Brexit: Legislative Timetable

Baroness McIntosh of Pickering Excerpts

Monday 7th January 2019 Lords Chamber

Asked by

[Baroness McIntosh of Pickering]

To ask Her Majesty’s Government what is their proposed timetable for the passage of all remaining (1) primary, and (2) secondary legislation required for Brexit by 29 March 2019.

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

My Lords, we have already put in place many of the legislative building blocks to deliver our exit from the EU. Five exit-related Bills have been passed and six more are now making their way through Parliament. We are also making good progress on the secondary legislation needed to ensure that we have a functioning statute book on exit day.

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[Baroness McIntosh of Pickering (Con)]

I welcome my noble friend back from his holidays, albeit for a particularly difficult and busy period for his department. Can he give the House an assurance today that the six remaining Bills before this House and the best part of 1,000 statutory instruments to prepare for Brexit will be given full and proper scrutiny in this House? Further, does he yet have a date for when directives such as the European falsified medicines directive will be scrutinised in this Chamber?

[Lord Callanan]

I can certainly give the noble Baroness an assurance that we will allow for proper scrutiny. Perhaps I may correct her statement on the number of SIs. As we wrote to the sifting committees just before Christmas, we now estimate that the number of SIs we will need by exit day is slightly fewer than 600, of which we have already tabled more than 300.

Brexit: Withdrawal Agreement Scrutiny

Baroness McIntosh of Pickering Excerpts

Wednesday 31st October 2018 Lords Chamber

[Lord Callanan]

Well, we are taking a collaborative approach on this. We have provided as much information as we are able. We cannot provide details of something that has not yet been agreed. As we discussed earlier, sections have been agreed and the “green text”, in the jargon, has been published and made available. There was extensive discussion around that. Ministers have appeared extensively at this Dispatch Box, in the other place and in front of Select Committees. The Secretary of State has appeared once in front of the committee of the noble Lord, Lord Boswell, and has committed to do so again when we have a deal. That is the same treatment that committees in the other place are receiving.

[Baroness McIntosh of Pickering (Con)]

My Lords, would my noble friend set out what timetable he has agreed with the usual channels to discuss the 1,000 statutory instruments and the six primary Bills that have to be agreed by 29 March?

[Lord Tebbit (Con)]

My Lords, does the Minister agree that the chief negotiator at the European Commission, Monsieur Barnier, has no intention whatever of coming to any reasonable agreement with this country under the terms of the treaty, and therefore that he is mucking the place about while we are trying to do an honest job?

Brexit: Article 50

Baroness McIntosh of Pickering Excerpts

Monday 29th October 2018 Lords Chamber

[Lord Callanan]

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

[Baroness McIntosh of Pickering (Con)]

My Lords, is my noble friend able to tell the House whether we have sufficient parliamentary time to scrutinise the primary legislation and the up to 1,000 Brexit-related instruments that the House has to consider and pay proper scrutiny to before 29 March?

[Lord Callanan]

Of course, we will not know how much time we have until we actually get a deal but I am sure the Leader and the Chief Whip are paying close attention to the words of my noble friend.

Brexit: Legislating for the Withdrawal Agreement

Baroness McIntosh of Pickering Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Callanan]

There are a number of questions there and I will try to answer them as quickly as possible. I agree that the shorter the transition period, the better. We will not take up the noble Lord’s option of delaying leaving. As I am tired of repeating, we are leaving on 29 March 2019. To delay leaving presents the fundamental problem that the EU is legally prohibited from agreeing a future trade deal as long as we are still a member state, so that would just delay the period when we could formally have negotiations and legally agree a trade deal. I certainly agree that the shorter the period, the better.

With regard to the regions and finance, the noble Lord will be aware that the Treasury is currently considering a shared prosperity fund to replace some elements of EU regional finance. With regard to future regional devolution, I fear that those are not matters for me. He will have to ask colleagues in government about that. With regard to EU citizens, the settled status fee is fixed at £65. I am not aware of what charges the Home Office is likely to impose for any other form of citizenship, but I am sure we can find out and write to him.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend for the White Paper. Perhaps I may clarify two points with him. In preparing for yesterday’s debate on the other White Paper, I had the distinct impression from the food industry, which is quite dependent on third-country citizens, particularly current EU citizens, that it is not entirely clear that its long-term status has been secured. Can my noble friend redouble his efforts to ensure that all sectors, whether food, care or health, are made aware of the arrangements?

