European Union (Withdrawal) Bill

Lord Adonis Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

I am seeking reassurance that either we will confirm today what our future relationship with the EEA will be, and whether we will remain members of it, or whether we intend to adopt the instruments that have currently been adopted through our existing membership of the EEA and through the EU, with other EFTA countries. Perhaps the most difficult unresolved issue of leaving the customs union is, as I have already identified and set out in speaking to the amendment, the fact that we will not be in the customs union—as the Government have clearly stated that we shall take back control of our customs borders—and that will intrinsically lead to potential disputes with our existing European partners and other third countries, of which we will be one. Can the Minister tell us, in replying to the debate, precisely what dispute resolution mechanism the Government have in mind in these circumstances?

[Lord Adonis (Lab)]

The noble Baroness is herself a distinguished lawyer, and she has raised one of the critical issues that we shall have to address in our debates: whether our membership of the European Economic Area automatically lapses by virtue of our leaving the European Union, or whether leaving it would require a separate Act on our part. As she said, she was a Member of the European Parliament for many years, and has practised law in Brussels, so will she give the Committee the benefit of her advice on whether she believes that our EEA membership will lapse automatically on leaving the EU or whether it would require a separate and explicit Act of Parliament, and therefore a vote in Parliament, to leave it?

[Baroness McIntosh of Pickering]

I am grateful to the noble Lord, but he places too great an emphasis on my legal abilities. I prefaced my remarks by saying that I am not an EU practising lawyer—although we do have a number of EU practising lawyers in this place. I would argue that no, our membership of the EEA will not explicitly lapse when we leave the European Union. This is a conundrum in which we find ourselves—or it could be the saving of us.

--- Later in debate ---

[Lord Lamont of Lerwick]

I would like to finish a sentence without being interrupted. The EU negotiates free trade agreements but does not take into account what Turkey wants, and Turkey has no say. I will give way one last time; then I will make one other point about the single market; and then, the House will be relieved to know, I shall shut up.

[Lord Adonis]

The noble Lord referred to Turkey twice. On the first occasion when he referred to Turkey he said that there were all kinds of disadvantages in its customs arrangements with the EU from being in the customs union but not being free to strike trade deals beyond that. Why therefore does he think that Turkey has willingly and freely stayed a member of the customs union?

[Lord Lamont of Lerwick]

As the noble Lord knows very well, Turkey aspires—that aspiration may now be fading—to join the European Union, so being in the customs union was for many a halfway house to joining the EU, just as for noble Lords who tabled this amendment it is a halfway house to rejoining the EU. That is what their amendment is really about.

Lastly and briefly on the single market, the noble Lord, Lord Newby, was exhorting us all to go to the Treasury, look at the papers, draw the curtains and see the forecasts that have been made. Of course those documents should be taken into account, but there are many other studies made outside Whitehall that take a very different view. I refer him to the research by the academic Michael Burrage, who was at the LSE and at Harvard. He has done an in-depth analysis, which is published on the Civitas website, of the effect of the single market on the British economy and British exports. He has come to the conclusion that there is no correlation between the single market and the growth of trade between the UK and the EU.

Furthermore, he has pointed out something that people have acknowledged in these debates before—namely, that many non-members of the single market, countries outside the continent of Europe, have increased their exports to the single market much faster than Britain has increased its exports to the single market. So the idea that this great liberalising force has had a huge impact on the British economy is absolutely not proven. I make these points simply because the debate so far has been very unbalanced and, as my noble friend Lord Hailsham said, we ought to be considering, in a sober, balanced way, what is in the interests of our own economy now that the decision has irrevocably been made.

--- Later in debate ---

[Lord Robathan]

Of course it was put together by civil servants. I have worked with civil servants and I rate them: let me say now that I think they are good people working to the best of their ability in the service of this country. But that does not mean that they are always right. I am a bit worried that, by the time I get round to going to look at this document, it might have been flushed down the sewer.

I turn briefly to Northern Ireland. I see at least one Peer here with much greater knowledge on this than me, but when I worked in the NIO four years ago, we had a lot of issues around the smuggling of cattle and diesel across the border. There are customs officials on the Irish border, as noble Lords should know, but animals were smuggled back and forth because of the various subsidies, and diesel was smuggled, particularly from the south, because the duties were different. So let us not say that everything is perfect now, because it ain’t. I believe it is not beyond the wit of man that we can come to some decent arrangement with the Irish Government and use that border.

