Brexit: Powers of EU-UK Joint Committee

Baroness McIntosh of Pickering Excerpts

Wednesday 20th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, there are two obvious controls. First, Ministers or others will attend the joint committee with a mandate from Parliament. Secondly, pursuant to Section 25(2) of the Constitutional Reform and Governance Act 2010, a decision that constitutes an amendment to part of the treaty or replaces part of the treaty made by the joint committee would require ratification.

[Baroness McIntosh of Pickering (Con)]

My Lords, can my noble friend explain the current legal position on consultation on international agreements that have been reached with the Faroes, Norway and Iceland, which have carried over, particularly for the Scottish Government?

[Lord Keen of Elie]

Of course, international affairs are a matter for the United Kingdom Government. We do not undertake such matters without consultation with the devolved Administrations, where it has an impact on their interests. It is, however, simply a matter for the United Kingdom Government, not the Scottish Government.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Tuesday 29th January 2019 Grand Committee

[Baroness McIntosh of Pickering (Con)]

My Lords, I rise to ask a question and I am grateful to my noble and learned friend Lord Keen for setting the scene. A theme seems to be developing in relation to practitioners and the recognition of court judgments with the Government’s proposed exit from the European Union. My noble friend has responded to some of my concerns as regards practitioners and trading in legal services, which I hope to address in the context of the Trade Bill.

My specific concerns relate to the remarks of my noble and learned friend and what is set out on page 5 of the Explanatory Memorandum, which sets out a number of the deficiencies that will arise if we crash out without a deal. I presume that this falls into the same category that services and the jurisdictions of courts fall into with the World Trade Organization and its General Agreement on the Trade in Services. My question is similar to that of the noble Lord, Lord Beith. What will be the status of this in those circumstances? However, I have a more direct question of my own. If this is being done on the basis of reciprocity and if the instrument before us today seeks to fill the gap so that court judgments will be recognised in this country, what measures are the Government and my noble and learned friend’s department taking to ensure that reciprocity will be respected in the circumstances of Britain leaving without a deal?

[Lord Hope of Craighead (CB)]

My Lords, could the Minister say something about the effect of what is being provided for here on the common-law principle of forum non conveniens? I am sure he knows very well that the doctrine of forum non conveniens was eclipsed, as regards membership of the EU, by the reciprocity principle and the rules that apply throughout the EU.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

Yes, of course. I am obliged to the noble Lord for prompting me to go straight to that point. There are 680 European lawyers registered with the Solicitors Regulation Authority and up to 20 who are with the Bar Standards Board: far fewer in the latter case because, of course, most European lawyers who come to practise tend to find themselves practising in London’s large firms, rather than seeking to establish themselves as independent barristers at the Bar. I hope that that meets the noble Lord’s concern on that point.

[Baroness McIntosh of Pickering (Con)]

As my noble friend is aware, I worked in the other way: I qualified under Scots law and then went to practise in Brussels. Under the new arrangements, what will be the reciprocal rights of those who wish to do precisely what I did after we leave the European Union?

[Lord Keen of Elie]

In the event of us exiting without any deal, there will be no reciprocal rights—which was one reason why, as I indicated, these regulations are required. They are necessary in order that we can establish a position in which all third-party country lawyers will be on the same standing in the absence of a free trade agreement or other agreement with a third-party country. There will be no reciprocity—that will be a matter for the relevant EU country to consider—but clearly it is a matter that we would wish to address in future negotiations consequent on our exit from the European Union. This is dealing with the position in the United Kingdom in light of the existing regulatory regime under EU law. Clearly, and quite patently, you could not address the question of how the EU 27 are going to treat our lawyers going forward.

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[Lord Keen of Elie]

It does not refer to the transitional period as proposed in the withdrawal agreement: it refers to a transitional period that will apply for the purposes of this particular instrument in order to ensure that there is no immediate cut-off for EU lawyers in the United Kingdom. It is for that particular purpose that this particular regulation allows that, and it is considered that that is allowable under the GATS regime as well—in other words, we are allowed a period of time to transition to a point where European lawyers registered in the United Kingdom come to find themselves in the same position as third-party country lawyers.

[Baroness McIntosh of Pickering]

I am sorry to belabour the point, but I am slightly confused about why we are being so nice and kind to EU lawyers—the non-British lawyers who are working here—and not seeking to protect the rights of British lawyers who are working in Brussels, Denmark, Sweden and other EU countries. Are we not trying to be reciprocal now?

[Lord Keen of Elie]

Clearly, over time we will address the ability of the United Kingdom to agree with the EU the possibility of reciprocal rights for United Kingdom lawyers in Europe, but it is not something that we can dictate by our legislation. What we can do, however, is facilitate the position of EU-registered lawyers who are already in the United Kingdom and contributing to the legal services in the United Kingdom so that they can be secure in the knowledge of what their position will be in the event that we exit without any agreed deal.

