European Union (Withdrawal) Bill

Baroness Neville-Rolfe Excerpts

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

[Lord Sharkey (LD)]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be familiar to many of your Lordships. I will speak briefly in support of Amendment 70—the sifting amendment—to which I have added my name. I will also speak briefly to introduce Amendment 71. The noble Lord, Lord Lisvane, has set out very powerfully the case for Amendment 70—for the sifting committees’ decisions to be binding on Ministers—as has the Delegated Powers Committee in its reports.

When we debated an equivalent amendment in Committee, the Government’s argument against the proposal relied chiefly on their assertion that they were in any case likely to accept the sifting committees’ decisions and that, as the noble Lord, Lord Lisvane, said, ignoring them would be, “hopefully, very rare”. This is a very weak argument. It is not based on principle. It is based on a suggestion of compliance, except in undefined, unexampled and no doubt exceptional circumstances. What it really means, of course, is that the Government, at their absolute discretion, will be able to impose the negative procedure on SIs, denying Parliament the more robust and intensive scrutiny provided by the affirmative procedure.

There is simply no case for allowing the Executive this unfettered and unqualified discretion. If Parliament is properly to exercise its scrutiny function in the face of the tsunami of SIs coming our way, it must be able to decide conclusively which SIs deserve higher levels of scrutiny and which do not. That is the whole raison d’être of the sifting committees: they allow Parliament itself to decide which SIs merit what level of scrutiny.

Not only have the Government demonstrated no real need for this override power, they have not even hinted at any harm that might be done by making the sifting committees’ decisions binding. In any case, throughout this Bill we must guard against the unnecessary transfer of power to the Executive. What the Government propose is such an unnecessary transfer of power. I hope that the noble Lord, Lord Lisvane, will press his amendment to a vote. If he does, we will support him.

I turn very briefly to Amendment 71, which is in my name and those of the noble Baroness, Lady Jay of Paddington, and the noble Lords, Lord Lisvane and Lord Norton of Louth. The Government expect this Bill to generate between 800 and 1,000 SIs. There will be many others generated by other Brexit Bills. As things stand, we have only two options for dealing with these SIs: we can accept them or we can reject them. A regret Motion has no practical effect.

In the past, this House has shown an understandable and very deep reluctance to reject affirmative SIs. We have rejected just six in the past 68 years. We have used our “nuclear option” very infrequently. This entirely understandable reluctance to reject will certainly continue for withdrawal SIs. But given the enormous volume of such SIs and the delicate and sensitive areas they will deal with, this proper reluctance to press the red button will almost certainly lead us to approve marginal cases or cases about which we retain serious misgivings. This would be an unsatisfactory outcome for the quality of created law and potentially damaging to the balance of power between the Executive and Parliament.

Amendment 71 proposes an additional method of dealing with affirmative SIs—and it is an additional method; it does not in any way affect our current powers. We would retain unaltered our powers to approve or reject, exactly as at present. Amendment 71 would simply allow us to do what we so frequently do: to ask the Commons to think again. Where we believe that asking the Commons to think again would be desirable, we simply co-ordinate scrutiny so that the Commons can pronounce first. If it rejects the SI, that is the end of the matter. If it approves, Amendment 71 would allow us to ask the Commons, with reasons, to think again. This mechanism would not frustrate the will of the Commons. If it chose not to reconsider within 10 days, the Lords would be deemed to have approved the instrument.

Amendment 71 would give Parliament more flexibility and room for more discussion in dealing with those SIs where real concern exists but where we are properly reluctant to reject. It simply allows a conversation with the Commons, after which the Commons will decide the matter. I commend it to the House.

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to move Amendment 84 and I am grateful for the support of the noble Baroness, Lady D’Souza. During the passage of the Bill I have raised several issues, all of them designed to ensure that the SIs that will eventually be made under it when it becomes an Act will contain as few errors as possible. This may seem a modest aim, but we are in uncharted waters, and the amount of secondary legislation that will be needed, as has been mentioned, and the little time available to make many hundreds of instruments, taken together with the imperfect nature of human faculties, make error all too likely. One way to minimise this is to consult those with knowledge of and interests in the question at issue. This in turn necessitates publishing draft instruments that can be scrutinised by all. As is so often the case, openness is the best antidote for error.