I declare my interest, in that I practised EU law in Brussels for a while. What will be the certification procedure for those who wish to convert their EU qualifications into UK qualifications post Brexit? Paragraph 40 of the White Paper refers to the,

“Mutual Recognition of Qualifications Directive”,

and states that the,

“arrangements will be provided for, as necessary, in separate legislation”.

Will my noble friend explain what the timetable for that legislation will be? Will the certification be clear before we leave the European Union on 29 March?

[Lord Callanan]

I do not think that I understood all of the questions. The same provisions of settled status apply to workers in the food sector as in every other sector. We are trying to communicate the offer to EU citizens as much as we possibly can after a number of events, in collaboration with various EU embassies, to provide information to their citizens on the processes and procedures for applying, along with DExEU and Home Office staff. We will be doing more of those events.

With regard to lawyers, I do not know whether this answers her question but the existing professional qualifications were recognised as part of the withdrawal agreement for existing citizens. The future recognition of qualifications, after the end of the implementation period, is a matter for negotiation. It is in the White Paper. It is something that we want to agree and we think it mutually desirable, but it has not yet been agreed.

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[Baroness McIntosh of Pickering]

In connection with the mutual recognition of professional qualifications, I would like to know whether the legislation will come before this House and the other place before 29 March. It is a perfectly innocent question. The document states that in,

“the Government’s recent White Paper on the future relationship, the UK has proposed that, after the implementation period, there should be a system for the mutual recognition of … qualifications”,

but legislation will be needed. I simply want to know the timetable for that legislation.

[Lord Callanan]

We have still to agree a system of recognition of professional qualifications for after the implementation period. That is in last week’s White Paper. Maybe I should write to my noble friend on the exact detail of that.

Brexit: Preparations and Negotiations

Baroness McIntosh of Pickering Excerpts

Monday 23rd July 2018 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, it is a pleasure to follow the noble Baroness. I refer to my interests in the register and to one that is not in it: I am immensely proud to be half-Danish, and that colours my approach to the whole debate on our membership and how we leave the European Union.

I welcome the White Paper and the direction of travel on which it embarks. In considering how we are to leave the European Union, I would like the House to reflect on the importance of the food and farming sectors to the UK economy. The value of the food and drink industry to the UK economy is £112 billion, and it employs about 4 million people. Food and drink exports are worth about £22 billion per annum, and it is in fact the main manufacturing sector. Our main exports are whisky, salmon and chocolate. Some 70% of the UK’s agri-food imports came from the EU in 2017.

In the scenario of a free trade agreement with the EU post Brexit, the implications for the food and drink sector are potentially extremely severe. It could lead to a potential drop of 26% in exports and 29% in imports, with a 3% projected increase in prices. In the scenario of our continued membership or rejoining of the European Economic Area, this could see a 7% drop in exports and a 7% drop in imports, with only a 1% increase in prices. If we were to crash out on World Trade Organization rules, this would necessitate the agreeing of rules of origin, nomenclatures and descriptions of products for every item, which would impose huge regulatory burdens on the businesses concerned. All those advocating that we leave on World Trade Organization rules and most-favoured-nation clauses must be aware that rules of origin checks may be needed to check precisely third-country imports into our exports to ensure that the UK would not be taking advantage of preferential tariffs. So, potentially, the consequences of leaving for the food, farming and drink sector are higher prices and less consumer choice.

Why would we prefer, and why have the Government set out, a facilitated customs arrangement with access to a single market? Goods between the UK and the EU would avoid a hard border in Northern Ireland, and it would protect integrated supply chains and “just in time” processes. It would include the facilitated customs arrangement, which would remove customs checks and controls between both partners. However, I will press the Government and the Minister further this evening for what is not currently in the White Paper.

