Civil Liability Bill [HL]

Baroness Hayter of Kentish Town Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

47: After Clause 7, insert the following new Clause—
“Restriction on increase in small claims limit for relevant personal injuries
(1) In this section, the “PI small claims limit” refers to the maximum value (currently £1,000) of a claim for damages for personal injuries for which, in accordance with Civil Procedure Rules, the small claims track is the normal track.(2) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims to an amount above £1,000 for the first time unless—(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £1,500, and(b) the rules increase the PI small claims limit to no more than £1,500.(3) Civil Procedure Rules may not increase the PI small claims limit in respect of relevant injury claims on any subsequent occasion unless—(a) the Lord Chancellor is satisfied, and has certified in writing, that on the day the rules are to come into force, the value of £1,000 on 1 April 1999 adjusted for inflation, computed by reference to CPI, would be at least £500 greater than on the day on which the rules effecting the previous increase were made, and(b) the rules increase the PI small claims limit by no more than £500.(4) In this section—“CPI” means the all items consumer prices index published by the Statistics Board;“relevant injury” means an injury which is an injury of soft tissue in the neck, back, or shoulder and which is caused as described in paragraphs (b) and (c) of section 1(3) (negligence while using a motor vehicle on a road, etc.);“relevant injury claim” means a claim for personal injury that consists only of, or so much of a claim for personal injury as consists of, a claim for damages for pain, suffering and loss of amenity caused by a relevant injury, and which is not a claim for an injury in respect of which a tariff amount is for the time being prescribed under section 2.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendment 47 stands in my name and those of my noble friends Lord Bassam, Lord Beecham and Lord Monks. We need this amendment because, on the back of wanting to take action on what are claimed to be fraudulent whiplash claims, the Government propose to remove legal help from a swathe of people with genuine personal injury claims. This is not simply unnecessary but wrong.

When the Government introduced fees in employment tribunals, the absence of legal advice and representation frightened many away from taking cases to court and we saw a drop-off of some 90%. In family courts, where legal aid was largely withdrawn, we have again seen the difficulties when people are unrepresented. Denying legal advice undermines the commonly held view—I thought it was commonly held—that justice should be open to all and not just to those able to pay.

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[Lord Keen of Elie]

I note what the noble Lord says about national trade union membership, and no doubt the unions will try harder to recruit more widely. One of the obvious benefits they can hold out is the provision of legal advice and assistance for those who become members. I accept that there is a balance to be struck.

Amendments 47 and 48 seek to restrict the increase in the small claims track limit for whiplash injury claims to a maximum of £1,500, as opposed to the proposal that there should be an increase to £5,000. They also seek to restrict the ability of the Civil Procedure Rule Committee to make further amendments to the upper limit. As we have indicated before, motor insurance premium costs are increasing as insurers pass on the cost of dealing with the continuing high number and cost of whiplash claims. I referred earlier to the 2017 election manifesto provision that the Government were committed to cracking down on these claims and ensuring that the money saved was returned to consumers through lower premiums. These amendments would maintain the burden on ordinary motorists by restricting the flexibility of the Government to reduce the costs of civil litigation through changes to the Civil Procedure Rules.

Whiplash claims are generally straightforward and do not routinely require legal advice. The small claims track is suitable for such claims. It is designed to be accessible to litigants in person, and the Government are working closely with stakeholders to develop a comprehensive package of guidance and support for users.

The Government have chosen to increase the small claims limit for road traffic accident personal injury claims to £5,000 for good reason. This limit, as I said, has been set at £1,000 since 1991 and, as compensation levels have risen, the small claims track no longer covers the same breadth of claims as it once did. Following consultation, the Government believe that increasing the limit for RTA personal injury claims to £5,000 is a careful and proportionate increase, particularly having regard to the fact that the limit for other claims, with the exceptions I mentioned earlier, is now £10,000. A level of £5,000 will facilitate early and expedited settlement under the proposed tariff structure and will encourage insurers to challenge unmeritorious claims, many of which are not now challenged because of the potential legal costs.

A decision to tie such limits—currently, for good reasons, enshrined in secondary legislation—to a restrictive primary legislative process would be inflexible. The Civil Procedure Rule Committee, under the leadership of the Master of the Rolls, sets out the rules of procedure to ensure that the civil justice system is fair, open and effective. It is the body that sets the financial upper limits for the current three tracks of the civil justice system following consultation. That system has operated effectively for some time. It is flexible and it is appropriate that procedural changes should be made in this way to the civil justice system.

However, we listened to points made earlier about the position of those who are considered to be vulnerable road users. Noble Lords will be aware that they are already excluded from the provisions of Clause 1, and it is proposed that they may be exempted also from the £5,000 limit on the small claims track. We are giving further consideration to that at the present time.

Amendment 48 seeks assurances as to the recoverability of the cost of a medical report in respect of whiplash injury claims, notwithstanding the increase in the small claims track limit. That has been addressed already. The amendment also seeks to change the nature of the small claims track itself by permitting a claimant to recover their legal expenses. We consider that, given the nature of the small claims track for personal injury claims, it would be wholly inappropriate to introduce the recovery of legal expenses. The small claims track was designed to be a low-cost process accessible to litigants in person. The rules have been purposefully and carefully drafted to ensure that both parties share the financial burden of litigation and pay their own legal costs—or, in the case of a union member, have them met by the union. That is a key advantage of the process.

A number of noble Lords have questioned why insurers do not do more to challenge potentially inflated or fraudulent claims, particularly whiplash claims. Part of that answer lies in the cost of defending a claim in the fast track. Increasing the small claims limit so that more of these straightforward whiplash claims—where the insurance industry tells us that liability is admitted in around 90% of cases—are heard in a small claims court will encourage insurers to challenge unmeritorious claims. By contrast, challenging a claim in the fast track is an expensive process that insurers not unnaturally seek to avoid. So there are very clear cost advantages overall in increasing the limits for the small claims track. Where a case is considered to be of a degree of complexity such that it would not lend itself to the small claims track, clearly the court can direct that it should go on to the fast track.

Therefore, in respect of Amendment 48 in particular, the idea of having different cost rules in the small claims court based on the type of claim would create confusion, would undermine the whole purpose of the small claims track and would potentially be unfair to all users of the court system. In these circumstances I invite the noble Baroness, Lady Hayter, and the noble Lord, Lord Bassam, not to press their amendments.

[Baroness Hayter of Kentish Town]

I thank not the Minister but the noble and learned Lord, Lord Judge—I will get him to move things in future. He is so much more effective than I am.

I was very disappointed by the tone of the response. I stand here as the shadow Consumer Minister, talking about consumers, and we get a sort of suggestion that this is all about keeping trade unions happy. As my noble friend Lord Bassam said, sadly there are only 6 million people in trade unions—I wish it was more. It is exactly the low paid and the people who are most vulnerable to this who are not represented by trade unions—but, even if they were, I do not accept that that makes putting up the limit somehow acceptable.

I will not take up time. I acknowledge a movement on vulnerable passengers—for which, as a cyclist and a pedestrian, I am grateful—but I am afraid that the Government’s own figures show that, by their changes, one in four of the people compensated today would no longer be compensated. If on that basis the Minister thinks that we will save costs—in other words, it is injured people who will pay—I do not think that that is good enough. It should be done not behind the scenes but in the Bill. I beg leave to test the opinion of the House.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Adonis]

The noble Lord—I would like to call him my noble friend—gives the game away. He says that he imagines that this person might represent an English constituency. In fact, he might or might not. If the noble Lord, Lord Bourne, were Prime Minister, he comes, I understand, from Aberystwyth. He would then be the representative of the UK Government. In our lifetime, I served under one Scottish Prime Minister. I have never served under a Welsh Prime Minister, but there have been one or two Welsh candidates for that post in the past.

In England we are not very good at this rigorous constitutional thinking. Let us be clear, even if it were an English Member of Parliament or Minister, their role would be to represent the Government of the United Kingdom; it would not be their role to represent England, separate from the Government of the United Kingdom.

Finally, when the noble Lord produces his full draft of a new written constitution for the United Kingdom with his proposal for a federal senate, which I assume will be his next amendment on Third Reading, could he please suggest some arrangements for how England will play a part in his federal arrangements?

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have a lot of sympathy for the amendment. We agree with its aims in so far as they put the JMC on a statutory basis. The formula is not one for this House to write, but undoubtedly the objective of putting that on a statutory basis is one that we support.

