is an option and continue to prepare for it, as they say,

“any responsible government would do”,

they are then utterly surprised when the EU 27 do just that, with David Davis even having the effrontery in a letter to the Prime Minister to attack their “damaging” no-deal planning, even, we understand, consulting lawyers—presumably at taxpayers’ expense—over the EU’s preparations for no deal. It is unclear why David Davis should spend £3 billion preparing for no deal but get so het up when Michel Barnier does exactly the same. As the Commission spokesman responded:

“We are surprised that the UK is surprised that we are preparing for a scenario announced by the UK government itself”.


So of course the Commission should prepare. As it makes clear, if no deal is agreed by this October, the status quo would come to an abrupt halt next March. However, as the noble Lords, Lord Gadhia and Lord Taylor of Warwick, said, this is not a game show. Should we leave the stage, there would be dire consequences for our country.

Secondly, it is difficult to believe that the Government really believe that no deal could ever be satisfactory, given that it would mean: no security for United Kingdom citizens living in the EU; probably a hard border in Ireland; immediate imposition of tariffs, customs checks and possibly travel visas; no flights to continental Europe; nuclear materials stacked at the border; no judicial co-operation or European arrest warrants, as the noble Lord, Lord Blair, mentioned; no new trade agreement with any other country, because they would not be in place by then, and the loss of all 57 existing trading relations with third countries; 17-mile tailbacks at Dover, without having even an IT system in place; a devastating impact on our farming and food safety, and food prices possibly going up by 20%; a rift in the all-Ireland energy electricity market, posing threats to Northern Ireland’s lights; the financial sector in jeopardy, particularly on investment contracts, as we have heard; and, according to the impact assessment commissioned by the Mayor of London, which was rather more thorough than that done by Her Majesty’s Government, some half a million jobs under threat, and effectively a “lost decade” of lower employment and economic growth, with perhaps £50 billion of investment lost. And of course it would mean no transition agreement, despite the proposal for an implementation period by the Chancellor and the Secretary of State for Brexit in the Frankfurter Allgemeine Zeitung, although of course that is not possible without a deal.

Thirdly, the Whitehall farce returned last week as the anticipated new “no-deal Brexit Minister” failed to appear and was replaced by a new Minister who supports no deal. Indeed, she does not even want a transition, despite the fervent pleas from industry. So “No, No, Nanette” becomes “Yes, no; well, maybe. We’ll tell the EU 27 that we want a deal but we’ll appoint a Minister who doesn’t”. If it were not so serious, it would actually be quite funny.

Fourthly, and crucially for this House as we prepare for the withdrawal Bill—it will soon end its passage through the other House—any decision to slam the door behind us, after 46 years, with no agreement on our temporary or future relationship is a big national decision. It is not a decision to be taken solely by Ministers; it is one to be taken by Parliament on behalf of the nation. Therefore, we will seek to amend the withdrawal Bill to ensure that any decision to have no deal resides with Parliament and not with Downing Street.

As the report says, failure to reach agreement is not a continuation of the status quo. No deal would mean the abrupt cessation of nearly half a century of economic, political and legal partnership. The elegant wording of the noble Lord, Lord Jay, repeated today by my noble friend Lord Whitty, and by the noble Lords, Lord Gadhia and Lord Wallace, concludes:

“It is difficult, if not impossible, to envisage a worse outcome for the United Kingdom”.

[Lord True]

I mentioned the position of the Labour Party. A lot has been said in this debate about not knowing where people stand. The noble Baroness is here as a spokesman for her party. Is it the policy of the Labour Party that the UK should come out of the single market and the customs union? It would be helpful for us to know before next week—tonight, please.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, your Lordships can absolutely know tonight. We have been very clear.

[Noble Lords]

Oh!

[Baroness Hayter of Kentish Town]

You do not hear what you do not want to hear. We would not go into the negotiations with red lines already closing off what we wanted to discuss with the opposite side. A number of noble Lords have said today that they are experienced negotiators. I have done a bit myself, starting in the trade unions. I have never gone into negotiations saying what I would and would not accept before I even started. The Labour Party has said absolutely clearly that we would not have taken anything off the table before we had even sat on the chairs.

[Lord Forsyth of Drumlean]

How is that consistent with the leader of the Labour Party, Mr Jeremy Corbyn, saying that he is not in favour of our remaining in the single market?