Lastly—

[Lord Adonis]

Will the noble Lord give way?

[Lord Robathan]

Of course; how could I resist?

[Lord Adonis]

Will the noble Lord tell us whether he agrees with those Conservatives who, in the past week, have said that it would be a good idea to end the Good Friday agreement?

[Lord Robathan]

That is slightly off the current debate, but no, I do not. I think that the Good Friday agreement has achieved a great deal. However, as in all agreements, sometimes things have to move on—not be changed necessarily, but move on. The reason for those people saying that there should be an end to the Northern Ireland agreement is the failure to get together a devolved Government; it was nothing to do with Brexit.

--- Later in debate ---

[Lord Adonis]

What would the noble Lord like to move on to?

[Lord Robathan]

This is nothing to do with what we are speaking about. I am not sure whether the noble Lord, Lord Hain, was involved with the Northern Ireland agreement, but some people in this House were, and a great deal of time was taken to get it together. But as life changes, so sometimes we need to adjust or amend things. I think that that is what the noble Lord is trying to do today.

My last point is on the national interest, which has been mentioned. I find it quite embarrassing and demeaning when it is suggested that those of us who believe that our national interest is better outside the European Union are in some way unpatriotic. I say, “I’m all right Jack”: I voted for the future of my country, not for my own future. I voted in the national interest and I hope that everybody in this House can agree that the national interest is what we should all be talking about.

--- Later in debate ---

[Lord Taylor of Holbeach (Con)]

My Lords, I wonder whether it might not be an idea to hear from the Minister at this stage. I have been watching the debate and it is clear that we are covering a lot of ground that we will cover in Committee. We are in Committee now and not at Second Reading. It would be appropriate if we heard from the Minister.

[Lord Adonis]

My Lords, I do not think that the noble Lord should intervene to cut short this debate. There are many amendments that have not yet been spoken to and my noble friend on the Front Bench has not had a chance to speak. Many other noble Lords seek to speak, too. The Minister should speak at the end of the debate after noble Lords who wish to speak have had a chance to do so. These are the most important issues that will face this country over the next generation and I do not think that we should be told by the Government Chief Whip that we have been speaking for too long.

[Baroness Kramer]

My Lords, I shall speak to Amendment 89 to which I had the privilege of adding my name. I want to draw the House’s attention to that amendment because it addresses a constitutional issue. We are back to the issue of Henry VIII powers. This is to prevent the Government using Henry VIII powers in statutory instruments in order to drive through a separation from the customs union and from the single market rather than bringing those issues directly to this House for its decision. That is exceedingly important.

In supporting that argument, I want to underscore the importance of the customs union and the single market in response to the arguments put forward by the noble Lord, Lord Lamont. He said that without the customs union we can achieve what we need through a free trade agreement. What he did not say is that free trade agreements do not include services—or do so only at the margin. Our economy is an 80% service economy and a free trade agreement along the pattern and lines of other free trade agreements across the globe would leave us without the ability to sell our services freely as we do today across the European Union. Now the single market in services is not yet complete, but it is fairly close to completion and there is a great deal of opportunity.

The Government turn and occasionally say that there will be a mechanism to do this called mutual recognition. But within this House there are Members who will remember in the early days of Thatcher the development of the single market. This country thought that the route to be able to open up the single market and access across Europe was mutual recognition. But it was not effective, which explains the move towards regulation and harmonisation that currently overwhelmingly underpin our trade with the EU.

The EU has been very clear that it cannot see a way forward along the lines of mutual recognition except in fairly narrow terms. We have an example that the Government often cite with Switzerland where there is in effect mutual recognition through an equivalency agreement. But in December, when that agreement needed to be extended to provide for MiFID II, the EU would agree only to a one-year arrangement because it needed to be underpinned by a great extension of institutional arrangements to deal with disputes and a whole range of other issues.

--- Later in debate ---

[Baroness Altmann]

The industrial success of the British economy is based on the integrated supply chains. The jobs in Sunderland and across the automobile industry, as an example, and the biotech industry and pharma industry depend upon those integrations. The foreign companies that own those operations will be unable to compete if we do not have the same kind of access that we have now.

The Government’s evidence, which is being hidden from the public, shows that Brexit will be a huge cost, the size of which depends on the hardness of the Brexit. I urge colleagues on these Benches and across the House to wake up to the reality that we face and to at least support these amendments to stay in the customs union, the single market, the EEA or equivalent.

