European Union (Withdrawal Agreement) Bill

Earl of Kinnoull Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.

As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.

Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.

Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.

Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.

Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.

The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that

“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]

Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.

[The Earl of Kinnoull (Non-Afl)]

My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:

“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”

It runs through that procedure and says, in paragraph 10:

“The European Parliament shall be immediately and fully informed at all stages of the procedure.”


That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:

“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.


That is at paragraph 23. It goes on:

“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”

--- Later in debate ---

[Lord Callanan]

The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.

[The Earl of Kinnoull]

I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.

[Lord Callanan]

I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.

I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.

I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.

We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.

European Union (Withdrawal Agreement) Bill

Earl of Kinnoull Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[The Earl of Kinnoull (Non-Afl)]

My Lords, annexed to the EU Committee’s report of last Friday is the letter that the committee sent to the Leader of House on 4 November last year, setting out our questions about the Bill’s provisions on parliamentary oversight. I draw the House’s attention to the Government’s response to that letter of last Friday afternoon, 10 January, for which I thank the noble Lord, Lord Callanan.

I want to make just two points concerning Parliament’s role, first, in overseeing the withdrawal agreement’s implementation and, secondly, in scrutinising the next round of negotiations. The Bill leaves much to be desired both areas.

I turn to the Joint Committee that will oversee the implementation of the agreement post Brexit. There will be much for the Joint Committee to do, particularly on Northern Ireland, where the revised protocol is little more than a sketch plan. I note particularly, as did the noble Baroness, Lady Hayter, that the Joint Committee can amend the withdrawal agreement itself. The Bill, however, provides no mechanism for parliamentary oversight of the Joint Committee. There is no statutory requirement to publish decisions, documents or agendas, to report back to the House, or anything else.

Our letter to the Leader last November urged the Government

“to bring forward amendments to provide for appropriate parliamentary oversight and scrutiny of the Joint Committee”.

No such amendments have been forthcoming. In his letter to me of last Friday, the noble Lord, Lord Callanan, said that Clause 34, which requires a Minister to co-chair the Joint Committee, was intended to enhance parliamentary oversight. He continued by saying that

“members from both Houses will be able to hold Ministers to account for actions taken at the Joint Committee. In due course, we would be keen to explore with individual members or committees how we can further strengthen ministerial accountability.”

I confess that I do not quite understand that logic. Ministers are anyway accountable to Parliament, including for the actions of civil servants. It is difficult to see how Clause 34 addresses the issue that we have raised, to which I am sure we shall return in later stages of the Bill. In any event, I ask the Minister whether he will agree to meet me shortly, as part of his exploration of strengthening ministerial accountability.

I turn to parliamentary oversight of the negotiations on the future UK-EU relationship. Clause 31 of the October 2019 text of the Bill provided for this. A resolution of the Commons—and a debate in the Lords —would have been required to approve the negotiating mandate and the final treaty. In between there would have been quarterly reports on progress. Clause 31 has disappeared from the new Bill. There is now no formal mechanism ensuring parliamentary oversight of the future relationship negotiations. There is still the Constitutional Reform and Governance Act, but that is a weak power at the end of the matter only, which can anyway be set aside by a Minister. Accordingly, the Bill means that there would be no legal barrier to the Government negotiating and ratifying the future UK-EU relationship treaty without any parliamentary involvement, other than in passing any implementing legislation.

It is worth contrasting that with the position in the EU. Negotiations under an Article 218 legal base require extensive consultation with the European Parliament and, potentially, its consent. Thus, there will be close parliamentary oversight on the EU side but, as things stand, next to nothing on the UK side. In summer 2016, the then Secretary of State, David Davis, commenting on whether the UK Parliament would enjoy parity with the European Parliament during the withdrawal negotiations, said:

“We will certainly match and, hopefully, improve on what the European Parliament sees.”


In the light of that, why was Clause 31 of the October 2019 Bill removed?

In his letter to me of last Friday, the noble Lord, Lord Callanan, said:

“The Government will however take its obligations to Parliament seriously. We look forward to discussing this role, and the role of Parliament more generally, with both Houses during passage of the Bill.”


I anticipate that this House will spend much time during the passage of the Bill on parliamentary oversight of the future relationship negotiations. If the Government are not willing to move on these issues, we will find that in leaving the EU, and losing the oversight powers of our MEPs and the EU Committees of both Houses, we will have weakened, not strengthened, transparency and accountability where international agreements are concerned, to the long-term detriment of our democracy.