[Baroness Hayter of Kentish Town]

As the noble Lord knows, those were not actually his words. The leader—I did not need to know his name; interestingly, I remember it—said that he could see some difficulties in being in when and if we were no longer a member of that treaty. He did not say, and nor has he said, what the outcome of the negotiations should be. Importantly —it was a challenge, I think, made to me earlier by my noble friend—it was asked whether the Labour Party can rise to the national interest. If anyone would like us to take over the negotiations and do a better job than is being done at the moment, we will be very willing to do that.

For the moment, I leave your Lordships with these words:

“It is difficult, if not impossible, to envisage a worse outcome for the United Kingdom”.


I hope that the Minister will now reassure us that that is neither the aim nor even a fallback and that every bit of work will be done to make sure that there is a deal in the interests of the whole country.

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

My Lords, I am grateful, as ever, for the opportunity to respond to the debate on the Select Committee’s report, Brexit: Deal or No Deal. We have heard a series of excellent contributions—some I agreed with and some I did not, but, nevertheless, virtually all of them have shown your Lordships’ House at its best. It has been an extremely good debate, even if all the positions outlined came as no surprise; nobody has changed their views, but it was interesting to hear the different opinions. I will refer to a number of the excellent speeches as I go on.

We have discovered a series of surprising facts, including that the noble Baroness, Lady Falkner, and my noble friend Lord True both enjoy Italian holidays. A vision went through my mind’s eye of the pair of them sitting on a lovely Tuscan terrace sharing a bottle of prosecco and exploring these issues, but I think it would probably take more than one bottle before they agreed with each other.

I thank the European Union Committee, chaired by the noble Lord, Lord Boswell, for producing this thoughtful analysis. I am pleased to hear that the noble Lord has now returned to his duties in the House. I pay tribute to the noble Lord, Lord Whitty, for stepping in for the noble Lord, Lord Jay. Incidentally, it occurs to me that being the chairman of your Lordships’ European Union Committee is a bit of a hazardous occupation: first, the noble Lord, Lord Boswell, is incapacitated, and then the noble Lord, Lord Jay, is incapacitated. I hope that nobody else suffers any unfortunate accidents during their time in this obviously dangerous position. Nevertheless, the noble Lord, Lord Whitty, stepped in very ably to introduce our debate this evening.

I can inform noble Lords that a formal response to the committee’s report is being prepared and is expected to be issued within the usual two-month response time. My department is working with officials from all departments and undertaking a wide range of work to support the negotiations. We recognise the need for businesses to prepare contingency plans, and we continue to engage with companies across sectors and regions to understand the challenges and opportunities that they may face. In November’s Budget, the Chancellor committed to ensure that departments and the devolved Administrations continue to have the resources necessary to prepare effectively for a range of exit scenarios, including that of no deal. Her Majesty’s Treasury has already given departments nearly £700 million to prepare for Brexit, and is making an additional £3 billion of funding available over the next two years.

Many of the points raised by the report relate directly to the second phase of negotiations, and, as such, I hope noble Lords will understand that I will not be able to go into great detail on some of those areas at this stage. However, as more of our contingency planning becomes public, this should not be interpreted as an expectation that talks with the EU will be unsuccessful but recognised instead as the actions of a responsible Government determined to ensure a smooth exit under any eventuality. A deep and special partnership, taking in both economic and security co-operation between the UK and the EU, is of such mutual importance—as my noble friend Lord Hamilton pointed out—that I am confident it can be agreed.

The noble Lord, Lord Whitty, and other noble Lords asked whether agreements to date will stand, what has been agreed in negotiations to date and whether we are still committed to the policy that “Nothing is agreed until everything is agreed”—that famous phrase. Of course both we and—let me emphasise this—the EU have been very clear from the outset that nothing is agreed until everything is agreed. However, we are clear that we want to honour the agreements that have been reached so far in the joint report, and we are proceeding with confidence that we can and will do so.

The noble Lord, Lord Whitty, and other noble Lords asked about the impact of no deal. The committee’s report and our debate this evening have focused predominantly on that scenario. Let me make it absolutely clear, as the Secretary of State did in front of the committee on 31 October, that this Government do not want or expect a no-deal outcome from these negotiations. We continue to seek a deep and special partnership with our European friends and allies as we leave the EU, and we approach the negotiations anticipating success.

