European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

I will make one final point on fantasies and hard realities. We are 11 months from the target date the Prime Minister set in her Munich speech to have a new set of arrangements in foreign policy and defence in place and ready to go into operation. Formal arrangements will have to be negotiated, agreed and ratified, including by this Parliament. Clearly, informal arrangements are totally inadequate. Is it still possible to manage this process and complete it in the time available, or is the fantasy of an agreement in this field and others, in sufficient detail to be agreed before the end of this year and then ratified before the end of March 2019 in time for a smooth transition to the implementation period, about to hit the hard reality that it cannot be done? I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, Amendment 29 is also in my name. I would like to say that I agree entirely with my noble friend Lord Wallace—and in many ways I do; I agree with the sentiment of everything he said—but I am a little puzzled. He is suggesting that there must be some document somewhere in Whitehall, that the Prime Minister has a plan, and that all we need is for her to give the Minister permission to tell us what is in that plan. I do not think that that plan exists. It might be nice to believe that there is a blueprint of a future EU-UK foreign and defence co-operation policy but I do not believe it yet exists.

When I was doing my homework for today, I was not rereading the collected speeches of the Prime Minister; I happened on the report of the European Parliament from last week. In one-minute summaries, each of the leaders of the groups in the European Parliament responded to the European Council meeting. Obviously, President Macron had also been present. One of the speakers was therefore the chairman of the European Conservatives and Reformists Group, the Conservative MEP Syed Kamall. He was talking so positively about the future and the existence of EU-UK security and defence co-operation that I thought he could almost be a Liberal Democrat.

I thought that I should perhaps make a note of what Dr Kamall had said, but I could not find a transcript, so I went a little bit further into the internet and discovered something that he had been writing on ConservativeHome. He was so positive about what the Prime Minister had achieved at the European summit meeting. He pointed out that she had pulled off a diplomatic coup by securing unprecedented support from EU leaders for her tough stance against Vladimir Putin. He noted that the Prime Minister had persuaded the Council to toughen up its summit conclusions. This extraordinary solidarity, he continued,

“sent a strong signal to Moscow and once again highlighted Britain’s influential role on the international stage. It has also brought into focus the importance of our post-Brexit security and defence relationship with the EU”.

Indeed it has, but the point is surely that the reason that the Prime Minister was able to pull off a diplomatic coup was that she was in the room.

As a member of the European Union, the United Kingdom has a seat at the table. The Prime Minister is present at every European Council meeting; the Foreign Secretary is present at every Foreign Affairs Council and we have people in the room every time there is a discussion about European foreign policy. However tight a relationship we seek to have when we have left the European Union, one fundamental change is inevitably going to have taken place: we will not have a seat at the table.

Therefore, while I completely agree with my noble friend Lord Wallace that we need to have clarity on what the Prime Minister is anticipating in relation to foreign and security co-operation once we leave the European Union, there is a more fundamental question: what arrangements are the Government making to strengthen our relationships with our bilateral partners—to strengthen relations with each of the member states—so that we will at least have a direct contact in each of the member states? If we do not have a seat at the table, we will have to put far more effort into our bilateral and multilateral diplomacy. So far, although the Foreign Secretary, when he gave evidence to the International Relations Committee, suggested that the Government had improved their representation in bilateral embassies, there is no clarity on what the Government are doing in hard, practical terms.

Finally, there is a second aspect to this. It is not just a question of what the Government want: it is a question of what the EU 27 are willing to concede. The House of Lords Library briefing on the proposed UK-EU security treaty points out that the European Council has stated that,

“the EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.

However, the briefing goes on to say that the European Commission has stated that,

“while the EU aims for a partnership with the UK on security and justice, the EU’s interests must be protected, a non-member state cannot have the same rights as a member state, there must be a balance of rights and obligations and the EU must continue to have autonomy in making decisions”.

That applies particularly to internal security, which we will be moving on to, but if you talk to the Norwegians, they will tell you that, however much they want to be associated with EU foreign policy, they do not have a seat at the table. They might be able to tag along when the EU has decided what it wants to do in relation to foreign policy, but the idea that they have an equal partnership is for the birds.

To get beyond fantasies, can the Minister tell us whether the Prime Minister has a plan? Is it hiding somewhere in Whitehall and is he going to be able to reveal it before Third Reading? It is not only on environmental policy that we need to have a sense of what the Government plan and what they are seeking. It is on that most fundamental aspect of the state: the defence of the realm. At the moment, although I believe that the Prime Minster wants to have a close relationship with the European Union in this area, we need to have some clarity on how she intends to get there.

[Lord Judd]

My Lords, I thank our noble friends on the Liberal Benches for having put this amendment forward. It seems self-evident in its logic. Indeed, not to respond to what it calls for would be to forgo the responsibility of government to put the defence and well-being of our people in Britain first and foremost. I have had posts in defence and in the Foreign Office and it seems inconceivable that in any significant conflict in which we would be involved we would not want to work with our allies and friends. It is much better to prepare for that and to have the arrangements in place to make sure that we make the best of it. This is not just a matter of fixing something when a crisis arises; it is a matter of having a culture of co-operation in which people feel they have a shared responsibility, that they want to develop that responsibility together, they understand each other and their training and organisation are geared to co-operation with others. From that standpoint, this is a wise amendment and I hope the Minister will respond positively.

