European Union (Withdrawal) Bill

Lord Beith Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Callanan]

Perhaps the noble Baroness was not listening to what I said earlier. We fully intend the vote to take place before the European Parliament votes.

As I have said, I remain convinced that we will achieve a deal in the interests of all the nations and people in the UK and that this Parliament will approve it. After Parliament supports the resolution to proceed with the withdrawal agreement and the terms for our future relationship, the Government will bring forward a withdrawal agreement and implementation Bill. That Bill was announced on 13 November 2017 by the Secretary of State and followed on 13 December 2017 by a Written Ministerial Statement committing the Government not to implement any parts of the withdrawal agreement until this vote on the final deal takes place. I hope it is clear how the withdrawal agreement will be implemented and that Parliament will have ample opportunity to scrutinise it before it is given effect in our law.

I reassure noble Lords that the withdrawal agreement itself will be subject to the provisions of the Constitutional Reform and Governance Act 2010 before ratification, in addition to the vote on the final deal that we have already promised and the scrutiny of the implementing legislation. There will therefore be ample opportunity to scrutinise the agreement and its implementation.

I know that many noble Lords have clear concerns about Clause 9 as it is currently drafted—I listened very carefully to the comments from the noble Lord, Lord Lisvane. The Government are listening very carefully to the debate on these concerns and we will take them away to see whether anything can be done ahead of Report to address them.

[Lord Beith (LD)]

What is the point of leaving in this Bill the power to make regulations which can now only be brought into effect once the withdrawal agreement Bill has been passed? Should we not just remove those provisions now and ensure that any provisions included in the withdrawal agreement Bill meet the concerns that the Minister has said he would like to meet?

[Lord Callanan]

If I can make a little more progress talking about Clause 9, I think the noble Lord will find that his question has been answered.

However, let me ensure that my previous statement is not taken as more significant than it is—

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[Baroness Smith of Newnham (LD)]

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

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

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

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

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


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

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

[Lord Beith]

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

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

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

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

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[Lord Mackay of Clashfern (Con)]

My Lords, first, I hope that “appropriate” will disappear in any event, and that it will be replaced with “necessary”. This clause appears to be drafted especially to deal with a situation where, once the withdrawal Bill is passed, a number of important things have to be done before exit day. I hope that the House of Commons will have the opportunity to consider these. The reference here is quite clearly to something that is required in implementing the withdrawal agreement. We have only to listen to the amendments that were dealt with this morning to know the tremendous complexity that this withdrawal Bill is bound to have—I only hope that it will have it and that we will have an agreement that will be incorporated in a withdrawal agreement Bill, which will deal with these complications. However, if they are dealt with, it is quite obvious that quite a number of things will have to be dealt with speedily that will be brought into effect on exit day. For example, where the authority controlling a particular line of business is no longer effective because of the withdrawal agreement, it may be necessary, to preserve that, to have some form of regulation that sets up an alternative, so that there is a control; for example, with regard to the things that were mentioned this morning, food safety.

It is therefore possible that in some situations the regulations will require modification of existing Acts of Parliament. The substance of this clause is therefore of importance, and we may have to consider it in a bit more detail. I hope that the Minister, when she comes to reply, will be able to give us some examples of the kind of thing that can happen. However, it would be dangerous not to make provision in case that kind of thing happens. The withdrawal agreement Bill will be complicated enough, so if we can make some preparation for it, that would be of benefit.

[Lord Beith]

I am sure the noble and learned Lord is right, but the Government cannot do any of these things until the withdrawal agreement Bill has been passed; therefore the kind of provision he is talking about might more appropriately be made in that Bill than this one.

[Lord Mackay of Clashfern]

I can see that. On the other hand, it is sometimes wise to be prepared if you can foresee a thing that is required and have it ready. We also have the scope to discuss it in this Bill, whereas I imagine the discussions on the withdrawal agreement Bill will be pretty complicated—I assume the latter will be a good deal more complicated than this Bill, and if it is going to require the sort of consideration that this Bill has had it will take some time. There is something to be said for trying to prepare, but of course it is necessary to ensure that the preparations are adequate—that is what the amendment of the noble Lord, Lord Lisvane, deals with.

I am conscious that we may be trying to regulate the House of Commons a bit. I have never had the honour of being a Member of the House of Commons, as so many of your Lordships have, but my impression is that the House of Commons has plenty of powers to control what the Government do. Of course, if necessary, it has a very extreme power in that connection.

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[Baroness Goldie]

I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.

There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.

It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.

[Lord Beith]

Under the provisions of Clause 9, that could not be done before the passage of the withdrawal agreement Act. Therefore, should it be necessary, that can be done in that Act, either by specific provisions in the Act—which most of us would prefer—or by statutory instruments provided for under the Act. Nothing can happen before the withdrawal agreement Act is passed, so the idea that this will help with situations in the meantime is not valid.

[Baroness Goldie]

I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.