[Lord Adonis]

My Lords, I have three amendments in this group, Amendments 4, 152 and 225, but I broadly support all the other amendments that have been discussed.

The most disturbing and alarming thing that has happened in respect of the Brexit process in the recent past has been the collapse of the power-sharing talks in Northern Ireland last week and the response of the DUP leadership and some prominent members of the Conservative Party, including a Conservative former Northern Ireland Secretary, since that collapse, who have said that they believe that the time may have come to end the Northern Ireland agreement, including a tweet from the said former Northern Ireland Secretary, Owen Paterson, saying that he thought that the Northern Ireland agreement had now served its purpose. I do not think I have heard more irresponsible words from a former Cabinet Minister in the recent past than those. As the noble Lord, Lord Patten, said, I do not think it is a coincidence that the people who are calling for an end to the Northern Ireland agreements, with all the potentially calamitous consequences for the people of Northern Ireland as well as the rest of us in the United Kingdom, are also almost to a man and woman ardent Brexiteers.

I know that the Prime Minister shares our concern, because in the Florence speech she said that,

“we and the EU have committed to protecting the Belfast Agreement and the Common Travel Area and, looking ahead, we have both stated explicitly that we will not accept any … infrastructure at the border. We owe it to the people of Northern Ireland—and indeed to everyone on the island of Ireland—to see through these commitments”.

I believe that we too in this House owe it to the people of Northern Ireland to see through those commitments. When I heard Mr Daniel Hannan say that he believed that the Good Friday agreement was a consequence and not a cause of peace in Northern Ireland, I could not think of any statement that is playing with fire more dangerously from a responsible official. He is a Member of the European Parliament.

[Lord Judd (Lab)]

Would my noble friend not agree that perhaps the most irresponsible aspect of the remarks that have been made in this debate on Ireland is that painstaking work has gone on for a number of years now in building trust between two communities, with those communities beginning to establish a tradition of working together?

[Lord Adonis]

My Lords, I could not agree more with my noble friend, nor with all those other noble Lords who have responsibility for Northern Ireland, or have held it in the past, including the noble Lord, Lord Patten, my noble friends Lord Hain and Lady Kennedy, and the noble Lord, Lord Carlile, not least in his role as reviewer of terrorism legislation. Everyone who has been engaged in this sees the continuing value of the Northern Ireland agreement. It is a solemn undertaking on the part of the United Kingdom. It is an international treaty. Playing fast and loose with peace in Northern Ireland in the cause of Brexit is utterly reprehensible.

We are looking forward to the Minister’s reply. I know that he has a mountain of amendments to reply to, but I am afraid that is the fault of the people whose responsibility it is to group them, who seem to want to group almost everything in the Bill into one group. I hope that when he replies he will begin by saying from the Dispatch Box that the Government remain committed to the Good Friday agreement, that they wish to see the restoration of devolved government in Northern Ireland, and that the Government will use every endeavour to do that and to ensure, as the Prime Minister also said in solemn undertakings at the end of last year, that all of the commitments that the Government of the United Kingdom reach in respect of Brexit will fully honour the Good Friday agreement. I take the amendments that we will discuss later, which my noble friend Lord Hain and others have tabled, which would enshrine a commitment to abide by the Good Friday agreement in the text of the Bill, to be immensely important to our consideration of the Bill, particularly in the light of comments made in the last week.

My amendments focus on two particular areas where I seek the Minister’s guidance, because we have many long debates to come, and we need to establish a good evidence base as we do so. I take to heart the words of the Minister for Exiting the European Union, Mr Baker, when the House of Commons was considering the Bill—I was glad to see him at the Bar earlier—and he said:

“The Government have always been clear that the purpose of the European Union (Withdrawal) Bill is to ensure that the UK exits the EU with certainty, continuity and control”.—[Official Report, Commons, 14/11/17; col. 206.]


We can have certainty, continuity and control only if we know what will happen as a consequence of enacting the Bill.

Therefore, there are two areas that I particularly wish to probe the Minister on. The first is the extremely important issue raised by the noble Baroness, Lady McIntosh, about the status of the European Economic Area and our membership of it. There is a debate that will range far and wide across our consideration of this Bill and future Bills as to what is the right status for the United Kingdom if and when we leave the European Union: whether we should be in the EEA, or in the customs union but not the single market, or in the single market but not the customs union; whether we should have bespoke trade arrangements, or whether we should belong to a customs union but not the customs union. The Schleswig-Holstein question was positively simple in comparison with the options and complexity of the options on offer but for our role as legislators, it is crucial that we understand the consequences of decisions that we take in respect of the Bill when we enact it. In many crucial areas—having read, as many other noble Lords will have done, all the debates in the House of Commons on the Bill—it is still unclear what will be the legal position in key respects after the enactment of the Bill.