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

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

[Baroness Smith of Newnham (LD)]

My Lords, I too have added my name to the amendment. It has been suggested that some amendments may be attempts to subvert the will of the people. For example, the noble Lord, Lord Forsyth, suggested that to discuss a customs union was somehow to go outside the purpose of the Bill. Amendment 8, however, speaks to the heart of the Bill, which, as I understand it, is intended to do two things. It will repeal the European Communities Act 1972, and it will ensure that on the day we leave, the United Kingdom has a full statute book and there is full regulatory alignment with the European Union.

There are clauses that deal with regulations, retained law and directives, and a clause to deal with regulations that currently have direct effect. But there is an anomaly in relation to directives that have been adopted but not yet implemented. There are two particularly important points in the title of the new clause in the amendment. The first is the fact that the directives have been adopted. In Committee, the noble Lord, Lord Pannick, suggested that things could change. But if the directives have been adopted they are already EU legislation—legislation in which the United Kingdom has participated. It seems somewhat strange that directives that we have been part of, and which we have implemented and enshrined in UK law, should continue to be part of our law, but that we are not transposing, nor looking for any way of transposing, other directives that we have agreed to, and which will be important as part of regulatory alignment when we leave.

The second important point in the title of the new clause is the idea that the directives will have been adopted before exit day. Exit day will, we believe, be 29 March 2019, unless subsequent amendments change it. We assume that there then will be a transition period to the end of 2020. During that time the United Kingdom will not be in the EU institutions and will not be party to any further directives. It therefore makes sense that we would not be party to directives adopted after exit date, during the transition period. For those that have already been adopted, however, there appears to be a period of limbo.

I would be grateful if the noble and learned Lord, Lord Keen, could explain how the Government intend to deal with these 23 directives. Are we simply saying that they do not matter—that somehow, directives agreed before the referendum are fine but we are not quite sure about those agreed later? What sort of certainty does that give to business? If the aim of the Bill is to give legal certainty, we have at least 23 directives, plus others that the noble Baroness, Lady McIntosh, mentioned, on which there is no certainty. This is an important amendment, and I shall be grateful if the Minister can explain what the Government plan to do with the directives to ensure that, on the day when we leave the European Union, there is certainty. Surely taking back control should include all areas from the point when we leave, following full regulatory alignment on exit day—and surely that needs to include these directives.

[Lord Wigley]

My Lords, I intervene briefly to support Amendment 8, moved by the noble Baroness, Lady McIntosh of Pickering, and supported by the noble Baroness, Lady Smith of Newnham, which also stands in my name. I spoke on this matter in Committee so I shall not repeat the points I made then. We were seeking greater clarity at that stage—and as far as I can see we still need that from the Minister—on the status of EU directives adopted but not implemented before exit day. I seek an assurance from the Minister that if an amendment of this kind is not accepted for inclusion in the Bill, the loose ends that will undoubtedly exist will be tied up by some other process later, whether in the implementation and withdrawal Bill or by some other device. Clearly some very valid issues have been raised by the noble Baroness, Lady McIntosh, and we need to be sure that they have been looked after in the legislative process.

--- Later in debate ---

[Lord Kirkhope of Harrogate (Con)]

My Lords, as one of the signatories to this amendment and, indeed, a signatory to the previous amendment in Committee, I want to make a very short intervention in support.

I realise that we must look at this in the context of the overall position of retained law, and I know that the Minister has written to us and that at a later stage on Report—on Amendment 26—he will deal with the general question of the status of retained law and will deal with subordinate legislation on Schedule 8. Like the Minister, for many years I was engaged in the process of drafting some of these things in Europe. These matters have been picked because they are particularly important within the context of the protection that has been afforded to them under European law until the point at which this country leaves the European Union. They are sensitive areas. The one that I feel most interested in is environmental standards and protection. It is important that they are given some separate consideration. I entirely agree with what the noble Baroness said because they are also politically sensitive to the extent that, without some form of protection, they are very much at risk. Indeed, I would go further and say that, without some of these protections, maintaining the same characteristics and having that protection in our negotiations on our future relationship with the European Union would be at a severe disadvantage were these matters to be threatened or to look as if they were about to be threatened. It is therefore all the more important that we have a special approach to them.

The last time we raised this matter, in Committee, I received a very interesting response, as we all did. It was essentially very legalistic and referred to issues of hybrid approaches and so on. I know hybrid is the in word at the moment in relation to other things, but so far as I can see, the Government have not come forward with any particular approach which would satisfy those of us who are concerned about these matters. I am therefore looking forward with great interest to hearing my noble friend’s response to see whether the Government will perhaps understand the concerns and react to them in a positive way.

[Baroness Smith of Newnham (LD)]

My Lords, I am one of the signatories to this amendment. As other noble Lords have said, it is about protection and future-proofing. I was initially going to say that the noble Baroness, Lady Hayter, had said it all and perhaps I did not need to rise, but I want to support the point that Amendment 11A from the noble Lord, Lord Low of Dalston, makes: that human rights protection is clearly also important.

