7 Lord Callanan debates involving the Scotland Office

Wed 2nd May 2018
European Union (Withdrawal) Bill
Lords Chamber

Report: 5th sitting (Hansard): House of Lords
Wed 28th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 11th sitting (Hansard - continued): House of Lords
Mon 19th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 8th sitting (Hansard - continued): House of Lords
Mon 5th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 4th sitting (Hansard): House of Lords
Mon 5th Mar 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 4th sitting (Hansard - continued): House of Lords
Mon 26th Feb 2018
European Union (Withdrawal) Bill
Lords Chamber

Committee: 2nd sitting (Hansard - continued): House of Lords

Brexit: Negotiations

Lord Callanan Excerpts
Tuesday 20th November 2018

(5 years, 6 months ago)

Lords Chamber
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Moved by
Lord Callanan Portrait Lord Callanan
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That this House takes note of the statement by the Prime Minister repeated by the Lord Privy Seal on 15 November relating to the European Union exit negotiations.

Baroness Goldie Portrait Baroness Goldie (Con)
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My Lords, this will be an extremely interesting and important debate. It is a long one and time constraints are very restrictive. I ask your Lordships please to observe the speaking limit for Back-Benchers of four minutes. If the Clock shows four and the noble Lord or noble Baroness shows no sign of sitting down, I may have to attend to that physical exercise for him or her.

Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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I am sure that nobody wishes to incur the wrath of my noble friend Lady Goldie.

My Lords, as the Prime Minister set out in her Statement last week, we have now agreed the provisional terms of our exit from the European Union, set out in the draft withdrawal agreement. We have also agreed the broad terms of our future relationship, as set out in the outline political declaration, also published last week. Both the UK and the EU are now preparing in earnest for a special European Council taking place this Sunday 25 November, where we hope to be able to agree the full political declaration on our future relationship.

Before I speak further about the draft withdrawal agreement, I am sure that noble Lords will have noted the appointments last Friday of my honourable friend the Member for North East Cambridgeshire as Secretary of State for Exiting the European Union and of my honourable friend the Member for Spelthorne as Parliamentary Under-Secretary of State in the Department for Exiting the European Union. I look forward to working with both colleagues as the whole Government deliver on a Brexit deal that honours the result of the referendum and takes the country from strength to strength, but I must add that both the UK and the EU have reiterated, time and again, that nothing is agreed until everything is agreed. To that end, we will not sign a withdrawal agreement without a full political declaration and we will ensure that Parliament can make an informed decision and that business and citizens have a clear understanding of our future relationship.

What we agreed last week is a draft treaty that means that we will leave the EU in a smooth and orderly way on 29 March 2019 and sets the framework for a future relationship that delivers in our national interest. It takes back control of our borders, our laws and our money; it protects jobs, security and the integrity of the United Kingdom; and it delivers in ways that many said could simply not be done. The outline political declaration sets out an arrangement that is superior for our country than options such as Canada-plus, Norway-minus or even Norway-plus—a more ambitious free trade agreement than the EU has agreed with any other country. On security co-operation, the outline political declaration sets out a breadth and depth of co-operation also beyond anything the EU has agreed with any other country.

I shall now set out the details of the agreement. First, the full legal text of the withdrawal agreement has now been agreed in principle. It sets out the terms on which the UK will leave the EU on 29 March 2019. We have secured the rights of the more than 3 million EU citizens living in the UK and around 1 million UK nationals living in other countries in the EU. We have agreed a time-limited implementation period that ensures that businesses have to plan for only one set of changes. We have agreed protocols to ensure that Gibraltar and the sovereign base areas in Cyprus are covered by the withdrawal agreement and we have agreed a fair financial settlement, estimated to be far lower than the figures many mentioned at the start of these negotiations.

As the Prime Minister has made clear since the start, we have been committed to ensuring that our exit from the EU addresses the issue of the border between Northern Ireland and Ireland. We believe that this issue can best be solved through our future relationship with the EU, but the withdrawal agreement provides an insurance policy, meaning that should the new relationship not be ready in time for the end of the implementation period, there will still be no hard border between Ireland and Northern Ireland. As noble Lords will know, the original suggestion from the EU was not acceptable, as it would have resulted in a customs border in the Irish Sea and cast doubt upon the integrity of our United Kingdom, so last month the Prime Minister set out for the House the four steps we needed to take. This is what we have now done, and the EU has made a number of concessions towards our position.

First, the EU proposal for a Northern Ireland-only customs solution has been dropped and replaced with a new UK-wide temporary customs arrangement that protects the integrity of our precious union. Secondly, we have created an option for a single, time-limited extension of the implementation period as an alternative to bringing in the backstop. As we have said many times, we do not want to extend the implementation period and we do not believe that we will need to do so. This is an insurance policy, but if it happens that at the end of 2020 our future relationship is not quite ready, then the UK will be able to make a choice between the UK-wide temporary customs arrangement and a short extension of the implementation period.

Thirdly, the withdrawal agreement commits both parties to use their best endeavours to ensure that this insurance policy is never used. In the unlikely event that it is needed, if we choose the backstop the withdrawal agreement is explicit that the backstop is temporary and that the Article 50 legal base cannot provide for a permanent relationship. There is also a mechanism by which the backstop can be terminated. Finally, we have ensured full continued access for Northern Ireland’s businesses to the whole of the UK internal market.