I think there were different Ministers at the time of the Article 50 Bill, but we had an amendment at that stage that would have required the Government to set out the relationship with the devolved authorities, particularly over Brexit, obviously. We included at that stage formalising the Joint Ministerial Committee and I think it remains a good idea. At Second Reading, or certainly since, we raised the issue in the context of the Bill.

So we are very sympathetic to the objective of Amendment 92A. Our reservation is about its form. I do not think it is in the right form, but that is not for us to do. Even more importantly, this goes well beyond the Brexit Bill and it needs looking at. We urge the Government to look seriously at the objective of Amendment 92A and to discuss it with the devolved Administrations. If this or something similar found favour and everyone thought it would be a good idea to put it on to a statutory basis, I am sure this side of the House would be very amenable to making such a movement possible.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Roberts of Llandudno (LD)]

My Lords, I will intervene very briefly. Since the Maastricht treaty, 18 million people have been born into European citizenship. They have not acquired it—it is their right from birth. What right have we to strip them of this citizenship? I am proud of being Welsh, proud of being British and proud of being a European. A person is usually stripped of citizenship as a penalty for having done wrong and for being an undesirable. How on earth am I going to tell the children—and they are not only children now—who have been born since the Maastricht treaty into European citizenship that they no longer have that right?

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in the words of those who tabled the amendments and their supporters, we hear the cry of millions who feel the loss of what they believe has been, or has become, their birthright—European Union citizenship.

We see this in many different ways. Half a million holders of UK passports have already applied for Irish passports, often by virtue of their parents’ or grandparents’ status; 30,000 EU citizens—double the number we saw before the referendum—who live here are now applying for British nationality; and many Britons are taking up membership of an EU member state so that they can preserve their EU citizenship. There is an even greater number of people who, like me, would love to continue to hold a purple passport. I have no nostalgia for my old passport—I think it is black rather than blue—and do not want it back; I would like to keep my purple one.

Apart from the emotional attachment, there are pragmatic reasons why people would like to continue with that. As the noble Lord, Lord Kerr, said, even with the withdrawal agreement we are not certain that it will allow Brits who are living abroad to do more than just remain in the country where they find themselves at the moment. It may not guarantee them the right to move or work elsewhere.

I heard recently from a British national, Nick Gammon, who at the moment is living in Holland—he has lived in France and Ireland—whose children absolutely identify as citizens of Europe. He is a translator and even at the moment his work is done not only in Holland but in Belgium, Germany and Britain, and indeed all over the place. But of course, after exit, while he will be able to carry on living in Holland, he will not be able to continue to live and work in one of those other places if it is not included in the final withdrawal agreement—although it would be nice if we could hear that it is going to be.

Of course, Nick is not alone. A few days ago we talked about the designers, architects, performers, sports men and women, nurses and all sorts of people who move around for their career, very often as freelancers, as well as for their personal lives. We heard from our EU committee earlier about how tourists moving abroad now risk losing their European health insurance card, the EHIC. Obviously this does not apply to many noble Lords in the Chamber, but if you happen to be more than 90 years of age or you have a pre-existing ailment, it will become very hard to get health insurance if we lose the EHIC. So there are enormous problems with continuing the movement across Europe that we know.

So there is undoubtedly an ache for the EU passport, with its ongoing residence and other rights. Perhaps I may briefly tell one more story. In my husband’s family, his cousin’s husband will I think be known to many: Nick Ross, whose Jewish grandmother and father arrived here from Germany in the 1930s. Nick has just taken German nationality. He has done so for a number of reasons, including how Germany has changed—although he does not necessarily want to go and work there. Following his lead, his sons, nieces and nephews have also applied for German passports, which says quite a lot. I gather that it is taking the youngsters rather longer because there is now a long queue of people doing just that.

That is a reflection of the world in which the current generation lives. Young people have more in common with friends, colleagues and partners across the continent than our parents would ever have imagined. It is the world that EU citizens residing here have also come to assume. Some are still in shock after the June 2016 decision, which will bar their automatic right to stay here, work and bring their family over. Even with all the promises we have been given, we know that there are great worries about how the system for settled status will continue.

I return to the amendment. Of course we cannot acquire stand-alone EU citizenship. It does not exist but is an add-on, even in the words which we have just heard quoted. It is an add-on for the nationals of EU member states. The EU 27 nations are no more going to give passports to all 65 million of us than we would give British passports to the 500 million citizens across the European Union—so I am afraid that we are not likely to get passports from another EU member state, and therefore, sadly, we will lose our EU citizenship.

But what we can do is ask the Government to ensure that at every stage of the negotiation they prioritise the movement of people around the continent in the way that a generation has learned to enjoy and value. Whether it is over the negotiations on staying and working with Euratom, Erasmus or the medical or other agencies, everything we do should help to preserve the free movement across the continent which youngsters in particular have come to expect. I think that we would like to see, if I may use the phrase, a continental Brexit, and I hope that Ministers will press for it so that people will be kept at the centre of all the negotiations, which will help them to continue to feel European—even if we revert to the old black passports.

[The Earl of Clancarty]

I detect an elegiac and rather defeatist note in what the noble Baroness is saying. Has she read the report by Professor Volker Roeben? If so, what is her response to it?

[Baroness Hayter of Kentish Town]

Not only have I looked at that report and a number of other documents, but the noble Earl will have observed that I have one of the major legal advisers sitting on my right, from whom I take great strength.

I would love to believe the noble Lord but, alas, I also believe what it says in the treaty: EU citizenship is an add-on for citizens of a member state. That is why noble Lords have heard me say before that I was born in Germany but, sadly, in a British hospital, so I was born British. For a long time, I thanked my parents for getting me into a British hospital so that there were no complications. They are long dead, but I am now really cross with them for not having me in a German hospital so that I could have a German passport and keep it. My wish is there, but my brain tells me that it is just not possible.

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[Lord Goldsmith]

My Lords, there have been moments during the 11 Committee days that we have had so far on this Bill when I felt a little sorry for the noble and learned Lord opposite for the positions that he was being expected to argue by those behind him and in other places, but never more sorry than I am today. This is the most absurd situation. We have offered him an amendment and I am grateful for the description given by the noble Lord, Lord Kerr of Kinlochard, as delicate. It does not presume even that there are transitional arrangements. It simply says that, if there are transitional arrangements, this is what will happen. I cannot understand why it is not accepted. I had hoped on this 11th final day of Committee that we would have a breakthrough.

[Baroness Hayter of Kentish Town]

The 11th hour of the 11th day.

[Lord Goldsmith]

The 11th hour of the 11th day, as my noble friend Lady Hayter says. If we had had a breakthrough, we would have been able to say we had finished Committee with a concession—not much of a concession, it would have to be said, because it is so obvious that this ought to happen, but at least it would have been something that we could build on as we move towards Report where we hope we will have a degree of constructive engagement.

This really does not make sense at all. We all know, and the noble and learned Lord knows—indeed, he accepted it—that there will be a role for the European Court of Justice after the magic exit day, whatever day we end up with. If there is not, this amendment does not operate. It is very straightforward and simple: to suggest otherwise is cloud-cuckoo-land or Red Queen land.

The noble and learned Lord’s final recourse is to legal certainty. We all accept the importance of legal certainty, and that that is what is behind the Bill. However, there is complete legal certainty if this Bill, when it becomes an Act, says, “If something happens, this provision does not come into effect until the end of that period”. I will not quote Latin again, but we know there are principles which say that those things are certain which can be made certain, and it will be certain because we will know whether or not there is such an arrangement.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this debate will be an easy one for the Minister to respond to. I entirely agree with what has been said, and all I want to add is that although these are technical changes, they need to be dealt with in the spirit that we shall move on to later. Our worry, particularly at the beginning, was that it took some time for the Government to recognise that the expectation that not everything retained was devolved was a legitimate one from the devolved Administrations. Perhaps now there is that willingness to engage. We may regret that it took a little time but we seem to have got there. Perhaps one of the issues was that the Joint Ministerial Committee has not worked in the way we might have expected in the past. Brexit showed that up in a sense, but this is bigger than a Brexit issue. Therefore, any changes to the status of that body are probably not for this Bill to deal with. However, I hope that at some point the Government can revisit whether it needs to be given either statutory authority or some greater authority in the future. Although these amendments may be technical in the words of the noble and learned Lord, Lord Hope, with his, as ever, diplomatic use of the phrase, “They need adjustments”, I think he means that we want the Government to move on them. I hope the spirit that I think is now abroad will enable us to do that.