I reassure the noble Baroness, Lady Oppenheim-Barnes, that this is not about saying EU legislation has to be enshrined in UK law in perpetuity entirely unchanged. The amendment says there are certain aspects of EU law that we believe are hugely important and it should not be possible simply to amend them by statutory instrument, nor for Ministers to engage in any sort of casuistry to change them. If Parliament wished to amend the legislation then it would be possible, but it would be subject to very strict guidance about the approach that it took. Surely the amendment would allow Parliament to take back control but also ensure that the protections we currently enjoy as part of the EU would be retained.

[Lord Cormack (Con)]

My Lords, all I would say is that the key words in this important amendment are simply “except by primary legislation”. That is why I am glad to support it, because it bolsters what the Prime Minister has already said and promised and it ensures that we cannot have, by sleight of hand, fundamental changes to things that concern so very many people.

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Lisvane]

My Lords, I must convey to the Committee the sincere apologies of my noble and learned friend Lord Judge, who has a long-standing and unbreakable engagement outside the House and who has asked me to move Amendment 153 on his behalf. I will also speak to Amendment 154 in my name.

Both the Constitution Committee, in its ninth report, and the Delegated Powers Committee, in its 12th report, expressed grave doubts about the breadth of the powers contained in Clause 9. They also suggest—as has been touched on by a number of noble Lords in the previous debate—that, as a further Bill is required by the amended Clause 9(1), Clause 9 as a whole is unnecessary, as any regulation-making powers can be included in the Bill that is now contemplated by Clause 9(1). That is a persuasive case, and perhaps it would indeed be better—despite what the Minister said in reply to the previous debate—if Clause 9 were in effect to be deferred to that later Bill.

However, whether it is here or whether it is there, the real mischief at the heart of Clause 9 needs to be cured. Clause 9(2) is a whacking great Henry VIII power, allowing Ministers to make in regulations any provision that could be made by an Act of Parliament—something of which my noble and learned friend Lord Judge has been such a trenchant critic. In a piece of legislative pulling oneself up by one’s own bootstraps, it would also allow Ministers to modify the Act which will result from this Bill itself.

The rather measured phrases—“make any provision” and “modifying”—should not mask the extent of the powers. Clause 9(2) would allow Ministers to make regulations that would amend or repeal any Act of Parliament whenever passed. And the power relating to the Act resulting from this Bill would allow Ministers to amend or even repeal it, setting at naught a number of weary hours that your Lordships have spent on this text.

The Delegated Powers Committee set out some ways in which Ministers would be empowered to use SIs, among other things to,

“alter the scope of ‘retained EU law’ so that … it includes EU legislation passed after exit day”,

to keep the supremacy of EU law for certain purposes, with the supervision of the ECJ, or to change the whole basis of the regulation-making powers elsewhere in the Bill so that “necessary or appropriate”—the subject of our argument last Wednesday—would become irrelevant, and the powers could be used for major policy change without restriction.

The Minister rightly said in reply to the previous debate that these powers would have to be used in the terms in which Clause 9 is framed, so they would be about provision relating to the withdrawal. Of course, a parliamentary vote on the withdrawal deal would, or could, in effect be a constraining factor. But the extent of that constraint is wholly dependent on another factor, which is how much detail is contained in whatever document or test becomes the subject of that meaningful vote.

The power could also be used to remove the Bill’s time limits on the regulation-making power, which at the moment provide at least some reassurance. As with other delegated powers, Ministers have sought to say as the noble Lord, Lord Callanan, did in reply to the previous debate. He gave a number of examples—not frightening or alarming ones—of the way in which the powers could be used. I do not for a moment question the good faith in which Ministers give us these examples, but once again one has to emphasise that what matters is what is in the Act. If current Ministers do not use those powers in the ways authorised by the Act, other Ministers may do so.

The Constitution Committee concluded that giving Ministers the powers in Clause 9(2) would require “the strongest of justifications”. The Delegated Powers Committee went further, calling the power, despite its exercise being subject to the affirmative procedure, “wholly unacceptable”.

I have never felt that Henry VIII is an entirely welcome dinner guest—if I may put it like that. But his presence can be made just about tolerable by observing what I would like to call the rule of the three “S”s. The first “S” is scope: the exercise of such a power must be subject to tight constraints. Merely what might be thought “appropriate”—we are back to that again—for the purposes of implementing the withdrawal agreement does not qualify. The second “S” is scrutiny. Even though the affirmative procedure will apply to Clause 9(2) regulations by virtue of paragraph 7(1) of Schedule 7, the opportunities for effective scrutiny are likely to be limited, and the luxury of time for that scrutiny is unlikely to be available. The third “S” to bear in mind when his majesty comes to dinner is sunset. It would generally be better if Henry VIII powers were not on the statute book, but if they are, they should not linger there. Clause 9 provides that,

“No regulations may be made under this section after exit day”.


But as Ministers would have the power to alter exit day, this does not really give the reassurance it suggests. In my submission, therefore, Clause 9 fails those three tests of scope, scrutiny and sunset. It needs major surgery. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.

We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.

There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.

I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:

“No regulations may be made under this section after exit day”.


However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?

At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.