We have made progress. The Minister has kindly arranged for me to meet officials concerned with agriculture, customs, intellectual property and financial services. It is clear to me that proper plans have been made. A few draft instruments have been published, but things are moving forward at a slow pace. We have made less progress on agriculture than I had hoped; I should declare an interest as chairman of Assured Food Standards Ltd, which operates the Red Tractor scheme. However, this is not the fault of Defra, which seems to be well resourced in this area. One of the serious problems for that department stems from recent rows over devolution, which affects draft SIs in the vital areas of agriculture and fisheries. Defra seems unable to publish drafts without the agreement of the devolved Administrations. This has proved to be an unfortunate state of affairs, which would have been better avoided—but in any case it would be better for everyone in the UK, including the devolved Administrations, if many more specimen drafts were published immediately.

There have been several debates on subordinate legislation and I am glad that the Government have made some very important concessions on scrutiny. Indeed, this very evening they have done so on ambulatory references and arrangements in Scotland. However, the Government have also lost on an amendment in this area, which means that they will be looking at the arrangements again in the House of Commons. That is where I believe Amendment 84 might be useful. It is modest—much more modest than my earlier amendments and those of others—and asks the Government to make public their statutory instruments on GOV.UK 10 days before they are laid. That is all I ask. It would be any 10 days, including parliamentary recesses and festivals.

I would like the Minister to write this into law, perhaps as part of the review of Amendment 31, in the name of the noble Lord, Lord Lisvane, and its consequentials. But if that cannot be, I would like her to undertake to add this provision to government guidance on the making of statutory instruments. As an ex-Minister who has had the embarrassment of having to make new orders correcting past mistakes, I can assure her that future legislators and civil servants would thank her. I beg to move.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

It may be for the convenience of the House if I remind your Lordships that we are debating Amendment 70 and the other amendments in the group. The noble Baroness, Lady Neville-Rolfe, spoke to Amendment 84, which is grouped with Amendment 70 —but agreeing to Amendment 70 is the question before the House.

Brexit: Immigration

Baroness Neville-Rolfe Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

Yes. Freedom of movement will continue during the implementation period subject to a registration system.

[Baroness Neville-Rolfe (Con)]

My Lords, following on from that, will the White Paper look ahead at the infrastructure implications of continued immigration for GPs, schools and all of our infrastructure across the UK?

[Lord Callanan]

My noble friend makes a good point. That is one of the key questions that will need to be answered in designing and implementing the new system. I am sure the White Paper will take that fully into account. However, we will want to hear views and comments from all interested parties.

European Union (Withdrawal) Bill

Baroness Neville-Rolfe Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I am delighted to follow the noble Baroness, Lady Young, whose name stands at the head of Amendment 227A. I will add just two points in addition to endorsing the unhappiness of the noble Viscount, Lord Hailsham, partly conveyed through his lead amendment and other amendments in this group.

So far, the practicalities of Brexit have been a conversation primarily between government and Parliament. If the use of the sweeping ministerial powers in the Bill will carry credibility with our fellow citizens, that conversation needs to be joined by the huge army of those who will be directly affected. However—and I think we could all draft the reply of the Minister, just after the headnote that says, “resist”—the possibility of consultation throws into sharp relief the extraordinary pressures of time under which the EU-related parts of the statute book will have to be repatriated and adjusted. Even if there is a two-year period of transition—or implementation; I do not think the two are the same, by any means—a three-month consultation period would be luxurious indeed. Yet effective consultation—that is, beyond the usual suspects—cannot be done quickly.

My second point relates to the relationship between the Lords and the Commons. I cannot help but remark that if Ministers agreed to be bound by the test of necessity rather than appropriateness, their problems in this area might be very much fewer. It seems pretty clear that there will be heavyweight regulations—probably quite a lot of them—for both Houses to consider. As the Bill is drafted at present, there may be too many that are subject to the negative procedure and not enough that are subject to the affirmative procedure, but in any event we will have to focus minds on what will happen if the two Houses disagree.

So far as affirmatives are concerned, I have put my name to an amendment in the name of the noble Lord, Lord Sharkey—Amendment 239A—which explores a possible dispute resolution procedure. However, if major regulations come forward on which there manifestly has been insufficient consultation, the possibility of disagreement between Lords and Commons would increase. Given the inevitable degree of political contention and unyielding pressures on time, this might become a matter of serious concern. I suggest that systematic consultation offers a possible way of reducing that hazard.

