European Union (Withdrawal Agreement) Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Anderson of Ipswich (CB)]

My Lords, I will concentrate on the practical effects of this Bill for the sovereignty of Parliament. That principle is recognised in Clause 38 in rather defensive terms. It is said to “subsist notwithstanding” the mass of

“directly applicable or directly effective EU law”

that, by virtue of earlier clauses in the Bill, will continue to bind us during the transitional period. Yet Clause 38 misstates the threat. Parliamentary sovereignty is not endangered by a short and prudent continuation of the arrangements by which sovereignty was pooled in the interests of international influence—arrangements which Parliament itself endorsed in the European Communities Act 1972 and on many subsequent occasions. It is other features of the Bill, not referred to in Clause 38, that threaten the ability of Parliament to perform its proper role. I will refer to two in particular.

First, this version of the Bill sees the removal of parliamentary oversight of the negotiating mandate, the negotiations and the future relationship deal. Parliament will have a say only at the stage of ratification, by which time it will be up against a rapidly expiring deadline that will be extendable only if the Government so wish. This might have been fine when trade deals were about nothing more than tariffs and quotas, but the revised political declaration aspires to

“an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.”

In the previous version of the Bill, a minority Government offered Parliament a voice on how that goal is approached and how far it is achieved—a necessary voice, since not a person in this country will be unaffected by the future relationship, or by the failure to achieve it. Despite their large majority, this Government have chosen to cut Parliament out—a display of their power, but a dismissal of the consent on which that power ultimately depends.

Parliament is sidelined secondly by the inadequate controls on the numerous delegated powers for which the Bill provides. Some are constrained by the terms of the withdrawal agreement—as the Minister said in opening—but others are not. In the context of Northern Ireland, Clause 21 would allow even this Act to be amended by Ministers, without limitation as to purpose and without the usual exceptions for taxation, new criminal offences and so on. This is Henry VIII on steroids.

Statutory instruments made over the last 18 months have been associated by the Hansard Society and the Public Law Project with a worryingly large number of errors and procedural irregularities. These problematic results are described in an article of 9 January on the UK CLA blog. Effective parliamentary control of this regulation-making power requires greater use of the affirmative procedure and a sifting process of the type provided for in Schedule 7 to the 2018 Act, for the reasons so persuasively given by the Delegated Powers and Regulatory Reform Committee in its recent report.

Clause 26, which has been mentioned, presents concerns of a particular kind. Yes, we have decided to take back control of our laws, but this clause is so broad as to suggest that no one has quite decided how to do it, and that all options—including, frankly, some alarming ones—are to be left on the table. Sir Bob Neill, in the other place on 8 January, spelled out the possible consequences of this clause for legal certainty, certainty of policy and the system of binding precedent. Like him, and the noble Lord, Lord Pannick, whose amendment I have signed, I am troubled by a provision that allows Parliament to be bypassed and Ministers trusted with a power that was previously thought appropriate only for the Supreme Court.

Revolutions are said to devour their own children. The original proponents of Brexit, who rode out under the banner of “Our Parliament and Our Courts”, sometimes seem to have little faith in either. But constructive scrutiny, received in a constructive spirit, makes for stronger and more accountable government. I hope that all parts of the House, when looking at this Bill, will not lose sight of that.

Brexit

Lord Anderson of Ipswich Excerpts

Saturday 19th October 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I congratulate the Prime Minister and his negotiating team on concluding a revised deal that many said he never wanted and many said he could never achieve.

The deal presents the House of Commons with a difficult decision. In its favour is the powerful point that to approve it would complete at least the first stage of Brexit, satisfy the public that Parliament is capable of deciding the central issue and present business with a degree of confidence as to what the future will look like. Against it is a range of arguments too familiar to bear repetition but with some new additions specific to this text: the aspiration for a merely standard free trade agreement with the EU, underlined by the downgrading of the level playing field from “binding treaty commitment” to “political declaration”, will cause other, less benign impediments to arise; the forms, permits, authorisations, licences, approvals, certificates and local representatives that will be required by exporters, transport operators and manufacturers; the revival of discriminatory and non-discriminatory host state barriers to cross-border service providers such as myself; and local requirements for migrants abroad, ranging from healthcare eligibility to driving tests and the transport of pets.