[Lord Beith]

My Lords, I follow my noble friend on her specific point and reiterate the question. On the specific point, we are in even more of an Alice in Wonderland world than she and the noble Lord, Lord Lisvane, indicated because under subsection (2) it might be possible to make regulations that delete the provisions of Amendment 7—that is, to remove the words,

“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal”.

That might be something that was thought appropriate by Ministers because they felt they had to get on with something before Parliament had got to the stage of considering withdrawal. It is possible under this provision. It seems clear from all those who have looked carefully at it that the way Clause 9 is worded really needs drastic surgery, if I may use the words of the noble Lord, Lord Lisvane.

This brings me back to the question that I have tried, by brief intervention on two occasions so far, to get an answer to: why do the Government want to persist in including in the Bill the first half of Clause 9(1) and the remaining subsections? Following the inclusion of the Amendment 7 provisions, the proper place for whatever powers are needed for statutory instruments arising from the withdrawal agreement is the withdrawal agreement Bill. We would have plenty of time between now and then to make sure that they are expressed in terms not open to the abuses that several of us have pointed out. Why do the Government still want these words in the Bill?

European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, we are coming towards the end of a passionate two days of debate, during which the noble Lord, Lord Butler, suggested that Clause 1 struck a dagger to his soul. I have always thought that the soul is a little more intangible, so a dagger to my heart would be somewhere closer to what I feel—and where the noble Lord, Lord Liddle, started off this morning.

We have heard some hyperbole and passion on both sides of the Chamber. We heard the noble Viscount, Lord Ridley, and the noble Lords, Lord Dobbs and Lord Cavendish of Furness, suggest that somehow there may be Members of your Lordships’ House who are seeking to wreck the Bill or derail it, and who will cause untold damage to your Lordships’ House because we are not taking the 2016 vote or the elected Chamber seriously. With the possible exception of the noble Lord, Lord Adonis, who has obviously spoken for himself, I do not believe that anyone in your Lordships’ House is seeking to wreck this piece of legislation.

My noble friend Lord Newby in his opening speech yesterday pointed out that,

“we on these Benches have no intention of derailing it or unnecessarily spinning out debate”.—[Official Report, 30/1/18; col. 1382.]

The vote in 2016 was to leave the European Union. The EU (Notification of Withdrawal) Act triggered the legislation necessary for that. This piece of legislation is obviously required to ensure that on the day the United Kingdom leaves the European Union there is a full statute book in place. So far, so good, so necessary. But it is not necessarily a good piece of legislation, and we have heard from right across your Lordships’ House that perhaps amendment is necessary.

We also heard Members of your Lordships’ House talking about 1972 and voting passionately to join the Common Market. We heard one Member say that they were not quite old enough to vote in the 1975 referendum. I do not remember life before we joined the Common Market. Therefore I will look back not to 1972 or 1975 but just five short years—or at least I would have said they were short years, but the noble Lord, Lord Bridges of Headley, pointed out that Brexit years appear to be rather like dog years. In January 2013, the then Prime Minister gave his Bloomberg speech in which he promised reform, renegotiation and a referendum. Why? Was the country divided over Europe? Were people clamouring for a referendum? No. Most ordinary citizens were not saying that the European Union and membership of it were at the top of their list—but the Back-Bench Conservative MPs were. The Prime Minister was throwing a bone to his Back-Benchers; he played a gamble and he lost it. He offered a referendum and said that he would campaign heart and soul to remain—the soul comes in again—and, obviously, he lost that gamble.

After the Conservative Party won the election of 2015, perhaps unexpectedly, we ended up with a piece of legislation that allowed the referendum. Some Members of your Lordships’ House spent day after day, hour after hour debating the EU Referendum Bill—rather fewer than are here talking about the legislation that will ensure we have a full statute book on the day we leave the EU.

One of the things that those of us who were debating the EU Referendum Bill did was listen to the other side. Some of us spent so long listening to the leave side that we could have stood in for them in a debate and been able to rehearse all their arguments for them. Indeed, if the Prime Minister had listened to the leavers, he would have understood that a piece of propaganda—as the noble Lord, Lord Blencathra, called it—would have gone down extremely badly with the leave campaign and that an intervention from a foreign leader would have gone down really badly. But the former Prime Minister did not listen, and the cost of that was a failed referendum and the decision to leave the European Union.

So this piece of legislation is necessary, and no one is going to seek to avoid the legislation entirely—even if many of us hope that the will of the people could lead to an uprising to say, “Give us another referendum, let us free ourselves from Brexit”. In the absence of that, we need this piece of legislation—but it needs amending. It needs amending in terms of the powers of the devolved Administrations—the noble Baroness the Leader of the House said yesterday that power would be returned to London, Edinburgh, Cardiff and Belfast—but this piece of legislation does not do that.

If noble Lords think that this is merely a Liberal Democrat saying that, I suggest that they look at Hansard from last week’s debate in the name of the noble Lord, Lord McInnes of Kilwinning, about the role of devolved Administrations, in which the noble Lord, Lord Duncan, said that the legislation for Clause 11 needed amendment. Will the Minister tell us whether the Government will bring forward amendments in that area? If not, he can certainly expect several amendments to be brought forward—and the same is true of many aspects of the legislation.