In light of our successful phase 1 agreement, I am confident that the prospect of leaving negotiations with no deal has reduced significantly, as a number of noble Lords pointed out. While this progress is encouraging, the Government continue to act responsibly by preparing for a range of outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. Every government department continues to work to ensure a smooth exit from the EU in all eventualities.

Noble Lords have this evening expressed concern that the act of preparing for a no-deal outcome with the EU could act as a self-fulfilling prophecy, increasing the likelihood of this outcome. I do not agree that this is the case. The Government’s contingency planning should not be interpreted as an expectation that talks with the EU will be unsuccessful, but recognised instead, as I said, as the actions of a responsible Government determined to ensure a smooth exit in every eventuality.

Noble Lords have spoken about potential no-deal scenarios. As we enter the next phase of talks, we do so optimistically and fully committed to the Article 50 process. Through the process we have already reached agreement on a number of the critical separation issues, including citizens’ rights, judicial and administrative co-operation and the Ireland-Northern Ireland border. We have consistently called for flexibility, imagination and a willingness to make progress in every stage of the talks.

As I have noted, we are planning for a range of exit outcomes but our focus is concentrated on achieving an ambitious and positive deal. Such a deal is of mutual importance and beneficial to both parties in negotiations. We are therefore confident that such a deal will be agreed.

The noble Lord, Lord Whitty, asked about implementation periods, as did my noble friend Lord True in his excellent contribution—I particularly enjoyed the “fat yellow line” argument. Noble Lords have spoken about the implementation period aspect of the UK’s exit from the EU, which was also considered in the committee’s report. As part of a deal on the UK’s future relationship with the EU, both parties agree that a strictly time-limited period would be mutually beneficial. Such an implementation period has been clearly set out by the Prime Minister in her Lancaster House and Florence speeches. It forms a key part of a smooth and orderly exit from the EU. An implementation period prevents businesses and Governments in the UK and Europe having to make decisions before they know the shape of our future partnership. It also provides individuals and citizens on both sides with time to adapt to the new relationship between the UK and the EU. We have been clear that during the implementation period access to one another’s markets should continue on current terms.

My noble friend Lord True also said that the implementation period must be for implementation. Other noble Lords spoke about the timing and purpose of an implementation period; I agree that it must be time limited and used for implementation.

The Prime Minister has indicated that the duration should be determined by how long it will take to prepare and implement the new processes and systems that will underpin the future partnership. There is broad consensus between us and the EU on the duration of such an implementation period. Our current assessment points to a period of around two years, and the EU has suggested that it could be slightly shorter. Both the guidelines published by the Council and comments made by President Tusk point to the shared desire of the EU and the UK to make rapid progress on an implementation period, with formal talks beginning very soon. I can confirm for the benefit of the noble Baroness, Lady Falkner, that the Prime Minister has said that we want to reach an agreement on the implementation period by March. This will help to give certainty to employers and families as we work to deliver a smooth Brexit.

[Baroness Hayter of Kentish Town]

Could the Minister please clarify one thing? If agreement is to be reached by March, the idea of an implementation period is that you are implementing something. I still have not quite understood—maybe the Minister can help the House—what we could decide by March of this year that could be implemented from March of next year. Is he saying that the whole of our final agreement could be agreed by this March so that we will be implementing that?

[Lord Callanan]

No. As the noble Baroness understands very well, we can agree the principle of the period of implementation by March and we will then go on to the further agreements on the various issues that we have set out.

The noble Lords, Lord Whitty, Lord Butler and Lord Kerr, and the noble Baronesses, Lady Falkner and Lady Ludford, all asked about the legal basis of the implementation period and raised questions over that legal basis. Such an implementation period would be agreed under the Article 50 process, and would be enshrined in the withdrawal agreement, and implemented in this House under the withdrawal agreement and implementation Bill. The EU has been clear on this in its Article 50 guidelines and draft negotiating directive, and the UK Government agree with this approach. The desired implementation period will allow a period of smooth transition to the terms of a new relationship.

The report claims that the implementation period could be used as a mechanism to extend the negotiation period beyond March 2019. The noble Baroness, Lady Falkner, also suggested a method to extend the negotiation period using Article 50. On 29 March 2017, the Prime Minister notified the EU—