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[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged for all the contributions at this stage of the debate. I appreciate, as do other Members of the House, that when I move the government amendment to Clause 11, we will embrace a debate about the consequences of that amended clause and the significant change it makes to the way in which we are going to deal with, among other things, devolved competences. But as the noble and learned Lord, Lord Hope, observed, his amendments are consequential in a sense on what is going to happen with regard to Clause 11. In that context, I point out that we had already indicated our intention to move the amendment to Clause 11 and then withdraw it, in order that the consequences for the schedules to the Bill can be addressed more properly when we reach Report. However, there is a more fundamental issue underlying this, which has been highlighted by the use of the terms “consult” and “consent”. It is really rather fundamental. Because these are probing amendments, I will just outline the Government’s thinking with regard to this area of the Bill and how it will work. I am sorry if I am going to appear somewhat repetitive about some matters of history that have been touched upon already, but perhaps your Lordships could bear with me, if but for a moment.

In 1972, the UK Parliament of course transferred certain competences to the EU. Having done so, it limited its competence to legislate for the United Kingdom. When it came to the Scotland Act 1998 and the Government of Wales Act 2006, that Brussels competence, as I will term it, had already gone. When it came to considering the scope of the divorce settlement, the matter of the powers held by the European Union in Brussels was not in scope for consideration as part of devolution. They had gone, by virtue of an international treaty implemented in domestic law pursuant to the ECA 1972. The devolved settlement was determined by reference to the competence that remained in Westminster in 1998 and in 2006.

[Baroness Hayter of Kentish Town]

My Lords—

[Lord Keen of Elie]

I am going to elaborate on what happens to the competences in Europe. I wonder whether the noble Baroness will bear with me just for a moment.

[Baroness Hayter of Kentish Town]

But I wanted to challenge what the Minister just said. The competences were not actually removed from us. We agreed to operate within the framework, but the idea that we actually gave up those competences in the way described would perhaps not be accepted, as such. We agreed that the EU had rights to make laws in certain areas, but that is not the same as saying, “This is no longer our responsibility”.

[Lord Keen of Elie]

With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.

Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.

Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—

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[Lord Keen of Elie]

I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

[Baroness Hayter of Kentish Town]

The Minister used a phrase—which is used also either in the Explanatory Note or in a letter, I cannot remember which—about the retention of this for the purpose of the internal market. It might be helpful if that wording appeared on the face of the Bill.

[Lord Keen of Elie]

I note that comment. The noble Baroness will appreciate that the amendment to Clause 11, which I will move in due course, seeks to ring-fence these powers to ensure that they are limited. Indeed, the noble and learned Lord, Lord Wallace, has also tabled an amendment regarding a sunset clause in that context. It is perfectly clear from the proposed amendment to Clause 11 that they are meant to have a very limited function—but I note what the noble Baroness said and I will take it forward.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

We have already debated the appropriateness—or the inappropriateness, I should say—of taxation by statutory instrument and the question of when cost recovery becomes a tax. I have to say that I did not find the Government’s arguments in that case particularly convincing, especially as this is a regime that could lead to public authorities charging pretty well what they want to charge for their services. The lesser control—the negative procedure—for an increase in a fee or charge is part of that regime, and I find it similarly concerning. So I hope that the Government will come forward on Report with amendments to make such increases subject to the affirmative procedure.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we support that. It is particularly important for the new SIs that will deal with functions hitherto carried out by EU bodies and which therefore will not be part of the normal, ongoing scrutiny that may have happened for many years. It is particularly important that these should be by only the affirmative procedure, as the word “modification” can only mean an increase.

[Viscount Hailsham (Con)]

In order to indicate cross-party support, I will say that I support this amendment.

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[Baroness Goldie]

My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.

Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.

Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.

As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.

The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.

To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.

It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.

I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.

The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.

I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.

The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.

I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.

I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.

I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.

I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.

Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—

[Baroness Hayter of Kentish Town]

My Lords, before the noble Baroness leaves the issue of fees, it was fairly clear earlier that the House probably would not accept that fees could be charged without primary legislation: we do not accept that the power to do that should be by secondary legislation. Assuming that we win on that, which I think we might, when we come to Report, I think it unlikely that the House will want to accept the idea that those fees could then be hiked by a Minister without coming through the affirmative procedure. Given that the Minister said that she would look at this in the broader context that this is a new power to set up fees for new functions being brought over, raising them without an affirmative procedure is perhaps a step too far.

[Lord Tyler (LD)]

Further to that point, am I not right in thinking that the reference back under the amendment to Part 1 of Schedule 4 means that we are talking about public authorities, not just Ministers? Will the Minister comment on the number of organisations that may fall into this category? I recall a previous discussion where it was clear that literally hundreds of organisations might be making such modifications to taxes or charges. So this is not, in her words, a small, technical matter; it could apply to a large number of organisations which could impose considerable increases in taxes and charges.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Lord Adonis]

Perhaps I may respond to the noble Baroness and make one further brief point. The noble and learned Lord, Lord Mackay of Clashfern, said that we should be proud of our courts and the work they do. I entirely agree with him; however, we are told time and again—indeed, it is part of the argument for Brexit—that our courts are of course subservient to Parliament. They implement and give judgments on the laws that are passed by Parliament, which has still not guaranteed the rights of European Union citizens resident in this country. Moreover, because it is not being invited to do so by the Government, at the moment it will not make any declaration about those rights after the end of March next year. That, I believe, is shameful.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I want to concentrate on the last point made by my noble friend Lord Adonis and on the arguments made, particularly on Amendments 49 and 52, by my noble friend Lord Foulkes and the noble and learned Lord, Lord Wallace of Tankerness. I do so because the bit that is so critical is implementing what in December the Prime Minister said would be on offer to EU citizens already living here and which we need to put into law. That is an absolute priority and a priority for this Committee.

As we have heard, there is a particular need, because of what the Prime Minister agreed to in December, for the Government to rethink their blanket refusal to allow access to or take heed of the Court of Justice of the European Union within this Bill. It has been written out of the Bill precisely because of the draft withdrawal agreement—it is called a report, not an agreement—produced in December. As drafted, that document will allow access to what I still call the ECJ for EU citizens resident here for another eight years, which is why that is mentioned in the amendment. It would fulfil the undertaking written into the report last December with regard to their rights.

It was suggested in one of the meetings I had with a Minister—I cannot remember who—that everything is fine: we should not worry because it will be put into law by repealing parts of the Bill before us more or less as soon as Her Majesty’s ink is dry on Royal Assent. That is one way of dealing with it, and I gather the idea is that we pass this Bill and then start amending it. But to me, that seems a little weird, given that this Bill is before us now and can be amended in the way required by the December agreement so that we get it correct now. That would provide certainty and would ensure that it is in the correct form—I am sure that if the wording is not quite right, the noble and learned Lord can correct it. It would mean that it is done in good time and not at a rush after October or whenever everything else is settled.

--- Later in debate ---

[Lord Keen of Elie]

One has to be careful in the matter of language. We are at one with regard to the first part of what we want to do in the context of withdrawal, but we do not yet have an agreement that is binding in law with the other EU 27. For example, going forward, and during the subsequent negotiations, the EU may come and go as to the terms of the joint report. Indeed, we saw some indications of that when it came out with its draft recently, where issue was taken with the way in which it expressed some aspects of the joint report, particularly with regard to Northern Ireland. I appreciate that, if you want to construe the term “consensus” in that way, it involves “agreement”. The reason why I am trying to move away from “agreement” is that some see the word and infer that there is some legally binding concept. That is not yet what we have. We have a joint report and, therefore, we have consensus. We are moving on to the overall negotiations on what will ultimately be an international treaty.

[Baroness Hayter of Kentish Town]

We all hope that this agreement, or whatever word it is, is fixed soon, but it could be quite late. We may not have the withdrawal Bill until sometime next year and it could be that we are due to leave a month or so afterwards. This part of the Bill affects individuals more than businesses and they will not know whether they can go to court until it is fixed—we may not get Royal Assent until a month or two before we leave. Is that really a good way to treat individuals?