Lord Howard of Lympne Portrait Lord Howard of Lympne (Con)
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I am very grateful to my noble friend for giving way. Under Article 50, the United Kingdom has a unilateral, untrammelled right to leave the European Union. Under the backstop provisions of the withdrawal agreement, the United Kingdom can leave only with the consent of the European Union. How can that be described as taking back control?

Lord Callanan Portrait Lord Callanan
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There are mechanisms to bring the backstop to an end but my noble friend is right that they would need to be mutually agreed. A joint committee has been set up and independent arbitration is foreseen within that, to which we can apply the solutions. They are set out in the agreement. I would be happy to write to my noble friend with further details but I understand the point he is making.

The Brexit discussions have been about acting in the national interest and that has necessarily involved making what we believe to be the right choices, not the easy ones. By resolving this issue, we are now able to move on to finalising the details of an ambitious future partnership. The outline political declaration we have agreed sets out the basis for these negotiations, and we will negotiate intensively ahead of the European Council this weekend to turn this into a full future framework.

Under the future relationship we will see an end to free movement. As the Prime Minister stated yesterday at the CBI conference, we will have our own new skills-based immigration system, based not on the country people come from but on what they can contribute to our United Kingdom. We have worked hard to deliver for the economy—to deliver a deal that puts jobs, livelihoods, prosperity and opportunity first. This is what Brexit should be about: getting a good deal that unlocks the opportunity of a brighter future for this country and all our people.

Lord Forsyth of Drumlean Portrait Lord Forsyth of Drumlean (Con)
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I am most grateful to my noble friend. Just going back to the point about the position of Northern Ireland, given that the backstop in the agreement provides for a different regulatory regime in Northern Ireland, why is this not creating a border down the Irish Sea?

Lord Callanan Portrait Lord Callanan
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This is only within the backstop itself. As I said, we hope that the backstop will not be required and that we will be able to put in place future arrangements that will render the backstop unnecessary. There are some regulatory differences now between Great Britain and Northern Ireland. But it is true that under the backstop, if it comes into operation, Northern Ireland will align with many parts of the single market acquis that are necessary for the creation of a borderless Ireland.

The declaration reached common ground on services and investment, including financial services. It also ensures that we will be leaving the common agricultural policy and the common fisheries policy. The UK will become an independent coastal state once again.

We have been able to agree on key elements which will help keep our people safe. These include effective extradition arrangements, as well as mechanisms for data exchange on passenger name records, DNA, fingerprints and vehicle registration data. We have also agreed a close and flexible partnership on foreign, security and defence policy.

Lord Davies of Stamford Portrait Lord Davies of Stamford (Lab)
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I am very grateful to the Minister for giving way. What precisely are the arrangements on financial services that have been agreed? I have failed to find any concrete measures in the large amount of paper in front of us.

Lord Callanan Portrait Lord Callanan
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I have a copy of the document here. There are three paragraphs on financial services in the outline declaration. The noble Lord will find them on page 2. I could happily read them out but time is short. Obviously, we will be fleshing out the future partnership document this week and we hope to publish more details on that shortly.

Lord Davies of Stamford Portrait Lord Davies of Stamford
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That document does not contain any specific measures at all.

Lord Callanan Portrait Lord Callanan
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It contains measures for protecting financial stability and market integrity, and for the commencement of an equivalence assessment, which is extremely important to many in financial services. But, as I said, this is one of the things that we are fleshing out. This is an outline declaration and the final details are being negotiated as we speak.

Lord Liddle Portrait Lord Liddle (Lab)
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Will the Minister give way again?

Lord Callanan Portrait Lord Callanan
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I am happy to give way but this is all subtracting from the time that is available for the rest of the debate.

Lord Liddle Portrait Lord Liddle
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The Minister suggested to his noble friends that the Northern Ireland arrangement was temporary. Why then is it said in the political declaration that what is set out in the backstop is the basis for the future economic relationship between Britain and the EU? Can the Minister explain that inconsistency?

Lord Callanan Portrait Lord Callanan
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It is actually stated in the withdrawal agreement that the backstop is intended to be temporary and is not intended to be a basis for the future relationship. But it says in the future partnership document that the future relationship will build on the customs arrangements that are outlined within the backstop facility. I will let the noble Lord make his own interpretation of those words.

We have worked hard to deliver the result of the referendum and to ensure that the UK leaves the EU on 29 March 2019. We have made a decisive breakthrough. Once a final deal is agreed, we will bring it to the Commons for what is being called a meaningful vote, and of course there will be an opportunity in this House for extensive further debate. The Government understand that the British people want us to get this done and to get on with addressing the other issues they care about: creating more good jobs in every part of the UK; helping our NHS provide first-class care; and focusing our efforts on building a brighter future for our country.

The choice is clear: we can choose to leave with no deal or we can choose to unite and support the best deal that can be negotiated—this deal. It is a deal that ends free movement; that takes back control of our borders, laws and money; that delivers a free trade area for goods with zero tariffs, to benefit our manufacturers; that retains the security co-operation to keep our people safe; and that protects jobs in the United Kingdom. This deal honours the integrity of our United Kingdom. It delivers on the referendum result. It delivers the Brexit that the British people voted for. I beg to move.

