Brexit: Withdrawal Agreement and Political Declaration

Baroness Smith of Basildon Excerpts

Wednesday 9th January 2019 Lords Chamber

[Baroness Smith of Basildon (Lab)]

Well, My Lords, here we go again. I often have a sense of déjà vu when it comes to Brexit, but even more so today, as we resume the debate that started before Christmas.

I have to say to the Minister, never before have I heard a winding-up speech open a debate, and there was no clue or evidence that anything had changed since the vote was called. When he makes a reference to “29 March next year,” we know he is reading last year’s speech.

There is only one reason why we were unable to complete the debate last year. The Prime Minister, recognising that she was going to lose by a large margin, stopped Parliament expressing any opinion on the deal she was presenting as the very best she could get, and therefore the only option on the table. Of course it is the best deal that Mrs May is presenting to Parliament—it is the only option she is presenting to Parliament. By the same measure, it is also the worst deal she is presenting to Parliament. Not even her most loyal supporters offer any confidence that this is a good deal, let alone better than what we have now.

There is no glowing praise, no great admiration for brilliant negotiating skills; just a recognition of her dogged determination to get something—anything—that she thinks she can present as a win. Even with time rapidly running out, the Government pulled the vote before Christmas, delaying certainty for individuals, communities and businesses across the UK. They wanted answers, but all they got was a political tactic designed to get the Prime Minister through to the end of last year and the first few weeks of this one.

On Monday, with Mrs May not willing to go to the Dispatch Box in the other place, Labour forced the Government to update Parliament on any progress they had made with the EU, and whether that justified the delay. I listened carefully but, as I said then, I did not hear anything new, and despite this document—belatedly and, I have to say, disrespectfully published today—I have seen nothing new to persuade me that her decision to pull that first vote was anything other than an attempt to buy time.

I have two key questions. Other than seeing off a further leadership challenge by Conservative MPs, what has really changed since the vote was pulled? Do the Government understand the scepticism of many, including business groups—that the delay was just a political ploy to take this decision right to the wire, trying to force through an inadequate deal, knowing that Parliament will simply not support a no-deal outcome?

Media reports suggest that the Prime Minister has told the Cabinet that she expects the deal to be rejected in next week’s Commons vote, but the Government appear conflicted regarding what the consequences will be if the agreement is turned down by MPs. The real Project Fear is Mrs May’s threats of the consequences of rejecting this deal—threats that differ, depending on the audience she is speaking to. Brexit supporters are told that it could lead to the UK’s remaining in the EU; yet those who voted remain are being told to support the deal, or we will just crash out. Both cannot be true. That threat alone is hurting businesses, manufacturing, academia, the City—and it is hurting now.

I tabled a Motion—referred to by the Minister—ahead of the debate in December, and we debated that at some length before the House was adjourned. I am grateful to colleagues across your Lordships’ House for further discussions in recent weeks. Noble Lords will be aware that an updated Motion has been tabled in my name.

Our aim remains the same: to frame this debate around three key issues. The first is to recognise that it is for the House of Commons to determine the matter and find a way through the current impasse. During our lengthy debates on the withdrawal Bill, we were clear that this House should not have a veto on Brexit, and we provided MPs with that meaningful vote. But this House has an important constitutional role: we consider the detail and offer an opinion to the elected House. My Motion allows your Lordships’ House to do just that. The second, and crucial, issue is to ensure that the threat of a no-deal exit—a danger that looms ever larger as a result of the Prime Minister’s actions in the December debate—is emphatically rejected.

As I said last time, while there are some who fondly imagine that the only consequence of no deal is for the UK to step back in time and pick up where we left off more than 45 years ago, the reality is very different. The world outside the EU has not been static, just waiting for us. Much has changed in that time and we cannot reset the clock. This was recognised by MPs in last night’s vote on the Finance Bill—and, indeed, in their vote this afternoon—in dealing with the urgency of the situation we are now in. It is not often that I quote a Conservative MP, but Oliver Letwin spoke for many when he asserted that,

“we will not allow a no-deal exit to occur at the end of March”.—[Official Report, Commons, 8/1/19; col. 264.]

Regrettably, and despite the clear advice of your Lordships’ House, rather than ruling out no deal, the Government have stepped up their planning for such an outcome in recent weeks.

The Minister said that he makes no apology for stepping up such preparations for no deal. I think he should make some apologies, because billions of pounds, from the Government and from businesses, have been devoted to these preparations, despite the Chancellor being fully aware of the dire long-term economic consequences that no deal would bring. This week, at the disused Manston Airport, the Government held a much-heralded exercise for a no-deal Brexit in relation to cross-channel transport. It was absolutely farcical. They managed a role play with only 89 lorries, and that included a Thanet Council refuse vehicle. It was certainly far fewer than the intended 150, and a very long way from the thousands of vehicles that currently cross the channel every day. It is little wonder that the managing director of one company, Harrier Express, described it as, a “dress rehearsal for our own execution”.

As my noble friend Lord Tunnicliffe noted yesterday, plans to deal with port and shipping capacity are even more inexplicable:

“The Transport Secretary has awarded a £14 million contract to a company with no money, no ships, no track record, no employees, no ports, one telephone line and no working website”.—[Official Report, 8/1/19; col. 2127.]


Chris Grayling really is the gift that keeps on gaffing. Given the incompetence of the Government, it feels at times as if we are living in some tragic comedy. It is so bad it is almost unreal, as though we are living in a Carry On film: “Carry On Brexit”—or perhaps more appropriately, “Carry On Screaming”.

All the while, major legislation remains stalled. In the case of the withdrawal agreement Bill, a piece of the puzzle that absolutely must be in place by exit day, weeks of time for parliamentary consideration has been lost. As we discussed in response to an Oral Question on Monday, piles of statutory instruments are parked on desks across Whitehall, rather than having been tabled for consideration. The Minister boasted earlier this week that there will be only 600 SIs to address. Some of those are believed to be hundreds of pages long. If recent events demonstrate anything, it is that there are absolutely no circumstances in which a no-deal scenario has any benefit for the UK. That is the central point of my Motion, which I will put to the House on Monday.

Thirdly, my Motion expresses an opinion on the agreement before us. As I said earlier, it is not the role of this House to accept or reject the deal—that is for elected MPs—but we can and should express an opinion on the merits, or otherwise, of the deal. We are assisted in this by the excellent report of our EU Committee, for which we should be grateful, and we should express our opinion not by comparing this agreement with no deal, as the Prime Minister is quite desperate for us to do, but by carrying out a forensic assessment of the documents before us and expressing an opinion as to whether we consider them good enough, or not. This political declaration provides no certainty. It outlines a menu of options that may or may not be available in future trade negotiations. So the agreement we are asked to consider represents a blind Brexit with no certainty or clarity for the future.

The Prime Minister asserts that she has the best deal on offer, but that is simply not the case. She may have the best deal that her red lines allowed—even that is debatable—but that is because she chose the wrong red lines before triggering Article 50. The public were literally promised the world: “a truly global Britain” that would have frictionless trade with Europe and boost ties elsewhere. Instead, we seem to have alienated almost everyone.

With just over 11 weeks left, we lack the legal basis required to establish new trade relationships, immigration requirements and food safety standards. Over the next few days, your Lordships’ House will continue to scrutinise these agreements and pass our opinion on them. On Monday, before the House of Commons takes its own binding decision, I will once again ask colleagues to support a Motion standing in my name that has three straightforward and simple points: that we recognise that it is ultimately for the House of Commons to decide; that, crucially and vitally, this House believes no deal can never be an option; and that, even if the UK exits the EU on these terms, it represents a backward step for our prosperity, security and influence.

Brexit: Withdrawal Agreement Scrutiny

Baroness Smith of Basildon Excerpts

Wednesday 31st October 2018 Lords Chamber

[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?

[Baroness Smith of Basildon (Lab)]

My Lords, two questions were asked. Perhaps the Chief Whip could indicate which question the Minister should answer.