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[Lord Keen of Elie]

Yes, I am most obliged to the noble Lord. Registered foreign lawyers are those lawyers of third-party countries who are registered in the United Kingdom. We have lawyers from many jurisdictions—for example, the United States of America—who practise under their foreign lawyer qualification in the United Kingdom. As the noble Lord will appreciate, London is an international legal centre as well as an international finance centre. This instrument has no impact at all on those foreign lawyers but it aligns registered European lawyers with registered foreign lawyers for the reasons that I have indicated.

[Baroness McIntosh of Pickering]

By definition, this instrument is to be of a limited duration. Is it temporary or is it of unlimited duration? I understood my noble and learned friend to say in response to my questions that this could well be overtaken by events at such time as we have a negotiated withdrawal agreement. At what stage will the negotiations be expected to start to make sure that British-qualified EU lawyers practising in other member states will be aligned with those EU- qualified non-British lawyers who are practising in this country? I understood my noble and learned friend to say that we are going to have two categories of European-qualified lawyers as of 29 March. There will be those non-British EU-qualified lawyers who are qualified to practise in this country, who will continue after 29 March. But there will be those like me—clearly, I am non-practising now—who will not be able to practise in another EU country post 29 March. For the avoidance of doubt, for a newly qualified European lawyer coming through in this country, is it understood that our qualifications, whether as a Scottish advocate or solicitor or as an English barrister or solicitor, will be recognised in other EU countries as entitling that person to qualify in European law in those countries, or will they have to go through, for example, a Danish jurisdiction, an Irish jurisdiction or a Belgian jurisdiction should they wish to practise in that particular member state?

[Lord Keen of Elie]

My Lords, this is a permanent change in the law, which may be subject to defeasance in the event that we have a withdrawal agreement. It will then be rendered unnecessary. It applies to and is concerned with the position of registered European lawyers in the United Kingdom. It cannot make provision for United Kingdom lawyers in the EU 27 or EFTA countries. We have no competence to do that. It is our hope, however, that in due course, and following withdrawal, subject to the withdrawal agreement, we will in the course of negotiation be able to negotiate with the EU 27 the development of appropriate reciprocal recognition for lawyers going forward, but that is for the future. This is a permanent change in the law to address the prospect of our leaving on the 29 March 2019 without a withdrawal agreement.

[Baroness McIntosh of Pickering]

I am sorry to persist, but could my noble friend answer my second point? After 29 March, will the qualification of anybody who is newly qualified under United Kingdom jurisdiction be recognised to enable them to practise automatically in another EU country, or will they have to requalify in that country on 30 March?

[Lord Keen of Elie]

With great respect to the noble Baroness, we cannot legislate to ordain the EU 27 or any EFTA country to recognise the legal qualification of someone who has qualified in the United Kingdom. We simply cannot do that, so, after 29 March, in the absence of any withdrawal agreement and any negotiated arrangement with the EU 27, such people will have to do what any other third-party-country lawyer does, which is to go to the relevant jurisdiction and apply the host country’s provisions on registration and qualification. There is no doubt about that.

Brexit: Withdrawal Agreement and Political Declaration

Baroness McIntosh of Pickering Excerpts

Monday 14th January 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow the noble Lord, Lord Russell of Liverpool. I declare my interests as having practised European law in Brussels, having advised MEPs in the European Parliament and having been elected as an MEP for 10 years. I also served 18 years as a Member of Parliament, for five years of which I chaired the EFRA Committee.

Let us consider what people voted for in the referendum. Put most simply, they wanted to remain in the common market but not in a political union. They wanted to reduce immigration, and to take back control. Not all immigration is bad. We need to differentiate the needs for the economy, and to recognise the needs of health, social care, food, farming and the hospitality industry. We need to recognise that backbreaking work such as fruit picking, vegetable growing and that of the horticultural industry will no longer be done by students and people already living in this country. We need access to a reliable source of skilled and unskilled labour for farmers, who will otherwise be held back by the lack of access to a workforce.

Let us also look at what our trading relations will be post Brexit with both the EU and third countries. Trading in agricultural produce has huge implications for food and farming. We must legislate for the same high standards of health, welfare and hygiene on leaving the European Union as we currently enjoy. We must recognise the implications of chlorine-rinsed chicken and hormone-produced beef from the US, as well as substandard foods from Brazil and Argentina, which may negatively affect both consumers and home producers alike. There will be an enhanced role for the Food Standards Agency post Brexit, as it will have to check all imports from the EU as well as from third countries.

We must be very clear. Leaving with no deal means leaving on the World Trade Organization’s “most favoured nation” rules. We will have to treat all countries the same, so we can show no preferential treatment in exports or imports. However, “most favoured nation” means delivering equal treatment to all countries on the principle of non-discrimination; we cannot simply treat our erstwhile EU partners more favourably than any other trading nations in the circumstances of no deal. What a pity that the ardent proponents of no deal do not explain that in such stark terms, particularly the implications for the Irish border explained so eloquently and simply by my noble and learned friend Lord Mackay of Clashfern.