Moved by
89DB: Clause 11, page 8, line 40, leave out “(3)” and insert “(3C)”
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Moved by
90A: Clause 11, page 8, line 42, leave out “other”
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Moved by
92AA: Schedule 3, page 28, line 29, leave out from “law” to end of line 37 and insert “and the modification is of a description specified in regulations made by a Minister of the Crown.
(5) But subsection (4) does not apply—(a) so far as the modification would be within the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or(b) to the making of regulations under Schedule 2 or 4 to the European Union (Withdrawal) Act 2018.(6) A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing regulations under subsection (4) unless— (a) the Scottish Parliament has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Parliament having made such a decision.(7) For the purposes of subsection (6) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or (c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(8) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (6) must—(a) provide a copy of the draft to the Scottish Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(9) See also paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under subsection (4) including a duty to explain any decision to lay a draft without the consent of the Parliament).(10) No regulations may be made under subsection (4) after the end of the period of two years beginning with exit day. (11) Subsection (10) does not affect the continuation in force of regulations made under subsection (4) at or before the end of the period mentioned in subsection (10).(12) Any regulations under subsection (4) which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to the making, confirming or approving of subordinate legislation after the end of that period.(13) Subsections (6) to (11) do not apply in relation to regulations which only relate to a revocation of a specification.(14) The restriction in subsection (4) is in addition to any restriction in section (Status of retained EU law) of the European Union (Withdrawal) Act 2018 or elsewhere on the power of a member of the Scottish Government to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law.(15) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Scottish Ministers,and, in calculating that period, no account is to be taken of any time during which the Parliament is dissolved or during which it is in recess for more than four days.””
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Moved by
92AB: Schedule 3, page 29, line 6, leave out from “law” to end of line 18 and insert “and the modification is of a description specified in regulations made by a Minister of the Crown.
(8A) But subsection (8) does not apply— (a) so far as the modification would be within the Assembly’s legislative competence if it were included in an Act of the Assembly, or(b) to the making of regulations under Schedule 2 or 4 to the European Union (Withdrawal) Act 2018.(8B) No regulations are to be made under subsection (8) unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(8C) A Minister of the Crown must not lay a draft as mentioned in subsection (8B) unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(8D) For the purposes of subsection (8C) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(8E) In subsection (8C)— “the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Welsh Ministers,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.(8F) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (8B) must—(a) provide a copy of the draft to the Welsh Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(8G) See also section 157ZA (duty to make explanatory statement about regulations under subsection (8) including a duty to explain any decision to lay a draft without the consent of the Assembly).(8H) No regulations may be made under subsection (8) after the end of the period of two years beginning with exit day.(8I) Subsection (8H) does not affect the continuation in force of regulations made under subsection (8) at or before the end of the period mentioned in subsection (8H).(8J) Any regulations under subsection (8) which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to the making, confirming or approving of subordinate legislation after the end of that period.(8K) Subsections (8C) to (8I) do not apply in relation to regulations which only relate to a revocation of a specification.(8L) The restriction in subsection (8) is in addition to any restriction in section (Status of retained EU law) of the European Union (Withdrawal) Act 2018 or elsewhere on the power of the Welsh Ministers to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law.””
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Moved by
92BA: Schedule 3, page 31, line 34, leave out from “section” to end of line 35 and insert “30 insert—

“Section 30A

Type C”.”

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Moved by
92BB: Schedule 3, page 32, leave out line 2 and insert—

““Section 57(4)

Type C”.”

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Moved by
92BC: Schedule 3, page 32, line 2, at end insert—
“21A_ After paragraph 5 of Schedule 7 (procedure for subordinate legislation: special cases) insert— “6_(1) This paragraph applies where a draft of an instrument containing regulations under section 30A or 57(4) is to be laid before each House of Parliament. (2) Before the draft is laid, the Minister of the Crown who is to make the instrument—(a) must make a statement explaining the effect of the instrument, and(b) in any case where the Parliament has not made a decision to agree a motion consenting to the laying of the draft—(i) must make a statement explaining why the Minister has decided to lay the draft despite this, and(ii) must lay before each House of Parliament any statement provided for the purpose of this sub- paragraph to a Minister of the Crown by the Scottish Ministers giving the opinion of the Scottish Ministers as to why the Parliament has not made that decision.(3) A statement of a Minister of the Crown under sub-paragraph (2) must be made in writing and be published in such manner as the Minister making it considers appropriate.(4) For the purposes of this paragraph, where a draft is laid before each House of Parliament on different days, the earlier day is to be taken as the day on which it is laid before both Houses.(5) This paragraph does not apply to a draft of an instrument which only contains regulations under section 30A or 57(4) which only relate to a revocation of a specification.””

European Union (Withdrawal) Bill

Lord Callanan Excerpts
Lord Goldsmith Portrait Lord Goldsmith
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My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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I thank the noble Lord, Lord Lisvane, for introducing this amendment, which stands also in the names of the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Hayter. I am glad to have the opportunity to address it.

First, I reassure noble Lords that the strength of feeling around the exercise of delegated powers by those not immediately accountable to Parliament has been heard, as I said the other evening. The Government are looking very closely at the issue of transparency before Parliament, and we will of course hold that at the forefront of our minds as we consider our position ahead of Report.

At the heart of this Bill is the repeal of the European Communities Act, including Section 2(2) of that Act. As noble Lords on all sides of the Committee know, that provision has been the vires used for many statutory instruments made by many Governments in recent years. This Bill does not replace that power. Although there are several broad powers in the Bill, with some approaching the breadth of Section 2(2) of the ECA, they are, unlike that power, time limited. The Bill is not an assault on Parliament but, rather, the means by which this Parliament will take back control to itself.