The issue raised by the noble Baroness, Lady McIntosh, is of acute concern in this respect. The question that I hope the Minister will address himself to is: what is the procedure under which the United Kingdom will leave the European Economic Area if and when we leave the European Union? The noble Lord, Lord Owen, who I am sorry to say is not in his place this afternoon, has written, with help from serious lawyers—including, I think, one or two in this House—a very long and learned paper on precisely this issue. It says that there are two very different views as to what the position is, partly because the EEA agreement is itself ambiguous about the nature of the relationship between the European Union and the European Economic Area.

The European Union is itself a contracting party to the EEA agreement and on one reading—I am now going into areas where, seeing so many lawyers around me, I am waiting for them to leap in at any moment, but the definitive view from the Government is going to be important here—it is therefore not possible for those states which leave the European Union to remain a party to the EEA agreement. On another reading of the treaty, Her Majesty the Queen is the signatory to the treaty independently of the United Kingdom’s membership of the European Union, and we would therefore continue to be members of the EEA when we leave the European Union. As a layman in these matters, this looks to me to be an issue of huge consequence. When and if we leave the European Union on 29 March next year, do we or do we not continue as a member of the EEA simply by virtue of leaving the European Union? If we do not leave the EEA, what is the procedure under which we do leave the EEA? Does it require a vote, does it require legislation, or are the Government proposing that it should be done by the royal prerogative? These are big issues and I hope the Minister can address himself to them, because they will have a significant bearing on amendments we raise later in Committee and on Report.

The second issue concerning withdrawal from the European Union, which is what the half of the Bill that we are substantially debating at the moment is about, is whether it is necessary to withdraw from the entirety of the European Communities Act 1972, or whether it is in fact legally possible—or what would be the consequences of deciding—to withdraw from some parts but not from others. This is an issue of such importance because of the customs arrangements enshrined in Part 2, Section 5 of the 1972 Act, which sets out all the arrangements under which the United Kingdom agrees to abide by customs rules set by the European Union. That is, as I read it, a large part but not the entirety of our membership of the customs union.

The question that was raised in the House of Commons but not properly debated, and that looks to me to be of significance to our debates going forward, is about not disapplying the customs clauses of the 1972 Act— Part 2, Section 5, and the appropriate schedules. If they remained in force and we repealed the rest of the Act but not those—by virtue of that fact, subject of course to an agreement with the European Union itself, we would remain in the customs union. Again, in terms of the legal means by which we might secure the objective which many noble Lords wish to see, continuing membership of the customs union and single market, that is a point of great significance.

Finally, in terms of the objectives we are seeking to achieve, in her Lancaster House speech, the second of the two significant speeches she has given on government policy in respect of Brexit, the Prime Minister, addressing our European partners, said:

“The decision to leave the EU represents no desire to become more distant to you, our friends and neighbours … We do not want to turn the clock back to the days when Europe was less peaceful, less secure and less able to trade freely”.


In my view it is impossible to see how we can have a Europe which maintains peace unless we start with peace within our own borders, which must mean peace guaranteed in Northern Ireland, hence the centrality of the Good Friday agreement to our consideration of the Bill. When it comes to,

“less able to trade freely”,

I take that to mean not entering into any trade arrangements which are less advantageous for this country and involve any more border controls than currently apply. I look forward to the Minister explaining to the Committee how leaving the customs union and the single market can make it easier for us to trade than the extremely advantageous arrangement we currently have as a member of the European Union.

[Baroness Ludford (LD)]

My Lords, I cannot match the dazzling intellectual exposition of the noble Lord, Lord Adonis, but I completely endorse his remarks on the Good Friday agreement. We need to stay in the single market and the customs union and to preserve the integrated economy and the peace and political enjoyment of the Good Friday agreement is one of the best arguments for doing so. I shall speak to Amendment 203 in my name and those of the noble Lord, Lord Adonis, and my noble friend Lady Smith of Newnham, who sadly feels that there is not time for her to speak. I shall also speak more generally on this group and second the remarks of noble friends who have spoken on it.