Potential tariffs on livestock could reach 40% on beef and lamb in particular. That is the greatest threat to hill farmers across the four nations of the United Kingdom. These farmers, whom I grew up with and then represented for a number of years, play a key role in feeding the nation and delivering the biodiversity of the countryside. They could never be replaced. The most drastic change we would see on leaving on World Trade Organization terms would be border checks on paperwork and the application of tariffs and non-tariff barriers. Let us consider nomenclatures for a moment: that means we have to identify every item in every individual product. We have to describe it and recognise and state the provenance and its content. Only then can we attach the appropriate tariff to the finished product.

The impact is not just of tariffs but of non-tariff barriers and other regulations, such as paperwork. I remember when the 120 pages that used to be issued in the European Union were replaced by one page with 120 boxes—what had actually changed? These checks could result in delays at borders, which could destroy perishable goods such as foodstuffs.

In considering the options before us today, in my view, the Prime Minister’s deal is preferable to crashing out without a deal, to a second referendum and to a general election, which would probably return a similar result to now, with no overall majority.

In the long term, we should seek the closest possible relationship with the EU that delivers frictionless trade, such as is enjoyed by countries who are members of the EEA and EFTA, leading to access to the single market but with the added benefits of a customs union to be negotiated through a separate protocol. In the short term, if the Prime Minister loses the vote on the deal, I see no alternative but to apply for a short pause in the Article 50 process. The elections to the European Parliament are an issue, but we could apply for observer status for those British MEPs, or at least some of them, currently serving there. They could then oversee the arrangements in the intervening months.

A second referendum holds no attraction for me. Why repeat the exercise when the last one was so divisive and inconclusive, and resulted in the murder of an MP, Jo Cox? The final say has to rest with the House of Commons and the democratically elected representatives of the people. The House of Commons must be allowed to vote on each of the options available; you simply cannot expect the electorate to enter into the minutiae of policy detail. What else would taking back control really mean, other than restoring parliamentary democracy?

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Baroness McIntosh of Pickering Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Lord Beith (LD)]

This gives us an opportunity to look at whether the training is intended to embrace the increasing use of online and virtual court facilities. We cannot advance that cause in the context of the Bill, because it has been drafted to exclude some of the things that we all assumed were part of the modernisation programme. It would indeed be difficult to ensure that the training and deployment of judges meant that they were well equipped for these changes, because we do not know what the parliamentary underpinning would be, but this would be a useful moment for the Minister to indicate how far the well-declared and strongly supported plans that emerged from the Briggs and Leveson reports form part of the Government’s thinking on how judicial deployment and training should operate.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to raise a question, in the confines of this amendment, about training. I know that my noble and learned friend has explained on a previous occasion that the role of justice clerks is changing and that that is the purpose of this. What stage are we at with consulting the justice clerks? I understand, looking at paragraph 10 of the impact assessment, on page 5, that currently the most senior lawyers in Her Majesty’s Courts & Tribunals Service are indeed justice clerks. To what extent are they agreeable to these changes? I want to be assured that we will not find ourselves in a situation in the autumn where perhaps they do not entirely agree to what we are asking of them. At the same time, I wonder if there is an expectation that those undertaking this new role will travel further to courts, particularly magistrates’ courts, given that in rural areas there are so few of them. We have seen an increase in cancellations of trials and cases not being heard, where witnesses have found it difficult to travel to and reach the court on time.

[Lord Judge (CB)]

My Lords, one issue that arises is that, if we are to require more judicial training, it will have to be funded. The second point is that the Lord Chief Justice is responsible for the organisation of judicial training and a report from the Lord Chancellor—if I may say so, with respect—is completely unnecessary. These issues can be addressed by the Lord Chief Justice in his annual report.

Rape Trials

Baroness McIntosh of Pickering Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

They do not necessarily explain such a situation. However, in circumstances where the defence actually obtempers its obligation to provide a defence statement, it is possible to identify further areas of inquiry for the disclosure of material. For example, if the defence statement discloses that that there was a pre-existing relationship between a complainer and the defendant, it will be possible to make further inquiries to ensure that material that might otherwise have gone unnoticed is disclosed to the defence. Therefore these matters are connected.

[Baroness McIntosh of Pickering (Con)]

Will my noble and learned friend clarify his comments on social media and the extent to which, in cases where the prosecution has information that is available on social media, it is disclosed to the defence counsel?

[Lord Keen of Elie]

In circumstances where it has been possible to download material that involves communications either between a complainer and the accused or between the complainer and third parties, that material will be analysed and all relevant material will be taken and disclosed to the defence. Of course, it is not always possible to access this material. We now live in an environment of encryption and of WhatsApp and Instagram, where sometimes this material is simply not accessible.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Kerr of Kinlochard]

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.