[Lord Keen of Elie]

With respect to the noble Baroness, businesses affect individuals, so it is not appropriate to try to draw a distinction between citizens’ rights and businesses in that context. The right to work involves the right to maintain a business in various countries; you cannot simply draw them apart in that way. As regards regards timing, of course we are concerned to ensure that we achieve a withdrawal agreement sooner rather than later. That is why these negotiations are under way. If perchance no agreement is achieved—and I am not aware of anyone who wishes this, although others will perhaps assert the contrary—we will have to look at how we then deal with matters in the absence of that international agreement.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Baroness Bowles of Berkhamsted]

I would quite like to complicate matters a little further. It is unfortunate that the word “snapshot” was used, because, if we look at the way in which European legislation comes into force and effect, we see that it is a bit more like a movie in that it keeps on going. Certainly, we may well have implemented some things and they will then come into force, but it would not be on a single date beyond because lots of delegated Acts and implementing regulations would come in progressively over a period of time. I am curious as to what happens when we are straddling that. Will we then take the implementing regulations and delegated Acts on something that we have already adopted into our law, or will we make up those ourselves?

[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Mackay of Clashfern, says that he is confused about the transition; my worry is that the people on the Bench in front of him remain confused about what a transition period means—but let us put that to one side.

I want briefly to broaden the discussion to regulations—I know that the amendment refers to directives, but it is probing and there is an important issue here which Ministers may have heard. The clinical trials regulation was mentioned at Second Reading. Like many of the measures that we are discussing today, that would have been adopted but not implemented, either because it was complicated or it took a lot of work to get everyone lined up to it—so it would not have reached its implementation date by the time we left. It might well reach that date during the transitional period—which raises another question and, probably, another Bill. If it is a standstill only on measures that have come in by the day we leave, there will be important issues to address such as the clinical trial regulations and those others that we have heard about today. They will not count as retained law, leaving us reliant on regulations that rapidly become obsolete—those relating to cars I know less about, but certainly in respect of those relating to clinical trials it would end our ability to participate. All such regulations are about not just anonymity but the way data are held. It will happen very quickly: if we are not on the same basis as the rest of Europe, our ability to be involved in those could end quite promptly. That is obviously important to patients, but also to researchers and, indeed, the pharmaceutical industry.

I wrote to the noble Lord, Lord Callanan, on 19 January and he replied very rapidly on 26 January. As we have heard today, he confirmed the Bill’s approach, which will bring over only regulations actually operative as we leave. That would exclude these clinical trial rules, for example, although we agreed them back in 2014. The letter that the noble Lord kindly wrote to me makes smoothing comments, if you like. It says, “Yes, we recognise the importance of close co-operation, we want UK patients to have access to innovative medicines, for which we need to be part of the same system, and we want the UK to be one of the best places to do science”. I turned over the page expecting the Lord Deben response, which would be to say what we are going to do about it. Unfortunately, at that point the letter stops. It says that we will discuss with the EU how to continue to co-operate in business trials but it fails to look at what will be needed, which is, I fear, a legislative process to make that happen.

[Lord Deben]

Will the noble Baroness be kind enough to make a distinction between these things? It seems to me that this is not a matter to discuss with the EU. The British Government could perfectly well say that where they have signed up to something already, they will in fact implement that. They could do this about regulations and directives if they wished to. They could do that in advance and would not have to say that they would have to discuss it with the European Union. That would help all of us and be an earnest of the Government’s good will.

[Baroness Hayter of Kentish Town]

I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

--- Later in debate ---

Moved by

[Baroness Hayter of Kentish Town]

21: After Clause 3, insert the following new Clause—
“Future treatment of retained EU law
(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act insofar as this subordinate legislation meets the requirements in subsections (2) to (6).(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State. (4) Regulations under subsections (2) and (3) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.(5) The enhanced scrutiny procedure provided for by subsection (3) must include a period of consultation with the public and relevant stakeholders.(6) Regulations under this section may be used only to modify provisions of retained EU law listed in any schedule made under subsection (2) to the extent that such modification will not limit the scope of or weaken—(a) employment entitlements, rights and protection,(b) equality entitlements, rights and protection,(c) health and safety entitlements, rights and protection,(d) consumer standards, or(e) environmental standards and protection.”

[Baroness Hayter of Kentish Town]

My Lords, this amendment has support from across the House: it is supported by the noble Lords, Lord Warner and Lord Kirkhope of Harrogate, and the noble Baroness, Lady Smith of Newnham, who will be speaking after me. The objective of the amendment is pretty clear. It is to ensure that no reduction in rights which are being brought over can then take place without primary legislation. It is possible that there is a better way of achieving this; I am personally attracted by the proposals of the Constitution Committee, some bits of which we discussed earlier and some bits we will come to at another time.

It is worth rehearsing why we see the need for such protection for these standards. We are talking about protections and rights that cover—in these amendments —employment, equality, health and safety, consumer rights and the environment.

When we are in the EU, although regulations, for example, are not primary legislation, they are effectively ring-fenced or secured via our membership, which means that a Government cannot suddenly sweep in and sweep them away. However, once brought into domestic law under the Bill as it stands, they could be amended and, indeed, weakened by secondary legislation without consultation, when stakeholders can have their say, and without the Government having to take a Bill through Parliament where the scrutiny that takes place, which we are seeing now, allows MPs and Peers to interrogate the rationale, costs and benefits of any change.

Now we might assume that as we have worked with and lived with these rules for some time, no one would want to take away these established rights and protections, but there is the possibility that a deregulation-obsessed Government might want that to happen. We have already quoted Liam Fox thinking protections make it too difficult to fire staff, and that:

“Political objections must be overridden”,


to deregulate the labour market. We have heard Michael Gove say,

“we now have the potential to amend or even if necessary rescind”—

—yes, he said “to if necessary rescind”, splitting an infinitive—employment protections. The noble Lord, Lord Callanan, who is not in his place, in the name of “speeding up growth”, thought to,

“scrap the working time directive, the agency workers’ directive, the pregnant workers’ directive”.

Indeed, the Initiative for Free Trade, founded by that Minister’s friend, Daniel Hannan MEP, favours tearing up the EU’s precautionary principle under which traders have to prove something is safe before it is sold—a key consumer protection.

Meanwhile, the Foreign Secretary, from whom the noble Lord, Lord Callanan, sensibly distanced himself yesterday, described workers’ rights from the EU as “back-breaking”, a particularly inept description since most of these protections are for the health of workers, including of their backs.

Another point that Boris Johnson noted, quite rightly, is that we are a nation of inventors, designers, scientists, architects, lawyers and insurers, but it is exactly those architects, scientists, designers and insurers, as well as the CBI and the British Chambers of Commerce, who have been filling up my email, urging us to remain in a customs union with its relevant regulation. The very businesses which already operate such rules seem very content to keep them, but the rules are at risk as they could be amended by secondary legislation. Similarly, the TUPE regulations, which protect the jobs, pay and conditions of workers who have been affected by outsourcing, could be at risk. The TUC has highlighted that TUPE rights tend to protect workers such as cleaners, one in six of whom is BME. Without those protections they could be dismissed or be placed on zero-hours contracts rather than in permanent, secure jobs. The TUC heard rumours that Ministers want to scrap the working time directive and fears it could be just the start and that other protections could similarly go.

As we might expect, it is not just the TUC and unions representing workers which have these concerns. There is widespread public support for EU-derived consumer, employment and environmental regulations and minimal appetite for deregulation. Three-quarters of the public support retaining or strengthening the working time directive and nearly three-quarters want to keep vehicle emissions rules. Indeed, an Opinium survey for the IPPR found,

“little to no appetite among the public for reducing or removing EU standards”.

Interestingly, that feeling was shared by leave voters and remainers, with only 5% of either remainers or leavers supporting any loosening of consumer cancellation rights, for example. Furthermore, the survey found strong support for higher standards in certain areas, particularly environmental and financial regulation. So the unions are not clamouring for deregulation and nor are the public or the public sector. I am sure other noble Lords’ emails show that the rights that we are bringing over in this Bill should not be weakened.

The British Medical Association, along with 12 royal colleges and unions, wrote to the Prime Minister in December calling on her to stand firm against any Brexiteers who want to scrap European laws, warning of risks to patient safety and arguing that even with current EU regulations,

“fatigue caused by excessive overwork remains an occupational hazard for many staff across the NHS”.

The Royal College of Nursing warns that,

“removing or weakening working time regulations would put patients at serious risk.”

Such protections are clearly supported by those who know them and work with them, but they are not just good in themselves: they matter for trade. Indeed, non-tariff barriers are a bigger hurdle to trade than are, for example, customs duties. So even if the Government are not worried about patient safety or workers’ rights—and I am sure they are—they should listen to industry, on whose success our economy depends. The CBI has stressed:

“Frictionless trade with the EU is businesses’ number 1 priority”,


and:

“A hard-headed look at the economic evidence ... shows that some form of a customs union is necessary to ensure frictionless-trade and no hardening of the Irish border”.