It would, in short, take us back to the days before my former boss, Commissioner Lord Cockfield, set fire to a thicket of precisely such red tape when he planned the completion of the internal market; a fine example of British influence in Europe, as the noble Lord, Lord Willetts, has just said.

The noble Lord, Lord Baker, in his elegant speech, said that Northern Ireland will have a unique opportunity to participate in the single markets of both the UK and the EU. At the moment, we all have that opportunity, and there will be a cost in losing it.

Other imponderables arise from the new text. In relation to Northern Ireland, there is the practicability, or otherwise, of the new and highly complex customs arrangements that are envisaged, perhaps permanently. More profoundly still are the possible consequences, to which several noble Lords have averted, for particular industrial sectors, not all of which, so far as I can see, have yet produced their own assessments of this deal. There are consequences for the economy as a whole, and most significantly of all, for the place of both Northern Ireland and Scotland in our union.

Nor do I find it as easy as some have done to say that the obvious answer is a people’s vote. That may yet turn out to be the only possible answer, but some will continue to see it as illegitimate. The political road that would have to be followed to achieve it will not be to everyone’s taste, and the public, as a number of noble Lords have said, are not in the mood for further delay. But it is precisely when others are impatient that it is most important for us to do our job methodically and well.

We in this House pride ourselves on our careful scrutiny of even quite small things. We expect the proposals that come before us to be costed and accompanied by impact assessments. Even inconsequential Bills are subject to careful assessment in Committee. Treaties are normally laid before Parliament for 21 days under the CRAG Act. We even have 14 days to decide whether we want to keep a dishwasher. Yet no impact assessments or technical explanations have been provided of this agreement, notwithstanding its extraordinary significance for our economy, our rights and even the continued existence of our union. The House of Commons has been given one day to review the withdrawal agreement, and nor has there been any proper time for our committees to scrutinise the withdrawal agreement Bill, which will surely be a substantial document with profound constitutional consequences.

As the noble Lord, Lord Hannay, said, we are here on a Saturday not because of a real emergency but because of a manufactured one. Let the letter be sent as a sensible precaution, one that is also required by law, and the necessary consideration be given—speedily, but without cutting corners—to the agreement and the Bill.

I have a final point. If the withdrawal agreement is approved on this or some future date, let us all, whatever our views, resolve to accept it and make the best of it.

Brexit

Lord Anderson of Ipswich Excerpts

Wednesday 2nd October 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, it is a little hard to take note of something—the UK’s withdrawal from the European Union—that may or may not happen. It is harder still to predict how it will turn out, a task that I happily leave to the large number of your Lordships whose political antennae are more finely tuned than mine. However, there is one aspect of the withdrawal process of which I take note and express concern: the strain that it is placing on the system by which we are governed.

Our constitutional settlement is based on the accountability of the Executive to Parliament, and on the rule of law. These are foundational principles, to which our utter fidelity should not be in doubt, but successive Governments have been tempted to stray from both. Understandably frustrated in their attempts to implement the referendum result, they have identified an alternative pole of attraction: the so-called will of the people, as expressed, however tentatively and enigmatically, in that vote in 2016.

The previous Government may not have always welcomed their accountability to Parliament or done all they could to defend the rule of law, notably against the description of senior judges as “enemies of the people”. However, as the compelling drama series Brexit enters its fourth season, it is the current Government who have jumped the shark. The principle of executive accountability to Parliament was not only threatened but, as the Supreme Court unanimously found, breached when Parliament was prorogued without sufficient reason. The Government have appeared at best indifferent to the rule of law in their repeated assertions that we will leave on 31 October with or without a deal. The Act of Parliament that takes the fulfilment of that promise out of the Government’s hands is barely acknowledged, save for the purpose of designating it, quite inaccurately, as the surrender Act.