The food industry is asking for labelling: we need consistent food labelling so that we can continue to maintain the same stock-keeping units in the UK and Ireland rather than separate parallel listings. We need to have safeguards for EU staff, protecting the rights of EU citizens who currently live and work in Britain. We need to have access to priority markets: we must be aware that if there is no deal on the day we leave the EU, the UK will become a third country and will lose access to all country markets—even those with whom we currently trade—through the EU free trade deals, which includes our Commonwealth partners. There is currently no mention of a continuing role within the UK for the European Food Safety Authority, yet we must have consistent food laws so that EU products can remain on sale in the UK and vice versa. Will the Minister confirm this evening that we intend to maintain a relationship with the European Food Safety Authority?

We must be aware of the length of time needed to negotiate new trade deals. The deal between the EU and Canada took seven years, and it included a partial agreement on services, which obviously was welcome. We must also be aware that the Irish border issue is now agreed. It is not just in the Belfast agreement but has been written into the European Union (Withdrawal) Act by way of a government amendment. Many noble Lords speaking in the House this evening seem to be in denial of that. We must also be mindful of the fact that movement of animals and food products across the Irish border cannot be monitored by technology.

There has been criticism of the common rulebook, but why is it important? We always need rules. In the terms of the White Paper, the common rulebook would allow equivalence in certain specified areas and the maintenance of food standards, and would protect against substandard food imports. In other areas it will be possible to diverge and divert from agreed regulatory standards. In the past, rules at EU level were always criticised, which is probably why many farmers in North Yorkshire voted to leave the European Union. But most of the gold-plating—making the rules more demanding—was done through statutory instruments under the implementing legislation in this country, piling obligations on our farmers and food producers that were never demanded in other EU countries.

As other noble Lords have said this evening, we need to spell out what is happening with services.

I will conclude on the impact of currency. Today, sterling has recovered slightly from a four-month low reached last Thursday. The day after the referendum, the pound fell about 14% and recovered by 4%. The additional cost of these sterling fluctuations to one food manufacturer alone has been £300 million in the last three years, and at the same time, food inflation has swung from a low almost 10 years ago to an historic high of 5.1% in December 2017.

My conclusion is that realistically, to avoid a huge shock to the economy, the Government should seek continued membership of the EEA or should apply to join EFTA. To crash out of the EU without the deal would have lasting and damaging consequences for the UK and the EU. It simply cannot be allowed to happen.

Brexit Transition: European Parliament Membership

Baroness McIntosh of Pickering Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Callanan]

We are not doing any contingency planning on it because we are not going to apply for an extension. An extension is not going to be granted because, as I have said on at least three different occasions today, we are leaving on 30 March 2019.

[Baroness McIntosh of Pickering (Con)]

Does my noble friend agree, pursuant to the question of the noble Baroness, Lady Hayter, that there would be some merit in allocating observer status to existing Members of the European Parliament, or a number of them, for the very good reasons that my noble friend gave in his question? We should have some democratic representation in the European Parliament at that stage.

[Lord Callanan]

Whether that would be a good idea or not, it would have to be agreed with the European Parliament and as we will no longer be a member state, I cannot see that Parliament being happy about the prospect of a non-member state sending representatives to it.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

Instead, great play is made in the document of it being the role of Parliament, including Select Committees, to hold the Executive to account—a point echoed by the noble Baroness, Lady Byford. But of course that is what we have now, and it would be without any of the additional benefits of oversight from Europe. It is that additional oversight we are now seeking to replace in UK law.

[Baroness McIntosh of Pickering (Con)]

I will not support the amendment at this stage; I will probably support it or something similar at the stage when the Bill—the primary legislation—reaches us. However, to help the noble Baroness’s argument and to address the excellent points made by my noble friend Lady Byford, should she not address the fact that we are seeking that the European regulations have the force of law after we have left, and how that goes to the heart of the amendment to which she is speaking? She is not addressing those points as forcefully as she might.

[Baroness Jones of Whitchurch]

I thought that I had addressed that. If after Brexit day we are to have the same powers and enforcement as we had prior to it, we need to have a green watchdog with those enhanced powers that Europe has given us in the past—as we heard from the noble Lords, Lord Rooker and Lord Smith, and other noble Lords. That is the need. If we do not replace that in some way with an independent body that can achieve that, we will have no way of enforcing the regulations to which the noble Baroness referred.