[Lord Callanan]

I am happy to answer as many questions as we have time for. I do not know who the other Member was, but I would be happy to take a question from them afterwards. I do not agree with my noble friend Lord Tebbit. We think that the Commission is negotiating in good faith and we hope to reach an agreement. That is in the interest of both sides and we want to do so.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Monday 18th June 2018 Lords Chamber

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

My Lords, the issue of continued participation in a customs union with the EU was debated at length in our House. It has now been debated twice in the House of Commons. Most recently, the other place chose to reject those amendments put forward by the noble Lord, Lord Kerr. Instead, it chose to accept an amendment tabled in lieu by my right honourable friend Sir Oliver Letwin, to which this House is now invited to agree.

My right honourable and learned friend the Solicitor-General set out why the Government were unable to support Lords Amendments 1 and 2 and I do not intend to repeat those arguments at length. I will simply reiterate that the UK, in its entirety, is leaving the customs union. We will seek a new customs arrangement with the EU that allows us to trade goods and services as frictionlessly as possible with the EU, frees us to strike trade deals around the world, and avoids any return to a hard border between Northern Ireland and Ireland.

The amendment sent to us from the other place ensures that Parliament is informed, through a Statement before both Houses provided by 31 October 2018, of the steps we have taken to seek to negotiate an agreement for the United Kingdom to participate in a customs arrangement with the EU. The Government believe that this alternative to the amendment tabled by the noble Lord, Lord Kerr, provides the right balance between ensuring Parliament is informed of the steps the Government are taking to secure a future customs relationship, and ensuring that we follow through on the objective of delivering the referendum result by leaving the EU and, therefore, also leaving the customs union.

I therefore hope noble Lords will be content to accept the amendments from the House of Commons this afternoon. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, this is the first of the Motions before us today. In addressing it, I will briefly reflect on the role that your Lordships’ House played in consideration of this Bill, and, for the avoidance of any doubt, our approach to today’s business.

Despite attracting perhaps a little more excitement, this is the same procedure that we have for every legislative Bill that comes before your Lordships’ House. I have said before that the process of Brexit cannot be left to those who have no doubt. It is only through consideration and challenge that we get better, if not the best, outcomes for any legislation. This Bill came to us deeply flawed and divisive. Together as a House, we approached it thoughtfully and diligently. We have had some long days and some long nights in Committee and on Report. We are grateful to those Government Ministers across departments who have been willing to engage on some of the less controversial but equally important issues.

Of around 200 amendments passed, 15 did not enjoy the full or initial support of the Government. Of these, one was totally accepted on agencies and another largely accepted, with minor changes, on Northern Ireland. Eight were rejected, although on some of these enhanced protections for EU-derived protections the Government have since made further concessions, or, in the case of sifting, reinstated earlier amendments. Five have been replaced with amendments in lieu. We will consider these today, including the one we are talking about now on the customs union and the publication of primary legislation to enforce environmental protections.

We are grateful to the Government for their consideration and acceptance of so many of the points raised in your Lordships’ House. Even before the Bill returned to the other place, significant changes were made on a range of issues, including removing the power to levy taxes or establish new public authorities by statutory instrument, which is particularly important for the new environmental enforcement body; additional explanatory statements and reports to Parliament; the introduction of sunset clauses on some issues; the prevention of the repeal or amendment of devolution clauses by secondary legislation and significant amendments in your Lordships’ House on devolution provisions; and clearer guidance for courts and tribunals relating to future decisions of the CJEU. Importantly, we have seen the removal of a clause that I had never seen before in legislation; that is, one giving a Minister the ability to amend the Bill via an SI. That has gone.

Despite disappointment at the rejection of some Lords amendments, this legislation is better for the work that we have undertaken. We have not exceeded our defined and limited role, but we have used our remit to provide for greater consideration, further reflection and meaningful changes. As the Leader of the House has said previously, reinforced by Ministers in the other place, there is no legislation that does not benefit from scrutiny in your Lordships’ House.

We understand that in a democracy this can be both an asset and, at times, a source of frustration to government. Canadians describe their second Chamber as a Chamber of sober second thought—a further opportunity to think things through and fine-tune legislation. That makes the outbursts of some pro-Brexit MPs all the more ridiculous. As we discuss these final amendments from the House of Commons, we have seen a fair bit of sabre-rattling from some of the most enthusiastic Brexiteers and supporters. Inaccurate and misleading press headlines such as “Enemies of the People” and “Saboteurs” may add excitement and drama, but they do nothing to improve the quality of debate or journalistic integrity.

We have also heard calls for this House to be abolished, to be replaced with a committee of experts or an elected House. I know that many hold honourable and genuine positions on different kinds of reform, but to base a case for fundamental change to and abolition of the current system on disagreement on a Bill shows poor judgment. In response to proposals for an elected House or House of experts, I suggest that such a House might not be quite so compliant in accepting the primacy of the House of Commons.

Today, our role is very clear. This House does not and should not engage in ping-pong lightly or without thought. The process of ping-pong is not to challenge the elected House, but to provide an opportunity. Where matters are clearly and obviously unresolved in the House of Commons, that is where they should be dealt with. The reported disagreement since Friday between the Government and their own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration, and it can be resolved only by those elected to the House of Commons.

Lords Amendments 1 and 2 on a customs union have been returned to this House with, in effect, just one amendment, changing “customs union” to “customs arrangement”. This is unnecessary, but I understand why the Government have done it. It is because the Government do not yet know, even today, what they want. Currently, they have two work streams: a customs partnership and maximum facilitation. However, when the Dutch Government are advising their manufacturing industry not to buy car components from the UK because our future customs relationship with the EU is unclear, we know that there is a problem that needs to be addressed urgently. As a result of the amendment from your Lordships’ House, the Government are now committed to return to Parliament in just over four months, by the end of October this year, with a Written Statement on what they have done and how they will proceed. I do not now feel that this is an issue that we should return to the other place.

[Lord Newby (LD)]

My Lords, I associate myself with much of what the noble Baroness has said about the role of your Lordships’ House. The role played by the Lords on this Bill has been completely in line with constitutional precedent. We indeed defeated the Government 15 times, but the Government used the Lords stages of the Bill to introduce more than 150 amendments of their own, including extremely important ones on devolution. That is because they recognised that your Lordships’ House was indeed the place in which the Bill could be improved.

Of the 15 amendments we passed, as the noble Baroness said, the Government have accepted almost half, either in whole or in part. This is not, incidentally, something that one would gather by reading the popular press. The Government have also chosen to use this stage of the Bill to introduce an amendment of their own in an attempt, possibly unsuccessful, to resolve the “meaningful vote” issue. They clearly recognise that the Lords has a vital part to play in improving legislation, even at ping-pong stage, and they are sensibly seeking to do so in this case.

--- Later in debate ---

[Lord Howard of Lympne (Con)]

My Lords, this is not a debate about the integrity of Mr Dominic Grieve, and I shall do my very best to avoid mentioning his name again. It is a debate on the terms of the amendments before your Lordships’ House this afternoon. My noble friend the Leader made a cogent and compelling case for the government amendments and I do not intend to elaborate on it at any length. She made it clear that the effect of the amendment in the name of my noble friend Lord Hailsham would be to confer on Parliament a negotiating power that has always resided in the hands of the Executive in our country. That is why, as my noble friend the Leader said, Professor Vernon Bogdanor has described the amendment as a “constitutional absurdity”. It is a measure of the weakness of the case put forward by my noble friend Lord Hailsham that he was driven, in the end, to impugn the validity of the Article 50 vote in the House of Commons—a vote passed by a very large majority in the very House whose cause he purports to champion as the basis of his amendment.