The legal editor of the Times this morning reports a Cabinet Minister briefing that,

“Mr Johnson would refuse to sign a letter requesting an extension even if the Supreme Court ordered him to”.


Whether or not such brazen words are followed through, the rather significant principle that we must all obey the law is corroded merely by their being spoken.

These are destructive themes indeed: people versus Parliament; people versus the courts; people versus the laws; people versus Brussels, Ireland, foreign states or foreign powers; Brexit as a World War II re-enactment. Then, for good measure, there is more: people versus the BBC; people versus the universities; people versus the elites—other elites, that is, never those who are whipping up the outrage. Those themes are destructive, not least, because these populist calls are not the preserve of any single party or grouping, but might in future prove just as attractive to Governments of a different, and even more dangerous, colour. The neglect of fundamentals, and the coarsening of our national dialogue, are genies more easily released than put back in the bottle.

Thank goodness for our Supreme Court, which has decisively and dispassionately applied the relevant principles, conducting itself before the eyes of a watching world without fear or favour, affection or ill will. Relied upon in its judgments in both Miller cases was the Case of Proclamations 1610, in which Sir Edward Coke set limits on the prerogative power of the monarch. At one meeting between the two men the King was famously described as,

“looking and speaking fiercely with bended fist, offering to strike”,

him, whereupon Coke fell flat on all fours and beseeched the King to pardon his zeal.

The pressures on modern judges may not be quite in that league but plans to tame the judges need to be strongly resisted. The transparency of the Supreme Court is already exemplary: 4.4 million people are said to have accessed its live stream on the first morning of the Miller-Cherry case—hoping no doubt to catch the noble Lord, Lord Pannick. The fine work of the Judicial Appointments Commission, with its substantial lay element, deserves to be better known. But the judiciary cannot and should not be made more directly accountable to “the people”, or even to their representatives in Parliament. The true independence of our judges, bred into them from their early years in the Inns of Court and admired around the globe, is as vital to our constitutional integrity as it is to our standing in the commercial world.

Democracy, properly understood, is about so much more than winner-takes-all populism. It is: inclusive, tolerant, pluralistic; founded on respect for law and institutions; a mechanism for not only quantifying but reconciling our differences. Whatever else we may lose from the fiasco that is Brexit, let us hold fast to that and make it the basis on which we build for ourselves a better future.

--- Later in debate ---

[Lord Callanan]

I will check the figures; I am not sure that the noble Baroness is correct on that.

I have laid out the ways in which the Government are working to deliver on that instruction and the way in which we are prepared for multiple outcomes. Today we have presented to Parliament and to the public our new proposals on Northern Ireland and Ireland. As I said earlier, I hope that these proposals can provide the basis of a rapid negotiation towards a deal, which is what we want. This will then allow us to focus on a positive future relationship that is in all our best interests.

This Government are looking to the future beyond our withdrawal from the European Union. We are looking ahead to work on the NHS, violent crime and cutting the cost of living. As the Prime Minister said in his Statement in the other place last week, and as he repeated in his speech this morning, what the British public want from the Government is for us to respect the outcome of the referendum in which they gave a clear instruction to deliver a withdrawal from the European Union and for the Government to move on and move forward.

[Lord Anderson of Ipswich]

Before the Minister sits down, may I thank him for the clarification he has given? He has not simply said that the Government will obey the law, which we have heard before. He said two other things that were perhaps of significance: first, that the Government would obey the Benn Act, and, secondly, if I heard him right, that they would not use the Civil Contingencies Act to amend or repeal the Benn Act. Can he confirm that no regulation-making power, whether in the Civil Contingencies Act, the European Union (Withdrawal) Act 2018 or any other Act of Parliament, will be used to amend or repeal the clear provisions of the Benn Act?