The key thing in our amendment is that we have an independent body with the powers to ensure compliance by public bodies with environmental law. There will be a governance gap, a power gap, if that does not occur. I say to all those people—including, again, the noble Baroness, Lady Byford—who say that the consultation is the right way to deal with this, that the idea that a consultation will deliver a new watchdog with some teeth when it is not included in the consultation is magical thinking. We all know that the reality is that the opposite is the case with government consultations and, inevitably, further compromises tend to occur before legislation is finalised. I do not think that to hold that out as a hope and an offer is going to give us much reassurance.

Finally—and this is also a really important point—Michael Gove has already acknowledged that there will be a governance time gap. This consultation proposes a Bill in the next Queen’s Speech. That would not be enacted until, say, the end of next year at the earliest. A lot can go wrong before then. As we have discussed before, a rather large number of Defra Bills have been promised and are already in the queue for enactment. Timescales are already slipping. Even with the most optimistic projections, the current plans mean a time lag where environmental protections will not be—as promised in the Bill—the same as we had before exit day.

Our amendment addresses that gap. It addresses those omissions and requires that the legislation would be produced within six months of the date on which this Act is passed and therefore fill that gap. This is the only way to maintain both the spirit and the substance of continuity with EU rights which the Bill promised and the only way to protect the environment for future generations. I hope that noble Lords will see fit to support it.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Alli (Lab)]

My Lords, following consultation with the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady McIntosh of Pickering, I have decided that it would be better not to debate this amendment and to decouple Amendments 110A and 112BC for a fuller debate later in the proceedings. To pick up a theme of the right reverend Prelate, I hope not to be in the wilderness for too long. I shall certainly value my waiting time, and it would be nice if that waiting time ended some time before dinner, but I shall understand if it does not. On that basis, I thank the right reverend Prelate for his courtesy and do not intend to press the amendment.

[Baroness McIntosh of Pickering (Con)]

It is a great pleasure to support and echo the eloquent words of the right reverend Prelate the Bishop of Leeds. In doing so, I commend the generosity of the noble Lord, Lord Alli, in so graciously agreeing not to press an amendment that would find a place later in this Bill, while also recognising that we have had the opportunity to debate the matter that he wishes to discuss in that amendment at three different stages, and I do not believe that he was present at any of those stages. So we are very grateful to him.

I declare my interest in that I advise on environmental matters, as declared on the register, and am also delighted to sit on the Rural Affairs Group of the Church of England General Synod. I particularly believe that the European Environment Agency would benefit from Amendment 93. Many noble Lords will be aware of my particular interest in Denmark, since I am half-Danish. I have had the opportunity to visit some British members of the European Environment Agency while in Copenhagen last year. To follow through on the thoughts and arguments developed by the right reverend Prelate, I argue that the European Environment Agency provides essential research on which the European Commission and other institutions depend and on which environmental protections for British citizens currently flow.

I want to put some questions to the Minister who is responding to this debate. First, I presume that the British Government wish to continue to benefit from the research undertaken by the European Environment Agency, as was indicated by the Prime Minister in the words quoted by the right reverend Prelate the Lord Bishop of Leeds. Will the Minister confirm that that is the case and what financial arrangements will be made to cover the work of the agency? Many environmental protections have been debated in this House during the passage of the Bill.

Secondly, and more importantly, there is a matter which was impressed on me in the meeting I had in Copenhagen in August with British officials working for the European Environment Agency. This is not the first time I have raised this; I had a number of conversations about it with the Minister’s predecessor, my noble friend Lord Bridges. However, over a year has passed and I have had no reassurance whatever in this regard. Many of these officials are British; many are married to Danes, Swedes or people of other nationalities. Many of them are experts and not on permanent contracts. I met one who was a very clever scientist who has a big question mark hanging over her future. Her young family wish to attend school and, subsequently, university. The House will recall an amendment that deprived EU citizens living in this country of the right to vote in our original referendum.

There is an urgent need for clarity because President Juncker has committed that British officials working for European institutions—I presume this is both permanent officials and those on expert contracts—will be able to apply for Belgian nationality from 30 March next year. If that is the case, British officials working for European Union institutions in Brussels will have preferential status, compared to those working for other agencies such as the ones mentioned by the right reverend Prelate and to the ones I met who were working in the European Environment Agency. It is now a matter of urgency that we reassure those excellent British officials working for such agencies that they will have at least the same status as those working for EU institutions in Brussels.