I want to elaborate briefly on a point just made by my noble friend Lord True. My noble friend Lord Hailsham said, at the very outset of his speech, that the purpose of his amendment was to give the House of Commons the opportunity to consider it. It is a simple and irrefutable fact that the House of Commons will have that opportunity without passing my noble friend’s amendment. The House of Commons will have that opportunity if the Government’s amendment is passed, because that amendment has not been considered by the other place. So, when the Government’s amendment comes to the other place, it will be open to them to accept it, reject it or amend it. They can amend it in the terms of the amendment put forward by my noble friend Lord Hailsham. The very purpose of his amendment—

[Baroness Smith of Basildon]

My Lords—

[Lord Howard of Lympne]

I will give way when I have finished my sentence. The very purpose of the amendment put forward by the noble Viscount can be achieved without its passing.

[Baroness Smith of Basildon]

I apologise to the noble Lord for interrupting, but I may be helpful on House of Commons procedure. If an amendment goes from this place to the House of Commons and is amended, the chances are that the only amendment that could be voted on is a government one. At the moment of interruption, only government amendments are voted on. Back-Bench amendments would not be voted on.

[Lord Howard of Lympne]

The operative phrase in the noble Baroness’s observation was “the chances are”. I believe that, if the House of Commons wished to consider the amendment in the terms put forward by the noble Viscount, it would be able to do so.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[Baroness Smith of Basildon (Lab)]

My Lords, I rise to support Amendment 70. There is not really much left to say as noble Lords have addressed so many of the points. I do not wish to delay the House, and I would like to hear what the Leader of the House has to say.

Having served in both Houses, the difference in how statutory instruments are treated is very familiar to us, as mentioned by my noble friend Lord Davies. I always said in the House of Commons that when a statutory instrument committee came along and you were asked to take part, you would ask, “Why me, and how long will it take?” In this House, we have had more speakers on this debate than we had on the previous one on the EEA. That shows the level of interest and excitement generated by statutory instruments in your Lordships’ House. Someone may have said, “So many SIs and so little time”.

As we progress on the road to Brexit, as the noble Lord, Lord Bilimoria, said, this House and the other place will clearly have to address a huge number of SIs. The concern is that we have to get this right. The consequences of making mistakes against the Government’s intention of ensuring that EU law can be transposed into UK law are very serious. Those SIs have to be accurate and they have to be properly considered.

In Committee, the noble Baroness confirmed that the Government intend to publish draft SIs “where possible and appropriate”. If you look at the website, there are a few drafts—not many, but a few. There are illustrative examples, and I am grateful for those. They are helpful, but there is no way of knowing whether those examples are representative of the statutory instruments that are to come, particularly given the drive to reduce the overall number by packaging up multiple issues in one statutory instrument. I have raised this issue with the Government over some time. I gave evidence on it to the Select Committee in the other place and I gave evidence to our Constitution Committee, and it is really important that we have those draft SIs for, if nothing else, the appearance of accuracy, so that we know we are getting it right.

As I said, the noble Baroness made helpful comments on this about publishing draft SIs. However, I have to say that I am not convinced that “where possible and appropriate” is good enough. Can she go one step further and guarantee that SIs will always be published in draft form prior to being introduced into either House, unless of course they are made under urgent procedure? That is another discussion and there would obviously have to be very good reasons why they were urgent. Having those draft SIs is absolutely essential—not for delaying but for giving them proper consideration. It is much harder to rectify mistakes at later opportunities than if we deal with them straightaway.

The noble Baroness argued previously that the Committee stage amendments of the noble Lord, Lord Lisvane, were unnecessary, and she said then that if both committees were to reach the same recommendation,

“the Government’s expectation is that such recommendations are likely to be accepted”.—[Official Report, 19/3/18; col. 154.]

I understand that that is the intention, but “expectation” and “likely to be accepted” are a bit woolly for legislation. I do not think that is adequate. We hope that would be the case but, as the noble Baroness told us at the time, there would be a problem if the two committees disagreed or if the Government decided not to accept the proposed upgrade to the affirmative procedure. It is a limited upgrade; I would not get too excited about the affirmative procedure being too intrusive. We recognise that it is a step in the right direction. The noble Baroness told the House that she hoped the latter scenario—that the Government would not accept a proposed upgrade from one House—would be very rare. Again, it is very speculative. How rare does she think that occurrence will be? Could she outline the steps she would expect Ministers to take in the event of it becoming a reality?

All of us want to see EU law on the UK statute book as accurately and as quickly as possible, but to do that we must have confidence in the process and procedures that we have in place. We cannot do it on a wing and a prayer. If we do not get this right, there will be serious consequences, which will be far harder to rectify or amend later. I hope the Minister can give some reassurances on that issue in the course of her comments.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. The Government take parliamentary scrutiny of the powers afforded them very seriously, which is why, from the outset, I have made clear our view that both Houses should be treated equally when it comes to the sifting process proposed by the Commons Procedure Committee. The Government have already accepted amendments, although they only included a committee in the other place, and the government amendments that we have just discussed would extend that process to your Lordships’ House. We have listened carefully to the views of the House and numerous committees on ways in which to improve this Bill. Among other amendments, we have removed the Clause 8 power altogether and sunset the consequential power and the power to make new fees or charges. The correcting power has been prohibited from creating public authorities or amending the devolution statutes, and we have provided that regulations should be amendable only in the same way as primary legislation.

Having heard the views of the House in Committee, I am pleased to confirm that the Government have tabled amendments that we will debate shortly to extend the sifting committee’s remit to instruments made under the power contained in Clause 17(1). I hope that noble Lords will see this as further evidence of the Government’s willingness to listen to the case put by this House and, in particular, by the DPRRC. I believe that we have made clear our commitment to ensuring that this House can rigorously scrutinise the secondary legislation that will flow from this Bill.

The government amendments allow the changes to the SLSC’s order of reference, agreed by the Procedure Committee, to be put into practice following Royal Assent. I am sure that noble Lords on all sides will want to consider the committee’s report in good time. As I have said before, the agreement reached regarding the SLSC taking on the new and vital role as the sifting committee demonstrates the constructive collaboration of the House. I remain grateful to other members of the Procedure Committee and the SLSC for their support in this decision.

A number of noble Lords have made it clear that they would like further reassurance that the recommendations of the sifting committees will be taken seriously by the Government. I am happy to repeat what I said in Committee—that if both sifting committees were to make the same well considered and no doubt persuasive recommendation that an SI should move from the negative to the affirmative procedure, I assure the House that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would, of course, need to be carefully considered on its merits. The noble Baroness, Lady Smith, tempted me to speculate on how often the Government would disagree with a recommendation coming from both committees. Clearly, I cannot usefully do that, but I can say that the Government are not placing shackles on their ability to make a recommendation to upgrade the procedure if they so wish. It is right that this is the case, but I repeat my view—I expect that to be a rare occurrence. I can confirm that on the very rare occurrence, one hopes, when that happened, and the Government did not agree with a recommendation to use the affirmative procedure, we would fully expect to publicly set out our reasons to the committee concerned.

Amendments 70 and 77 in the name of the noble Lords, Lord Lisvane, Lord Norton and Lord Sharkey, and the noble Baroness, Lady Smith of Basildon, propose an alternative sifting process. There are two significant differences between the process proposed in Amendment 70 and that proposed by the Commons Procedure Committee, the consequences of which would put at risk our ability to achieve this Bill’s fundamental aim: a functional statute book on exit day and, indeed, for this House to exercise timely and effective scrutiny. The first would make the sifting committee’s determinations binding on the Government unless the House decided to disagree with its committee. The second is that the amendment would build into the sifting committee process a mechanism for the House as a whole to make a binding determination, irrespective of the decision of the committee to which it has delegated the responsibility for making recommendations. Such determinations raise several serious problems. The first is the potential for disagreement between the Houses, and I note that Amendment 71 involves the same problem, to which I shall come in a moment.

The second risk, which is potentially more serious in practical terms, is the delays which this process could create. Given that this House and the other place do not often sit on Fridays, 10 sitting days is already likely to stretch across three weeks. The addition of an extra five-day period, during which each House could overrule its own sifting committee, potentially extends this process into a fourth week. Of course, if any of this were to occur around either House’s normal recesses, the period would be longer still. Then, after that, any negative instrument would still have a praying period of 40 days during which, as now, a debate could be sought. In addition, any affirmative instrument would be subject to the usual scrutiny procedures and laid before Parliament until it could be accommodated in the parliamentary schedule.