[Lord Callanan]

I am afraid that this is becoming a bit tiresome. I do not want to go any further than what I said in my speech. We are going to obey the law. The Benn Act is part of the law and we will obey it.

European Union (Withdrawal) (No. 6) Bill

Lord Anderson of Ipswich Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, as foreshadowed by its strange nickname—the surrender Bill—this Bill seems fated to be pigeonholed in the public debate as a remainer instrument that would need to be instantly repealed in the event of a Conservative victory at what we must assume to be the forthcoming general election. Of course, it gives some short-term comfort to those, like me, who still believe that our national interest is best served by staying in—but I suggest that this Bill, if passed, may prove to be of assistance even to dedicated leavers, should they soon find themselves with a parliamentary majority. It will save them from the consequences of the impetuous decision to set the date of 31 October in stone. It will do so in particular by allowing desperately needed time for two things the Government say they want: a withdrawal agreement and preparatory legislation.

Let us assume—generously, perhaps—that the Government are sincere in their stated preference for a negotiated Brexit. Their current position appears to be that an election in mid-October could be followed by a few days’ frenzied negotiation on the basis of proposals not yet submitted, a deal at the European summit in mid-October, the subsequent ratification of that deal—not only by this House but by the European Parliament—and the passage of a new and no doubt lengthy withdrawal agreement Bill, all by 31 October.

The Bill introduces an element of realism into that equation. It will have no effect if the Government achieve their stated aim of a deal by the European summit. Indeed, as the noble Baroness, Lady Ludford, said, even a subsequent deal will deactivate its requirements, according to Clause 1(5). If the Government do not achieve their aim, the extension that must be requested under the Bill is long enough for negotiations but not for a further referendum. Indeed, Clause 2 proceeds on the assumption that negotiations will progress during that period.

If our fate is to crash out with no deal, legislation will be required, and here too the Bill gives much-needed time. The Government were saying earlier this year that six new Bills were needed before a no-deal Brexit. Five of those Bills are still before Parliament. They will obviously not progress over the next few weeks, and I understand that it may not be possible even to carry over some of them into a new Session. Without those Bills, the Government will not be able—to give a few examples—to establish a trade remedies authority, set fishing quotas or even end free movement, if that is what they wish to do. To the dangers of a no-deal Brexit must be added the hazards of a legal vacuum.

Then there are the 100 Brexit-related statutory instruments that the Brexit Secretary said on 27 June were required before Brexit day. According to today’s UK Constitutional Law Association blog, only 27 of those have been laid, and Parliament is about to lose its ability to sift and scrutinise any that may be laid in the weeks to come.

We are all being urged to be ready for Brexit. This Bill is, among other things, an essential part of that process, and it has my support.

[Lord Hain (Lab)]

My Lords—

Brexit: Appointment of Joint Committee

Lord Anderson of Ipswich Excerpts

Wednesday 3rd July 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, it is an honour to follow the noble Lord.

Two weeks ago, YouGov asked almost 1,700 people about the consequences of a no-deal Brexit. The answers revealed a gulf that is striking even by current standards. Of those who voted remain, 71% anticipated serious damage to the economy and only 9% did not. Among leave voters—with neat but depressing symmetry—serious damage was expected by just 10%, and not expected by 70%. Such indicators of tribal loyalty can lead fair-minded people to fatalism or despair. However, it is in just such circumstances that clear heads, reliable evidence and the power of reason are most needed.