I hope that the Government will hear and respond to these concerns. The best time to make concessions is when one enjoys a position of strength.

Brexit: Movement of Goods between Northern Ireland and Great Britain

Earl of Kinnoull Excerpts

Thursday 24th October 2019 Lords Chamber

[Lord Callanan]

The noble Lord speaks with great authority on these points. We accept that we have compromised with the European Union to get a deal. We think that these arrangements will be acceptable. The consent mechanism is built into them, by which, after four years, elected representatives in Northern Ireland will be able to decide whether they continue. During the implementation period, we want to work with the EU and the Government of Ireland to make sure that this new procedure works as satisfactorily and smoothly as possible.

[The Earl of Kinnoull (Non-Afl)]

My Lords, the European Union Select Committee held a public evidence session on Monday and the Secretary of State gave evidence. He was asked during that session whether Northern Ireland businesses sending goods to Great Britain would have to complete export declarations. In answer he said:

“Just to be clear, the exit summary declarations will be required in terms of Northern Ireland to Great Britain”.


My question to the Minister has a yes or no answer: does he stand by the words of the Secretary of State?

Brexit

Earl of Kinnoull Excerpts

Saturday 19th October 2019 Lords Chamber

[The Earl of Kinnoull (Non-Afl)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Ludford, whose insight has been informed by her time as a distinguished MEP.

Last year, the draft text of the then withdrawal agreement appeared on 14 November, the finalised text appeared on 26 November, the debate in the House of Commons began on 4 December and our own debate on 5 December. The European Union Committee report on that agreement and the political declaration appeared on 4 December as well, in order to inform debate. The new Northern Ireland protocol is a particularly long and complex document and the political declaration, although shorter, is full of subtleties. I, like the noble Lord, Lord Newby, with only a non-sitting Friday to analyse these documents, strongly regret that the House of Commons is being asked to agree them without the scrutiny committees having any opportunity to inform their decision.

The new withdrawal agreement is 536 pages long and consists of six parts in the main body, three protocols, including the Northern Ireland protocol, and nine annexes. The only bit of the withdrawal agreement that has changed is the Northern Ireland protocol, with a couple of very small conforming changes in the main body of the agreement. Accordingly, I would commend our report of last December on the withdrawal agreement. In it, we described the joint committee as,

“a uniquely powerful and influential body”.

It has, for instance, the power to amend the withdrawal agreement itself in certain ways and, most especially, it also has the power to extend the transition period. Our conclusion about the power was that,

“this is a widely drawn power, and is not subject to clear scrutiny procedures or parliamentary oversight”.

We also felt that the joint committee was not transparent. The rules governing the joint committee are governed by Annexe VIII of the withdrawal agreement—an annex that of course has not changed. In commenting on the rules, we said last year that:

“The relevant rules suggest that meetings would be confidential, decisions might not be published, and even summary minutes might not be made publicly available”.


This lack of scrutiny in the withdrawal agreement is clearly deeply unsatisfactory. I ask the Minister, when he gets up—I realise that this was partly addressed in what the Leader of the House said at the start but, I felt, not strongly enough—to confirm that the Government intend to engage with Parliament on how scrutiny over the joint committee will work and, in particular, how Parliament will exercise control over extensions to the transition period.

This is of course not the only scrutiny that is important. Switching to the Beyond Brexit report that we delivered in March this year—a report which, I regret, has still had no government response—the committee unsurprisingly concluded that it was equally important to have strong scrutiny of the negotiations of the future relationship discussions for the UK and European Union. Indeed, in the joint statement of 11 March, which supplemented the then political declaration, there was specific reference to the “appropriate involvement of parliaments”. Can the Minister give us further comfort and confirm that this is still the Government’s position and they will engage with Parliament?

In closing, I submit that the lack of engagement by the Government of Parliament has been a root cause of the problems of the process to date. We must not compound that error going forward.

Queen’s Speech

Earl of Kinnoull Excerpts

Wednesday 16th October 2019 Lords Chamber

[The Earl of Kinnoull (Non-Afl)]

My Lords, it is a pleasure to follow a fellow Scot, the noble Lord, Lord Campbell of Pittenweem, who spoke with his usual authority on these matters. I apologise for the fact that you are hearing from me today; yesterday there was a direct clash with the European Union Committee—an important meeting with our sister committee from the Swiss Parliament. I am grateful to the Whips’ Office for enabling me to swap the time.