Amendment 203 requires a specific parliamentary vote on whether to leave the EEA. This would perhaps both remove any legal doubt about whether the Article 50 notification made that decision—I will slightly sidestep that issue—and be an explicit political decision in itself. Therefore I advocate the merits of Amendment 203.

We are in the dark about the future. The Cabinet is meeting again tomorrow at Chequers and we are all very hopeful that some white smoke will emerge from that meeting. As many noble Lords have said this afternoon, the implications of leaving the single market and the customs union are serious. Indeed, it has been described by my former noble friend Lord Carlile of Berriew as a “suicide note”—hence the need to have a specific vote on whether to leave the EEA, which would be a safeguard, at least against sudden death.

We learn from the Financial Times, in advance of having anything explained to us in the open by the Government, that the buzzword for the trade relationship that the Government will be aiming for is “managed divergence”. Apparently:

“Under this approach, economic activity between the UK and the EU would be divided into three baskets: complete alignment, where the UK would follow EU rules”—


presumably to at least encompass the famous paragraph 49 of the phase 1 agreement—

“‘managed mutual recognition’, where both would agree to common objectives but each would choose its own rules; and a third basket where the UK can abandon EU regulations and do whatever it wants”.

That sounds incredibly complicated for citizens and business, as against the simplicity of full membership of the single market and the customs union. This commentator says:

“The beauty of this approach is that it unites the cabinet”.


This is possibly because it has three variations. However, it does not have one single theme.

Of course, we have heard all variants, not least this past week. We had the speech from the Foreign Secretary and the letter from the European Research Group—I am not sure that it does a lot of research but it writes a lot of letters. It wants “full regulatory autonomy”. I hope that I will not embarrass the Minister if I quote him when he was in the European Parliament. He said in 2012:

“Surely one of the best ways for the EU to speed up growth is to scrap the employment and social affairs directorate in the Commission, repatriate its responsibilities to national governments, then we could scrap the working time directive, the agency workers’ directive, the pregnant workers’ directive, and all of the other barriers to actually employing people if we really want to create jobs in Europe”.


We will discuss on other days the maintenance of employment and other rights, but it is illustrative of the problem that we have that there is such an array of opinion within the Government. The advantage of having a parliamentary vote in the context of the implementation of the withdrawal agreement would be that it would allow Parliament to have the backstop of saying, “Actually, we want to stay in the EEA”.

--- Later in debate ---

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

My Lords, it is a great honour to contribute to the first day in Committee on this historic Bill. Let me say at the outset that I look forward to working constructively with colleagues from across the Chamber throughout the course of Committee to scrutinise and improve this vital Bill in the national interest.

Clause 1 is the shortest of all in the Bill—you would not believe it from the debate—but it could scarcely be more important. This debate has shown the House at its passionate best, but it was not really about Clause 1 at all. I think all noble Lords recognise that, when we leave the EU, we need to repeal the European Communities Act. So we have had a fascinating debate on the UK’s potential ongoing membership of or future relationship with the single market, the customs union, the EEA and EFTA. These are of course issues of profound importance and I understand that noble Lords have strong views on them, but everybody really knows that they are not matters which the Bill is designed to address.

However, I will happily rehearse the Government’s position once again. What this Government seek is a bold and ambitious economic partnership that is of greater scope and ambition than any such existing agreement. We have listened to EU leaders and we understand and respect the position that the four freedoms of the single market are indivisible, and that there can be no cherry picking. For that reason, we do not seek membership of the single market after we leave the EU, and nor do we seek membership of the customs union. By leaving the customs union and establishing a new and ambitious customs arrangement with the EU, we will be able to forge new trade relationships with our partners around the world and maintain as frictionless trade as possible in goods between the UK and the EU, providing a positive and powerful voice for free trade in the world.

Of course, I am talking about our future relationship with the EU. To answer the question which I think came from the noble Lord, Lord Fox, we also seek an implementation period which, we have been very clear, will be based on the existing structure of EU rules and regulations—but during which the UK will be outside the EU.

Let me take this early opportunity to draw the attention of noble Lords to our publication today of our proposed draft legal text for the section of the withdrawal agreement in relation to the implementation period. We have published this in part to facilitate parliamentary scrutiny. It is right, too, that the British public should be able to see our position. The details of that implementation period would be implemented in domestic law through separate primary legislation, after we have reached agreement with the EU and after these Houses of Parliament have voted on that agreement.