--- Later in debate ---

[Lord Sharkey]

In fact I was thinking of government Amendment 83N—I am sorry that I did not make that clear—which deals with Amendment 72. I was about to ask a question. Amendment 83N says that in the case of a failure of a Minister to give the reasons that he or she should give for urgency, the Minister must write explaining why he has failed to do that. The only thing missing at this point is some indication of when he might write to do that. I ask the Leader of the House to try to help the House by indicating when a Minister should write to indicate his sorrow and apology for not doing what the amendment asked him to do. With that, I beg to move.

[Baroness Smith of Basildon]

My Lords, the amendment is self-explanatory. If urgent regulations have to be laid, having an explanation and clarity from the Minister as to why it is urgent is always helpful. It is fairly simple and straightforward. I hope the noble Baroness will say that she is prepared to accept the amendment.

[Baroness Evans of Bowes Park]

I thank noble Lords for this very brief debate. As I indicated in Committee, the Government have reflected on this point further and decided to table their own amendments to achieve the same aims as the noble Lord’s amendments. The Government have always said that we expect Ministers to use the Bill’s urgent procedure rarely. This might be where, for example, corrections to the statute book are required very close to exit day and where the impact of not making these corrections would be significant.

The Government have always been committed to ensuring an appropriate level of scrutiny is afforded to the Bill’s provisions. I remind noble Lords that the made affirmative procedure still requires debates and potentially votes in both Houses. We have always wanted to be transparent about how this unusual process will work and it is for that reason that we have clarified the time period in which a made affirmative SI must be debated. In response to the persuasive case made by noble Lords in Committee, where the Government choose to use the urgent procedure we are happy to commit in statute to supplementing any declaration of urgency with a commitment to making a statement explaining why this was considered to be appropriate. In response to the question asked by the noble Lord, Lord Sharkey, Ministers will write as soon as is practicable. This is in addition to the obligation to make a statement.

While the Government cannot accept the noble Lord’s amendment for technical reasons, I hope noble Lords will be content to accept those tabled by the Government in its place and that the noble Lord, Lord Sharkey, will feel able to withdraw his amendment accordingly.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[Baroness Ludford (LD)]

My Lords, I have just a few brief words to back up those who tabled the amendments. I was in the European Parliament when the European protection order directive was passed, a mere seven years ago, under co-decision with the European Parliament, when MEPs considered it a very important measure. I believe that the first European protection order in the UK was passed just over two years ago, so it has not had the chance fully to show its value, but it is about ensuring that a restraining order, for example, follows the victim wherever they move in the European Union—rather like a European arrest warrant follows the criminal, although I would not otherwise draw an analogy between the EPO and the EAW. These measures are hugely important.

Of course, the development of mutual recognition in both civil and criminal law in the EU has been a counterpart to the free movement of people, but we will not see an end to considerable free movement of people after Brexit. We have learned enough about the Government’s post-Brexit EU movement plans to know that a large volume of people will still be moving between the UK and member states of the European Union and the EEA, for all kinds of economic and social reasons—although the Government keep kicking the can down the road in terms of telling us exactly what their plans are. To say that we will be ending automatic free movement rights to live, work and study in another EU state is not a good argument that we do not need to continue with these cross-border mechanisms.

A good answer from the Government on how funding from EU programmes that support vulnerable women and girls and victims of domestic abuse will be replaced is extremely important, but so is how they intend to continue co-operation to replace those mechanisms, such as the European protection order and, I add, the victims’ directive, which has supported people and enabled them to enjoy a similar level of protection wherever they move around Europe. The need for those mechanisms, as well as the funding, will not go away. I hope that the Government will offer a substantive and substantial response on these matters.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank my noble friend Lady Kennedy for tabling the amendments. Yesterday, not only were female Members of this House having our photograph taken to commemorate 100 years of women being Peers—being able to be Members of your Lordships’ House—many of us also went to see the unveiling of the statue of Millicent Garrett Fawcett, at which the Prime Minister spoke eloquently about the rights of women and how important they are, and we commemorated and celebrated the work of Millicent Garrett Fawcett. Would it not be a tragedy, therefore, if an unintended consequence—I think it would be an unintended consequence—of Brexit were that somehow we reduced the protection available to women and girls from violence in any way? The points made by my noble friends and noble Baronesses on the Liberal Democrat Benches in support of the amendments are valid.

The Minister may recall that on Second Reading, my noble friend Lady Sherlock illustrated the complexities that could come for child protection and family law when we leave the EU. Her experience and understanding of that is reflected in the comments of my noble friend Lady Kennedy of The Shaws today. From experience, she can say how the European protection order, which guarantees mutual recognition of legislation across the whole of the EU, adds to the protection that we all wish to see for women and young girls. As the noble Baroness, Lady Ludford, said, we hope for a substantive response from the Minister on this issue today.

The ability to share data on perpetrators, as well as a host of other measures that tackle human trafficking, FGM, the enforcement of child maintenance orders—an issue raised by my noble friend Lady Sherlock previously—and the sexual exploitation of children could all be put at risk. I was reminded by my noble friend Lady Gale, who has a huge reputation on these issues, that the Minister referred in Committee to the Istanbul convention, which should offer much-needed protection. Can she tell us when it will be ratified?

Will there be a gap between exit day, when we lose the EPO, and when the new Act will be on the statute book? What cover will allow us to ensure that all aspects of what we have now under the EPO will be enshrined in our legal system?

Another issue raised by my noble friends is funding. Although the Government’s previous commitment of £100 million is needed to keep the sector going, it will not plug the gap left by the loss of EU funds. The loss of those funding streams threatens to push small, specialist providers, which receive a significant amount of their funding from the EU, into a position where they can no longer operate to ensure the protection that women and girls need.

All that is being asked for is a report and information so that we can identify where the problems are and understand the Government’s response. I was disappointed to hear from my noble friend Lady Lister that she still has not had a response from the Minister to the issues that she raised. The whole point of the gap between Committee and Report is to ensure that the Minister has time to respond to questions from noble Lords. I hope that the Minister will say today why she did not respond at the time and what can be done to rectify that, because it is not satisfactory to raise issues in Committee and have to raise them again on Report because answers have not been received.

I am sure that the Government’s intentions in this are honourable, but we need to know in practice how these commitments will be met to ensure that we do not put women and young girls at risk of violence in a more difficult and precarious position than they are at present. I hope that the Minister will give a substantive response today on how the Government will address this.

[Baroness Goldie]

My Lords, in responding to this debate, I begin by reiterating how important the issues we have discussed in the debate are. We have had today a clear, and, I suggest, impressive reflection of that importance, and I thank the noble Baroness, Lady Kennedy, and other noble Lords for their contributions.

I start by addressing Amendment 37, about continued recognition of European protection orders made after we leave the EU. The European protection order regime, established by the EU directive of the same name, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and communicate with each other in the making of an order and in its recognition and enforcement. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime, we will no longer issue European protection orders to remaining member states, as it would be pointless to do so; and nor will the authorities in those member states issue them to the UK for the same reason.

In short, absent our continued participation in the European protection order regime or some proximate reciprocal agreement in its place, the regulations will be redundant—they do not work unilaterally. The amendment therefore pre-empts the outcome of the negotiations. I am happy to be clear, however, that if the ongoing negotiations produce an agreement to continue the UK’s access to the regime established under the directive, or something like it, appropriate steps in legislation will be brought forward to implement it at the time.