It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

[Baroness McIntosh of Pickering (Con)]

My Lords, it might be helpful if I, as a half-Dane, set out the position of Greenland. The noble Lord, Lord Wigley, raised the interesting point of what the status of UK citizens will be when we leave the European Union but continue to benefit in some places from it. Greenland is an autonomous Danish dependent territory, with only limited self-government and its own Parliament. It withdrew from the European Union but nevertheless is now associated with it under the Overseas Associated Decision and is eligible to benefit from funding from the EU’s general budget through the EU-Greenland partnership. That begs the question of whether the Government are minded to apply for such associated status so that citizens from parts of the UK can benefit in the future.

[Viscount Waverley (CB)]

My Lords, I apologise for not being here at the start. I will say very briefly that one aspect has not come under consideration: namely, UK citizens who have their prime residence on the continent. If a UK citizen has restricted access to the country in which they have their residence and the situation arises where the spouse is not allowed to enter the UK—of which I have first-hand knowledge, as my colleague the Minister is aware—that could mean separation for many people and it will further complicate this whole arena.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Griffiths of Burry Port]

I thank the noble Lord. I have long since learned that perfection is not my strongest suit. I remember once asking everybody in a congregation of mine if anybody was perfect and a man at the back put his hand up. I did not believe him, and he said, “No, it’s not me; I am speaking proxy for my wife’s first husband”.

[Baroness McIntosh of Pickering (Con)]

Perhaps I could help the noble Lord. In the circumstances my noble friend Lord Forsyth expresses, consent is given when the devolved legislature applies the directive and implements it there.

[Lord Griffiths of Burry Port]

I am very grateful to the noble Baroness. Because I am where I am, I am equally certain that the points being raised will be addressed later in this debate.

What the Government have brought forward at this late stage is too weak. If the purpose is, as the Government claim, simply to give breathing space to negotiate new UK frameworks, which is fair enough, where it is agreed by the devolved Administrations that these are necessary—that is an important part of it—then we should be sure that the devolved legislatures agree that these are indeed the policy areas where restrictions are needed. It does not seem to be very difficult to come to these conclusions. Indeed, there has been no attempt to engage with the proposals put forward by the Welsh Government in their policy paper Brexit and Devolution some nine months ago, arguing for a system which would address precisely this issue. Perhaps the Minister could explain this egregious omission.

Over the last week, I have come across an intriguing poem by Waldo Williams, one of the dominant Welsh writers of the last century. He asks a series of questions and gives succinct, almost gnomic answers to them. As I conclude my remarks, I cannot forbear from quoting one couplet in Welsh, in order to forestall an intervention by the noble Lord, Lord Forsyth—though he might surprise me yet again. I will quote it with a translation by the noble and right reverend Lord, Lord Williams of Oystermouth—I do not want to frighten the Hansard horses. Just listen:

“Beth yw trefnu teyrnas? Crefft

sydd eto’n cropian”.

That is:

“What is it to govern kingdoms? A skill

still crawling on all fours”.

We must urge the Government to stand up, to withdraw their amendments and to go back to the discussions with the devolved Administrations before returning with an approach which gives an appropriate role to the devolved legislatures to agree the areas—indeed, perhaps to go further and to put a list of frameworks into a schedule to the Bill—in which new restrictions on their legislative competence will operate. This may well turn out to be a test of whether the Government have the competence to lead us out of the mess they have so tidily put us in. I wish to move the amendments.

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[Lord Hain]

I welcome what the noble and learned Lord has said. If it really is not possible to work up such a schedule before Report—for the reasons that he has explained, I do not see why it should be the case—might not the Government find another legislative opportunity to do so? We know that in the autumn we are likely to have to consider a withdrawal agreement implementation Bill. That might provide an opportunity, although it would be better to do it in this Bill.

The second objection that the Government might make is the need to account for unforeseen circumstances. Since Brexit appears to be a process where every stone turned over reveals yet another problem lurking beneath it, there is some validity to this argument. But if, exceptionally, a new area where a framework is required is identified even after the passage of this Bill with the proposed schedule, there is an easy solution that is wholly consistent with the approach to devolution adopted to date—namely, a power to amend the schedule by Order in Council with the express agreement of Parliament and those devolved legislatures affected. That could be included in the Bill as well.

In reality, if the Government resist this proposal, we would be right to suspect that they have an ulterior motive in wishing to press ahead with such a wide regulation-making power as that encapsulated in the current amendment, although I accept that it is about to be withdrawn. I commend to the Government the idea of putting in the Bill a list of areas agreed with the devolved Administrations—I stress, agreed—where the constraint on devolved competence will apply and ask them to consider bringing forward an amendment that does that at Report stage.