As we approach October, which some say may be the most momentous month in our recent history—there is stiff competition—we have the chance to ensure that the constantly changing picture on no-deal Brexit is informed not just by spin, leaks and written statements but by a hard-fought parliamentary assessment, based on the interrogation of those most closely involved, that will neither exaggerate nor pull its punches. The noble Lord, Lord Howell of Guildford, referred to “yet another committee”. Well, I read with admiration the reports of our EU Committee, its sub-committees and the Exiting the EU Committee of the House of Commons. They have already convincingly covered much of the ground. However, as no deal continues its journey over the next three months, from table-top exercise to looming reality, further and more precise assessments will be needed. Here are five current developments that the proposed Joint Committee could usefully consider.

The first is the legislation gap: of six Brexit Bills that the Government said in February needed to be passed to prepare for no deal, only one has been enacted. Will we have the powers we need to regulate trade, fisheries, immigration and financial services?

Secondly, is there reality in the notion of mini-deals with the EU? This is now being put about as a managed no deal, or at least as adequate mitigation for no deal. There is, I fear, no reality in the idea that we will automatically remain members of the EEA, desirable though that may be, for the simple reason that we will meet neither of the conditions—membership of the EU or of EFTA.

The third development is the likely actions of the EU to defend its new customs and regulatory border in Ireland.

The fourth is the general state of preparedness. Was the Institute for Government right in its recent assessment that the Government are as unlikely to be ready for no deal in October as they were in March?

The fifth issue to consider is the impact on all this of recent departures from the Civil Service, including the Permanent Secretary of DExEU, Philip Rycroft, the chief of no deal, Tom Shinner, Karen Wheeler of HMRC and the chief negotiator Olly Robbins.

The economic and constitutional aspects of no deal attract most of the attention—understandably so. I hope, however, that, as the noble Lord, Lord Paddick, said, the committee will also look at the implications for our safety and security. I used to observe police officers at Dover, their hand-held devices telling them in real time via the SIS II system when incoming passengers were on continental crime and terrorism watch lists. That capability along with many others, from the exchange of DNA profiles and passenger name records to a functioning system of extradition within Europe, will simply lapse without a further deal. We will lose the advantages of a security union, which, as the Centre for European Reform reported last month, has helped the EU achieve more on security in the past two years than in the preceding decade. Perhaps that is why Assistant Commissioner Neil Basu, who leads on terrorism for the Met, has described a no-deal Brexit as “incredibly concerning” and why the National Security Adviser told the Cabinet unequivocally in a letter leaked in April that it would leave the UK “less safe”.

Some have said that it is a million to one, but the bookies were offering odds this morning of 2:1 on a no-deal Brexit in 2019. Politicians and the public need to know the facts, not as they were in the spring but as they will be in the autumn. Everyone likes a summer holiday, but no-deal preparations are being strenuously urged on others. We in Parliament should not neglect our own and that is why I shall support this Motion.

European Union (Withdrawal) (No. 5) Bill

Lord Anderson of Ipswich Excerpts

2nd reading (Hansard): House of Lords
Thursday 4th April 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Deech. I have great respect for her, not least because she was until recently chair of the Bar Standards Board. If we do not always agree on matters of constitutional law or indeed attitudes to Europe, and I am afraid we certainly do not, perhaps we should put that down to my not having been a member of the illustrious constitutional law class that she was referring to earlier today.

I welcome the Bill but we must acknowledge that its aims are modest. It allows the House of Commons to ensure that an extension is requested but it does not offer a guarantee against no deal. If it gets to the stage of the Bill being used then I am afraid that that matter remains within the unilateral control of the European Council, or indeed each of the 27 European Governments, who will retain a veto on a matter of extension. It is less powerful in that respect than the indicative Motion placed by Joanna Cherry in the House of Commons last week, though I immediately acknowledge that that Motion did not gain the support of that House, whereas this Bill did.