It was a great comfort to hear, in the second sentence of the gracious Speech, that the Government intend to work towards a new partnership with the European Union, and referred to “friendly co-operation”. That was important, because it was the theme that underpinned the Beyond Brexit report of the European Union Committee in March. I will return to that.

Other good news came in the speech by the noble Lord, Lord Ahmad, when he referred to the fact that 1,000 new diplomats were being “minted”, of which 500 would work in Europe. As he said that, I was thinking of the empty-chair policy: the policy, starting on 20 August, of non-attendance at EU meetings. The system is that the Government look at the agenda for a forthcoming meeting and decide whether it is in the national interest to attend. If they decide not to attend, they give any vote that comes up to Finland, as the rotating president. The net effect is that we now attend about a third of EU meetings.

I and the committee feel that this is badly wrong, for three reasons. First, it is not liked by our partners in the European Union. It is disrespectful to their institutions and is not in accord with the idea of moving towards a partnership with the European Union, or with friendly co-operation.

As I pointed out before, to create a deep and meaningful relationship one does not start with an empty chair.

Moving on to my second complaint, it is not clear that this test creates predictability about the UK’s appearances, either for us as parliamentarians, or for our EU partners. An agenda, after all, does not necessarily —in my long experience of meetings—reflect the eventual content of that meeting: meetings tend to wander around. Matters of national interest may well be discussed that were not on the agenda.

Given this lack of clarity, the whole thing is difficult to scrutinise. That brings me to my third point, which in many ways is the most important: the interaction of this policy with the scrutiny reserve resolutions made by both Houses in 2010. Not turning up to meetings to do with the 200 or so files that are held under scrutiny reserve by the EU Select Committee would be in neither the spirit nor the letter of the resolution. Certainly, handing our vote to Finland is not within the spirit or words of those resolutions. We are, in any case, undertaking a terrier-like correspondence, and the Minister has agreed to see me next week—I think—on this point.

There is one bit of good news: yesterday we heard from the noble Lord, Lord Ahmad, that we had turned up to the General Affairs Council this month. Last month we did not, and 16 Foreign Ministers from other countries looked at an empty chair—Britain’s—alongside those deputy Ministers who had turned up. It would help the House if the Minister gave a quick update on the empty-chair policy, given the huge number of extra diplomats and that we are now turning up to the General Affairs Council.

I turn to our Beyond Brexit report, which was published on 25 March and is about how Britain conducts itself with the EU after the Brexit process has taken place. Since 25 March, we have had no response from the Government; indeed, the only thing that looked even vaguely like a response was read out in this Room by Her Majesty on Monday. When might we expect a response to Beyond Brexit, as it is a most important report? It may not have the answers, but it raises a lot of the issues that this House will be very interested to grapple with. It contains 60 pages of meat. The logic that it lays out applies equally in any Brexit deal and it also applies in a no-deal Brexit. I do not want to go through the whole report, but there were three general areas in it, and I thought that I might reflect briefly on each of them.

First, the formal structures perceived within the withdrawal agreement have on top a joint committee, which has hanging off it various specialised committees, or sub-committees, which deal with certain subject areas, including citizens’ rights, Northern Ireland, the sovereign base in Cyprus, and Gibraltar. At the Swiss meeting—it was a private meeting, so I am constricted in what I can say about it—it was interesting to hear that they run their affairs with the European Union via a joint committee. They have no deal, as it were, for it. The joint committee has stood the test of time and has been pretty active. We had an interesting exchange of views and were given quite a few useful tips about how one might run a structure like that—we intend to carry on our discussions with the Swiss as well.

We concluded that the joint committee conceived under the draft withdrawal agreement was a bit too powerful. It has the power, for instance—albeit slightly limited—to change the withdrawal agreement. We felt that it was not very transparent and would be hard to scrutinise. Unfortunately, in the absence of a government response, we have no answer to any of those questions and we are not able to make progress on these issues and raise the concerns here in the House.