The British Chambers of Commerce stresses the importance of businesses getting,

“their goods across borders as quickly as possible”,

and getting things across borders means not checking for different regulations. The regulations we are bringing over under this Bill will be the ones that operate in the rest of the EU, and so long as we continue with them, our trade with the EU will be easy to maintain.

The chief executive of ADS, which represents companies in aerospace, defence and security, stresses the same issue and says that the freedom to move with the same regulations is the solution that those businesses want after Brexit. Noble Lords will know that the farming industry and the NFU strongly stress that the only way for frictionless trade in the food sector is with the same regulations—the regulations that we are bringing over by the Bill.

We are content that bringing over those regulations is the aim of the Bill. They are about safety, workers’ rights and the environment but they are also about our future trade and competitiveness. This amendment seeks to ensure that having brought the regulations over it will not be possible for a Government to start playing with them by statutory instruments to weaken them after we have passed this Bill to bring them over. The Prime Minister said, I think in her response to the BMA and other bodies, that,

“it will be for Parliament and, where appropriate, the devolved legislatures to decide on future law”.

That is the commitment we are trying to put into the Bill: that it would be an Act of Parliament, not secondary legislation, that would amend what we are now putting into UK statute. We are seeking to protect standards, not privileges. I hope that the Minister will accept this amendment, at least in principle, if not the wording. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we must make progress at this stage, if the noble Lord does not mind. We have to keep moving.

I come to the nub of the point. If there is a concern about the powers being conferred on Ministers to ensure that the retained EU law works after exit, that arises in the context of Clauses 7 and 5, which will be the subject of future debate in this House. As I say, it is not appropriate to try to represent the powers already set out in the Bill as extending beyond the boundaries set out precisely there about correction, regulation and making retained EU law work. I respectfully suggest that the route proposed by the noble Baroness is not one that we should go down as we would simply run into the sand. If we were to list technicalities and technical changes in all these areas of legislation, we would be here in 10 years’ time trying to produce such a schedule; let us be frank about it. Of course, many people may wish that we will be here in 10 years’ time attempting to achieve that. In that context, I invite the noble Baroness to consider withdrawing her amendment and invite the noble Lord, Lord Judd, not to move his.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I perhaps ought to clarify that I was responding to a question from the noble Lord, Lord Pannick. I meant the Government in the course of the Bill rather than the Government simply deciding that they wanted to do it.

[Baroness Hayter of Kentish Town]

I thank the noble Lord. I apologise for misunderstanding that point.

I am afraid there was an offline conversation between the noble Lord, Lord Kirkhope, and myself. I do not know whether he referred to that when he spoke but in that conversation he gave a very good description of the aims of the Bill—namely, that after we have examined it and are satisfied that all the stuff is going into UK legislation, everyone should know what the rules are and the Bill should achieve that outcome. That is what this measure is about. It is about whether we leave it to Ministers in the future to decide which bits of retained EU law they can deal with in secondary legislation. As my noble friend Lady Drake said, we need to restrain executive powers as ministerial promises will not suffice. That in a sense is where we are with this issue.

My next point relates to the issue raised by the noble Earl, Lord Listowel—namely, that we as legislators look at something but may forget sometimes to undertake consultation, be it with families or anyone else. That is one of the other great advantages of primary legislation: it is much more out there for people to talk about.

The noble Lord, Lord Pannick, as always trumps everything I do and comes up with much better arguments. However, I too had not noticed the lack of a time limit in Schedule 8. I am sure that we shall want to return to that.

As we have heard a number of times, the Minister said that there has been no parliamentary scrutiny of the current EU law, so anything we get in future will be better. I remind him that much of that law goes through the Council of Ministers, where we have a Minister, and through the European Parliament, where we have British MEPs. Therefore, the idea that there is no democratic involvement from the Brits is not quite right. We are listening to the concerns of consumers, workers and, indeed, business, about the Bill and I think there will be amendments to it to address some of their concerns. However, we are looking now to future-proof it to ensure that we do not give Ministers rights that we may not want them to have. We will come back to that in the broader discussion. However, for the moment, all noble Lords will be very pleased to know that I beg leave to withdraw Amendment 21.

Amendment 22 (to Amendment 21) not moved.

European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, we will come to the issue of children’s rights later in the Bill: the right to education, the right to contact with both parents and the right to rehabilitation from abuse and torture. While listening to the debate I recalled my mother’s experience of losing her younger brother when he was one or two years of age. They were in an air raid shelter that was cold and wet. He contracted, I think, meningitis. I was also thinking of the Anna Freud National Centre for Children and Families, which is a centre of excellence for helping children and young people. Originally it was known as the Hampstead War Nurseries. It was set up by Anna Freud during the Second World War to care for children dealing with the trauma of bereavement as a result of losing their parents in war. I hardly need to say to your Lordships that this is a very important matter. We need only to look at what is happening to children in Syria, so we must take the most constructive and proactive course possible.

We can keep this country safe, but other countries rely on our strength to keep them safe and secure, and help their children to lead stable and secure lives. I am sure that the Minister will want to make a constructive response to this debate and I hope that she will be as sympathetic as possible to the concerns raised.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will be brief because most of the points have been made. I am grateful to the noble Lords who tabled this amendment and have thus ensured that this important issue is being discussed today. As has been said, the Prime Minister’s speech in Munich did rehearse the case that,

“our security at home is best advanced through global cooperation, working with institutions that support that, including the EU”.

We also had a welcome reminder from my noble friend Lord Adonis of the Prime Minister’s earlier, pre-referendum speech on the same issue. In Munich, she went on to outline her desire for an ambitious post-Brexit EU security relationship, talking about a security treaty as part of the “deep and special partnership” with the EU that she wants to see. However, as we have heard from most speakers in this debate, there was a curious lack of detail, or “beef”, in what she said.

As with last week’s amendments, these issues are integral to how we leave the European Union and indeed to the vote which will take place in this House in due course over the withdrawal deal, with its framework for our future relationship with the EU. As has also been mentioned, there is clearly a relationship between trade and security, as my noble friend Lord Adonis reminded us. I hope, therefore, that when the Minister answers the various points of the debate, she will do so in the spirit of these being an integral part of what this Bill is looking at, which is the method by which we leave the European Union. Given that our role in defence is most probably the main defence power in the EU and the only one already hitting the 2% target, our departure will have a significant impact on the defence and foreign policies of Europe and will therefore affect our other relationships with it.

Indeed, we should be mindful that, while the UK possesses full-spectrum military capability—although a little stretched, as my noble friend Lord Judd reminded us, and no doubt my noble friend Lord West would if he was in his place—and an extensive diplomatic reach across the globe, we should note that our hard and soft power has been greatly enhanced by our membership of the EU. That is why, as we have heard, Mr Callaghan as he was then focused on this and why the last Labour Government helped to launch the common foreign and security policy and the common security and defence policy. So while the Government have rightly indicated that they will seek to continue our participation in, for example, EU missions and interacting with relevant EU bodies, what we need is for the Minister to outline how the Government envisage this happening and on what terms—a point made by the noble and gallant Lord, Lord Stirrup. This is needed with a degree of urgency since, as my noble friend Lord Judd said, there simply cannot be an interregnum or hiatus, to use the words of the noble Lord, Lord Kerr, before something is put in place. We have a year and a month to go.

I will take a moment to pose a different question to the Minister. Given the demands at the weekend by Spain’s Foreign Minister for joint management of Gibraltar’s airport after Brexit, could she confirm that at every step of the way the Government of Gibraltar are being informed and consulted on the Government’s evolving position on these and other issues, and that nothing will be agreed to jeopardise Gibraltar’s future—mindful, of course, of its worries arising from paragraph 24 of the EU’s negotiating mandate?

--- Later in debate ---

[Baroness Goldie]

The noble Lord will understand that I am a very lowly mortal and that I am not privy to the detail of the negotiations. What is clear from what the Prime Minister has said is—just as the noble Lord, Lord Adonis, very helpfully identified—how extremely important these issues are to the Prime Minister. I am absolutely certain that, within the holistic forum of the negotiations, these matters are certainly being discussed and looked at.

[Baroness Hayter of Kentish Town]

The noble Baroness has said, and it keeps being implied, that these are not issues for this Bill. I am sure that she knows the Bill far better than I, having read it more often, but I remind her that on page 7, Clause 9(1) says that the use of regulations is,

“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union”.