There is at least one fixable defect in the Bill. I say “at least one” because I am afraid I have not studied the report of the Delegated Powers and Regulatory Reform Committee; it may well be that when I look at what it has to say about Clause 2 I will find myself in agreement with that. The fixable defect that I have in mind is that which was lucidly explained earlier on by the noble Lord, Lord Pannick, relating to the procedure following a counterproposal from the European Council. That is alluded to briefly in this morning’s report by the Constitution Committee and covered in more detail by the legal adviser to that committee, Mark Elliott, whose name has been mentioned already today, who sets it out in his blog, Public Law for Everyone. He has done a very thorough job and I think we in Parliament should all be very grateful to him for the work that he has done.

The amendment by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, sounds promising to me. If it can be accommodated in time for this urgent Bill to be useful, I for one will be looking at it positively and with gratitude.

Further Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Anderson of Ipswich Excerpts

Wednesday 27th February 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, as the last speaker before the winding up speeches, I should have liked to offer your Lordships a peroration, but could not hope to equal the force or the humanity of the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady Wheatcroft, who have spoken so eloquently, and with whom I agree so completely that the vote to leave the EU was a historic and very sad mistake, significantly compounded by decisions made since.

To go to the other extreme, I offer instead a short endnote—a little dry, perhaps, but I hope of a nature to pique the professional interest of the noble and learned Lord, Lord Keen, and to coax a response out of him when he closes this debate. The three-month extension to be debated on 14 March, if previous votes so require, would fall well short of the minimum 22 weeks that the UCL Constitution Unit and others have suggested would be necessary for a referendum. In practice, and allowing for the time necessary to give effect to the result, this would require an extension at least until the end of the year or, if the advice of the noble Viscount, Lord Hailsham, is followed, deep into the middle of the next decade. The Prime Minister was at pains yesterday to resist the possibility of a long extension on the basis that an initial extension beyond the end of June would require the UK to take part in the European Parliament elections, and that a supplementary extension, entered into after the end of June, would be “extremely difficult” if we had not taken part in them.

I invite the Minister to agree with me that when there is a will, there is a way. Does he agree that this country could take part in the European Parliament elections if we are still a member state at that point? Indeed, that is expressly contemplated by the Council decision of 2018 that establishes the composition of the Parliament, and the Electoral Commission has already set aside a budget for it. Yes, some might find an election in those circumstances a little odd. The noble Lord, Lord Grocott, right at the start of this debate, described it as indefensible, but it is democratic. Why should it be any more odd or less defensible than continuing to participate in the other institutions of the European Union—the Council, the Commission and the court—as we shall do for as long we are a member, as provided for in the treaties?

Then the legal service of the European Parliament, in an opinion of 7 September 2017 that received some publicity at the time, confirmed that the European Parliament would be validly constituted, and its legislation valid, even in the event of a failure by the UK to organise elections. That is unsurprising, one might think, since if laws were not valid in those circumstances, any member state could hold the whole EU legislative process hostage by refusing to hold elections. Does the Minister agree with that opinion?

I do not underestimate the difficulties that would have to be surmounted before any further referendum could be held, not least the definition of the franchise, the choice of the question or questions, and the measures that would be needed to prevent the serious malpractice, or worse, that attended the last one. We will know in a couple of weeks whether there is the necessary public or political will to start down that road. But I suggest that the time needed for a referendum will not be denied to us by the electoral law of the EU, and I ask the Minister to confirm that narrow but important point.

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

Lord Anderson of Ipswich Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I declare an interest. I am a member of the Bar Council Brexit working group, though I do not speak on its behalf. I have also been a barrister for 30 years, appearing regularly for individuals, businesses and the Government before the European Court of Justice in Luxembourg.

The grand chamber of the Court of Justice, with its elevated and distant bench, gold cloth hangings and majestic proportions, comes from a different forensic tradition from our own Supreme Court, where judges look advocates in the eye and engage them in dialogue at short range. However, in ways that matter, the Court of Justice has evolved—under the influence of its British and Irish members—in a direction that is both familiar and welcome to common lawyers. It treats its own judgments not as mere illustrations of principle on the continental model but as precedents, applied, distinguished and only occasionally departed from—much as we do in the common law. Though formulaic in style, those judgments are illuminated by opinions of the advocates-general, often as thoughtful and discursive as the best judgments of our own courts. Its judges have taken to questioning the advocates—or at least those who have the skills to make that exercise worthwhile—in a way that would be unusual, even improper, in some of the national courts in which they previously sat. The British Government have long been among the most influential interveners. As the noble Lord, Lord Thomas of Gresford, said, of all who come regularly before that court, they have also been the most successful in their own defence.