--- Later in debate ---

[Lord Dykes (CB)]

I am very glad that the noble Lord, Lord Rooker, has made that point, because it is noticed and it is not said enough that there is a gap there which really makes the Chamber awkward from the point of view of these issues. I also support what my noble friend Lord Cormack said and thank the noble Baroness, Lady Kennedy of The Shaws, for raising these matters. It will be quite alarming if there is an erosion of the common travel area arrangements, which are historic since 1923, just because other things are happening in a geopolitical sense regarding new legislation for leaving the European Union. The psychological aspect is important too, because creating that common travel area so long ago, as a unique and special example of co-operation between countries, was a way for the British to make up to the Irish for what had happened in the past and, as the noble Baroness, Lady Kennedy, said, a way of promoting economic co-operation and activity. People came towards Britain, mostly, rather than the other way round, but increasingly, as the Irish economy developed in the post-war period, people also went to Ireland for work and travel.

The present situation is that there should literally be no erosion or changes; it should be exactly as it was. Yet, one hears these stories of what is happening—the wrong kind of attitude on the part of certain officials, and so on; I will not go into more detail than that. This arrangement is very important, because it is a miniature Schengen between just two countries and, partly for that reason of course, both countries decided not to join in the full Schengen arrangements, although there were also other reasons connected at the margin. It is a very precious aspect of the wider picture of there being no change at all to the Irish border arrangements, which is so important for both this legislation and the future of our relationship with the European Union. This of course means, effectively—yes, we have to say it—staying in the single market and customs union, and why not? In the meantime, this arrangement is crucial and I hope that the Government will reassure us tonight that there is a commitment to keeping the purity of the CTA and that there will be no erosion.

[Baroness Smith of Basildon]

My Lords, there is little I can add that is new to this debate. I am grateful to my noble friend Lady Kennedy of The Shaws for raising these issues and I hope the Minister will make use of his customary courtesy to the House. When he responded at Second Reading and in Committee on these issues, there was a sense that he understands the concerns that were raised then, and indeed the issues raised today. When he spoke on 14 March, he was clear that there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That was the first time that the Government had given that degree of clarity—I think my noble friend Lady Kennedy would recognise that—or sought to emphasise that. This is important, and the Minister will understand the great concerns being raised. We still have no clarity on the border issue. This House has already expressed a view on the customs union and I am sure that, as we debate Northern Ireland issues later on Report, we will deal with those further.

I hope that the Minister is able to address the concerns that have been raised about the common travel area and movement of people. He has a sense of deftness and understands these issues, so if he can address them today we would be grateful.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for introducing this topic and other noble Lords for their contributions. I had a very pleasant cup of tea with the noble Baroness yesterday and I was pleased to learn that she hails from the Kennedys of Fermanagh, which was an interesting discovery. But it was not just a pleasant cup of tea; it was more important than that. We touched on what I believe are some of the key elements that have motivated these amendments, and they are, at heart, necessary to confront. The noble Baroness, Lady Smith, somewhat surprisingly, reminded me that I was indeed apparently the first person to give clarity on this issue, but I am very happy to reinforce the clear statement that there can be no racial profiling at a border, whether it be routine, quixotic or even accidental. That cannot be the policy or the direction; there cannot be even a hint of that going on at the border. I am hopeful that those further words might again give some contentment in that regard.

If I may turn to the amendment itself, the December joint report, at paragraph 54, confirms that the UK and Ireland can continue, as now, to work together on the movement of people. Building on this, the relevant chapter of the Commission’s draft withdrawal treaty text is green, confirming the policy is agreed. The key thing here is that the common travel area with Ireland is protected after the UK has left the EU. It is important to emphasise that this agreement is not just what we would like to see happen but actually what we have agreed so far. As a number of noble Lords will have noticed thus far, getting agreement is not always as straightforward as we would like. The Government are committed to turning the relevant chapter of the withdrawal treaty into legally binding text, so we will be doing that. This means that in the future, as now, the UK will not operate routine immigration controls on journeys within the common travel area. There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain. As I said earlier, this includes any aspect of what those checks might look like or be interpreted to look like. That is not what will be happening.

To touch on some of the elements raised, I think it is important again—and I will commit to writing to the noble Baroness—to set out the elements of the withdrawal agreement treaty and how they protect the common travel area. I will place a copy of that letter in the Library of the House so that all can read it and see exactly what we are stating.

--- Later in debate ---

[Baroness Vere of Norbiton (Con)]

My Lords, in moving this Motion, may I suggest that proceedings on Report should begin again not earlier than 7.10 pm?

[Baroness Smith of Basildon]

I am slightly puzzled as to why the House would seek to rise at 6.36 pm for a break. The normal time for a dinner break would be around 7.30 pm. I appreciate that we have made swifter progress than anticipated, but it is inappropriate for the House to adjourn at this point. We should continue with the business before us. I am grateful to the usual channels for giving us a dinner break today; that is helpful. However, the normal time of after 7.30 pm would be more appropriate.

[Lord Taylor of Holbeach (Con)]

There is a proposition before the House that we adjourn debate on Report. I took the trouble of having a word with the Opposition Chief Whip in order to ascertain when it would be suitable to have a dinner break, and we felt at that stage that this was the right time. I now realise that circumstances have changed. We had agreed to a sort of dinner break—a gap in proceedings—because previously we found that the evenings were too long. I was asked by both the Opposition Chief Whip and the Liberal Democrat Chief Whip to consider having a break in the evenings, because they thought that proceedings would go better if that were the case. That is not the situation. The proposition before the House is that we should have a dinner break—that we should adjourn the House on Report at this stage—and I feel that we should at least put that to the House.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Chief Whip. It is a very wise and sensible move to have a dinner break during long proceedings—but I am not very hungry yet, and I suspect that other noble Lords might have had a late lunch as well. I appreciate that there is a Motion on the table and I am grateful for his suggestion of a dinner break. I assume that the next group of amendments would take us to around 7.30 pm, which would be a more appropriate time for a break. If he insists on putting this proposition to the House, I would ask noble Lords not to support the Government.

[Lord Newby]

My Lords, I support what the noble Baroness, Lady Smith, just said. It is 6.40 pm. It would be unprecedented to break for dinner at this time. I do not suggest that there is anything other than concern for your Lordships’ stomachs in the mind of the Government Chief Whip, but I ask him to reconsider whether he wishes to put this matter to a vote.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness Altmann]

My Lords, I support Amendment 198, so excellently spoken to by the noble Lord, Lord Hain, to which I have added my name. I also support Amendments 215, 218 and 219. I commend the many excellent speeches made in this debate.

The Good Friday agreement was premised on a balanced approach to healing and rebuilding three sets of broken relationships. The noble Lord, Lord Murphy of Torfaen, and my noble friend Lord Patten have outlined these three groups: first, the communities within Northern Ireland; secondly, the north-south relationship; and thirdly, east-west. These three groups of relationships are intertwined and the reality is that it is a whole. If you impact one part you affect the balance of the whole thing.

There is of course an economic dimension to this but it also has an important social dimension. We have signed an international agreement committed to repairing, rebuilding and protecting the people on the island of Ireland, and to co-operation among the communities, north and south. The open, frictionless border is a crucial part of this and it simply cannot be squared with leaving the single market and the customs union unless there is full regulatory alignment.

Protecting the Good Friday agreement should be the reddest of the Government’s red lines. The Good Friday agreement is essentially about co-operation and partnership. As the noble Lord, Lord Empey, said, it has developed over time—it is not exactly the same—but that was always the aim of that agreement, and those developments need to be protected if our Government are to continue to honour our commitments and obligations to the people of Northern Ireland.

The common regulatory standards mean that business in goods and services can operate freely on the whole island. Six areas of co-operation are identified: education, agriculture, environment, health, transport and tourism. This covers pretty much everything. EU regulations govern north-south co-operation, and the noble Lord, Lord Hain, mentioned the 142 areas of co-operation which would be impacted if there were not regulatory alignment or belonging still to the single market and the customs union. When summing up, can the Minister confirm to the Committee whether this is the final number of areas identified, and how many of those have the Government identified solutions for if we leave the single market and customs union and do not have full regulatory alignment?