To sum up, what will be the Government’s future relationship with agencies such as the European Environment Agency? What will be the extent of our financial commitment, and when will we know what that is? What will be the status of those working for the European Environment Agency, the European Medicines Agency, and all such agencies? When will they know what their future will be?

[The Lord Speaker (Lord Fowler)]

My Lords, when the noble Lord, Lord Alli, said that he did not wish to press his amendment I should have asked the House—and I ask it now—whether it is your Lordships’ pleasure that Amendment 93ZA be withdrawn.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I am sceptical about the EEA option. I am not sure that the EFTA EEA partners particularly want us—some of them tend to say that they do not—and I am not sure that the consultative arrangements that they find sufficient, or reasonably satisfactory, would be found satisfactory by this country.

I have always thought that the sort of consultative arrangements that we could secure would be best devised here and put forward in the proposal for the framework of the future relationship. I have always thought it very strange that the Government always insist on playing away—that it is for the other side to put forward the drafts. I do not know why we have not put forward our own prescription. I think we still should—but I begin to despair that we ever will.

I am very impressed by the argument of the noble Lord, Lord Mandelson. We have not yet done anything on services, and we really must do something. I am not sure that the EEA is right—but, as the noble Lord, Lord Mandelson, said, if we applied to join the EEA, it would be a different EEA that would emerge. It is not, therefore, a knock-down argument that the template that suits Liechtenstein would be imposed on the United Kingdom. I think we could do better. So, although it is not for me the ideal way to go, I would much rather that Britain put forward a British proposal optimised for the British relationship with the European Union that we will have left. If we are not going to do that, this is the next best thing. So, despite my doubts about the EEA option, I will vote for the amendment in the name of the noble Lord, Lord Alli, if he chooses to test the opinion of the House—and I hope that others will, too.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to my noble friend, who supported my amendment both in Committee and on Report. I am very taken by what the noble Lord, Lord Robertson, said. This is not just a Labour tactic. I believe that there has been genuine cross-party consensus on choosing a few very precise issues. I will not rehearse the arguments again—they are there for your Lordships to see—but the noble Lord, Lord Alli, paid me the compliment of saying that he has used those arguments in crafting the amendment before us this evening.

We have had this discussion at Second Reading, in Committee and on Report. I believe that the time to bring this back is during the scrutiny of the trade Bill. The reason I say this is not that my arguments in favour of remaining within the EEA are any weaker, but if we send too many amendments back to the other place, where I served for 18 years, we will dilute its focus. I am putting all my confidence in the fact that there will be a majority in the elected House for our remaining in a customs arrangement or a customs union.

As I have argued previously—I have not had a definitive answer—lawyers are split on whether or not we need to formally leave the EEA and trigger an application to leave. I argue that without such a formal application to leave, the UK will remain a member of the EEA. I have worked closely over years with the food manufacturing industry and I continue to work closely with the farmers in North Yorkshire. I accept that the point on services has to be addressed. I understand that negotiations are going on to which we are not privy, and that is the difficulty in all the discussions on this amendment.

On the basis that I believe there will be a further opportunity to discuss this, and because I gave a commitment that I would wait until that time to discuss the EEA in a different context, and on my genuine understanding that we will remain members of the EEA, I urge the noble Lord not to put this amendment to the vote this evening but to keep it up our sleeve for a different occasion.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Cormack]

As my name is on the amendment, I merely endorse what my friend the noble Lord, Lord Kerr, and the noble Baroness have said. We want consistency. We are glad that Clause 8 is to be taken out of the Bill, but the point that he made about Schedule 4 is very important indeed. I know we cannot vote on that amendment tonight but I hope that my noble friend Lady Goldie, who I am delighted to see will reply to this debate, will be able to give us an assurance that this matter has been taken on board.

[Baroness McIntosh of Pickering (Con)]

My Lords, it seems appropriate for me to speak to Amendment 47, in my name and that of the noble Baroness, Lady Smith of Newnham, for the simple reason that government Amendment 47A seeks to remove Clause 8 from the Bill and the purpose of Amendment 47 is to amend Clause 8 by adding the words as printed on the Marshalled List.