In opening the debate a mere 36 hours ago, the noble Baroness the Leader of the House suggested that the Government were going to be in “listening mode”. The noble Lord, Lord Dykes, suggested earlier that the noble Lord, Lord Bates, had been one of the few Conservative Ministers who was popular. Could I suggest to the Minister that he and the Government Front Bench might court some popularity if they do as the noble Baroness the Leader of the House suggested and listen to members of your Lordships’ House, and to amendments brought forward in good faith, to ensure that the legislation is better and returns power to this sovereign Parliament instead of being an Executive power grab. There is an opportunity for us to make this legislation much better, and I hope that the Government will listen.

Brexit: Reports to Parliament

Baroness Smith of Newnham Excerpts

Monday 8th January 2018 Lords Chamber

[Lord Callanan]

My Lords, I am always suspicious of a question that starts off, “It has been widely reported”. The noble Lord will know that ministerial appointments are a matter for the Prime Minister; I am sure he will be the first to know if she decides to make such an appointment.

[Baroness Smith of Newnham (LD)]

My Lords, in light of the speculation about a “no deal” Minister, what calculation are the Government making about the likelihood of a no-deal scenario? Have they—in the form of any new Minister or the Secretary of State for DExEU—thought about writing a report on the impact of no deal; or is that just to be left to your Lordships’ excellent EU Select Committee?

[Lord Callanan]

I totally agree with the noble Baroness that the EU Select Committee is an excellent grouping. We report to it regularly and I am sure we will be doing so in future. There has been a wide range of discussions with all sorts of parties about what might happen. We already have a Minister in the department—Steve Baker—who is planning for a no-deal scenario, but we hope that will not be the case. We want a full, fruitful and special partnership with the EU and we are continuing negotiations to that effect.

EU Exit Negotiations

Baroness Smith of Newnham Excerpts

Monday 13th November 2017 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for repeating the Statement, and I give the warmest of welcomes to the announcement that the withdrawal agreement will now be implemented by means of primary legislation—something for which this House has long argued. However, there remain serious questions in regard to the withdrawal Bill and the current negotiations.

First, what on earth is this gimmick of an amendment to fix, down to the exact minute, the timing of our departure from the EU? Is it a panic measure for the Prime Minister to reassure doubters in her own party that she can deliver a workable Brexit—a response perhaps to the Johnson/Gove letter—rather than a serious piece of British legislation or diplomatic sensitivity, or was she jinxed by the speech of the noble Lord, Lord Kerr, or is it to undermine the opposition amendment that it should be Parliament, not a Minister, that decides the exit date?

Certainly, the government amendment would have Parliament fix the date, but it would decide it now, well before the withdrawal deal is complete, with imperfect knowledge of what will be needed by way of preparation or even whether a more suitable date, such as 5 April—the traditional start of our tax year—is available and with no thought to what might be happening at the time. It does not allow for an earlier date, nor does it give any room for manoeuvre for, for example, another foot and mouth crisis, a general election or some other national issue, let alone any decision by the 27 to extend the talks by a few days if they thought that we were on the edge of a breakthrough.

More seriously, it cuts across the Prime Minister’s Florence speech, which envisaged that should there be a “heads of agreement” on our future relationship with the EU by March 2019, we could contribute to the EU budget for a period, during which we would abide by existing EU processes, including of course the ECJ for some matters. However, Clause 6, with the Government’s new amendment, would disallow this from 11 o’clock on 29 March 2019. Will the Minister agree that it is for Parliament nearer the time to fix the date, not the Prime Minister or even Parliament now, regardless of the interests of business, consumers, the pound or any other contemporary event?

Secondly, on what basis are the Government negotiating if they are blind to the costs and benefits of each option? We thought they had done their homework but we are told now that perhaps those 58 impact assessments do not exist—they certainly have not been read by all the Ministers. Without these, on what basis are the Government taking decisions about this country’s future?

Thirdly, will the Minister say whether the Government will heed the excellent advice of his predecessor but one, the noble Lord, Lord Bridges? He has called for “honesty and clarity” and that,

“Ministers should stop pretending an implementation period will begin at the end of March 2019”.

Perhaps I should let the noble Lord, Lord Bridges, speak for himself, but it is too tempting to read out his words. He reminded the Government that implementation implies a treaty, well beyond the withdrawal deal, which will take years to negotiate and requires consent around the 27 parliaments. He urged the Government to clarify what they want to do with this supposed new-found freedom and to put some urgency—that is the word he used—into negotiations on the future framework.

Finally, on Northern Ireland, I wonder if the Government are regretting their “rash and reckless” ruling out of continued membership of the customs union. Even as the Government accept the introduction of a UK-EU border, albeit as “seamless and frictionless” as possible, they must realise that achieving this outside the customs union is a serious challenge. Had the Prime Minister not ruled out membership of the customs union, albeit from outside the European Union, then the apparently intractable conundrum in Northern Ireland might have been avoided, without David Davis having to reassert in this Statement his understandable rejection of a “new border” within the United Kingdom.