We know that, under Article 50, those final terms of withdrawal have to include the framework for our future relationship, which is almost bound to affect and comment on issues such as this. Although on many occasions Ministers may not want to answer, there is reference in the Bill to the withdrawal deal and surely it is appropriate for us to bring to the Government anything that might be in that.

[Baroness Goldie]

Yes. My position that I advance to the noble Baroness—I was just going to come to this in my speech—is that there will be a subsequent opportunity for Parliament to look closely at whatever the withdrawal agreement is and its implementation. In addition, the Government have committed already to providing Parliament a vote on the final deal. Parliament will be given the opportunity to scrutinise the future relationship between the UK and the EU. That is why I submit that the Bill before us is essentially of a mechanical nature. That is what it is: it is trying to ensure, as we leave the EU, that we make sense of transferring the necessary laws, enactments and regulations, whatever they may be, into the statute book of the United Kingdom. The noble Baroness is quite correct that Parliament should have that right to scrutiny, of understanding what the agreement is and questioning how the implementation will take place; I am pointing out that these opportunities will be there. Parliament will not be denied that opportunity.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, I apologise for not speaking at Second Reading; I took the view that I was unlikely to add anything new, bearing in mind the number of speakers. However, I have a few new things to add as a result of today’s debate. I had more than 30 years of service in the Metropolitan Police Service—which pales into insignificance when you consider the experience of the noble Lord, Lord Hogan-Howe—but I have also been briefed by the National Crime Agency lead on Brexit and by the director-general of the National Crime Agency on these issues.

It might be considered a technical point, but there is a difference between counterterrorism intelligence exchange and law enforcement. The counterterrorism intelligence tends to be of such a sensitive nature that it is exchanged on a bilateral basis and therefore is nothing to do with the European Union. When sensitive data, for example, are shared by the United States with the United Kingdom, the United States would not do that if it was on the basis that the United Kingdom would then share all that intelligence with the EU 27. However, there is a technical difference between counterterrorism in terms of intelligence and counterterrorism in terms of bringing terrorists to justice, and here we are talking about bringing people to justice using these various mechanisms.

My noble friend Lady Ludford referred to the European Court of Justice and the Charter of Fundamental Rights as two important mechanisms which allow this co-operation to take place within the European Union. In her Munich speech, the Prime Minister tantalisingly mentioned the European Court of Justice and the potential for a role for it after the UK had left the European Union in relation to things such as the European arrest warrant. The noble Baroness, Lady Kennedy of The Shaws, made the point that this is not about relationships between two sovereign nations, it is about individual rights in terms of whether an individual is going to be moved from one country to another. Perhaps the Minister can give us some clarity on the Government’s position on the European Court of Justice by explaining what the Prime Minister meant in her speech.

The noble Lord, Lord Cormack, talked about the need for the closest possible co-operation, which is what the National Crime Agency would say, and that the measure of the success of the negotiations would be how closely we can replicate the existing arrangements. I believe that the Government’s position is that they want to replicate all of these things as far as possible, and that is what I took from what the Prime Minister said. So to say that the Government cannot give away their negotiating position by saying what the objective is going to be is not, I think, true in this particular case. Perhaps the Minister will tell us that what the Government seek to achieve is as close as possible to the arrangements we have, but that is not the question. The question is how the Government are going to secure those arrangements; that is the critical question, not what they are seeking to achieve, but how they are going to do it. That is because there seems to be a contradiction between not wanting to have any jurisdiction of the European Court of Justice on the one hand and yet wanting to participate in things such as the European arrest warrant on the other.

The noble Baroness, Lady Kennedy of The Shaws, helped the House to introduce the very important issues around protected persons. For example, the victims of domestic violence have the protection of orders that are made in one country enforced in another, which brings a new dimension to the importance of these arrangements. The noble Baroness, Lady Massey of Darwen, and the noble Earl, Lord Listowel, talked about the importance of the protection of children through the European arrest warrant and the other measures, in particular the European Criminal Records Information System, which enables law enforcement to quickly check the antecedents of people who are suspected of these sorts of offences. These are extremely important issues in terms of bringing people to justice and in terms of protecting citizens not only of the United Kingdom but of other European states. We have heard from my noble friend Lord Thomas of Gresford how extradition can take years—four and a half years in the case he mentioned—whereas under the European arrest warrant justice can be brought far more swiftly.

For me, the essential question is not what the Government want the end position to be, because that is quite clear—and it is certainly what the National Crime Agency and other law enforcement officers want, and indeed what the noble Lord, Lord Hogan-Howe, has also said. The question that the Government need to answer is this: how on earth is this going to be achieved, bearing in mind their apparent contradictory stances on other issues such as the European Court of Justice?

[Baroness Hayter of Kentish Town]

My Lords, as we have heard, these amendments relating to reciprocal issues are key to continuing to protect and assist British citizens after Brexit, including children and protected persons, in ways that hitherto our EU membership and cross-border agreements have provided. In particular these are the European arrest warrant, the mutual recognition of family court judgments, information exchange, Europol and Eurojust.

The Government’s approach to these issues must be agreed in principle with the EU in time to be included in the framework part of the Article 50 requirements and form part of the withdrawal agreement, so a satisfactory approach to these will be key to the future vote on that deal. However, as we have heard from speakers tonight, there seems to be an extraordinary lack of urgency, especially if there is any chance—I am not sure whether this is what the noble Lord, Lord Hannay, hinted at—that a standstill transition agreement could not cover these issues. That would make it even more urgent.

I ask in particular about the Government’s urgency, or lack of it, as I began asking Written Questions on this a year ago. The noble and learned Lord, Lord Keen, will remember it very well: it was on St Valentine’s Day last year—I do not think he chose it to be that day, but never mind—that he answered some of my questions on matrimonial and maintenance proceedings. It was very reassuring: he said that the Government,

“recognises the importance of the issues”.

Wow. There was no more than that then, nor indeed on civil judicial co-operation and cross-border disputes and family law when he replied to a similar Written Question in August. I worry about the lack of progress since then.

As the Prime Minister has remarked and others have repeated, keeping our citizens safe is the first mission of any Government. Therefore, like others, I welcome that she used the Munich speech to reiterate her desire to negotiate continued, and in some cases enhanced, co-operation with EU nations and particularly with these bodies and schemes. As we have heard, the amendments cover the Schengen Information System, the European arrest warrant, the European Criminal Records Information System, Europol and Eurojust. Given what we have heard today and in earlier debates, the Minister will recognise the importance of our continued participation in all of those, but also the challenges that that will bring to them in negotiating.

While we heard from Munich the desire for this comprehensive agreement, it is time for the Minister to offer a bit more detail and clarity sooner rather than later. It is about the direction of travel or the objectives. It does not undermine any negotiations for us, not just our Parliaments, to know what the Government want to do. As the noble Lord, Lord Deben, said, it is time for the Government to move from intention to reality. These issues, as has been touched on just now, are partly held up by an obsession with red lines around the ECJ. They cannot be allowed to stand in the way of some logical and sensible solutions to these problems. These issues are too important to be left to a divided Cabinet. At the moment I see a pantomime horse, or Dr Dolittle’s pushmi-pullyu, being pulled in two different directions, mostly about red lines that are immaterial to the issues we have been discussing. I hope we can hear about some direction and some practical steps from the Minister, particularly on how these negotiations are taking place.

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

I thank all noble Lords and noble Baronesses who have contributed to what has been a fascinating debate. I reiterate the Government’s commitment to ensuring that the outcome of our negotiations with our partners in the EU delivers continued close co-operation on internal security matters.

There are parallels between the effect of Amendment 13 in the name of the noble Baroness, Lady Ludford, and that of Amendment 12 in the name of the noble Lord, Lord Wallace of Saltaire, which was debated previously, in so far as they both seek to discuss the future relationship with the EU, which is, of course, subject to the negotiations. The noble Baroness’s amendment seeks to prevent the Government from bringing regulations into force until agreed procedures for continued participation in EU internal security measures have been approved by both Houses. The Government have already committed to providing Parliament with a meaningful vote on any final deal. This will give Parliament the opportunity to scrutinise the future relationship between the UK and the EU in all these areas. For this reason, it is our view that the amendment is not needed.