In the meantime, a number of amendments in this group seek to mandate our continued membership of one or both of the single market or customs union, presumably in perpetuity. But put simply, this is not something the UK Government could deliver unilaterally, even if we were so minded. The amendments tabled by the noble Lord, Lord Wigley, get around that by proposing maintaining the same rights, freedoms and access within the UK that we have currently, which in practice means staying in the single market in all but name but without any reciprocal guarantees from the EU. That would be the worst of all possible worlds.

Other amendments seek to mandate the Government to take a particular negotiating position or to pursue particular objectives. Leaving aside what I have said about those not being our objectives, the amendments raise constitutional questions about the role of these Houses of Parliament and they raise practical questions too. Who is to say whether the Government have truly made these things their negotiating objectives? How would they be judged? Would we see the courts ruling on the conduct of the negotiations, and what would be the consequences if they did so? I recognise the noble intention behind these amendments, but I do not think we can contemplate making them, especially when the repeal of the ECA or the exercise of crucial delegated powers becomes contingent on them. That is a recipe for undermining the essential certainty that this Bill is designed to create.

Other amendments call merely for reports to be published on certain things. In response to the question asked by the noble Lord, Lord Hain, we have confirmed that when we bring forward the vote on the final deal we will ensure that this House is presented with the appropriate analysis the Government have done to make an informed decision, and we will take such steps as we can to facilitate scrutiny in the interim. But the particular reports and timetables suggested are arbitrary and may not in fact serve Parliament well.

The Government intend to secure a new partnership with the EU. We will legislate in accordance with that and nothing in this Bill threatens that. This Bill is designed only to prepare our statute book; it is agnostic as to the outcome of the negotiations and rules nothing in or out. We will legislate for the agreement reached with the EU in due course.

Finally, let me say something about the EEA and the amendments tabled in the name of the noble Lord, Lord Adonis, and the noble Baroness, Lady Ludford, concerning the EEA. Amendment 152, for example, seeks to make continued membership of the EEA one of the UK’s negotiating objectives, while Amendments 193 and 203 require a parliamentary vote on withdrawal from the EEA before making regulations under the power in Clause 9. Amendment 225 seeks to prevent notification of the UK’s withdrawal from the EEA agreement. On that specifically, our legal position remains unchanged. Article 127 does not need to be triggered for the agreement to cease to have effect.

My noble friend Lady McIntosh also asked about the EEA. In the absence of any further action, the European Economic Area agreement will no longer operate in respect of the UK when we leave the EU. However, as the Secretary of State has said, our existing international agreements should continue to apply during the proposed time-limited implementation period.

[Lord Adonis]

Will the Government publish the legal advice they have had in respect of that proposed procedure on withdrawal from the EEA?

[Lord Callanan]

The noble Lord knows the answer to that question.

[Lord Callanan]

We are not going to publish confidential legal advice. That has been the position of previous Governments, and it is the position of this Government. Our aim is to ensure continuity with international partners

[Lord Adonis]

I—

[Lord Callanan]

No, I have given way to the noble Lord once. I have answered his question. I have referred to his points. If he will forgive me, I will make some progress.

[Lord Adonis]

My Lords—

[Noble Lords]

Order!

[Baroness Goldie (Con)]

If I can have silence, may I address the Chamber? It is important that this debate proceeds, even at this terminal stage of the first group of amendments, in a courteous manner. The Minister has been accommodating in taking interventions. He needs—

[Lord Adonis]

He has taken one intervention so far.

[Baroness Goldie]

I think the Minister can use his own discretion about what he considers appropriate. I do not think noble Lords would disagree for one moment that we have had a very extensive debate on the first group.

[Lord Adonis]

If I may say so, the Minister has limited experience of this House. He may not be aware that in Committee it is reasonable for him to take interventions on points raised in the debate which have not been properly clarified by his reply. He is not allowed simply to come to that Dispatch Box, read out the brief he has been given and not respond to the debate. That is not acceptable practice in your Lordships’ House.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

I am sorry to say this, but the amendments were taken by the Public Bill Office as being in scope. They are therefore relevant to the House.

[Lord Adonis]

My Lords, before the Minister finishes after the very short intervention that he has just made, I point out that he did not respond at all to the points made by noble Lords from around the Chamber about the Good Friday agreement. Would he give the view of the Government, since it appears to be in question at the moment, about the future of the agreement and whether he agrees with the former Secretary of State for Northern Ireland who said it had now served its purpose?