This is an Achilles heel of Brexit. The Prime Minister has already committed to full regulatory alignment. We have heard that the opportunity to remain, for example, in the European Economic Area would solve the east-west issue as well as helping the north-south. As we have already committed, and the Prime Minister’s words reflected, that there should be no hard border, and to reassure the people of Northern Ireland and Ireland that we are a country which upholds its commitments to international agreements, I hope my noble friend will support the amendment or bring back an equivalent on Report.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been an interesting debate. I hope it has been helpful for the Minister.

I made a comment at Second Reading that in preparing for Brexit we should look at the detail—that the fine print was too important to be left to those who had no doubt—and I expressed the hope that Ministers would recognise the expertise in your Lordships’ House. Indeed, Members in the other House said exactly the same.

At Second Reading, the response of the noble Lord, Lord Callanan, expressed optimism in that regard. If ever there was a time to listen to the expertise in your Lordships’ House, it has been tonight in this debate. We have heard from a former Secretary of State, the noble Lord, Lord Hain, the noble Lord, Lord Murphy, the noble Lord, Lord Patten, with his vast experience of Northern Ireland, and the noble and right reverend Lord, Lord Eames, who made a powerful speech. We heard from my own colleagues, including my noble friends Lord Browne—he and I were Ministers together—and Lord Dubs. I feel somewhat nervous seeing my two former Secretaries of State for Northern Ireland sitting together, watching over me and looking at my back.

Noble Lords have raised pertinent issues tonight that go to the heart of what Brexit is about. The Northern Ireland Good Friday agreement was hard fought and hard won and no one in the House should doubt the importance of how well it has served us. We have had a long debate and issues have been raised tonight purely through people’s knowledge and their concern for what could happen if there is a hard border. I appreciate the points made by the Government about the protection of the Good Friday agreement. I welcome to his place the Minister who is responding tonight but at Second Reading the response of the noble Lord, Lord Callanan, did not refer once to Northern Ireland although the issue was raised several times. Clearly that was an error, a mistake, because there were a great deal of issues which had to be talked about. However, I am sure the Minister will understand the frustration at the lack of detail from the Government on what happens next.

The point was made earlier that these amendments should not be necessary. My noble friend Lord Browne of Ladyton said that we were holding the Government to account for the solemn commitment they have made and to do what they have promised to do. The Government and the noble Lord at the Dispatch Box have been clear on Northern Ireland: they support frictionless trade, they want a soft border and they support the Good Friday agreement. The noble Lord has been clear that that is the Government’s objective. What has never been clear, and has led to the debate tonight, is how that is to happen.

We heard from my noble friend Lord Hain, when he opened the debate, that there is over 300 miles of border. My noble friend Lady Kennedy said that 30,000 commuters cross the border daily—including for schools and hospital visits—over 400 commercial vehicles cross each month, and 40% of container movements to the Republic of Ireland go through Northern Ireland. There is a huge issue to address and a commitment is required—not, “We want this to happen” or “We believe this will happen”; it has to be an explanation of how we can make it happen.

My noble friend Lord Browne and the noble Baroness, Lady Suttie, referred to paragraphs 49 and 50 of the joint report produced in December, which are quite clear about why there should be no hard border, but that contradicts government commitments. The Prime Minister has referred several times to her red lines—no single market and no customs union—yet here we are talking about full regulatory alignment. The two are contradictory and that is why some of these concerns have arisen.

Most of the points have been covered in the debate and there is little of great substance that I can add, but I would like to make two points. I do not know if the Minister is aware of the follow-up letter to Karen Bradley signed by noble Lord, Lord Boswell, chairman of the House of Lords European Union Committee, on UK-Irish relations. In paragraph 52 the noble Lord accepts that,

“a degree of constructive ambiguity can be helpful during negotiations”.

He understands that, but he goes on to indicate that we need clarification from the Government of their understanding of what is involved in that December agreement. The European Union has come forward but we have not seen what the Government’s understanding is of how it will work. What does “full regulatory alignment” mean? I think I understand what it means, but the Government seem to believe something different.

The letter also refers to technology. The Government have said several times that they can deal with the border issue by using technology. There are grave doubts about that, as we have heard from other noble Lords in this debate. The letter from the EU Committee reminds the Secretary of State that,

“there is a need for realism … There is also a distinction between identifying solutions that are theoretically possible and applying them to a 300-mile border with hundreds of formal and informal crossings”—

a situation similar to that between Sweden and Norway—

“and the existence of which is politically divisive. Any physical infrastructure at the border would be politically contentious and, in the view of the PSNI, a security risk”.

In our long debate today we have not talked about the security issues, but the Minister who is to respond has to understand that unless he can provide a solution to how there will not be a hard border in Northern Ireland, there remains a security risk to those who fought the hardest to secure peace, a point made very powerfully by the noble and right reverend Lord, Lord Eames.

Finally, the ideological position on Brexit must be put to one side. In the Mansion House speech made by the Prime Minister just a couple of weeks ago, she showed that she is prepared to take what I suppose is a pragmatic eraser to some of those red lines and smudge them a bit—make them slightly pink—as she has done on the agencies. The time has come when I hope the noble Lord can give the Committee some confidence that the Government understand why these concerns have been raised. It is not good enough simply to say that this is what the Government want; they have to show the intent of how it can be achieved.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

There is a lot to be going on with this evening. I thank all noble Lords for their wide-ranging contributions. I hope that I will be able to do justice to the amendments before us, but let me begin by making a few general observations. We have in this Chamber tonight a number of the architects of the Belfast agreement. The word “architect” is often used. Architects create edifices which we may gaze at, but in truth the noble Lords present in this Chamber were not so much architects as mechanics. They created an engine that needs to be maintained and taken care of. It cannot be left alone in perpetuity; it requires tender loving care on every occasion. That is why a number of the points which have been raised go back to the Belfast agreement.

Let me be frank: the Belfast agreement remains the cornerstone of the United Kingdom Government’s policy as they approach Brexit. Further, the Belfast agreement is enshrined in international law, so it has a basis that is broader than simply membership of the EU. A number of noble Lords have made the point that it is our membership of the EU which was a factor in the agreement, and I do not think that that logic can be faulted. Equally, however, a great responsibility now rests with each of the partners as we address the reality of Brexit. That responsibility rests equally with the Government of Ireland, the Government of the United Kingdom and the European Union. That is why when we look at the joint report which was published in December, we see that at its heart is a recognition of each of the elements that we have talked about in this debate.

The noble Lord, Lord Kerr of Kinlochard, talked about the response of the EU to that report going forward. If I were being very frank, I would express a degree of disappointment in that for one simple reason. Of the three options that were set out in that joint report, the EU lawyers and negotiators have chosen to take forward only one into the text that we are confronting today. I believe that that is unhelpful.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[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.

[Baroness Smith of Basildon (Lab)]

When I speak at this time of night, I often recall the words of a friend who said to me shortly after I became a Member of the House of Lords, “You’re in the House of Lords now—you must be semi-retired”. As we are debating issues at almost half-past midnight, I do not feel semi-retired at all.

This is a very useful group of amendments for the Minister and the Government. As my noble friend Lady Young of Old Scone said, they are designed to be helpful, and I think their content makes that clear. It is only in your Lordships’ House that technical issues around SIs cause any excitement or great interest for noble Lords who have expertise in them. I hope that when the Minister responds she will accept these amendments or take them away and come back with something similar as a way forward on the Bill.

First, I wish to make some general comments. Issues around SIs and accuracy have been foremost in my mind since we first heard about the number of SIs that would flow from this Bill. Indeed, when I, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope, gave evidence to the Commons Select Committee and to our Constitution Committee, we specifically raised the issue of accuracy and the number of SIs we would have. The noble Baroness the Leader of the House can confirm that I discussed these issues with her. I welcome the fact that so far eight draft statutory instruments have been published on the Government’s website—perhaps the sample to which the Minister referred in his letter to my noble friend Lady Young. However, I am not sure what the purpose of a sample is other than to show how we can look at SIs and the issues that can be addressed in so doing. I think the noble Lord, Lord Lisvane, and the noble Baronesses, Lady Hamwee and Lady Neville-Rolfe, said that we need guidance on accuracy and getting SIs right. As my noble friend Lady Young said, we have one opportunity to get these measures right. They cannot be amended and making a mistake could have serious consequences. As more SIs appear on the website in draft, as I hope they will, I suggest to the Government that there should be a separate link and some kind of classification process as we want stakeholders and others with expertise and interest in this area to be able to identify them and find them instantly without first having to search through pages and pages to get to them.