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Lord Goldsmith Portrait Lord Goldsmith
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It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

Lord Callanan Portrait Lord Callanan
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My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

Lord Adonis Portrait Lord Adonis
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If I could have a last celebratory intervention on the Minister in Committee, can he indicate to the House when the Government intend to use the powers they would get under this Act to repeal the 2011 Act?

Lord Callanan Portrait Lord Callanan
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I do not want to give the noble Lord a precise date at this time. We will wait until the legislation is on the statute book before deciding such things.

Crucially, a second referendum is not provided for by the 2011 Act. As I hope I have set out, that Act could never have been intended to achieve that goal.

Lord Adonis Portrait Lord Adonis
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Is the Minister indicating that the Government may repeal the 2011 Act in advance of the repeal of the European Communities Act 1972?

Lord Callanan Portrait Lord Callanan
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I will not comment any further on the repeal date, I am afraid, no matter how many times the noble Lord asks me.

I refer noble Lords to the first sentence of the first part of the Explanatory Notes to that Act. Acts of Parliament or referenda are required by the 2011 Act,

“if these would transfer power or competence from the UK to the EU”.

We are leaving the EU. That process is neither governed by the types of decision referred to in the 2011 Act, nor involves a change to the treaties on European Union or the functioning of the European Union. Those treaties will go on without us, governing the EU and its institutions, for which we wish only the greatest of success. Moreover, I hope it is unquestionable for the Government to pursue a withdrawal agreement that will transfer power to the EU; it is the nature of leaving the EU that it must involve a transfer of power back to the UK. Therefore, I say with all due respect to the noble Lord, Lord Adonis, that it is disingenuous of him to mislead others outside this House that the 2011 Act is an instrument to deliver a second referendum on our membership of the EU.

We are progressing towards establishing a future relationship with the EU as an independent third country. As part of this, we will require new processes for approving our new relationship with the EU. The Government are committed to giving Parliament a vote on the final deal of our withdrawal agreement negotiations.

Lord Liddle Portrait Lord Liddle
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The Minister is saying things that directly contradict what the Prime Minister has said: that we will have an implementation period in which we will follow the laws set by the EU without having any say over them. In her Mansion House speech, she said that we wish to maintain regulatory alignment with the EU in a large number of areas. That means following EU laws without having any say in them. Will the Minister accept that point?

Lord Callanan Portrait Lord Callanan
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I will not accept that point. We have not agreed anything yet. We are still to have those negotiations.

Lord Liddle Portrait Lord Liddle
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Is the Minister saying that he rejects what the Prime Minister said in her Mansion House speech?

Lord Callanan Portrait Lord Callanan
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Of course I am not saying that. I am saying that we are in the process of conducting a negotiation. We have said that when have concluded that withdrawal agreement, we will return to this House with the withdrawal agreement and implementation Bill. The noble Lord will be able to make all his points—at great length, no doubt—over and again during that process. He has made those points many times in the course of this Committee, so if he will forgive me I will make a bit more progress and then we can all go out and have an enjoyable evening at the end of this stage.

European Union (Withdrawal) Bill

Lord Callanan Excerpts
Lord Campbell-Savours Portrait Lord Campbell-Savours (Lab)
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My Lords, under this amendment, if by the end of January 2019 negotiations have not concluded in an agreement endorsed by Parliament, then a Motion would be put to revoke Article 50 and authorise a second referendum with the Government having already opened talks and informally secured an agreement on three issues. These are: a non-rebated own-resources contribution maintaining our existing contribution under subsection (1)(b); amendments to regulatory arrangements of most concern to Parliament—and I suggest animal welfare as one—under subsection (1)(c), and stronger border controls under subsection (1)(a), on which I intend to concentrate my remarks.

My amendment, which is not Labour policy, would signal to our European partners an alternative to Brexit and end the delay which is on course to undermine our economy and, in my view, our industrial base. Negotiators would need to negotiate on the core issues that concern the British people and influenced the referendum. I am arguing today a direct linkage between loose border controls, insensitivity to public concerns over immigration and developing political extremism in both the United Kingdom and Europe.

My amendment finds its origins in February 2016, after David Cameron’s return from Brussels, having failed to secure a meaningful deal. I am not blaming Cameron: I blame inflexibility in Europe. As I set out in the February 2017 debate, I have always been a supporter of European union, having canvassed in its favour in 1975 and loyally supported union throughout the period of Labour difficulties on Europe in the 1980s. I have never wavered until the Cameron failure in 2016.

For me, the Commission is the problem: its insensitivity to public opinion, its almost breathtaking administrative arrogance and its inability to address the problem of developing political extremism in the European Union. The result of that was that the people gave the system a good kicking—as indeed I did. I voted leave, along with another 17.5 million people. Neither I nor they voted to leave the customs union. People in the industrial heartlands of south Wales, the Midlands and the north—the core leave vote—are not stupid; they were alert to the risks of economic and industrial upheaval, and they were not rejecting the whole single market. For most, these were obscure terms. Millions travel abroad every year; they like what they see and recognise the benefits. They are not bought off with billion-pound promises on healthcare—they know instinctively when politicians are telling porkies.