The middle section of the report concerned the less formal structures; for instance, the EU agencies and the EU programmes. These are referred to in the political declaration, but with vastly different levels of detail. We name a few EU agencies that we are interested in joining; where the programmes are concerned, none of them is named and there is a just a sentence or two of warm words. Equally, the security partnership is laid out in considerable detail within the political declaration. On all those things we need a lot more detail; they are all matters we raise in the Beyond Brexit report and ask for comment on. We are still waiting, seven months later, for that comment to arrive.

I want to raise two other little questions relating to the less formal structures. On one, it appears there is an answer, but we have not been given it. We said that UKRep—now to be called, I gather, “UKMiss”—needed a lot a more resource. We heard from the noble Lord, Lord Ahmad, yesterday that a lot more resource is being pumped into Europe. I recently visited UKRep in Brussels and I think that the extra number of posts there was around 40, so that resource is being given. It is an easy answer to give to us formally: that UKRep is getting more resource to be able to cope with the increased work it will be asked to do.

The other thing—as a Scot, I feel strongly about this— is the recommendation that the devolved Administrations be heavily involved in matters of importance to them. Again, we need to hear back on that. At this very difficult time, certainly in Scotland at the moment, a clear statement about that would be most valuable, particularly in my area, Perthshire.

The final section of the report deals with inter-parliamentary relations and the scrutiny role of Parliament. There are two things to be scrutinised: the new governance structure for the relationship between the EU and the UK and the mechanisms for that, on which we made a whole set of recommendations; and the dialogue regarding the negotiations that will take place—over what I suspect will be many years—on the future relationship, on which we also made recommendations, but we have no answers. Parliament itself will need to do a lot more work. The European Union Committee is very lucky, in that we are invited to many inter-parliamentary meetings at the moment. That will no longer automatically happen, so we will have to work harder to maintain the relationships with the various parliaments. In addition, the European Parliament itself will undoubtedly set up one of its formal structures. It has under its rules of procedure a formal way of dealing with third countries. Forty-four third countries have a formal committee facing them, and we will be the 45th.

In closing, I return to the words of the gracious Speech:

“to work towards a new partnership with the European Union”,

and the “friendly co-operation” that it envisages. I urge the Government to engage with the Beyond Brexit report, as these are issues that the Government and Parliament need to work together on. Although today the press and media are occupied exclusively with the period up to Brexit, planning for beyond has never been more vital.

Brexit

Earl of Kinnoull Excerpts

Wednesday 2nd October 2019 Lords Chamber

[The Earl of Kinnoull (Non-Afl)]

My Lords, it is a great pleasure to follow the noble Baroness, who spoke with her customary zeal and energy. Before I make my brief remarks, I want to note how busy the EU Committee structure is. The family of committees is meeting and the great machinery that is scrutiny has restarted and continues apace. The 43rd of our Brexit reports is in its final stages of preparation. The 16th of our Treaty reports will be out next week. I pay tribute to our 26 staff.

I wanted to use my time on one issue of great concern to me and the EU Committee. Indeed, at our meeting yesterday the majority of our time was taken up with it. I speak of the new policy on UK participation in EU meetings—the empty chair policy. On 20 August the UK wrote to the EU Council and said that going forward, UK Ministers and officials would participate in EU meetings only where,

“the UK has significant national interests involved”.

Some guidance was given in the letter about what that might mean, and later in the letter the position of our vote was discussed. I quote from the letter again:

“Where necessary therefore, the UK will make appropriate arrangements regarding its vote”.


This was subsequently clarified as meaning delegating the UK’s vote to Finland, which currently holds the rotating EU presidency. The committee understands that UK officials and Ministers now attend about one-third of EU meetings.

On that stark set of facts, I have three points to make. The first is one of perception: our partners take this badly. I have spent a number of days in Europe talking to partners since I became chairman. The Government have often said that we would take a full part in the affairs of the EU until we left. On 16 September the General Affairs Council of the EU met—the EU format that would have expected to welcome our Foreign Secretary. Sixteen Foreign Secretaries from other nations were present; the other countries sent either their Deputy Foreign Secretaries or their permanent representatives. Our chair was empty. As one senior European put it to me, “I don’t see how one develops a deep and meaningful relationship by being absent”.

Their bafflement is all the greater as there is a far from zero chance, given the provisions of the Benn Act, that we will continue our membership beyond 31 October. Even if we do leave on that date, the next step will undoubtedly be to seek to open fresh negotiations. What sort of preparation is it for those negotiations for the UK to sign out of discussions on the entire range of EU legislation? Our UKRep team—recently beefed up—is hugely experienced and able to deputise for Ministers where necessary.