I tabled this amendment for Report because, in my view, my noble friend the Minister’s response in Committee lacked clarity. Since then, of course, we have had a vote on an amendment requesting that the Government negotiate a customs arrangement, which was agreed in this House by a substantial majority. Of course, when that amendment goes to the other place it could be rejected, so I would just like to raise a number of issues on Report which will be helpful at Third Reading or in any future altercation between here and the other place if the amendment seeking a customs union does not find favour there.

On 21 February, my noble friend Lord Callanan explained that, in his view,

“the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA”,

and that this approach would mean that,

“we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states”.

The lack of clarity came, I believe, when the Minister went on to say:

“Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people … We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein”.—[Official Report, 21/2/18; col. 180.]

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[Lord Berkeley (Lab)]

Can the noble Baroness confirm that seed potatoes are part of the problem? If they are sown on both sides of the Irish border, they will not be able to be taken across unless they are subject to specific checks.

[Baroness McIntosh of Pickering]

The noble Lord has the advantage over me. I was not thinking so much of potato seeds but the fact that the Secretary of State has said that we are to have higher standards of animal hygiene, animal health and animal welfare, which I welcome. That follows on from the little debate we have just had. There will have to be physical checks. There cannot be checks managed by technology, in which case potatoes and their seeds could effectively fall within that category. So the noble Lord has actually made and developed that point very neatly for me.

In the context of Amendment 47, I urge the Minister to maintain Clause 8 in the Bill and to keep an open mind as regards potential membership of the European Economic Area or applying to join the European Free Trade Association.

[Lord Beith]

My Lords, notwithstanding the noble Baroness’s arguments, I want to address this group from a different standpoint: that of government Amendment 47A, which is to leave out Clause 8. It may be because I have a suspicious mind, but, while the removal of Clause 8 would be quite welcome to the Constitution Committee, which had considerable concerns about its breadth, I am worried that in removing it the Government have satisfied themselves that there is nothing they could do under Clause 8 that they could not do under Clause 17 and its broad powers. What is more, there are things which the Government can do under Clause 17 which they are prohibited from doing under Clause 8. When we come to Clause 17, we will perhaps have to look more carefully at it than has been done so far.

It would be helpful if the Minister could set out the Government’s argument for deleting Clause 8. I am quite sympathetic to that, even though I understand the standpoint from which the noble Baroness, Lady McIntosh, was arguing. But were we able to get the Government to move seriously in the direction of having a customs union-EEA, as our vote last week showed that the House wants to do, I am quite confident that ways could be found to do that with or without Clause 8. I would be only too glad to assist if that happens—but I am concerned about the reliance on Clause 17, which may lie behind the removal of Clause 8.

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[Baroness Goldie]

We are seeking to remain part of the international treaties to which we are party, through negotiation. I will certainly undertake to write to the noble Lord, Lord Kerr, because I have no more information beyond what I have been given and I would be straying into very uncertain territory if I tried to be more specific.

[Baroness McIntosh of Pickering]

Would my noble friend comment on one more point? The clarification that I was seeking relates to the Hansard column where my noble friend Lord Callanan clearly said exactly what my noble friend has just said: it is the Government’s intention that we remain in the EEA until the end of the transitional period, and it is then the Government’s intention to negotiate new arrangements with the three member countries of the EEA. I seek clarification today on something that was not in Hansard: at what point will those negotiations either commence or be concluded? The whole of Clause 8 relates to maintaining our international obligations. I would like to know what our obligations to the EEA will be after December 2021.

[Baroness Goldie]

I am reluctant to disappoint my noble friend, but that is all germane to the negotiations and I have no more information I can add at this point. I want to make progress with the rest of the amendments in this group, which cover a range of aspects on the important issues of imposing or increasing taxation. With regard to the second half of the group, I note that the position of the Government and that of the noble Lords who proposed them are much closer to each other than they were, and I hope that we may have reached a point at which we could agree to disagree.

In responding to Amendment 73, tabled by the noble Lords, Lord Hannay and Lord Cormack, and the noble Baronesses, Lady Kramer and Lady Hayter, I wish first to point to the Government’s amendments that we shall consider later on Report. I shall not pre-empt that debate, but I wish to make clear that the Government and noble Lords are not so very far apart. The Government have heard the concerns raised in Parliament and recognise the significance of the question of how Parliament approves fees and charges on the public. Indeed, this has been a question of great historic importance in the development of this institution and of the relationship between this House and the other place.