The relationship between national courts and the European Court, as expressed through the preliminary reference procedure, is co-operative, rather than hierarchical— based on the recognition that each court has a different function and on mutual good will and respect. Our courts have been adept in their use of that procedure, often pushing the Court of Justice to clarify the law and to define the remedies available to individuals who have suffered from administrative overreach or abusive market conduct.

What lessons for the future can we draw from that experience? I will mention first the transitional period, and then the future relationship. During the transitional period—during which we will remain subject to the full panoply of EU law—Articles 82 and 162 of the draft withdrawal agreement provide for the Court of Justice to rule on disputes arising under EU law or the withdrawal agreement itself. Perhaps that is inevitable. Can the Minister confirm whether those Articles have now been agreed? If they have, is it certain that the Court of Justice will lose its British members, familiar as they are with our legal systems, but appointed as they were by common accord of the member states? I understand that not everybody considers Article 6 of the withdrawal agreement— conclusive as it may be in relation, for example, to the Council—to be wholly clear in its application to members of the Court of Justice.

Even if the Government consider it necessary to submit during the transitional period to the authority of a Court of Justice without its British members—which seems rather a one-sided way of doing things—would they be equally sanguine if, as reported this morning, the transition period is substantially extended, say, to the end of 2021? Or might the exclusion of British members be revisited in the event of such an extension?

As for the future relationship, the plan, as I understand it from the White Paper, is to provide for a common rulebook for goods, supplemented by common rules on state aid, and a range of reciprocal commitments—from environmental requirements to labour standards, going well beyond those normally found in free trade areas. Our existing common EU rulebook is enforceable by any individual or company with an interest in doing so, before any national court and then, if necessary, before the Court of Justice. This highly developed and highly accessible system is needed, given the extensive integration required by the single market in goods. This integration is intended to continue. Yet we are proposing not a system of justice built around the individual, but one that is intergovernmental or statist in nature. As has been said, this is a joint committee of officials, backed by an independent arbitration panel which only it could invoke.

At present—I will not weary your Lordships with detailed examples, although my own case of ABNA illustrates the point—a business that falls victim to an ill-considered EU rule can go to court, whether in the UK or in another country where it does business. It can seek to have the operation of the rule suspended in those countries. Preliminary references can be made, and the Court of Justice may in the end declare the rule invalid. However, under the proposed future arrangement, it seems that it would depend on officialdom, in the UK and in the EU, to appreciate the urgent threats to its businesses and to take the necessary action. Whether UK officials would take up their cause would no doubt depend, as the noble Baroness, Lady Kennedy of The Shaws, has indicated, on many factors remote from the legal merits: its size; competing policy priorities within government; the wish not to pick too many fights in the joint committee; or the wish to avoid the public perception that the Government are relaxed about the policy that the rule is supposed to implement.

The only forum in which the validity of the rule could be challenged—assuming irreparable damage had not been done by then—would be under the Ukraine model, via the joint committee or arbitration panel to the Court of Justice. Could the companies that had brought the complaint be represented there, by the advocate of their choice, or would proceedings become a matter to be resolved on the basis of arguments between officials?

Each of the possible options looks less satisfactory than what we currently enjoy. But may I encourage the Minister to set his sights high and press for a system of remedies that fully supports the heartening emphasis of the committee on individual access to justice? Having declared my interest at the start, I hope I may count on him to make full use of the Bar Council and other sources of independent legal expertise to help design such a system.