[Baroness Neville-Rolfe (Con)]

I rise to speak to Amendments 249, 250 and 251. Several noble Lords will know of my lifelong concern for good-quality regulation. The Bill will, by its very nature, lead to the creation of a vast number of SIs of exceptional importance, so proper scrutiny is more important than ever, as the noble Lord, Lord Lisvane, just said.

I am concerned about content, scheduling, consultation and time for debate. On content, I want the Government to follow the good practice of the Nuclear Safeguards Bill, where making the draft implementing regulations available has helped to reassure people and made its passage easier. I have suggested five areas where specimen regulations might be made available: agriculture, customs, financial services, immigration and intellectual property. My amendment says that specimen regulations should be made available within a month of Royal Assent—which is what the Public Bill Office felt able to approve—but my suggestion to the Minister is to make specimen SIs available for our consideration before Report.

I understand and fully support the objective of putting extant EU laws onto the UK statute book from day one; anything else would lead to the utmost confusion. However, there is still much to ponder and much scope for mistakes. All these problems will be lessened by allowing all interests to see and comment on what is envisaged, as has been said. We need to know which enforcement body will take over what are now EU duties, as we discussed at length in relation to the new environment body. For example, in financial services it could be the FCA, the PRA or even the Treasury. In agriculture, the situation is equally complicated, not least because of the extra dimension of devolution. We need to know the criminal and civil penalty regime for each area and, as debated earlier, the approach to fees and charges—especially for SMEs, which I know will be a concern in relation to intellectual property and immigration. We need to understand the future arrangements for standard setting and the sharing of intelligence. Exemplar SIs could—and probably would—cast reassuring light on all of this.

On scheduling and consultation, I start by thanking the Minister, as he kindly arranged for me to meet one of his officials and those responsible in the Treasury for the SI work on financial services. This was very reassuring. The numbers on financial services are fewer than I feared—80 to 100 SIs—and I understand that they will take account of existing UK regulations. Hopefully, this will mean that practitioners will be able to find their way round the law more easily than they can do now. I believe there is some sympathy for my suggestion that it would be wise to publish SIs for consultation, which is the subject of my amendment and of others. The process of SI sifting and review in Parliament will, unfortunately, only allow an SI to be debated and agreed or rejected by either House. There is no scope for amendment so SIs need to be right first time. Will the Minister provide some commitment to publication of and/or consultation on draft SIs, at least in the five areas I have identified?

In practice, if—as I hope—a transition period is agreed, and thus for relevant purposes we effectively remain in the EU during transition, there is a fair amount of time to do this properly. But if the negotiations go badly and we have to rush for the line, it may be as well to have done as much consultation as possible early. Finally, and Amendment 251 relates to this, we need time to debate the more important SIs in a planned way. There is a substantial issue here which has not yet been fully acknowledged by the Government. One solution could be to group related SIs and to set aside significant time—perhaps one day a week—when they could be considered on the Floor of the House. These SIs will be mini-Bills, important future statutes as we leave the EU, and our existing arrangements for EU scrutiny are inadequate if this new need is to be met satisfactorily.

I believe that all noble Lords will want to know, before they agree to the significant delegated powers in the Bill, that the scrutiny system envisaged can meet the needs of the moment and hence attract confidence across the House.

[The Earl of Kinnoull (CB)]

Noble Lords will be glad to hear that I will be brief. The European Union Select Committee and EU Justice Sub-Committee have been given estimates of the number of SIs concerned. Our estimate was 5,000; I was interested to hear the noble Baroness, Lady Young, say that it was only 1,000. My point is the same either way. In my language, the Bill essentially amounts to a gigantic pink ticket where we are asked to trust the Government. In the commercial world, one tries to trust and verify. You give out your trust, but you retain the ability to verify it, so that if something goes wrong you can sort it out later on.

This group of amendments tries to deal with three problems. The first is the mistakes, as the noble Baroness pointed out. The second is wrongnesses. We had a good example of these from the noble Lord, Lord Patel, earlier on. If we carried through a particular piece of EU legislation without thinking then a wrongness would be done. Third is the necessity for the scrutiny of Parliament; the verification process that follows on from the trust. As I look at the three sets of proposals on how to deal with these three problems, I have some sympathy for the noble Lord, Lord Lisvane, who said that there is not really time to do the consultation suggested by the noble Baroness, Lady Hamwee. I regret that, but there certainly is not time, whether it is 5,000 or 1,000. The ever-canny and thoughtful noble Baroness, Lady Neville-Rolfe, has come up with an ingenious way of trying to cater for that. Turning to the noble Viscount’s idea of a two-year life span, I am only concerned that if we are going to have to do 1,000 pieces of legislation then two years is probably not enough. The number I wrote down was five. However, that is a very useful way of doing it and my favourite route tonight would be the one he has taken.