Those issues were not at the heart of the leave vote. Millions voted leave due to a feeling of national insecurity, stemming from what they believe to be permeable borders throughout Europe. They believe that we have lost control over immigration and fear migratory flows across Europe from other continents that will destabilise populations. Be all that a true or false, valid or invalid reason, all was not helped by inadequate official statistics hiding inertia in government. They believe that inertia threatens their jobs, their personal security, the national well-being, and, for some, their cultural heritage. That is at the heart of the leave vote, not antipathy towards Europe.

The Merkel initiative, Sangatte, the crisis in the Mediterranean, imported criminal activity and the bombings in Europe have all served to aggravate the condition. Our leadership in this country is in denial, and most frightening of all is that the pursuit of integration in areas such as education and the tearing down of indefensible cultural boundaries, which are desperately needed, have fallen victim to political correctness. The public know it, and all over Europe the public are kicking the system and challenging permeable borders. Even those of us who argue for managed migration and its benefits are deemed out of touch. Even we are told that we are in denial, that we do not understand, and that we live in silos of privilege—which, to some extent, is probably true. When we argue that migration is not the cause of all the insecurity they point to threats to their jobs and unscrupulous employers who insist on passive cheap migrant labour sheltering behind government indifference.

It is all an invitation to political extremism and anti-migrant prejudice. That is what happens when states do not listen. For those of us who believe in the vision of a new Europe, our dream is being shattered by the politics of that institutional indifference. Denial at home is only surpassed by denial overseas. France is divided and the Visegrad states are riddled with division; there was Italy last week, and the AFD in Germany. All over Europe people are in revolt; in some EU states, even freedom of movement is being questioned.

I spent Christmas researching anti-immigration and wider extremist movements generally in 32 inner and outer European states. The findings were breathtaking. The migration crisis has given not only birth but real lift to reactionary movements throughout the continent of Europe. One is reminded of the 1930s. It is about time the powers that be consider whether their failure to act collectively on migration and its resultant insecurity is undermining their historic role in the development of Europe. They should be talking about aiding development, increasing resources on aid and creating safe areas in parts of the world where people live in fear, at the same time as acting to hold back the forces of political extremism. I used my leave vote to promote that debate, on Schengen and wider European border control issues. Without a leave vote in the United Kingdom there would be no debate in Europe on these matters, just drift. This amendment is a modest attempt to forward that debate.

I recognise that tougher border controls may be limited in effect, but that would depend on border management policies, whether we introduce work permits, ID requirements and the profile of social support. The Government’s Brexit-inspired immigration advisory committee recommendations due later this year might point to a way forward. At least we can be sure that taking back control of borders would help in planning our public services. That is what the public expect of their Parliament.

For me personally this has always been a high-wire, high-risk strategy. I saw my own credibility slip away among colleagues in both Houses as I set out in 2016, two years ago, why I, as a remainer, was voting leave. Those of us who wanted a real debate on those issues which are of most concern to the public had to stand up and be counted. I repeat: without a leave vote there would be no debate. We cannot rely on the Commission, as it is smothering any debate that questions its direction of travel. It says that the pillars are immutable, all while some nation states are chomping at the bit for reform. We need tough negotiations and brinkmanship with a clear message. Commission inflexibility should be met by preparedness to go direct to nation states. If we leave the Commission to run amok and run rings round nation states, there will be no single market left in the end to defend. We should be leading the charge, not only for ourselves but for Europe as a whole.

For those in the Chamber who say that challenging a single market core principle is a pipe dream, I say that they underestimate attitudes in Europe towards Britain, our Parliament, our institutions, our history, our stability, our commitment to democracy, our response in history when they were all in trouble, and our financial contribution to Europe. They have an eye on our money and, in particular, the topslicing of budgets post Brexit, which worries many of them.

I believe that one day we will have real freedom of movement throughout Europe. There will be no borders, just regional differences and cultural traditions, but not now. At this time in our history, the developing crisis demands a rethink. Too much is at stake and the threat of extremism has to be tackled head on now. If we win a new deal on the basis of the agenda in this amendment, we could win a second referendum with a resounding vote and our nightmare would be over.

This has not been an easy contribution for me to make, particularly as I personally embrace immigration in its most positive form and in warmth. My great, great, great grandmother on my mother’s side was born in slavery in the colonies in the early 1800s. Even now, after 200 years, one is conscious of that legacy and the agony of those before me who suffered racism through extremism—political extremism—in those times. We want to love our fellow man, but sometimes love has to be tough to survive. My amendment is about being tough and stamping out the evil of intolerance before it is too late and sweeps across Europe. I beg to move.

Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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My Lords, I thought that we would have a longer debate on this matter. I understand the intentions of the noble Lord, Lord Campbell-Savours, with this amendment. He is concerned, as are many other noble Lords, with the timeframe in which a deal with the EU is reached, and the consequences should Parliament choose to reject it. I also understand that the Government’s position on future referenda on extending the Article 50 period and what will occur if Parliament does not support our negotiated agreement is, to be fair, not one which satisfies the whole House. Therefore, I reassure the House once again that we are confident that we will reach a positive deal with the EU, as that is indisputably in the mutual interests of both the UK and the EU. Parliament will be given the opportunity of a vote on the final terms of the agreement, alongside the terms of our future partnership. There will be a clear choice—whether to accept the deal we have negotiated or move forward without a deal. Ultimately, if Parliament chooses to reject the deal, we will leave the EU with no deal once the Article 50 window closes.