The second problem is that there is insufficient clarity about which meetings we will attend. The EU Committee in a letter of 4 September asked for more detail on this. The Minister answered very quickly on 9 September—I thank him for that speed—but I regret that his answer had the effect of reducing clarity. The test is now only,

“what the Government considers to be in the national interest”.

It was also noted that:

“Attendance will be decided on a case by case basis”.


That lack of clarity is bad for our EU 27 friends and partners and for Parliament in our scrutiny work. Our correspondence on this matter continues.

The third problem is one of accountability. The scrutiny reserve resolution of March 2010 sets out the Government’s commitments on how scrutiny operates and how Ministers will vote on matters that are still the subject of scrutiny. Some 200 files are currently under scrutiny by the EU Committee, which is very clear that it expects the Government to continue to attend any and all meetings that relate to files held under scrutiny. We are not imagining that scrutiny will continue unchanged after Brexit day. It is clear that on that day the scrutiny reserve will fall and that our internal processes will change fundamentally. However, we had a clear understanding with the previous Government that until exit day the existing scrutiny processes would continue and the Government would give the committee their full support. Can the Minister confirm that that is still the case?

In his letter of 9 September, the Minister made reference to delegating the UK’s vote to the presidency country, Finland. Can he further confirm that the Government share my understanding that any vote cast by the presidency on behalf of UK will engage the terms of the scrutiny reserve?

I am pressing the Minister on those points in part because of an alarming letter that we recently received from the Department for Business, Energy and Industrial Strategy concerning our scrutiny of a draft regulation for the single market programme. It is quite an important regulation. The letter asks us to clear this matter from scrutiny on the basis that:

“HMG officials will no longer attend the working party responsible for drafting the Regulation for the Single Market Programme. Consequently, the Government will not be able to provide a meaningful update to the Committees”.


It continues:

“As UK ministers and officials will have no further role in shaping the Regulation ... I am writing to formally request that”,


it,

“be cleared from scrutiny”.

The empty-chair policy is being used, it would appear, to try to circumvent the scrutiny of both Houses on matters of direct and, in all probability, continuing interest to the UK and UK businesses.

In our democracy a major and core ingredient is respect for institutions. Indeed, we now know that this respect is a matter not just of convention but of law—Lady Hale has told us. The empty-chair policy raises questions over the Government’s respect for this House, for the scrutiny reserve and for our ongoing relationship with the EU institutions. I suspect that we will hear more about this today, and I look forward to the Minister’s reply.

Brexit: Withdrawal Agreement Scrutiny

Earl of Kinnoull Excerpts

Wednesday 31st October 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, does the Minister agree that a more collaborative approach—we wrote to the Secretary of State on 23 October with a reasonable and short list of information that we needed to help us prepare a timely report for this House—would help the Government promote an atmosphere that would allow a greater percentage probability of them getting the meaningful vote through this House?

[Lord Callanan]

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

Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Earl of Kinnoull Excerpts

Wednesday 17th October 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Bilimoria, who has made a typically ebullient and thought-provoking contribution. I remind the House that I am a member of the European Union Select Committee and the Justice Sub-Committee that wrote this report.

I begin by adding my tribute to our staff. The EU Committee staff have worked consistently at an increased load level for more than two years, and the staff on the Justice Sub-Committee are especially hard worked, because they are the legal resource for the main Select Committee and every other sub-committee as well. We have now published 36 unanimous Brexit reports and the very high quality has been maintained. In my view, this report is no exception.

I also add my warm congratulations to our wonderful chair, the noble Baroness, Lady Kennedy of The Shaws, on her excellent and very clear speech. It is a very wide-ranging report and it takes some skill to summarise it in a very pleasing and quite short address. I will confine myself to underlining three areas on which I would ask the Minister for an update.

My first concern, shared by other noble Lords have, is on disputes between the EU and the UK arising out of the withdrawal agreement. This was an area that took up quite a bit of time during our inquiry and we devoted the whole of chapter 3 of our report to it. Our report was published on 3 May and the British position at that stage was substantially that of the August 2017 future partnership paper Enforcement and Dispute Resolution. In paragraph 121 of the report we stated:

“We are unconvinced by the Government’s suggestion that all disputes relating to the withdrawal agreement can simply be settled politically by the joint committee”.