The Government agree that delegated powers, particularly in this sensitive area, should be subject to close scrutiny by Parliament. The Bill as introduced provided that any statutory instruments made under the powers in Schedule 4 which established a new fee or charge regime, or which sub-delegated this power, had to be subject to the affirmative procedure. In other cases, Ministers held discretion to choose between the affirmative and negative procedures as appropriate. I understand, however, that noble Lords considered that was not a satisfactory position, so the Government have reflected further.

The balance we have sought to ensure is that there is a level of scrutiny of the exercise of the powers in this Bill which satisfies the needs of Parliament without unduly expending limited parliamentary time on a great morass of minor instruments better suited to the negative procedure. We are therefore proposing amendments that require all SIs under Schedule 4 to be subject to the affirmative procedure unless they are adjusting fees or charges to account for inflation. This will ensure that where the Government wish to lower a charge, restructure a fee from daily to hourly, or increase a fee to reflect a change in how it is provided, that must be debated and voted upon by both Houses. Despite this, the Government believe that allowing inflation-related adjustments to be subject to the negative procedure is proportionate. Such a measure reflects no change in policy, or in how a service is provided, but simply reflects developments outside this place and changes in what we have termed “the value of money”. Even this, if appropriate, could be brought before your Lordships’ House for a debate and a vote. I hope noble Lords will accept this as addressing their concerns and will not press these amendments.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

8: After Clause 2, insert the following new Clause—
“Status of EU directives adopted, but not implemented, before exit day
(1) Unless already part of retained EU law under any other provision of this Act, all EU directives adopted but not implemented before exit day, including those listed in subsection (4), remain binding in domestic law, as if the United Kingdom had not left the EU.(2) In implementing any EU directive under subsection (1) after exit day, a Minister of the Crown may use any power set out in the European Communities Act 1972 as if that Act had not been repealed.(3) If, through implementing a directive under subsection (2), a situation arises which would be considered a deficiency had it arisen in retained EU law, a Minister of the Crown may use any of the powers set out in section 7 of this Act to remedy that situation as if that directive had been implemented before exit day.(4) EU directives adopted, but not implemented, before exit day, include—(a) Recognition of Professional Qualifications Directive (2017/2397);(b) Fraud (criminal law) Directive (2017/1371);(c) Accessibility of websites and mobile applications Directive (2017/2102);(d) Legal aid (suspects, accused persons and those under European Arrest Warrant proceedings) Directive (2016/1919);(e) Rail safety Directive (2016/798);(f) Rail interoperability Directive (2016/797);(g) Safeguards for child suspects in criminal proceedings Directive (2016/800);(h) Trade marks Directive (2015/2436);(i) Financial instruments Directive (2014/65);(j) Cost-effective emission reductions and low-carbon investments Directive (2018/410);(k) Environmental assessments (genetically modified organisms) Directive (2018/350);(l) Maritime workers Directive (2018/131);(m) VAT Directive (2017/2455);(n) Health and safety (exposure to carcinogens or mutagens at work) Directive (2017/2398);(o) Passenger ships (safety and standards) Directive (2017/2108);(p) Passenger ships (passenger registration) Directive (2017/2109);(q) Passenger ships (inspections) Directive (2017/2110);(r) Hazardous substances (electronic equipment) Directive (2017/2102);(s) Tax dispute (resolution mechanisms) Directive (2017/1852);(t) Hybrid mismatches (third countries) Directive (2017/952);(u) Weapons (control and acquisition) Directive (2017/853);(v) Shareholder engagement Directive (2017/828);(w) Maritime workers (International Labour Organisation) Directive (2017/159);(x) Tax Avoidance Directive (2016/1164);(y) Mayotte (status) Directive (2013/64).”

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[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 8, which stands in my name and those of the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, and Amendment 32, which is consequential to this amendment, I wish to press the Minister, my noble and learned friend Lord Keen, who replied to the debate last time. My starting point is that, despite urging my noble and learned friend and following his response to the debate that we had in Committee and subsequently in the cross-party meeting held between Committee and Report, we have seen no movement on this. Since Committee I have revised the amendment to include a list of those 23 directives that we know from a House of Commons briefing paper will fall into one particular category: directives adopted but not implemented before exit day. For clarity, I have attached that list.