The noble Lord proposes that, in the event of Parliament rejecting the deal, there should be another referendum on whether the UK should revoke its notification under Article 50 and renegotiate its membership of the EU. We had a very long and strong debate about a second referendum earlier this evening. As has been said, rather than second-guess the British people’s decision to leave the EU with a second referendum, the challenge as the Government see it is to make a success of it. That is how we are approaching the negotiations—anticipating success, not failure. It is vital that we try to reach an agreement that builds a deep and special partnership between the UK and the EU, not just for those who voted to leave but for every citizen of our country.

European Union (Withdrawal) Bill

Lord Callanan Excerpts
Baroness Jones of Whitchurch Portrait Baroness Jones of Whitchurch
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That is our position: we should have this amendment now but work on it in the longer term. I am sure we could all find ways of improving it. The easiest and most honourable thing is to transpose what was in the treaty and move that wording over, then move on to something better for the longer term. I agree with my noble friend.

Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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My Lords, this has been an excellent debate and I thank all noble Lords who have contributed to it. I start by directly addressing the question put by the noble Baroness, Lady Bakewell, the noble Lords, Lord Wigley and Lord Davies, my noble friend Lord Bowness and others. There is no question but that this Government regard animals as sentient beings. As we said on this issue in the other place, we certainly agree with the sentiment of the amendments, such as that of the noble Baroness, Lady Jones of Moulsecoomb. However, as I will set out, we cannot support them.

Article 13 of the Treaty on the Functioning of the European Union, to which many noble Lords have referred, places an obligation on the European Union and EU member states when formulating and implementing certain EU policies to have regard to the welfare requirements of animals because animals are sentient beings. However, the weakness of that article—this relates directly to my noble friend Lord Deben’s point—is that it applies only to a limited number of EU policy areas and, even then, allows for certain religious and cultural traditions which many would consider to be cruel. Two examples, of course, are bull-fighting and the production of foie gras. Article 13’s effect on domestic law is minimal. As the Secretary of State for the Environment has made clear, as we leave the EU, we believe that we can do much better.

We have made it clear that we intend to retain our existing standards of animal welfare once we have left the EU, and, indeed, to enhance them. This Bill will convert the existing body of EU animal welfare law into UK law. It will make sure that the same protections are in place in the UK and that laws still function effectively after we leave the EU. However, the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better. That is why, at the end of last year, the Government published draft legislation, the Animal Welfare (Sentencing and Recognition of Sentience) Bill, to which a number of noble Lords have referred. The draft Bill sets out how we can better enshrine in domestic law the recognition of animals as sentient beings.

Let me reply to the questions asked by my noble friend Lord Bowness and the noble Baroness, Lady Jones. The Secretary of State for the Environment has been clear that we will legislate and that there will be no gap left in our law on sentience after we leave the EU. We believe that the draft Bill is a significant improvement on Article 13, imposing a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas outlined in Article 13.

Lord Deben Portrait Lord Deben
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My noble friend has said that the reason we are not including that part of the article which is excluded is that it does not go very far and it is not good enough, but that is not what the Government promised. The Government said that they were going to include in this Bill all the present legislation. That is all we ask. Why will he not include even so deficient a piece as this and then do the additions afterwards, which is what he has told me he is going to do on every other occasion?

Lord Callanan Portrait Lord Callanan
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Because we do not think that Article 13 works in the context of UK law; it applies only to EU law. I have set out why we think we can do better.

The public consultation on the draft Bill closed on 31 January. The Government are analysing the responses and will publish a summary and next steps in due course—I hope before we get to Report. I hope this reassures the noble Baroness, and indeed my noble friend Lord Deben, about the Government’s firm stance on animal sentience.

Lord Wigley Portrait Lord Wigley
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The Minister emphasised that he hoped this would be brought forward by Report. If it is not, would he be prepared to look at an amendment along these lines to meet the Government’s shortcomings and ensure that the Bill covers the possibilities we have outlined in the debate, rather than relying on the possibility of future legislation that may not reach the statute book?

Lord Callanan Portrait Lord Callanan
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I do not want to give the noble Lord an exact commitment but, as I have said, we hope to have it by Report stage. If that is not the case we will look at what can be done in its place.

Amendment 30 seeks to transfer the obligations contained in Article 13—to have regard to the welfare requirements of animals as sentient beings when developing and implementing certain EU policies—to domestic law. Unlike Article 13, however, the amendment applies only to the formulation rather than the formulation and implementation of law and policy. Furthermore, once the UK has left the EU we will obviously no longer be a member state and therefore no longer formulate or implement any EU laws or policies. Therefore, by referring to the obligations contained in Article 13, it is not clear what the effect of the amendment would be in practice. Although it is assumed that its intention is to require the welfare requirements of animals to be taken into account in formulating domestic law and policy, it appears that the amendment would only require it when formulating and implementing EU policy and law, which of course we would no longer be doing. As I have said, the Government have published a draft Bill which introduces a clear duty on Ministers to have regard for animal welfare when formulating and implementing all government policy and not only the six areas I mentioned earlier.