All that being said, what is important in parliamentary terms is a mechanism for trusting and verifying. We will have failed if we do not get some kind of verification procedure in there. I look forward to the Minister’s comments.

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

Baroness Neville-Rolfe Excerpts

Tuesday 16th January 2018 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Bew. It was good to see him this afternoon when we took evidence on Irish border issues. He is right to emphasise today the problems of no deal for Ireland.

I congratulate the noble Lord, Lord Whitty, on leading the debate skilfully in the sudden absence of the noble Lord, Lord Jay. I record my thanks to the noble Lord, Lord Jay, for chairing the committee with such verve and success in the absence of my noble friend Lord Boswell, who smoothly returned to his post today. It is a real honour to sit on such an interesting committee at this pivotal time and to work alongside talented colleagues of all political persuasions, although we sometimes disagree. The timing was good, and the public hearings that the committee had with a wide range of organisations helped to air the issues on Brexit at a critical moment. In a small way, they helped to ensure a satisfactory outcome at the December Council. I am sorry to have missed some of today’s speeches, but the lively disagreements have been both enlightening and entertaining—a strange benefit of Brexit.

I shall comment on three areas. First, I shall comment on financial services, as I also sit on the EU sub-committee concerned. We know Brexit is awash with uncertainty, which means that financial institutions have to operate contingency plans and work up a worst-case scenario—a matter of good corporate governance. Indeed, my impression is that, being streetwise, the sector is already moving forward with post-Brexit arrangements. That is one of the reasons why we know that the number of jobs lost seems to be lower than originally feared. For financial services, Brexit is complex. As our report says, it is in everyone’s interests, especially in this sector, to have a standstill or a transition, as now seems to be envisaged. However, that should also be agreed soon if the enactment of unnecessary contingency plans is to be avoided. Time is short. It needs to be in a watertight form so that both sides have contractual continuity. This is vital in, for example, the ongoing payment of insurance claims.

The good news is that the EU 27 also appear to want a time-limited transition that changes as little as possible, so I am hopeful that this will be agreed soon and that the legal concerns outlined by the noble Lord, Lord Whitty, will prove to be groundless.

I am more concerned about the substantive negotiations on financial services. My main point is that it would be damaging if the whole industry—that is, the small and the large; the fintech and the conventional; banking, insurance and asset management right across the UK—found itself a permanent rule-taker from Brussels.

The big international banks are well ahead, with parallel arrangements being made in Berlin, Paris and Dublin, but the UK needs to be free to provide sensible arrangements and reporting requirements for those who are operating in the UK or in third-country markets only. We need good regulation: it is a strength valued by investors in London. We do not need bureaucratic suffocation of low-risk domestic firms and small innovative operations embracing the digital and AI revolution. They must not be faced with automatic EU rules after Brexit which the UK has had no part in setting. Those representing smaller firms in the financial sector, such as the New City Initiative, which came to see me last week, are vehement on this point.

My second point is that while I am keen to see a deal and to see one soon, a bad deal would be worse than no deal. On that, the Prime Minister has always been right, and I am with my noble friend Lord Cavendish of Furness. A bad deal would be a yoke of increasing discomfort around our neck for ever more. I agree with our report and most of our witnesses that no deal would be damaging, but that is why we must strengthen our negotiating position by being clear in our minds what no deal would look like. We must also spend the money that the Chancellor has set aside for contingency planning.

Finally, I was struck by the panic among the EU negotiators when it looked as if an interim agreement might not be reached in early December—thanks, I have to say, to the DUP. President Juncker and M Barnier began to talk turkey. Our tough stance created movement for the first time, but toughness is not the only thing that matters. My long experience of EU negotiation is that you have to develop deep, strong, silken personal relations with the other side, devoting days and nights to this, while being tough and resilient on the substance.

Our experience in December shows that our negotiating position is stronger than many think. I hope that the Minister, who has so much valuable EU experience, will go into bat accordingly and conclude a good deal which Parliament can agree.

UK and EU Relations

Baroness Neville-Rolfe Excerpts

Tuesday 12th September 2017 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I congratulate my noble friend Lady Anelay of St Johns. In my view she has the hardest job in our House.