[Lord Callanan]

I am happy to clarify for the noble Lord that we remain completely committed to the Good Friday agreement.

--- Later in debate ---

Moved by

[Lord Adonis]

2: Clause 1, page 1, line 3, leave out “on exit day” and insert “on a date to be determined by a further Act of Parliament”

[Lord Adonis]

My Lords, I shall also speak to Amendment 3, which would leave out “on exit day” and insert,

“on a date to be determined in the Act of Parliament enacted for the purposes of section 9(1) of this Act”.

The first and crucial significance of the Bill is the repeal of the European Communities Act 1972, and a critical issue that noble Lords will wish to address themselves to is the date on which that happens. The provisions in the Bill in respect of that date are not straightforward. Clause 1 provides that the European Communities Act 1972 will be repealed “on exit day”. Clause 14(1) defines exit day as,

“29 March 2019 at 11.00 p.m.”,

but Clause 14(4) provides that,

“A Minister of the Crown may by regulations … amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom”.


So exit day is set, but there is a provision for the Government to amend the date. However, my reading of subsection (4) is that a Minister of the Crown may only substitute one date with another date. He cannot suspend the operation of the Act entirely even if there is no agreement and it is in fact the intention of Her Majesty’s Government not to proceed with leaving the EU.

My first question to the Minister is: what is the Government’s understanding of the scope of Clause 14(4)? Is it only possible to substitute 29 March 2019 with another precise date under regulations or is it possible for the Government, by the exercise of the powers under Clause 14(4), to suspend the operation of the Act either indefinitely or in perpetuity? Secondly, in respect of the procedure under Clause 14(4), if the Government wish to change the date of 29 March 2019, what would that procedure be? I would be grateful if he could set it out so that we had it clearly established in Hansard, because I think it is an issue to which the House will wish to return in due course. The procedure for amending the exit date could be of crucial importance if the withdrawal agreement that the Prime Minister presents later this year or early next year leads, either by her intention or by a decision of Parliament, to a desire to extend the Article 50 period and apply for an extension beyond the end of March 2019.

I have those two specific questions for the Minister, but I wish to make a general point for this debate, about the concept of the exit day and the repeal of the European Communities Act 1972. It is clearly the case that Parliament needs to make provision for the substitution of the 12,000 regulations which have currently been made under the European Communities Act 1972, and there must be a procedure for those to be enshrined in United Kingdom law. There obviously needs to be a functioning statute book on 29 March 2019, or whenever the country leaves the European Union, and therefore there need to be procedures in place for that statute book to be fully in place by the end of March. We will have many debates in due course about what that procedure will be, how far it can be done by the Government making regulations and orders, how far it requires parliamentary consent and what the parliamentary procedure should be—all the issues which your Lordships will be familiar with under the broad heading of Henry VIII powers. We will have long debates on that question.

However, I do not think it reasonable for Parliament at this stage to give the Government a near-unilateral power to set the date of leaving the European Union when it is still not clear that it is the will of Parliament that we should leave the European Union. We have not seen the withdrawal agreement that the Prime Minister will negotiate or undergone the new procedure instituted by the amendments passed in the House of Commons, which will need to be followed before the withdrawal agreement is ratified by Parliament. As Parliament will itself make the decision on whether we leave when it can fully consider the terms which the Government have negotiated for leaving, it seems to me that the appropriate time to set the date under the Bill for repealing the European Communities Act 1972 is when Parliament agrees or does not agree to the withdrawal agreement that the Prime Minister has negotiated. To do it in advance in this Bill is a classic legislative case of putting the cart before the horse. The right time to set the date on which the European Communities Act will be repealed is surely when Parliament actually takes the decision and sets the date when it intends the treaty of withdrawal to take effect.

This is significant is because otherwise the danger is that we get into a convoluted and potentially destructive process in terms of relations between Parliament and the Government concerning the operation of the Bill when enacted with the withdrawal agreement. At the moment, the Bill stipulates that the European Communities Act 1972 will cease to have effect on 29 March 2019 or on some other date that a Minister may set. That process is set out in the Bill, but there will then be a withdrawal agreement that will set out the date, to be agreed by Parliament, when the treaties replacing our current European Union commitments will take effect. It seems to me and, I think, to other noble Lords much more straightforward, simpler, less confusing and possibly more conducive to harmony between Parliament and the Government for the decision on the date of the repeal of the European Communities Act to be taken at the same time as Parliament takes its decision on the treaties which will replace it.