Amendment 98, tabled by the noble Baroness, Lady Jones of Whitchurch, seeks to apply the requirements of Article 13 to the use of Clause 7. It would require Ministers to pay full regard to animal welfare requirements when introducing any legislation under Clause 7. I remind noble Lords that the purpose of Clause 7 is to allow the Government to address deficiencies in retained EU law arising from our withdrawal. Clause 7 provides powers for Ministers to make secondary legislation to deal with any problem that would arise on exit—for example, to remedy any provisions that would have no practical application after the UK has left the EU.

However, the power is temporary and can only be used for up to two years after exit. After that point it will expire. Similarly, the proposed amendment to Clause 7 would only have effect for two years from the date of our withdrawal from the EU. The amendment would also only apply to those regulations introduced by Ministers before March 2021 for the purposes of addressing deficiencies arising from our withdrawal. Therefore, the limited protection provided for animals by the amendment would also expire on 30 March 2021.

The amendment would not hold Ministers to the standards required in Article 13 two years after we have left the EU and, therefore, would weaken the current obligation in Article 13. The provisions set out in our draft Bill in December go beyond the two years following our exit from the EU and will apply to more than just those regulations that deal only with any deficiencies arising from the UK’s withdrawal from the EU.

European Union (Withdrawal) Bill

Lord Callanan Excerpts
Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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My Lords, I am grateful that the important issue of children’s rights has been raised. I thank noble Lords for these amendments, which seek to make changes relating to the United Nations Convention on the Rights of the Child and the charter of fundamental rights, specifically to incorporate them into domestic legislation via the Bill and to impose statutory duties on Ministers to consider the UNCRC when making regulations. Many of the noble Lords who have spoken to these amendments have a track record of tirelessly championing children’s rights over the years, and the issue is of utmost importance to them and to this Government. Protecting children’s rights is paramount, and I assure noble Lords that I have heard their concerns about how existing rights and protections for children, and our commitment to the UN Convention on the Rights of the Child, will continue as the UK exits the EU.

Amendments 37 and 38, in the names of the noble Baronesses, Lady Massey of Darwen and Lady Greengross, seek to provide that some or part of the charter of fundamental rights would remain part of domestic law following withdrawal from the EU. As a number of noble Lords have observed, we have already debated the wider issue of the charter at length and noble Lords will be pleased to hear that I will not go through the general arguments today, although I thank the noble and learned Lord, Lord Brown, for rehearsing some of them. I take the opportunity again to reassure the Committee that the Government remain fully committed to children’s rights and the UN Convention on the Rights of the Child. Our ability to support and safeguard children’s rights will not be affected by the UK’s withdrawal from the EU.

I have heard the concerns of the noble Baroness, Lady Massey, about the impact of Brexit on children’s rights and the need to ensure that their welfare, safety and best interests are not compromised as we leave the EU. The rights and best interests of children are already, and will remain, protected in England primarily through the Children Act 1989, which sets out a range of duties to safeguard and promote the welfare of children, including making the child’s welfare the paramount consideration for any court—I think the noble and learned Lord, Lord Brown, referred to that. Children’s rights and best interests are further protected through the Adoption and Children Act 2002, which among other things ensures that the child’s welfare is the paramount consideration in all decisions relating to adoption. In addition, other legislative and administrative measures are in place, including the Children Act 2004, which imposes general safeguarding duties in relation to children on various bodies.

Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights which fully comply with the UN Convention on the Rights of the Child. Additionally, the European Convention on Human Rights as a whole offers the protection of children’s rights, and this is implemented domestically by the Human Rights Act 1998.

Lord Wigley Portrait Lord Wigley
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The Minister referred to Wales, Scotland and Northern Ireland having devolved competence. Can he give an assurance that all the powers they currently have in that context will be maintained after Brexit?

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Lord Callanan Portrait Lord Callanan
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I will come on to the noble Lord’s question shortly and answer him directly. None of this extensive framework is altered or in any way diminished by our exit from the EU and the non-retention of the charter. Amendments 68, 69 and 70, tabled by the noble Baronesses, Lady Meacher and Lady Lister, and the noble Earl, Lord Listowel, would incorporate the UN Convention on the Rights of the Child into domestic legislation and require all public authorities and Ministers of the Crown to have regard to it. Further, Amendments 97 and 158, tabled by the noble Baroness, Lady Meacher, seek to ensure that regulations made to remedy deficiencies in retained EU law are not contrary to the UNCRC. Again, I thank noble Lords for these considered amendments. Although tabled with great intention and faith, in reality they would not enhance the existing safeguards in place to preserve the rights of children in this country—measures that I have already outlined and which will remain in place after the UK’s withdrawal from the EU. I thank the noble Baroness, Lady Deech, for her comments and points on this matter.

It is also important to highlight that in addition to these measures, which are a combination of both legislation and commitments, the UK Government already have a commitment to Parliament to give due consideration to the UNCRC when making policy and legislation. In response to the noble Baroness, Lady Massey, I assure noble Lords that the Government are working closely with the Children’s Rights Alliance for England to ensure that children and young people’s views are heard and taken fully into account when developing policy and delivery in this area. We are hugely grateful to it for the great work it does to help preserve children’s rights and deliver a framework of actions on the UNCRC. These actions are designed to embed children’s rights across Whitehall and beyond, as we set out in a Written Ministerial Statement in October 2016. Those actions include developing and promoting training for civil servants to help them understand children’s rights and the UNCRC, and looking at how we can promote and embed good practice.