I am a new member of the EU Select Committee. I should perhaps declare an interest as a previous Commercial Secretary to the Treasury and as the UK Minister on the Competitiveness Council from 2014-16, preparing vigorously for the UK presidency which never happened. My whole career has involved negotiating in Brussels as a civil servant, business executive, chairman of the European retailers’ organisation and then as a Minister. I have experienced good and bad times and dealt with serious matters, but none more serious than those facing us today.

Given my love of European culture, I was a natural remainer. On referendum night, I was on a plane with the German Minister, returning from a digital summit in Mexico. We went to bed with Nigel Farage admitting defeat and woke up to Cameron’s resignation. It was a difficult night for both of us.

I have always disliked referenda, but the then European Union Referendum Bill was not opposed by any major party and was passed with massive majorities. Those concerned with its passing have to live with the consequences. Certainly, if we were to go against a clear instruction from the electorate—as senior but discredited figures are now advocating—our body politic would degenerate in ways we cannot now see clearly. So we have to make Brexit a success.

So far the process has not been impressive. I am not clear why we agreed to discuss divorce before our future relationship with the EU. My reading of Article 50 would support our refusal to do so. It says,

“the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.

So, to my mind, it is misguided both for the Commission to have refused to discuss future trade alongside withdrawal and for the UK to have accepted that refusal.

I also worry about the documents that have been produced on both sides. I have looked at those on customs and on data protection. The UK Government and the EU seem poles apart, suggesting that our negotiators are barely engaged. The UK papers try, rightly, to look forward but are written largely in isolation. As the noble Lord, Lord Newby, said, our proposals for frictionless trade across the Irish border have attracted major EU criticism. It is regrettable that we do not seem to have the knack of taking account of where the EU is coming from—a skill we were famous for in the Council of Ministers when we worked on policy together. The EU documents are even worse because they deal only with withdrawal and do not try to look forward to a new partnership at all. It would be good to have explanatory memoranda from the Government on these proposals.

So how do we move forward? First, we need to accept a significant exit payment to the EU over a number of years. It is painful, but it is dwarfed by the business disruption that a cliff edge would bring. But—and it is a big but—the payments must be dependent on a future agreement covering all aspects. Not a penny should be paid in advance and, in the Commission’s own words,

“nothing is agreed until everything is agreed”.

Secondly, both sides must agree to treat existing immigrants of the EU 27 and the UK well, as the case may be. However, for the future, post-2019, we must bring in a much greater degree of control and the leaked Home Office document could represent a real start. We need a guest workers’ scheme to help farming and a few other industries, with or without EU agreement, and we need continued access for the talented to secure the future of our financial, tech, research and international businesses.

However, we also have to recognise that the EU has failed to construct a proper border for third countries, especially across the Mediterranean. Indeed, Brexit was in large part the logical consequence of a succession of unfortunate drivers of immigration—the wars in the Middle East, social breakdown in North Africa, Chancellor Merkel’s encouragement of asylum seekers and the failure of our own referendum negotiators in 2016 to find a creative solution on the movement of people.

Thirdly, we need a transition period to ease the strain of adjustment on both sides, on issues ranging from financial services and border controls, to Euratom, telecoms, contracts and intellectual property. Two years transition should be enough but the direction of travel for each sector should be set out by 2019. Transition cannot become an elastic article 50.

Finally, we should agree on the outline of trade arrangements with our European partners and be ready to move into active third country agreements from 1 April 2019.

Those with an expertise in European matters want to help the Government in the biggest change since the war, as the noble Lord, Lord Jay, has said. The EU Committee is also seeking to maintain relationships with Parliaments and countries beyond narrow party politics, as well as with the Commission with Michel Barnier making us welcome in July. This can pay long-term dividends.

There are some hopeful signs amid the gloom, The French seem to be rethinking on the sequence of discussions since it became apparent that Frankfurt could do much better than Paris in financial services if London was to take a big hit. We can also have a more constructive conversation once the German election is behind us.

Of course there is some risk of a cliff edge in the Brexit negotiations, which we must prepare for and be prepared to accept if the other side is totally unreasonable. However, this is not where we want to be. We want to develop new partnerships with our European neighbours, new machinery for collaboration and dispute resolution, new and refreshed fora for the exchange of ideas, free trade and the tackling of common problems.

The Brexit process is hard and often depressing but we can move to a more prosperous Britain after these turbulent times. However, a significant injection of energy and realism into these negotiations is needed soon from both sides.