This week saw the commemoration of 11 November, a World War I date but, for my generation, with World War II resonance, and a reminder of all that the EU has done to end conflict in western Europe. We also commemorated the 9 November 1989 fall of the Berlin Wall and everything that the EU did to bed-in democracies in former Soviet territories, as earlier it had done with the former dictatorships in Spain, Greece and Portugal. I therefore ask the Minister how much the UK’s continued and future role in such developments will be ensured after Brexit, and how much this part of diplomacy features in Ministers’ thinking as they negotiate our future relationship with continental Europe.

[Baroness Smith of Newnham (LD)]

My Lords, I am grateful to the Minister for repeating the Secretary of State’s Statement to the other place.

The Secretary of State seems to suggest that there has been a lot of activity and progress in recent weeks. That seems to be rather at odds with everything we have been hearing from Monsieur Barnier and the EU 27. One wonders who has been misled or has misunderstood what has happened in the past few weeks. The Secretary of State suggested that there has been a narrowing to only a few aspects of the remaining issues, which he then goes on to talk about: the budget and what the United Kingdom will have to pay as the divorce settlement; the rights of EU citizens; and the question of Ireland and Northern Ireland. Those are the same three issues that we have been looking at ever since the decision to leave the European Union was taken in June of last year. The idea that there has been a narrowing in these areas is interesting, but it is not yet clear what is really meant. In particular, in the context of the budget, we have heard frequently that the clock is ticking. However, while the clock is ticking, the value of sterling is falling—and every time sterling falls, the amount of money that the United Kingdom will owe in euros rises.

Instability in the Government is hugely damaging to the United Kingdom’s negotiations. What is the Prime Minister doing to ensure that her Government become more stable and secure and give a clearer sense to the 27 that they know what they are doing and that they have the same clarity of purpose as the 27? The Secretary of State suggested that it is important that both sides have confidence in the process and the shared outcome. However, the 27 have a clarity of purpose—we know what they are looking for—but do they know what the United Kingdom is looking for? It is not yet clear that they do.

The United Kingdom has been given two weeks to sort out our budget offer. What plans have Her Majesty’s Government put in place to ensure a solution so that, by December, progress can be made in phase 2? At present we have heard nothing at all from the Secretary of State. Is the Chancellor of the Exchequer in the loop? Is his input being asked for, or is the “flexible and constructive” approach that the Secretary of State is looking for required only of the Prime Minister, with the back-seat drivers of Gove and Johnson telling her what she should say or think?

As the noble Baroness, Lady Hayter, suggested, some thought is being given to putting 29 March 2019 in the Bill. Is that perhaps to do with the Brexiteers trying to pull the Prime Minister’s strings? Putting the date in the Bill is surely one of the worst things the Government could do. It would tie the Prime Minister’s hands and we should not support it.

In June, when we had the unnecessary general election that was supposed to be a Brexit election, the idea was that we would have a strong and stable Government leading the negotiations. How fanciful that now seems. Can the Minister assure us that the Prime Minister, the Secretary of State and the whole Cabinet are united in pushing, with one voice, for the best outcome for the United Kingdom? Do they have clarity of purpose? In getting the best deal for the United Kingdom, can they reassure in particular the citizens of Northern Ireland that the deal will be for the whole of the United Kingdom, and that our kingdom will remain united? It is not the European Commission that is jeopardising the integrity of the United Kingdom but Her Majesty’s Government’s unwillingness to have an agreement that will allow Ireland to remain without a closed border.

It is hugely important that the future relationship is clarified. That can be done only if Her Majesty’s Government have their own view of what that relationship should be. Can the Minister tell the House what the Government’s view is? Is there any clarity of purpose?

Finally, on citizens’ rights, many of us will welcome the idea that Her Majesty’s Government would like EU citizens to be able to vote in local elections. However, the Secretary of State points out that this is one of the rights of EU citizens that is enshrined in the treaties. Yes, it is—many of us passionately believe that we wanted to keep, still want to keep and do not want to throw away the rights of EU citizens. Does David Davis agree with us? Is he reluctant to see British citizens lose their citizenship rights? Would he prefer that the United Kingdom should remain part of the EU treaties? Have we made a huge mistake? Should we retain citizens’ rights by simply not leaving the European Union?

[Lord Callanan]

I thank the noble Baronesses, Lady Hayter and Lady Smith, for their questions. I will deal with them all in turn. Both noble Baronesses asked me about the amendment on the date, tabled in another place. The amendment was in response to amendments tabled by Members of the House of Commons—led by a Labour Member of Parliament, I think—saying that the Government should clarify the exact leaving date. That date was triggered also by the submission of the Article 50 notification letter—approved by both Houses—and will be two years from then. The noble Baroness, Lady Smith, is very keen to abide by EU treaties; as she well knows, the two-year date is set down in them, unless it is extended by the unanimous vote of the other 27 EU members. We are leaving the EU on 29 March 2019, implementing the result of the referendum that was also approved in both Houses.

We recognise the need for specific solutions to the unique circumstances of Northern Ireland and we have made good progress in the negotiations. We have proposed that the UK and EU seek to agree text for the withdrawal agreement that recognises the ongoing status of the common travel area and associated reciprocal arrangements. We have developed joint principles on this, and are drafting joint principles and commitments that will guide the solutions drawn up in the second phase. Both sides agree that the Good Friday agreement on citizenship rights must be upheld, and we are committed to working together on how that is best codified.