On that basis, I welcome the agreement the Procedure Committee has reached with regard to the sifting and consideration of statutory instruments, as we have seen in this legislation. As in the House of Commons, we have 10 days in which to conduct a sifting process on the Bill and in which the committee will consider whether there should be an affirmative Motion, and then, in the normal way we conduct business in your Lordships’ House, we consider the merits of the order. We should be under no illusions: this is a huge task to be undertaken. Even the setting up of in effect a separate committee by having two sub-committees will not mean that all the work is undertaken that it is necessary to do. Given the scale of the work ahead, I welcome the suggestions we have had today on how we can draw on the experience and expertise of stakeholders, as the noble Baroness, Lady Hamwee, said, to deal with the issue of accuracy. It is not an issue of policy or change but of accuracy.

As the noble Baroness, Lady Neville-Rolfe, said, we have one opportunity to get this right. Given the nature of the consultation, it is a good idea to provide an explanatory document. That is extremely important. The principle of her amendments is sound. My only disagreement is that I do not think they go far enough in that she selects certain areas to be addressed. I am sure she understands the need to have the opportunity to debate all the SIs. I think the noble Lord, Lord Lisvane, made the point in a slightly different way but if there is a draft of all SIs and consultations on all of them, the formal consideration can be speeded up at that point rather than have problems arise later.

The amendment of my noble friend Lady Young is important. I raised it in the Procedure Committee as her amendment rightly goes beyond the Bill to address Brexit-related orders from other legislation. Our committees would be able to examine any secondary legislation, whether related to Brexit or not—most will be although that is difficult to define—but the sifting power currently applies only to the withdrawal Bill. Negative SIs relating to other legislation will not be included in that process. That point was made by our Constitution Committee in its report on the road haulage Bill.

The amendments in the name of the noble Baroness, Lady Hamwee, reflect the concern that has featured in other debates: for example, the issues around what is “appropriate” or “necessary”, and ministerial discretion. Therefore, given the avalanche of orders we may face, it will be helpful to consult on all SIs, not just leave it to the discretion of Ministers.

--- Later in debate ---

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

[Baroness Smith of Basildon]

Can the noble Baroness give us an example of where that might conflict with the negotiations? Some of us are struggling to understand the rationale behind that.

[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

--- Later in debate ---

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

[Baroness Smith of Basildon]

I suggested listing the drafts for consultation.

[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

Brexit: Transition Period

Baroness Smith of Basildon Excerpts

Wednesday 31st January 2018 Lords Chamber

[Lord Callanan]

The Question was about the objectives of the implementation period, which I think I answered fully. If the noble Lord is referring to the objectives of the renegotiation, the Prime Minister set those out very clearly in her Florence speech and in her Lancaster House speech.

[Baroness Smith of Basildon (Lab)]

My Lords, I do have to press the Minister on this point. He referred again to the implementation period. The Question is more accurately about the transition period. I think that is understood by noble Lords. What are the Government’s objectives? The Prime Minister was quite clear previously when she said that access to one another’s markets will continue on the current terms, maintaining on current terms the customs union and single market, and that we will also continue to take part in existing security measures. Can he confirm that those are still the Government’s intentions and objectives for the transition period?

UK and EU Relations

Baroness Smith of Basildon Excerpts

Tuesday 12th September 2017 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I begin by thanking the Government for ensuring that we had some time for today’s debate. The Government are responsible for the business of your Lordships’ House, so we appreciate the efforts of the Chief Whip and the noble Baroness to engage the House. I have to say, I am not entirely sure that I agree with her when she said last week that the Government were being generous in allowing time for this debate but I think that we are agreed it is essential.

With the talks and the negotiations well under way, it is clear that these position papers are really important documents. It would not normally be acceptable to publish so many key papers when Parliament is in recess, but we understand the time constraints. But it really is not satisfactory that today’s debate has to cover so many different issues across those papers. I listened carefully to the noble Baroness refer to the 13 papers and five technical documents, and with the best will in the world, she obviously would not go into detail on all of them. Our debate today may be a little disjointed as colleagues wish to talk about different papers and different issues.

I welcomed our brief conversation earlier about the better sharing of information and improving the opportunities for effective engagement, and the comments that the noble Baroness made about ensuring that she listens to what is said. However, our concerns about that lack of engagement have been reinforced by the EU withdrawal Bill. That will come to your Lordships’ House in due course, but the very serious anxieties about engagement and the sovereignty of Parliament have been clearly set out by my colleagues in the other place. The Bill perpetuates the notion that the Government see Parliament as an irritant to which they occasionally need to pay homage and that Parliament is interested only in tying the Government’s hands in negotiations.

We have had little reporting back from the rounds of negotiations from the Secretary of State, and the Lords European Union Committee is continuing to find it difficult to get him to appear. The noble Baroness knows that your Lordships’ House has been the primary body in Parliament to scrutinise EU legislation, and many noble Lords have significant expertise that could be, and will be, helpful to the Government. Let us be clear that it is only through discussion and scrutiny that we can get the best out of these negotiations. The Secretary of State should therefore view our committees and your Lordships’ House as useful resources, and not things to be endured when he has the time.

We on these Benches appreciate that this is a difficult process but we are concerned about the slow rate of progress in the negotiations so far. By now, we would expect there to be emerging consensus on key issues, allowing formal agreements to be reached when we embark on the final round of phase 1 talks in October. Clearly it is not straightforward in some areas, not least Northern Ireland, but I know I speak for many in your Lordships’ House when I say it feels like we are failing to make substantial progress.

We welcome the fact that there are issues where both parties are moving towards an agreement and accept the need for both sides to reach a detailed understanding of the other’s position. But just how long do the Government expect this exploratory phase to last? The clock is ticking, and we need to move quickly to detailed negotiation and then to agreement. We seem a long way from that, other than on a small number of important but second-order issues. I hope that when the noble Baroness responds, something can be said about the very real worries that the Government’s position in negotiations is being hampered by that irrational doggedness in rejecting a European court that would arbitrate in disputes between the EU and UK.

Divorces are never easy, especially after a long marriage and when both parties want to remain on friendly terms afterwards, and especially when there are children involved. It was inevitable that as the referendum reduced a complex issue to a simple yes or no on the ballot paper, the arguments were similarly reduced. It was soon accepted that the £350 million a week for the NHS just was not going to happen. But it was easy to understand as a slogan—certainly much easier than extolling the virtues of regulatory alignment, nuclear safety, trade agreements and policy, for example. But promises that Brexit would be easy and straightforward were far more deceptive.

Let us look at some examples. Michael Gove boldly declared:

“The day after we vote … we hold all the cards and we can choose the path we want”.


Boris Johnson, assured us all that,

“there will continue to be free trade, and access to the single market”.

Liam Fox, now the International Trade Secretary, told us that a deal with the EU would be,

“one of the easiest in human history”.

Even David Davis told us:

“Be under no doubt: we can do deals with our trading partners, and we can do them quickly”.


If only. I really wish this were so: I wish they had got it right and I wish that was the position.

Unfortunately, Ministers now need to understand that we do not hold all the cards. Brave utterances about what we want are misleading, and they look foolish when they change their minds so often. The Foreign Secretary, having told the EU to “go whistle” if it wanted the UK to pay a divorce bill, within weeks had to eat his words and confirm that the UK will indeed meet its financial obligations. Pretending that such complex negotiations are easy is doomed to failure—and none of us wants to even contemplate that. The Prime Minister’s mantra that no deal is better than a bad deal is irresponsible and dangerous. Neither outcome would be acceptable, and neither outcome is what Ministers promised us.