I must come back to the points made by my noble friends Lord Hamilton and Lord Lamont. Many noble Lords have pushed me and asked for further detail and clarification on the negotiations. This Bill is negotiation agnostic; it is not concerned with the negotiations. I understand why people want clarification in all those areas, but, of course, when we have reached an agreement, it will be the subject of future legislation that noble Lords will no doubt want to comment on in great detail. However, I will attempt to answer as many questions and go into as much detail as I can. I suspect that the noble Lord, Lord Adonis, may be a little disappointed yet again, but I will do my best.

Queen’s Speech

Baroness Hayter of Kentish Town Excerpts

Wednesday 28th June 2017 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, in rising to speak to my amendment, I welcome the noble Baroness, Lady Anelay, to her new role. I first heard her speak outwith this Chamber at the memorial meeting for the late Lord McIntosh of Haringey, where I witnessed her affection for a Member of these Benches. I shall not try to emulate him, so shall not presume on the same affection—but I judge that we will be able to work together to enable the House to play its full role in the enormous task of how to engineer a Brexit that works for all. I also thank the noble Lord, Lord Bridges, whose humour, patience and erudition we will miss. We look forward to his contributions from his new—perhaps freer—vantage point.

It is a year since the referendum, but we await answers to a plethora of questions as to how the Government plan to take us out of the EU—probably the biggest leap as a nation since the 1939 decision to go to war. I do not wish to talk down the non-Brexit measures in the gracious Speech, but they are revocable. Brexit is not—and how we leave will have a lasting impact. So on this side we will work to achieve a departure that promotes jobs and the economy, safeguards our security and the environment and benefits all our nations, cities, regions, towns and rural communities, such that all might prosper from the new landscape that the Government envisage.

One issue is our role on the international stage. By pooling our influence with 27 other countries, we have gained real clout in the world, promoting human rights and playing a leading role in the Paris climate accord. We need to ensure that our future trade, security and diplomatic relations, and the tone of our withdrawal, preserve as much British influence as possible.

As we have heard, we are due eight Brexit Bills. All will impact on our economy, but they will not cover many areas of the negotiations where we want a deal that puts jobs and the economy first, gives full access to the single market, allows levy-free and border-check-free movement of goods, and upholds the Brexit Secretary’s pledge to achieve the “exact same benefits” as now. We are not alone in seeking this. Interested parties, from the City of London to trade unions, are united in the view that jobs and the economy must be the priority. Given that the EU accounts for almost half our exports, it is unsurprising that representatives of almost every sector make the same point: 17% of exports pass through Dover, some 7,000 lorries a day. Even aside from the Irish situation, the Government must set out how frictionless trade can continue.

While post-Brexit laws should, of course, be passed by our Parliament or the devolved Administrations, it is irresponsible to ignore the importance of dispute adjudication to any international agreement. With the negotiations under way, the Government must either drop their arbitrary red line on the European Court of Justice or set out a feasible alternative. Without this, they will struggle to achieve their aims. The Wellcome Trust, pointing out that science is a driver of economic growth, stresses the importance of pharmaceuticals and life sciences maintaining free access to European markets. But those markets need harmonised regulation, which will be complicated if the Government rule out any role for the European Court of Justice. If the Government’s ideological red line on the ECJ could perhaps become pale pink, the potential of British science, and other sectors, to enhance British competitiveness would improve.

Meanwhile, there are urgent matters, such as family law, where civil justice co-operation provides certainty, with automatic recognition and enforcement of judicial decisions across the EU. Despite any loss of these being,

“felt … profoundly both by … families … and by our … court system”,

Sir Oliver Heald mistakenly suggested to our EU Committee that the repeal Bill could cover these. In fact, there is no means by which these reciprocal rules can be replicated in the repeal Bill. So I ask the Government: how will they replace this cross-EU regime for which there is no satisfactory fallback? Recognition and enforcement of court judgments is of course equally important for insurance, insolvencies, contract law and investment in this country, so they must be part of any Brexit deal.

Retaining access to EU databases will be vital in the fight against international crime and terrorism. Are the Government willing to share some sovereignty for this and for our continued involvement in Europol, Eurojust and the European arrest warrant, while of course maintaining EU privacy laws?

Although we welcome the entrenchment of EU regulations into domestic law, the repeal Bill cannot cover EU agencies, reciprocity, intelligence sharing, joint recognition and supervision of standards or mutual recognition of qualifications. To take just one example, we belong to 34 EU agencies and, without a settlement, the European Medicines Agency will no longer be able to approve UK products for use in the EU. Without the European Chemicals Agency, are the Government going to allow companies to import whatever chemicals they like, with no oversight? There are equally urgent questions over future participation in the European Food Safety Authority and in Euratom. All these help to keep the public safe.

With regard to immigration—I am sorry that this, rather than jobs and the economy, is still a priority for the Government—there are two aspects: the EU citizens already here and the longer-term approach. For the latter, we must base our policy on the needs of communities and the economy. Despite what we heard from another Minister earlier, farmers have already been hit by a lack of migrant workers to harvest fruit and vegetables. There was a 17% shortfall in May, leaving some critically short of pickers and our summer strawberries at risk—just as Wimbledon is opening.

The chairman of the UK’s largest supermarket warns that a cap on immigration would have a,

“materially detrimental effect on the UK economy”.

The hospitality industry stresses that we do not need just doctors and engineers but chefs, cleaners and front-of-house staff. With 17% of construction workers coming from the EU, what future is there for major infrastructure projects without this vital resource? The director of the Wellcome Trust pleads—given that great science is built on great talent—that we need to welcome EU researchers, technicians, innovators and students, who help our universities help us. But, since the referendum, there has been a chill on this flow of talent, with Wellcome’s Sanger Institute, which sequenced a third of the human genome—and which I had a small part in opening—seeing a halving of PhD applications from EU nationals.

On the human level, as this House made clear in supporting the amendment to the Article 50 Bill, people should not be used as bargaining chips. The Prime Minister’s offer is too little, too late—and it is conditional. I hope that the Government will listen to this House a bit more, and will work in partnership with our European neighbours and our devolved authorities. Indeed, it is not clear how the Brexit Bills will accommodate devolved competencies, including food safety and environmental protection. Can the Minister confirm whether the Scottish Parliament will need a consent Motion for the Brexit Bills? Perhaps the noble and learned Lord, Lord Keen, would be the most appropriate person to answer that question.

The Government must improve their consultation with business, consumers and trade unions—I am delighted that they were mentioned, but the consultation with them has been insufficient—and, indeed, with all industries dependent on mutual recognition of qualifications and standards. There has been a sad lack of engagement, with the CBI commenting that the Government,

“found it tough to listen to business on Brexit”.

It is true that a new forum for business has just been announced, but there are no similar proposals for consumers or, indeed, other significant groups. Ministers will hear calls from industry for time to adjust to the final deal. Acceptance of a phased transition is urgent, so that, as the Chancellor—although, I think, not David Davis—says, we avoid unnecessary disruption and dangerous cliff edges. Indeed, this is the Institute of Directors’ main worry. At the very least, it asks that replicating the EU’s common external tariff while we finalise the free trade agreement should be an option, and with early reassurance on this to help businesses that may otherwise activate contingency plans to relocate.

The Government must also engage with Parliament. A meaningful vote was mentioned. I think that I heard the words “expect to have this” before the European Parliament vote. Earlier, we were promised that this would happen before the European Parliament vote. Perhaps, in replying, the Minister could clarify that that will be a meaningful and timely vote.

In moving the humble Address, the noble Lord, Lord Forsyth, who I think is not in his place, claimed that the,

“rapturous enthusiasm on the Benches opposite for Jeremy Corbyn, is matched only by their relief that he is not running the country”.—[Official Report, 21/6/17; col. 10].

I have to tell him that he was wrong. I would be very happy to be standing at that Dispatch Box rather than this. But I also say to him and to the Minister that I would approach her job with immense trepidation. She is carrying an invaluable Ming vase across a highly polished floor. In the Government’s hands is the future of our economy, and thus the well-being of our people. How the Government negotiate our future with the EU will have immense consequences for the nation—our businesses, workers, consumers, young people and trade unions—for generations to come. As the most reverend Primate the Archbishop of Canterbury said last Thursday,

“trade deals, customs unions, single markets, financial passports are all without use unless they … serve individuals, communities and … society”—[Official Report, 22/6/17; col. 39].

I believe that neither this House nor—certainly—the Opposition is out to block Brexit, but we will work to get the best for Britain. Late tonight is not the time to vote on this one issue, but we will ensure that there are other opportunities for the Lords to provide Ministers with advice on the negotiations. We trust that they will listen.