[Baroness McIntosh of Pickering]

My Lords, I applaud the spirit in which the Government have brought forward the amendments before the Committee this evening and the eloquence with which they were brought by my noble and learned friend Lord Keen. However, on balance I think that Amendment 318A, brought by my noble and learned friend Lord Mackay, has much to commend it.

There are a number of points I would like to raise in the hope that my noble and learned friend Lord Keen might reflect upon them before Report. As my noble and learned friend Lord Mackay of Clashfern explained, the regulation-making power in these amendments would appear to be intended to be used only where the United Kingdom Government consider that it would be necessary for the purpose of protecting the UK common market. My question therefore is: would it not be clearer if that was expressly stated in the Bill? The explanatory statement could also explain why the regulations are required for this purpose. Also, do the Government envisage the power in new Section 30A in the government amendment being used only once, or do they intend it to be used more than once? It would be helpful for the Committee to know.

Although it is stated that the regulation-making power is intended to be temporary and that Ministers are required to have regard to that fact, there is nothing presently in the Bill that expressly provides for the regulation-making power to be temporary. Would it not therefore be helpful if such a provision made that clear? I believe that that is covered in my noble and learned friend Lord Mackay’s Amendment 218A.

Does it not also make sense that the Bill be amended so that the regulations and restrictions set out therein take effect at the same time that the new Section 30A comes into force? While it is expressly stated that the regulations are subject to the affirmative consent of both Houses of Parliament, there is nothing in the amendments that expressly requires the consent, as expressed by so many noble Lords this evening, of the Scottish Parliament. This contrasts with the accepted way of making amendments to the legislative competence of the Scottish Parliament through an Order in Council under Section 30 of the Scotland Act 1998. I respectfully ask my noble and learned friend Lord Keen that the Bill be amended to require Ministers to explain the need for regulations under new Section 30A.

On the question of consent, I was trying to help the noble Lord, Lord Griffiths, earlier by stating, as the noble Lord, Lord Hain, set out, that Ministers from devolved Assemblies currently sit next to the Ministers at meetings of the Council of Ministers and advisers. I also suggest that consent is currently expressly given by the devolved Assemblies and by their Ministers when the EU directives are agreed and then implemented by the devolved Assemblies. The point I was trying to make is that it is consent at both levels that is being removed.

[Lord Hain]

Sometimes devolved Ministers are there on their own.

[Baroness McIntosh of Pickering]

I accept that and I stand corrected.

[Lord McConnell of Glenscorrodale]

I absolutely endorse the description by the noble Baroness of the way consent works in that situation: whether or not devolved Ministers lead the delegation, sit on the delegation or are consulted in advance of the delegation to the Council of Ministers, it is the case that the responsibility for implementing the directives agreed transfers directly to them, not through the UK Government, and they then implement those directives. The noble Baroness is right when she says that that means that the consent is given, but it also reinforces the argument that that responsibility lies there and not through the UK Government any more—that is the result of the devolution settlement.

[Baroness McIntosh of Pickering]

That is the point I am trying to make. It may be helpful if I conclude by asking the Minister a question: he talked about all retained legislation being primary legislation—if the Committee were to agree that, would it not resolve many of the difficulties we have been discussing?

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Fox (LD)]

My Lords, the noble Lord, Lord Berkeley, is unable to attend, so I will move Amendment 227BB in his stead. This amendment represents something of a change of scene from what we have been discussing this evening, relating as it does to the future of the recreational boating sector following the UK’s departure from the EU. But this is an important sector for us. It is not just about the estimated 3.5 million people who take part in boating activity in the UK every year. It is also a thriving business sector, with the recreational boating and marine sectors being a success story in the UK. In 2015-16, the marine industry contributed about £1.3 billion to the UK economy, which adds up to around 33,000 full-time employees and more than 4,500 businesses. We should realise also that this is often in areas where alternative employment is not always available, so the sector is very important to the communities in which it exists.

The industry currently enjoys the benefits of free movement of people and the absence of customs borders between the UK and other EU countries. There are then, unsurprisingly, a number of issues arising from Brexit, causing significant uncertainty to both recreational boaters and the marine industry. I know that the Royal Yachting Association, the RYA, and British Marine have been in contact with DExEU and other government departments in relation to these issues. Briefly, and for the benefit of the House, I will set out the key issues.

The first is the ability of recreational craft to retain what is called Union goods status, which allows continuous free navigation around the waters of the EU. The second is the nature of the maritime border control regime between the UK and the EU after Brexit. The third is the ability of UK citizens who have RYA qualifications to travel freely to and from the EU for work that is often seasonal.