The noble Baroness, Lady Smith, asked me a number of questions. We have a good record: we have compromised in all the areas that the EU has thought to negotiate on. Now it is about time we saw some compromise from the EU side. We have compromised on both our budget offer and citizens’ rights. It would be nice to see some support from the parties opposite for the UK position. In terms of the budget, billions of pounds of taxpayers’ money are involved. Are the Opposition saying that we should just hand over a cheque and agree to whatever the European Commission demands? Of course we have to negotiate. The Prime Minister made a very generous offer in her Florence speech, involving considerable amounts of money. Now it is for the EU side to reciprocate with a budget offer of its own. We are very clear that, in all these areas, as set down in the EU negotiations, nothing is agreed until everything is agreed. These areas cannot all be sorted until there is a final agreement on the shape of the agreement and future customs arrangements, which will also help to enlighten our discussion on the border in Northern Ireland.

UK and EU Relations

Baroness Smith of Newnham Excerpts

Tuesday 12th September 2017 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I rise feeling a sense of déjà vu. Two years ago, after the 2015 general election, when it became clear that there was to be a referendum on the UK’s membership of the European Union—which now sounds a very long time ago indeed—there was a discussion about what the Prime Minister really wanted. There was frustration in Brussels: “We don’t know what the Prime Minister wants”. Members of your Lordships’ House, particularly on the Labour Benches, were saying, “We don’t know what Cameron is asking for”.

It was actually quite straightforward what was being asked for in the renegotiation. The then Prime Minister had made clear in the Bloomberg speech what he was looking for. It was repeated in the 2015 Conservative Party manifesto. There was a broad sense of what was being asked for. To some extent, I feel the same today. There is a lot of shadow boxing going on, not just in your Lordships’ House—where I would never suggest there is shadow boxing going on—but in Brussels and in the negotiations so far.

So far, we have had six months of not very much negotiation happening. The noble Baroness, Lady Smith of Basildon, suggested in her opening remarks that there is not enough progress. We are in a period when, if we were joining the European Union, we would be going through something called screening. I think that is what the European Commission calls it. In that very preliminary process, the European Commission explains what it is looking for and what it expects of would-be member states, outlines the process and explains what needs to happen. With departure, surely we would expect something similar. We need, on both sides, to identify what it is that we are leaving and how we are to go about it. Accession negotiations take many years because there is so much detail associated with membership of the European Union, so at this stage perhaps we should not expect a huge amount of progress in the negotiations, if that means David Davis can come back and say, “I have agreed X, Y and Z”.

Last week, the noble Baroness, Lady Anelay, who has just returned to her place, said that nobody had talked numbers yet in discussions about the budget. They have not discussed numbers precisely because at this stage we are looking at what is at stake and what are the lines in the EU treaties that we need to think about to get to the point of looking at numbers. The fact that we have not made major progress in the negotiations yet, particularly before the German elections, is perhaps not that surprising. But with the position papers and the future relationship papers, there seems to be something akin to what we were saying about the then Prime Minister, David Cameron. What is in these papers? What are we expecting? When he made his Bloomberg speech, it seemed quite clear. A year later, when he spoke to Chatham House, he said almost exactly the same things as he said at Bloomberg, but rather less eloquently. With the position papers that we are getting at the moment, there is a sense that we are hearing the same points rehearsed again and again.

The current Prime Minister, Theresa May, in her Lancaster House speech in January, may have been clear about what sort of relationship—a deep one—we should be having with the European Union. But the position papers do not seem to have got us very much further. I confess that I have not yet read them all in detail. Some of them do not take very long and will not have much detail. But what seems to come across in all the position papers bar one is that the United Kingdom wants to keep as close a relationship as possible with every aspect of the European Union that we are leaving, with one exception: the European Court of Justice. After listening to the noble Lord, Lord Adonis, this afternoon when he talked about the customs union, saying, “Actually, why don’t we just stay in?”, I have got to the point of thinking, on almost every one of the position papers, that the conclusion seems that the best response is: why do we not just stay in? Clearly, however, the one difference is the European Court of Justice.

The noble Lord, Lord Hannay, suggested earlier that the paper looking at the European Court of Justice was rather academic. I slightly take exception to that because he was rather critical, thinking it was not a very good paper. But there is a sense in which all these papers are superficial. They are words almost without meaning, and they do not take us very far forward. Last week, the noble Baroness, Lady Anelay, was able to explain what has happened in the budget negotiation so far. Can she explain how much further detailed work has taken place? In the covering pages, we have a suggestion that extensive work has been done in the past year. So far, the position papers do not show us that. Greater elaboration would be most welcome.

Brexit: Impact on Young People

Baroness Smith of Newnham Excerpts

Monday 11th September 2017 Lords Chamber

[Baroness Anelay of St Johns]

My Lords, regarding debt, I assume that my noble friend is not harking back to the previous Question but looking forward to the negotiations on the liabilities the EU owes to this country—and we recognise there will be duties that we owe to the EU, whether they be based in law or indeed morally. A lot of thought has been given to this issue and I have answered questions on it recently. About 10 days ago, the UK negotiators gave a three-and-a-half hour presentation to the EU negotiators, examining each and every part of the directives and treaties the EU put forward as a list of references, without explaining their application to the UK’s liability. So we are deeply involved in examining wherein lay the duties, each way, to each other.