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Tabled by

[Baroness Hayter of Kentish Town]

As an amendment to the above motion, at end to insert “but, recognising that no deal is the worst possible deal, call upon Her Majesty’s Government to seek to negotiate a Brexit that prioritises jobs and the economy; delivers the exact same benefits as the United Kingdom currently has as a member of the single market and customs union; ensures that there is no weakening of co-operation in security and policing; and maintains the existing rights of European Union nationals living in the United Kingdom and United Kingdom nationals living in the European Union.”

Amendment to the Motion not moved.

Scotland Bill

Baroness Hayter of Kentish Town Excerpts

Monday 22nd February 2016 Lords Chamber

[The Earl of Dundee]

My Lords, in supporting this amendment, I stress three aspects: its timeliness without leading to procrastination; between the two Parliaments and Governments its inference of co-operation; and within the United Kingdom, both in Scotland and elsewhere, its enhancement of good practice. It is clearly desirable to avoid teething troubles following powers which may have been transferred too quickly. In particular, it is indeed so concerning the British Transport Police, instanced just now by the noble Earl, Lord Kinnoull. Yet a timely transfer means just that, and if for good reason it is judged to take place at a certain moment rather than at another, then that transfer of powers has become neither prevaricated nor procrastinated. This is not least the case since the decision on when to transfer will have been made by Scottish Ministers and the Secretary of State together in a spirit of co-operation, thus jointly enhancing good practice by adopting a necessary method which benefits both Scotland and the rest of the United Kingdom.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I speak to Amendment 82, in my name and that of my noble friend Lord McAvoy, which allows some time for consultation about the implementation of Clause 50. That clause was a late addition to the Bill, which means there has not been the normal consultation with women’s groups, medics, lawyers, the health service or, indeed, ethicists and constitutional experts. Above all, there has been no discussion about the implication for the funding for abortion for women should they move between Scotland and England or Wales, should any differences emerge in the future between the laws on abortion either side of the border. We should consider the lessons of Northern Ireland before implementing this new provision.

Although the Smith commission reported that the parties favoured the devolution of abortion, regarding it as an anomalous health reservation, it recommended only that further serious consideration should be given to its devolution and a process established immediately to consider the matter further. However, that process has not happened and our amendment seeks to give the matter proper consideration before the clause is implemented. Indeed, because the Smith commission did not call for immediate devolution, the Government initially thought that an early change would pre-empt such discussions and there was, therefore, no reference to abortion in the original Bill. An amendment was tabled, but not voted on, in Committee in the Commons, by which stage women’s groups and the Scottish TUC began expressing their concerns, particularly that this could have a discriminatory impact on women in Scotland, just as in Northern Ireland.

The inclusion of the provision was announced by the Government on 14 October, with the amendment tabled on Report in the other place and with none of the debate that took place during the original devolution Bill. Looking back to 1998, there was quite a strong view that abortion, duly protected and regulated by law, was a human rights issue and not simply a medical or, indeed, a criminal matter. There were many voices of the view that a woman’s right to choose should be universal, not delimited by boundaries and borders.

It is this risk of cross-border differences, leading to women having to travel for an abortion, that concerns many, partly because it might undermine the notion of a UK citizenship, but also for the more prosaic but serious issue that there is a fairness dimension. Moving country for a termination is an option more open to the wealthy and well connected than to those without access to money, transport or friends in distant parts. We know the difficulties and trauma that such journeys involve for many Irish women. Indeed, because of the variation in law, some 5,000 Northern Irish women and 20,000 from the Republic of Ireland travelled to Great Britain for an abortion between 2010 and 2014. That is 12 Irish women crossing the Irish Sea every day.

This reflects the fact that when women are desperate for an abortion, whether as the result of rape, because of foetal abnormalities, because of incest or because the woman cannot handle a child due to her psychological state or her age—there are girls as young as 14 coming here for abortions—she will do whatever is needed. No border will prevent that. What is more, though a child in Northern Ireland can come over to be treated at Great Ormond Street on the NHS, her mother, needing an abortion, cannot get it on the NHS but has to go privately and pay, in addition to air fares. It is for these reasons that we need to consider how different rules in England and Scotland would be handled, should teenage girls have to make cross-border journeys to have the procedure, for example. For nearly 50 years, there have been the same rights across Great Britain, but this clause could alter that.

It is not that we anticipate any change in the Scottish law. Indeed, the First Minister said that her Government had no intention of changing the current law, but she cannot, of course, bind her successors. Given the demand for abortion to be devolved, there is surely the possibility of a change being made. It is better to think through the implications now rather than after any such decisions. Indeed we read suggestions that the new power will indeed be used to change Scottish law, with CARE for Scotland, a charity, saying that there should be a debate among MSPs about whether Scotland has the right laws. Lynn Murray of the Edinburgh branch of SPUC has said that devolving abortion would get people thinking about it and that it is time that we looked at it again, while the Scottish Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil, has said that he personally favours reducing the 24-week limit.

That is of course a matter for the Scottish people, so we shall not resist or seek to remove Clause 50. However, we need time to consult on and possibly prepare for any impact that such a change could bring and how to respond, particularly as to whether women living in Scotland—be they English women, Welsh women or Scottish women—would be able to have an NHS-funded abortion, say in Newcastle or elsewhere, should they then fulfil our criteria for termination but not new criteria in Scotland. Whatever differences might emerge, some women will want or be forced to travel from England to Scotland or from Scotland to England to exercise their rights under one or other of the two laws. Amendment 82 allows for a 12-month consultation with relevant groups and representatives in Scotland and in the health service to ensure that the process is correct and to follow the wise advice of the Smith commission.

I turn to Amendments 80 and 81 in the names of the noble Earls, Lord Kinnoull and Lord Dundee. Amendment 80 provides that Clauses 13 to 68 would not come into force until the relevant Secretaries of State were satisfied that the Scottish Government had appropriate arrangements in place to exercise the relevant powers. That would mean that discretion remained with the UK Parliament on matters that will be devolved issues, undermining one of the most important principles of the devolution settlement. Your Lordships will not, therefore, be surprised that we oppose this amendment.

In a similar vein, Amendment 81 would delay the devolution of the Scottish Crown Estates until the Secretary of State had laid a report before Parliament regarding the Scottish Crown Estates commissioners and the arrangements to facilitate the transfer of assets. We do not consider it appropriate to delay the commencement of this clause. Furthermore, we understand that talks are taking place between officials on the transfers of assets and that those are still ongoing. It would perhaps be helpful if the Minister could indicate whether the issues included in the amendment are part of such discussions. We understand that the date for the transfer has yet to be decided or even much discussed. I do not know whether the Minister has any further update on this since the letter that he wrote to my noble friend Lord McAvoy on 12 February. We look forward to his comments on that.

[Lord Hope of Craighead]

My Lords, I add a word in support of the amendment in the name of the noble Baroness, Lady Hayter. It is remarkable that the provision in Clause 50 was not in the Scotland Bill of 1998. I am old enough to remember the debates that took place on that Bill and, as I recall, the provision was not part of the Bill for a very deliberate reason: it was regarded at that stage as undesirable that there should be any question of a difference in law between the laws of Scotland and those of England and Wales in relation to abortion. Things have moved on since then and the noble Baroness has made it clear that she is not opposing Clause 50. However, with great respect, the point that she makes is important given the way in which the clause has been introduced into the Bill at a late stage and the difficult and sensitive matters to which she drew attention in her speech. As I say, this was thought about carefully in the late 1990s when the original Scotland Bill was being considered and my recollection is that there was a deliberate decision to keep it out, for fear that it might give rise to undesirable consequences. That risk, which I think the noble Baroness was mentioning, makes her amendment one deserving of careful consideration.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

Before the Minister sits down, the noble and learned Lord, Lord Hope, who I thank for his intervention, made clear that we were not at all questioning the Scottish Parliament’s ability to take this decision. I very much trust Scottish women to get their views heard strongly, although, as the Minister says, it has been officers, officials and Ministers having those debates so far, not the people who are mostly involved, who are of course women.

The question that I asked is one that we all need answers to, regarding funding: should there be a difference in whether the NHS funding will cover women who travel between the two jurisdictions when those jurisdictions have different laws on this? I do not expect the Minister to be able to answer that tonight but, given our experience in Northern Ireland, I think that this is a really big issue. If he cannot answer tonight, I hope that he will write to us before we reach this part of the Bill on Report.

[Lord Dunlop]

I am very happy to write to the noble Baroness on that point.