The Union goods issue requires a little explanation, so I will go into that detail, if noble Lords will excuse me. Vessels and all the equipment on them, such as computers and electronic gear, that enter the EU from non-EU countries are required to pay customs duties and VAT unless the owner can show that they are entitled to exemption. This is not the case if the equipment has Union goods status, which means that it is treated as duty paid. Pre Brexit, vessels moving between the UK and the rest of the EU are treated as Union goods, provided that VAT and customs duties were paid when the vessel first entered the EU. After Brexit, vessels moving between the EU and the UK, and vice versa, should qualify for a temporary relief from duty—but only if the vessel stays for fewer than 18 months in the country in question. So UK citizens who keep their boats in, say, Greece, would find that they would have to pay all the duties or move completely outside the EU before they could re-enter for another 18 months. The result of this is clearly not good for the Britons who have to keep moving their boats around to avoid paying up to 20% of the boat’s value in duties. It is also not good for countries such as Greece that are hosting this tourist trade. Additionally, when boats are moving in long-term passage within EU waters, there might also be customs duty when moving from one EU country to another EU country. It is not clear how that will unfold.

Noble Lords will appreciate that these issues may not necessarily be front of mind and addressed in the broader negotiations on customs and border controls. Accordingly, this amendment asks the Government to produce a report to Parliament in advance of 29 March 2019. This report would set out the rights and freedoms that recreational boaters currently enjoy and how they would be maintained after the UK’s withdrawal from the EU. It would provide a clear opportunity for the Government to offer much-needed certainty to the thousands of recreational boaters—and of course to the marine businesses as well.

Without that reassurance, there is potential for significant damage. Very briefly, that significant damage comes in terms of costs and the administrative burden faced by boaters and business, with associated significant damage to the resale market for boats. It also causes new maritime border controls, which could be disproportionate and compromise navigational safety—and, as I said before, RYA instructors could find it difficult to do seasonal work elsewhere.

The RYA and British Marine have been in touch, and I know that they are ready to negotiate. None the less, the importance of this sector to communities all around the country should not be overlooked when there is so much else going on. We have talked about the need to negotiate everything in such a short time, and this is just one more thing that the Government need to place on their list. Before the formal departure from the EU it is vital that the Government commit publicly to setting out how they will defend the interests of UK boaters and marine businesses. I will be interested to hear the Minister’s response to this amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, my name is not associated with this amendment but I am a regular attender of the London Boat Show at the invitation of British Marine. I have a specific question for the Minister to answer when he sums up. The record figures for the export of yachts and recreational craft this year were spectacular. But a source of concern to British Marine once Britain has left the European Union is the extent to which Britain will remain aligned with the legislation. I mention that because we transposed the recreational craft directive onto the statute book. The British Marine Federation was instrumental in making sure that that directive did not cause too much damage to our industry in terms of the standards with which it had to comply. Will the Minister assure the House that we will continue to align ourselves with future legislation to make sure that our main export market for recreational craft will still be there and that we will have some means of ensuring that the concerns of the British marine industry can be made known when future statutory instruments are being negotiated?

[Lord Tunnicliffe (Lab)]

My Lords, I declare my interest as a recreational boater and I thank the noble Lord, Lord Fox, for proposing the amendment of my noble friend Lord Berkeley. Everything that he said seemed entirely reasonable and I am sure that the whole House awaits the Minister’s concession on this point.

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[Lord Marlesford (Con)]

My Lords, I raise this issue because the question of the Irish border has increasingly become a major obstacle to the whole issue of withdrawal. Despite a debate last week of some two hours, very little progress has been made.

For me, this whole debate has been immensely enlightening and indeed entertaining, if sometimes a little long. I have been rather disappointed in the Government’s rejection again and again of noble Lords’ suggestions. It reminded me of AP Herbert, who, after he had chaired a committee and was asked to make recommendations, made them, and they were rejected by the Government. He wrote a short letter to the Times saying that the Government,

“like an elderly hypochondriac, is always asking for a second opinion but never accepts it”.

At any rate, I will quickly set out the assumptions on which I think we agreed last week. The common travel area must be retained. There can be no physical border for the movement of people by land between Northern Ireland and the Republic of Ireland. There should be symmetry for persons travelling from Northern Ireland to the Republic and those travelling from the Republic to the north. The national security of the UK will be protected and enhanced against the growing threat from terrorism regardless of how the terrorists seek to enter the United Kingdom.

It was made very clear in the debate last week that to impede the free movement of people over the land border would intrude on the social life and indeed the community relations that have, thankfully, been building up since the Good Friday agreement. I have what I hope is a simple and practical suggestion by which these objectives could be achieved. I do not of course claim to be able to help on the parallel issue of trade and the movement of goods over the border.

Let me first describe briefly how I came to the conclusion that I shall put to your Lordships. Some months ago, my wife and I flew from London Heathrow to Dublin to visit friends. My wife is Italian and has an Italian passport. I have a UK passport. On arrival in Dublin Airport my passport was looked at and waved through. My wife’s passport was scanned and she was waved through. The whole process took seconds rather than minutes.