[Baroness Smith of Newnham (LD)]

My Lords, the European Social Fund gives adults opportunities to learn—often, people who are less likely to go into further or higher education or benefit from the Erasmus scheme. Does the Minister agree that the Government’s proposed shared prosperity fund should be used to replace money such as the European Social Fund to ensure that such opportunities for learning will continue?

[Baroness Anelay of St Johns]

The noble Baroness makes an important and interesting point, and I shall certainly take it back. We need to look over the whole range of activity which encompasses youth training and learning. As the noble Baroness was speaking, I was reminded of the youth mobility scheme, which allows young people aged 18 to 30 from participating countries and territories to learn how to live and work in other societies.

Brexit: Negotiations

Baroness Smith of Newnham Excerpts

Thursday 7th September 2017 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, like other Members, I thank the noble Lord, Lord Dykes, for tabling this Question for Short Debate and for opening it in such a lively and engaging way. It may have been slightly more hyperbolic and with rather more adjectives than some Members would use, but there was a very clear sense of the passion with which he wanted to make his case.

It is commonplace to say that this is a timely debate. In some ways this week feels the least timely time to have this debate, because after months of famine, when we have had no reporting and there has been no opportunity to scrutinise, we have had a Statement from the Secretary of State finally reporting back on rounds two and three of the negotiations—kindly repeated by the noble Baroness, Lady Anelay—and a whole set of position papers. All of a sudden there seems to be a little bit of activity and a debate next week on the position papers. But then we have another recess and finally only in October do we begin to get down to the serious business of scrutinising what is going on.

The referendum was in June last year; it will be more than 15 months since the referendum before Parliament can properly scrutinise what the Government are doing. It will be more than six months since the Prime Minister triggered Article 50. She then held an unnecessary general election. When the election was called, I asked the then Minister of State, the noble Lord, Lord Bridges, what the Government had done to work out how much time had been lost for parliamentary engagement on Brexit thanks to the election. Needless to say, there was no answer. I suspect that the Prime Minister had not been thinking about that when she triggered the election.

Come October it will be six months since the other place has had any Select Committees. In July the Labour Party nominated members for various committees. The Conservative Party voted only this week. As of last night, the Brexit committee still had not had its membership confirmed. Six months after the triggering of Article 50 there has been no opportunity for the House of Commons to do any proper scrutiny work in committee. Even if the Secretary of State did not have other activities in Edinburgh—perhaps he was going to see Nicola Sturgeon at the same time; maybe he was doing his duty and talking to the devolved Administrations—a key role in Parliament, as the noble Lord, Lord Jay, pointed out, is that of committees. Clearly, your Lordships’ House’s EU Select Committee is crucial, but the Commons committees matter as well. They had all begun to work on particular reports before the election; all that work is gone.

The Secretary of State has said he wants to report back as soon as possible after the negotiations have happened and yet, so far, he has reported back only once, despite the options to come during the Recess, as we have heard from my noble friend Lord Teverson and the noble Lord, Lord Jay of Ewelme. The Government have suggested that they wanted to update Parliament and there will be ample opportunity for both Houses to debate the key issues arising from Brexit.

The White Paper also said Parliament has a “critical role” to play in the process of leaving the European Union. At times it feels that Her Majesty’s Government, and in particular the Prime Minister, do not believe that Parliament should have a critical role at all—critical either in being important or ever challenging anything the Government say. The role of scrutiny, and of Parliament, is surely to hold the Government to account, to ask questions and to raise issues, in order that we can make the right decisions and help the Government make the right decision. Whatever one thinks about the result of last year’s referendum, it is surely part of giving control back to Parliament that Parliament scrutinises the Government. The idea that, somehow, anybody challenging the Government and wanting to amend legislation is going against the will of the people is surely a fundamental misunderstanding of democracy.

Update on the Progress of EU Exit Negotiations

Baroness Smith of Newnham Excerpts

Tuesday 5th September 2017 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, the Minister said, in reading out the Statement from the Secretary of State, that,

“we have been clear that the UK and the EU will have financial obligations to each other that will survive our exit from the EU. In July the Commission set out the EU position. We have a duty to our taxpayers to interrogate that position rigorously. That is what we did, line by line”.

The Minister suggested that the European Commission had not brought forward any numbers. What on earth has been discussed line by line? Is this all fantasy?

[Baroness Anelay of St Johns]

The noble Baroness is of course right to pursue the matter of what has been discussed. There was an over three-hour presentation by the UK technical group challenging line by line the treaty basis—the various regulations and directives, all of which were listed in the paper to which Monsieur Barnier referred in last week’s press conference, at which I believe I heard him say that the Commission had a link to the legal bases for all on that list. In fact that was not quite accurate; there are two entries in the published list where there is no reference. That is what we are testing; the Commission goes and looks at the exact wording of the treaty, but what we are saying is that one needs to look also at how that is applied to people as well. Still, we are also challenging the legal basis itself.