The Government’s response on 5 July was not that helpful and ended on this issue by saying:

“We recognise that there needs to be a clear mechanism for governing and enforcing our withdrawal agreement with the EU—as there is in any international agreement—and we will continue to engage constructively on this in the negotiations”.


On 12 July, just a week later, the Government published their White Paper, which, for the first time, saw a limited role for the CJEU, as described by noble Lords. Essentially, it was advancing the same structure that we felt in these circumstances was simply not robust enough. In any event, more than three months have gone by since the Government’s response. Accordingly, I and many other noble Lords would be very grateful if the Minister updated us on the vital issue of disputes between the EU and the UK arising out of the withdrawal agreement.

My second concern is slightly smaller; it is about the pipeline of cases and claims that arise during the intermediate period. The draft withdrawal agreement foresees, as we stated in paragraph 132 of our report that,

“the UK would continue to be subject to the jurisdiction of the CJEU for the duration of the transition period”.

We were concerned by the open-ended nature of the withdrawal agreement drafting and paragraph 147 concluded:

“It is important that this continued jurisdiction of the CJEU should only be for a reasonable, time limited, period: we urge the Government to ensure that there is a longstop for any claims that arise during the transition, so that cases relating to acts occurring during transition cannot be brought indefinitely”.


The 5 July government response on this issue ended encouragingly. It said:

“We expect to reach agreement in negotiations soon on this remaining issue”.


We are three and a half months further on, so could the Minister update us?

My final area of concern is mutual recognition of judgments and civil justice co-operation. In many ways this is the most important area; naturally, it is incredibly important for individuals and businesses throughout the European Union today. A particular issue that we looked at was family law. We have the benefit on our committee of much direct experience and expertise. I am looking at the noble Baroness, Lady Shackleton, who is extremely interesting on this point. I am sure many other noble Lords are hoping, as I am, that she might rise in the gap and talk briefly about family law provisions.

I cannot emphasise enough how strongly every member of our committee feels that this area must be addressed successfully. It would be a major failure on the part of all sides if politics got in the way of preserving things of such great value to our fellow citizens. The Government published their framework proposal on this area on 13 June and presented it to the EU negotiating team. The 19-slide pack contains just one slide summarising what the Government are seeking. It is very clear but, naturally, it is at a very high level and contains no real detail. Very slightly more detail is contained in the 12 July White Paper, which states:

“The UK is therefore keen to explore a new bilateral agreement with the EU, which would cover a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law, and recognition and enforcement of judgments in civil, commercial, insolvency and family matters”.


It also states:

“The UK will therefore seek to participate in the Lugano Convention after exit”.


The Lugano convention would certainly, in my view and I think in that of the whole committee, form part of the “coherent package of rules” mentioned in the White Paper, but importantly our accession to it would need the consent not just of the EU but of Switzerland, Norway and Iceland. Accordingly, making progress on acceding to it is a separate strand of work that is urgent. On 17 July, Lucy Frazer QC MP, Parliamentary Under-Secretary of State at the Ministry of Justice, told us in evidence:

“We have made it very clear in our White Paper that we want to re-join Lugano. It is no secret and we are taking steps to ensure that that happens”.


I therefore close by asking the Minister to update us on progress in the area of mutual recognition of judgments and civil justice co-operation, and in particular on what steps the Government have taken since 17 July on acceding to the Lugano convention.

Brexit: UK-EU Relations (EUC Report)

Earl of Kinnoull Excerpts

Monday 2nd July 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, what a pleasure it is to follow the noble Lord, Lord Monks, and his incisive wit, as we heard in a very clear speech. I declare my interests as set out in the register of the House, in particular as a member of the EU Select Committee and, for reasons that will become clear later in my remarks, in respect of the insurance industry as well. I congratulate our chairman, the noble Lord, Lord Boswell, who has overseen the production of more than 30 reports, all unanimous, since the referendum. He continues to keep our spirits high in these very busy times. He made a very powerful speech, which I hope will be widely read in many countries. I should mention that we are very lucky to have 24 dedicated and immensely skilled staff, led by our principal clerk, Chris Johnson, who is deputising as clerk this evening as well, and our committee clerk, Stuart Stoner, who I see is also with us. I pay very warm tribute to them all.