When we returned to Heathrow some days later, by the same airline—British Airways—all the passengers on the aircraft after disembarking were directed by a special route straight to baggage collection. There was no immigration procedure whatever. I should mention that there were a multitude of nationalities on board the aircraft, although of course I have no idea what passports they held—nor did anyone else have any idea. However, it appeared that there was absolutely no sort of border control. My proposal is therefore that this asymmetry be removed by making the border of the island of Britain the border for those travelling to or from the island of Ireland. The immigration procedures would be identical for both directions of travel.

To those who say that this removes or infringes the rights of passport-free movement I would reply that to be required to show that you hold a passport that entitles you to passport-free movement is no more an infringement of your rights than it would be if any of us claimed that to carry—and wear, as we are nowadays required to—our parliamentary passes is an infringement of our rights to be in the Palace of Westminster. Surely this simple measure of common sense, made necessary by the sad state of the world we now live in, must trump the memories and prejudices that were so justifiably generated by the many sad periods of the history of the relationship between the British and the Irish. I feel that we need some action and I hope that I am not going to hear from the Minister that it is all impossible, unless he has a better idea to suggest. I beg to move.

[Baroness McIntosh of Pickering]

My Lords, if I have understood correctly, my noble friend Lord Marlesford is calling for us to remain within the customs union, because the history is that passport controls were dispensed with when we entered the single European market in 1992. Is that understanding of what the amendment proposes correct?

[Lord Marlesford]

I am concerned purely with immigration and the movement of people across borders. I want to make the border of the island of Britain the border between Britain and the island of Ireland.

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[Lord Beith]

My Lords, the amendments in this group all seek to address a long-standing problem with statutory instruments: that for the most part, they are incapable of amendment. That is not absolutely always so because, many years ago in the other place, I moved an amendment to a statutory instrument arising from the Census Act but few bits of primary legislation allow one to do that. This is not an occasion on which those of us who have long been concerned about that are trying to use this legislation to improve a long-standing defect. It is peculiarly relevant to what we are considering because major matters will be dealt with by way of statutory instrument—a theme throughout the debates in recent days—and they may well include things which ought to be susceptible to amendment, such as details about the creation of public bodies, their powers and remit. To take one example, and there will be others, there are the ways in which new bodies can be held to account when they are created to replace European bodies.

We would be left in a situation where it would be said in the House of Commons, “Take it or leave it—this is the only statutory instrument you’re going to get and we clearly need to address this issue, therefore you must accept it in this form”. I am afraid that in this House, it would be, “Take it or face unspecified constitutional consequences”. Either we agreed to the statutory instrument in its present form or did something we should really not be doing at all, according to members of the Executive. That is an absurd position to put this House in, when what would be at issue would be some fundamental defect in the way the statutory instrument sought to transpose existing European processes into the British domestic statute book. The Government have to address the plea that all these amendments raise: to have some way to do something which falls short of wanting to reject a statutory instrument but insists that if it is to go through, it must be amended in some way.

[Baroness McIntosh of Pickering]

My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.

My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:

“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.


In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.

While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.

Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.

I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.

[Lord Wigley]

My Lords, I am delighted to support Amendment 247 in the name of the noble Baroness, Lady McIntosh, to which my name is attached. This is a pragmatic amendment, intended to make the provisions of the Bill more workable. As such, it should be acceptable to noble Lords on both sides of the Brexit argument, and perhaps even to the Government. Given that so much legislation is moving over to being enacted by statutory instrument, the case for looking into the ways of making instruments amendable now becomes an urgent challenge and will become increasingly so as the Bill goes forward.

As the noble Baroness, Lady McIntosh, spelled out the detail of the amendment, including very helpfully the precedents, perhaps I could just give an example of where the power to amend SIs would be useful. Take, for example, Clause 7(6)(b), which enables Ministers to establish new public bodies to undertake functions now carried out by the EU. The provision of such a power by order would require the relevant SI to specify precise details for the workings of the new body, such as its objectives, duties, powers, members, resources and accountability. Parliament might be happy for such a new body to be established but might want to change some of those details, which it could not do under our current procedures and which could only be triggered by rejecting the SI in its entirety, thereby subjecting the process to potentially long delays—exactly what the Government want to try to avoid. Having a process to allow amendment would be swifter and provide more acceptable legislation.

These powers would be used in exceptional circumstances, and it is not proposed that they should cover other Brexit legislation—although a strong argument could be made along those lines. But given the ominously growing use of unamendable orders to force legislative change through Parliament, there is a case for undertaking a far more rigorous review of the statutory instrument system. Since this facility could save time, which may be of the essence in regard to Brexit legislation, I would have thought that Amendment 247 should appeal to both sides, to Brexiters and remainers alike. I commend it to the Committee.

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[Baroness Goldie]

That would of course entirely depend on the circumstances of the instrument, the extent of the change being effected by the instrument and what was an appropriate response to the concerns being raised. I am certain that the Government would respond in a sensible manner if that situation were to arise.