These are probing amendments seeking the Minister’s guidance on the scope of Clause 14 (4), but I also wish to start a debate in Committee, which I think will probably continue into Report, on whether this is the appropriate piece of legislation for setting the date of departure from the European Union in respect of the repeal of the European Communities Act independently of Parliament reaching a decision on the withdrawal treaty. I beg to move.

[Lord Hain]

My Lords, having added my name to the amendments in the name of my noble friend Lord Adonis, I want to explain that they are designed to give back to Parliament control of when the European Communities Act 1972 is repealed and to strengthen the effect of the amended Clause 9(1), which was designed to give Parliament a meaningful vote on the final terms of withdrawal and which required that a new statute be put in place before any regulations are made to implement the withdrawal agreement.

I do not need to remind your Lordships’ House that what is at stake is more than a matter of process or procedure. It is ultimately about whether either Parliament or a group of hard Brexiteers who are trying to manipulate the Government will decide the future of the people of this country. What is at stake is people’s jobs and standards of living, which depend on our trading relationships; the protection of labour rights and environmental standards; the alliances on which Britain’s future security depends; and the future of the Good Friday agreement, which has brought peace and stability to the island of Ireland for generations to come but is itself now under attack from assorted Brextremists—including, astonishingly and recklessly, a former Secretary of State, Owen Paterson, who should know a great deal better. It is reckless and downright dangerous to put Brexit dogma before peace and stability on the island of Ireland.

--- Later in debate ---

[Lord Patten of Barnes]

I would like to offer an addendum to what the noble Lord has said. In a way, it is a response to my noble friend Lord True. All those who feel as passionately as he and I clearly do about the Good Friday agreement—I think that it would be slightly unsavoury to try to compare who did what about that agreement, and I am glad to see that my noble friend agrees with that—can later support the amendment to the Bill which will write the Good Friday agreement on to the face of the Bill. I look forward to having the support of my noble friends Lord True and Lord Hamilton and others when that amendment comes before the House. Perhaps even some of the duty Privy Council Brexiteers on their Bench down there will be able to support it too.

[Lord Adonis]

Perhaps I may ask the noble Lord, Lord Kerr—the supreme oracle on Article 50—a question which, again, I think will be important for our deliberations later on. An extension of the Article 50 period requires unanimity in the Council. However, if Her Majesty’s Government wished to extend Article 50 for the purposes of holding a referendum, or conceivably for a parliamentary vote, thus completing our established constitutional procedures, would the Council recognise that automatically because it recognises the domestic procedures of member states when it comes to the ratification of agreements?

[Lord Liddle]

I would like to follow that up with a relevant question to the noble Lord, Lord Kerr. I agree with all the excellent speeches in favour of this amendment. To me, the politics of the amendment is the question of whether, when exit day is discussed, Parliament knows what it is exiting to. That is the question. If Parliament does not know what it is exiting to, surely the logic is that the date should be extended until it does.

Along with my noble friend Lady Kennedy, I have recently been on Select Committee visits to Brussels, and she can confirm that there is much uncertainty about what information will be available to Parliament in the autumn of this year. If things go well, we might have a withdrawal agreement and a transition period, but the only thing on the future relationship that we will have is a political declaration. There is no question at all of there being a trade agreement when Parliament votes; it will be a political declaration. The European people to whom we talked said that they wanted that to be clear and precise. However, at the same time, people said to us, “We think that possibly your Government might quite like to get away with a fudge”. Why should Parliament be put in the position of taking this crucial decision when all the British Government are offering is a fudge?

--- Later in debate ---

[Lord Adonis]

My Lords, I am very grateful to the Minister and to all noble Lords who have spoken. We will need to study the Minister’s statements with care before we decide what course to take on Report.

If I may, I will echo the remarks of the noble Lords, Lord True and Lord Patten, about the Good Friday agreement. I fully recognise the huge contribution made by many noble Lords on all sides of the House in negotiating and taking forward the Good Friday agreement. I was very reassured indeed to hear from the noble Lord, Lord True, who from my experience of him in this House I take to be on the right of the Conservative Party, that not all of those on the right of the Conservative Party are turning against the Good Friday agreement. I take that to be a commendable statement, and hope that he manages to persuade his colleagues, including former Ministers, who are starting to call for an end to the Good Friday agreement that that is not an appropriate course. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.