However, it is important to point out that this list is not comprehensive. There are a number of other directives of which I am aware, such as the environmental directives relating to water. As has been brought to my attention by the City of London Corporation just today, there are further examples such as the second payment services directive 2015/2366, which will be implemented before exit day, but the regulatory technical standards underpinning its operation will not.

A second category of directives falls within the remit of this amendment, which are broadly packages of directives such as, for example, those referred to in Committee by the noble Baroness, Lady Young of Old Scone, to whom I am very grateful. This has been brought to our attention in a briefing from the Law Society of England. It is particularly concerned that there is no legal basis or mechanism as yet for Ministers to bring any measures into UK domestic law that are part of a package of EU legislation into which the UK will have had input as an EU member state and to which we agree. It is its recommendation that Ministers should be given powers to bring certain types of EU legislation into domestic law if it forms part of a package as this will reduce the impact on businesses and help them to prepare better.

There is then a third category that I believe falls into Amendment 9, which we will consider after this little group. Within that category there are regulations that fall to come into effect after exit day, but the main regulation will have been adopted before that. Again, the City of London gives the example of the prospectus EU regulation 2017/1129. The regulation itself, which is directly applicable, will have been in force since 20 July 2017, but the majority of the regulation will not apply until 21 July 2019, which will mean we will no longer be in regulatory alignment with the European Union after that date.

To sum up the little debate we had on this in Committee, my noble and learned friend Lord Keen, who I am delighted to see in his place, was rather brutal and frank. He said that there might be directives that have been adopted that have not been subject to implementation by the exit date because the transition period extended beyond the exit date. He went on to say:

“There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside”.


The central point is that,

“directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after”,—[Official Report, 28/2/18; col. 689.]

that date.

My purpose in bringing forward the amendment is simply to request that my noble and learned friend brings forward a legal basis today. When we had our meeting, for which we are extremely grateful, he said that it would be open to the Government at a future date to decide that a directive that fell into this category—adopted but not implemented—could be transposed by primary legislation and become part of retained EU law in that way. The question I put to my noble and learned friend is simple. This is very odd. Either it would lead to at least 23 pieces of primary legislation— 23 separate Bills—or one Bill giving individual effect to all the separate pieces of legislation, not just the 23, but the others to which I have referred, in which case it would extend Henry VIII powers beyond those we have already identified. My further question to the Minister would therefore be: what precedent is there for this, and where would the parliamentary scrutiny fall?

In speaking to these amendments, I hope for further clarification, and a commitment and an undertaking from my noble and learned friend to give legal certainty about these two categories of legislation where directives have been adopted but not implemented before exit day.

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I cannot hold out false hope that we will reflect further on this issue between now and Third Reading, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

[Baroness McIntosh of Pickering]

That is a very tempting offer. I thank the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, for their contributions. I am sure that my noble and learned friend meant no disrespect to the House and those of us who have spoken to and supported this amendment by being late and, perhaps because of his lateness, being unable to address many of the arguments that were put. I am disappointed in particular that he did not respond to my question whether he intends to have 23 or more Bills if the directives are to be transposed into EU law, as he undertook to do at a private meeting—obviously it was a private meeting; it was not a matter of record—that we had in the Chamber.

To my noble and learned friend’s point that the UK has opted out of two of the directives, as he has said on two occasions, it is quite within the wit of the Government to opt in at a later date, so that is not a compelling argument. I welcome his placing on the record that the category of regulations that we are considering may fall in the transition period. It is my clear understanding—and, I think, the understanding of the House—that the European Union has agreed to a transition period. The Government perpetuate the myth that we are going to embark on an implementation period. It would be helpful to the House to be given clarification at some point as to what the different understandings of a transition period and an implementation period may be. It is my firm intention not to let this matter go, because it does fall within the scope of later groups of amendments, including those to be considered, as my noble and learned friend said, under Clause 7. I also understand that he has given a very clear commitment to the proposer of Amendment 9. Against that background, I thank those who supported this amendment and spoke to it and at this stage I beg leave to withdraw the amendment.

Amendment 8 withdrawn.