I shall make just three points this evening, and in one context. My context is simple. The lives of 500 million people will be affected by what is agreed between the parties in this negotiation. Damage inflicted by one party on another will inevitably be reciprocated somehow or other, as indeed we are about to discover in the seemingly forthcoming world trade rumpus. Those who are party to the negotiations must therefore have regard to what works for all 500 million and not just their 65 million or their 440 million. As we said in our summary,

“this means using the language of partnership, and accepting that compromises will be necessary”.

Indeed, many others have alluded to that. As the noble Lord, Lord Jay, alluded to, and I say again, the UK and the rest of Europe are historically, geographically, economically and culturally intertwined. We are each other’s ultimate repeat order customers and agreement reached must not leave a bad taste for one or other party. I note that in commercial life I have never known an act of generosity go unrewarded and I very much hope that the negotiating teams have had that experience to guide them.

My three points concern the EU agencies for security and, curiously, reinsurance. Turning to the EU agencies, I note that there are 37 of these today, 36 of which the UK is a member of. At the time of writing our report there was considerable confusion as to what exactly we had asked for and what the responses had been. The European Maritime Safety Agency has Iceland and Norway as full members. The European Aviation Safety Agency has Iceland, Norway, Liechtenstein and Switzerland as full members. Looked at through the lens of the interests of 500 million people, should the UK not be a member of at least these two agencies? Have we asked to be members of these agencies? What response have we had from the EU negotiators? Similar cases can be made for a large number of other agencies. I very much hope that the White Paper will be clear about our ask where agencies are concerned. In that, I very much echo the noble Lord, Lord Whitty.

Turning to security, I was alarmed and hugely disappointed to read the front page of the Times on Friday 29 June, which suggested that EU negotiators will not allow the UK access to three vital systems; presumably there will be a similar lack of access to UK databases with this type of information on them for EU countries. The EU negotiators are citing legal framework problems. The three systems are the Schengen Information System, which shares information on criminals, missing persons and persons under surveillance; the European Criminal Records Information System, which allows police from one country to check if a suspect has committed a crime in another; and Prüm, the new EU-wide DNA database. Again, looked at through the lens of the 500 million and in a world of heightened terror problems, is it not crystal clear that a different approach is urgently needed?

It is not as though the EU has not found a way in the past. In 2017 two British MEPs, Labour’s David Martin and Alyn Smith of the SNP, published a European Parliament report called Variable Geometry Within the EU, which explains in 31 clear pages all the many ways in which the EU has flexed itself to cater for oddities. I dare say that in each case the EU as a whole was satisfied that the accommodations were in the interests of all concerned. This approach is needed again here. Therefore, I ask the Minister to confirm that we are seeking mutual access to these three information systems and—not that I do not believe the front page of the Times—what the current EU negotiation stance is.

My final point concerns non-life reinsurance. Insurance allows the western world to function. Every aspect of personal or commercial life is the subject of the pooling of risk that is insurance. Under Solvency II, the EU led the world in creating the modern way of regulating insurers, a key strand of which is determining how much capital they require to trade. Insurers’ capital is made up of permanent capital—shareholders’ equity—and temporary capital that they source from reinsurers as reinsurance. In the EU the temporary capital counts only if it is from an EU reinsurer or one based in an equivalent jurisdiction.

The largest reinsurance market in the world is in Bermuda and it is thus not surprising that it was granted equivalence for the start of Solvency II. Not to have done so would have hugely damaged the insurance industry throughout the EU. EU insurers in the aggregate would have been far short of the required capital under Solvency II, and whatever corrective strategy they chose to take would have caused problems for large numbers of personal and commercial clients. The second largest reinsurance market is London. The same considerations apply. Again, looked at through the lens of the 500 million, the granting of equivalence where reinsurance is concerned would seem very much in everybody’s interests. Can the Minister confirm that the equivalence position is being talked about and tell us the EU negotiators’ current position?

In closing, I note that the common theme that runs through our report is the need for a collaborative approach and a can-do attitude. The report calls it,

“the language of partnership, and accepting that compromises will be necessary”—

the lens of the 500 million people. That is a challenge that those who gather at Chequers later this week have the opportunity to take up. I very much hope that they do.

European Union (Withdrawal) Bill

Earl of Kinnoull Excerpts

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

[Baroness Neville-Rolfe (Con)]

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

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

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

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

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

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

[The Earl of Kinnoull (CB)]

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

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

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

[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.