A good deal for the UK has to be worked out. We need wise negotiators, and understanding and compromises on both sides. Michel Barnier has praised the hard work and dedication of the UK negotiating team, and I join him in that. Our negotiators are doing a difficult job under difficult circumstances, and in some cases are operating without any clear direction. This is complex and complicated. That is why we welcome the publication of these papers—and we looked forward to them.

However, part of the problem is that the position papers were late in coming forward, and in some cases they were pretty flimsy on detail. For the Secretary of State to describe the track and trace proposal in the Government’s customs paper as “blue sky thinking” was as embarrassing as it was puzzling. It really is a bit late now to throw ideas up into the air and see where they fall. It is crunch time; talks are happening; the sand is flowing through the timer. Our negotiators, hard-working as they are, need clear positions to present to their counterparts.

I have some sympathy with the Secretary of State, considering the pressures of the forthcoming negotiation rounds—which is why he should seize on our support for a transitional period. With just 18 months to go, the notion that we can negotiate a bespoke transitional deal that takes us out of the single market and customs union, and then continue to negotiate a final long-term arrangement, and have all the other trade agreements in place, without falling off the cliff edge, is more suited to Peter Pan’s never-never land than the UK.

It is an even more unrealistic proposition if, as expected, phase 1 talks are not closed in October, resulting in the all-important phase 2 talks being pushed back. The transitional deal within the single market and customs union has widespread support from across politics and business, because it is practical common sense. Businesses are making decisions on investments and jobs now. Some will be forced to implement contingency plans if they do not get answers in the very near future. It is therefore significant that the CBI—not a remain campaigner—has said that,

“Remaining in the single market until a free trade agreement is in force is the simplest way to secure continuity for business operations”.


I am grateful to the CBI for its briefing and for the examples it gives us of the impact of having no transitional deal, or one outside the single market and customs union, on small and medium-sized businesses. A comprehensive transitional arrangement is needed because businesses will be making those investment and relocation decisions in the coming months.

Following the transitional agreement, negotiations should continue from where we are now. For the Government to rule out certain options from the start is to go into negotiations with one arm tied behind our back. It may be an ideological position, but it is not a rational one when trying to get the best possible deal for the UK.

Let us look at the papers that have been published so far. It is impossible to deal with all the issues in the papers published to today’s one on foreign policy, defence and development, in the time available. But such debates can be helpful to the Government given the expertise and experience of noble Lords. I have a few general comments and, I hope, a suggestion for the way forward that the Minister can take on board.

When the Government published their paper on EU nationals on 26 June, it was as if they were starting again from the beginning rather than responding to the paper that the EU had published on 29 May. Your Lordships’ House offered the opportunity to resolve this issue early on, but although the Government promised that it was a priority, little progress has been made, and such a sensitive issue clearly impacts on wider negotiations. It is affecting EU citizens living here and UK citizens living in the EU, and in a number of ways it is already affecting businesses, services and individuals in the UK. The position paper did not really take us any further forward. Progress in areas such as healthcare and pensions is welcome, but a number of questions remain.

One of the most complicated issues in the negotiations, and certainly the most sensitive, is that of Northern Ireland and the Irish border. My noble friend Lord McAvoy, as well as my noble friends Lord Murphy and Lord Hain, as former Secretaries of State, have consistently and continually raised this issue in a constructive way. We welcome the commitment of both the Government and the EU to address very complicated questions. However, the EU has been clear that the onus of presenting proposals on the future of the border is on the UK. This will require the Government to move beyond blue sky thinking in areas, such as customs, and put a concrete and workable proposal on the table.

The publication of position papers and the withdrawal Bill has once again highlighted the Government’s difficulties regarding devolved Administrations. It is essential that Ministers fully and effectively engage with them and recognise the constitutional, practical and moral necessity of doing so. There remain a number of outstanding issues that must be resolved, and we will all be looking closely at the debates in the other place on the withdrawal Bill around this issue.

It is essential that the Prime Minister earns the respect and understanding of those who hold influence in the process or are most affected by the referendum result. It was reported that the Prime Minister declined an invitation from the President of the European Parliament to attend a full public session, instead opting for a behind-closed-doors meeting with a select few. Back in January, the Prime Minister declined an invitation from the Irish Parliament—an invitation that was also extended to, and accepted by, Michel Barnier. We all understand the difficulties, but it is the responsibility of the Prime Minister to ensure that our negotiations are against a backdrop of co-operation, and rejecting such invitations cannot be at all helpful. If the noble Baroness and her colleagues are able to enlighten us as to why, that would be extremely helpful.

Looking and planning ahead, whenever your Lordships’ House has debated, expressed an opinion, or passed an amendment on this issue, it has brought howls of protest—and worse—from some of the most ardent Brexiteers. We are clear about our constitutional role and responsibilities. You could say that we know our place and know our limitations. We also know that this House is always mindful of the constitutional role of Parliament as a whole, including the primacy of the House of Commons, which is different from the primacy of the Executive. There will be opportunities for your Lordships’ House to discuss the withdrawal Bill later, and I hope that the Government will reflect on this as the Brexit debates progress.

Our Constitution Committee has expressed its “considerable regret” that the Bill has been drafted as it is, leaving many fundamental constitutional questions—as it says—“unanswered”. For a referendum fought on the principle of parliamentary sovereignty, I know that many in your Lordships’ House are bewildered by the scale of the power grab being attempted by Ministers. Throughout the history of the 20th century, no Bill has ever sought such powers before—not even during wars or civil emergencies. Again, we will follow the debates in the other place with great interest before the Bill comes before your Lordships’ House.

In conclusion, we welcome the publication of the Government’s papers over recent months, but it still feels that we lack a clear strategy. For all the talk of a deep and special partnership with the EU, or of building a truly global Britain, we have not yet seen that clear road map that will take us there—a road map that does not send us hurtling over the cliff edge, but guarantees the full engagement of the devolved Administrations, outlines how relevant organisations, including employers’ organisations and trade unions, will be formally involved, and commits to interim arrangements that offer genuine certainty to businesses, consumers and workers alike.

It would be helpful if the noble Baroness and the Chief Whip could consider how future papers, such as these—indeed, perhaps these as well—will be treated. Where possible, it seems only right that Parliament be given an opportunity to debate their content, whether in response to a formal ministerial Statement or in a proper debate, as we do with EU Committee reports.

Your Lordships’ House is here to help. Debates on such issues will be an important contribution to the negotiations that Ministers will have, and I hope that the experience of this House will be welcomed. I hope that Ministers will accept that and choose to avail themselves of all the expertise and knowledge that Parliament has to offer.

UK and EU Relations

Baroness Smith of Basildon Excerpts

Tuesday 12th September 2017 Lords Chamber

[Baroness Ludford]

That is not for me to answer. As Michel Barnier has described it, this last position—the freedom for the UK to adopt its own standards and regulations but to have them automatically recognised by the EU—is “simply impossible”. He said,

“You cannot be outside the single market and shape its legal order”.


His position is surely correct.

I am afraid that the topic of citizens’ rights illustrates how the Government have squandered time, trust and goodwill. I do not have time to go into the detail, but the way in which the Government have let EU citizens down is a great shame, given that the original problem was a simple guarantee of rights.

We have rightly taken the Government to task in this debate for their lack of clarity and precision. However, may I also press the Opposition? I understood that the Labour Party was now committed to single market and customs union membership during the transitional period. However, the Motion cites “participation”, which is not so precise, while their leader, Jeremy Corbyn, has reverted to the manifesto language of mere “access”. I thought that was history.

[Baroness Smith of Basildon]

Come on.

[Baroness Ludford]

Perhaps the noble Baroness might be able to explain rather than heckle me. That would be helpful. I look forward to the responses from the noble Baroness and the Minister.