I repeat that it is for primary legislation to set a policy direction and establish the framework in which government may operate. Secondary legislation has a different place in our legal framework. The Hansard Society, which many in the House will accept as an expert source in this area, has said that the power to amend SIs would be,

“essentially undermining the principle of delegation”.

If wider review of the legislative process is proposed—as a number of noble Lords would like—this Bill is not the place to do it. I note the recommendation of the Constitution Committee, in its report The Process of Constitutional Change, that substantial constitutional change should be clear when a Bill is introduced. This Bill is substantial in its repeal of the ECA, but that was clear even before the Bill was introduced and I do not think a change of this type would be appropriate for a Bill which has already completed its passage through the other place.

In the other place, my right honourable friend Dominic Grieve proposed a triage mechanism and both he and the Government accepted the sifting mechanism proposed by its Procedure Committee. This will increase the transparency surrounding secondary legislation, but will not change its nature. Secondary legislation can be scrutinised and debated and, indeed, can be of great importance. However, its purpose is to fill in the spaces where Parliament has set a course under primary legislation and empowered the Government to provide for the details in subordinate instruments. As has already been said, if Parliament is not content with an SI, it can be rejected and the Government can consider and return with another. To open statutory instruments to amendment would essentially be to create a new kind of legislation, without the scrutiny afforded to primary legislation but, at the same time, conferring on the new kind one of the essential qualities of primary legislation.

[Baroness McIntosh of Pickering]

If the Government are not minded to accept an amendment to statutory instruments under these circumstances, where there is a substantive policy change, would they be minded to bring back that proposal as an Act of Parliament, so that all the proper scrutiny procedures could be undertaken?

[Baroness Goldie]

I respond to my noble friend as I did to the noble Lord, Lord Beith. That hypothetical situation would depend entirely upon the practicalities of the situation confronting the Government if and when such a situation arose.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Wigley]

I am sure we shall come on to the position of Gibraltar in greater detail at another time. In many ways this parallels the issues that arise in the context of Northern Ireland. If a solution to Northern Ireland were enshrined which allowed the free movement of people and goods across the border, that might well solve the problem of Gibraltar as well. We need to bear in mind our responsibilities to Gibraltar and to get an amicable settlement which would be acceptable in the European context, and therefore acceptable to Spain as well as to the people of Gibraltar. I am grateful to the noble Lord, Lord Cormack, for raising this.

I want to use the principles underpinning the rights of citizens in the UK to say a brief word about citizenship in the broader context and about the rights afforded to us at present as citizens of the EU, as well as the status of these rights once we leave. These matters are highly germane to the amendments before us. Incidentally, there is an Opposition Day debate in the House of Commons this afternoon, initiated by my Plaid Cymru colleagues, on this precise topic.

By pursuing what may become a no-deal Brexit, the UK Government would, in effect, strip—at least potentially—our citizens of some of their rights. Our rights to travel, live and work across Europe will be curtailed. Our children’s rights—

[Baroness McIntosh of Pickering (Con)]

I am grateful to the noble Lord. Currently, a British lawyer, dentist or doctor can practise in any other European country. There is a reciprocal right for nationals of other EU countries to practise here. We are losing dentists and doctors because of the certification process which will be subject to negotiation on the basis of mutual recognition. Is this right, which could be curtailed, justiciable under his amendment?

[Lord Wigley]

Of course, this amendment provides a mechanism to create a redress for people who feel that they are losing these rights. It may not be the only mechanism available. There may be provisions under international law, which I shall mention before I close. It is not only our rights that are being curtailed but the rights of our children—the right to study in any of the other 27 countries across the EU may well be lost. It is questionable whether, in the context of these rights, we shall thereafter be able to call ourselves European in the full meaning of the word. I am a European. I am a Welsh European and no Government should be able to take away from me or from any citizen of these islands their right to their European identity, nor any of the practical rights they currently hold by virtue of that identity.

It is by virtue of their de facto European citizenship that the citizens of these islands currently have recourse to the European court. Stripping people of their citizenship against their will is illegal under international law. I have tabled another amendment which explores the retention of EU citizenship. I hope this will be debated at a later stage. Suffice it to say, at this stage we need these amendments to safeguard the position of people facing such a serious threat after Brexit. I am delighted to support the noble Lord, Lord Foulkes.

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[Lord Keen of Elie]

With respect, no, my Lords, because we are not in a position to guarantee that which has been arrived at in terms of the joint report. For example, we cannot by ourselves guarantee the rights of UK citizens in Europe. To try to dissect the joint report and say, “We’ll take one piece out and leave another piece in”, is not a way forward in the context of an ongoing international-level negotiation. It is not the way in which this Government would proceed in that context.

[Baroness McIntosh of Pickering]

My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.

[Baroness Ludford]

My Lords—