As I have set out, the UK already meets its commitments under the UNCRC through a mixture of legislative and policy initiatives, which effectively safeguard the rights of children in this country, negating the need directly to incorporate the UNCRC itself. That approach is in line with normal practice for implementing international treaties. By going over and above measures already in place, and which will of course remain in place after we leave the EU, the amendments would create new burdens on public bodies and individuals, when the UK’s existing laws and commitments already adequately safeguard the rights of children in this country.

Amendment 70, from the noble Baroness, Lady Lister, addresses continued co-operation on various security and law enforcement tools. Those discussions will be a matter for negotiations with the EU. The continued security of Europe is unconditionally guaranteed and is of paramount interest to us. The Government have been clear that the UK remains unconditionally committed to European security, and in the exit negotiations we will work to ensure that the UK and the EU continue to co-operate closely to safeguard our shared values and combat common threats. We recognise in that regard the value provided by Europol, the European arrest warrant, Eurojust and ECRIS. I hope that that provides appropriate assurances to my noble friend Lord Dundee and reassures other noble Lords of our wholehearted commitment to children’s rights and the UNCRC, showing that our ability to support and safeguard children’s rights will not be negatively affected by UK withdrawal from the EU.

I turn to Amendment 39, tabled by the noble Baroness, Lady Greengross, on the rights of the elderly. I entirely sympathise with the concerns raised today and I reassure the Committee that the Government are committed to the welfare of the elderly. I particularly thank the noble Lord, Lord Foulkes, for drawing my attention to his no doubt excellent report in the Council of Europe. I must profess that in my extensive reading material I omitted to go through that worthy document but, now that he has drawn my attention to it, I shall make it my priority to get hold of a copy and will reply to him in writing on it.

There are enforceable domestic safeguards for the rights of the elderly under the Human Rights Act and the Equality Act. Older people will continue to benefit from the existing strong protections against age discrimination, harassment and victimisation in the Equality Act 2010—for example, when accessing services when we leave the EU. Of course, the Government also make provision for the rights of the elderly in domestic legislation in a range of ways. To take just the most obvious example, domestic law provides for state pensions and the safety net of state pension credit, as well as disability benefits and other measures such as the provision of social care for those with eligible needs—subject of course to a financial assessment—free prescriptions where charges would otherwise apply, and travel concessions. Again, none of this is in any way diminished by our exit from the EU and the non-retention of the charter.

Article 25 of the charter is also a principle, which is different from a right. It cannot be relied upon directly by individuals in the way that rights can. Principles are a valued and important tool, and, in so far as the principles and rights underpinning the charter exist elsewhere in directly applicable EU law, or EU law which has been implemented in domestic law, that law will be preserved and converted by the Bill. Retaining Article 25 as a standalone right in this way is simply not necessary. If Article 25 was incorporated into domestic law, it would be unclear how it was supposed to apply and it would undermine the Bill’s core objective: to give certainty and continuity after we leave the EU.

I turn to the question asked by the noble Lord, Lord Wigley, on protecting children’s rights. The UNCRC does not impose a requirement on state parties to incorporate the UNCRC itself. It is focused on the implementation of rights without prescribing how state parties should achieve that. I reassure noble Lords that the UK meets its obligation under the UNCRC through a mix of legislative and policy initiatives, as opposed to the incorporation of the UNCRC itself.

With regard to Wales, the Rights of Children and Young Persons (Wales) Measure 2011 requires Ministers to have due regard to the convention when exercising their functions. The Children’s Rights Scheme 2014 sets out the arrangement Ministers have in place to ensure compliance. None of the rights exercised by Welsh Ministers will be affected by any of the provisions in the Bill.

My favourite hereditary oik, the noble Lord, Lord Russell of Liverpool, mentioned two articles. I certainly remember writing the article for “ConservativeHome” but have no recollection of writing an article for the Sun on the same day. I would be grateful if he would send me a copy of this for my delectation and interest, and I will respond to him when I have had a look at it.

I hope that my reassurances to noble Lords will enable them to withdraw or not move their amendments.

Baroness Massey of Darwen Portrait Baroness Massey of Darwen
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My Lords, I thank the Minister for his reply. We have had an excellent debate on children’s rights and protection, with many articulate and forceful contributions. The noble Baroness, Lady Tyler, stressed that children are potentially the most affected by Brexit because they are young and will be subject to the forces that Brexit might bring. I am disappointed by the Minister’s response. Many of us have said tonight that we recognise that we have made great strides in defending children’s rights and proposing things which improve those rights and the protection and welfare of children. But I would like the Minister to recognise what was also said: namely, that our domestic laws do not protect children in all circumstances. Many noble Lords have given examples of this.

As my noble friend Lady Sherlock said, our laws do not incorporate all the treaties and we should be working towards more incorporation. The noble Baroness, Lady Meacher, thought this might be an “oversight”—I think that was the word she used. Whatever it is, we need to sort it out. We need to recognise that children’s rights and protection are not always incorporated into what we do. An example is youth justice, where 17 year-olds can be treated as adults rather than children. Children say that this is not right or sensible, and I agree.

The Government have made it clear that they are very keen on social mobility. It is important, but it will not happen unless children are encouraged to participate in their own futures. I am talking about empowerment as well as protection. Last November, I held a seminar in Portcullis House. One or two noble Lords were there as observers. We talked about child-friendly justice and child mental health. Almost half the participants were children and young people; others included academics, European politicians and NGOs. It was acknowledged by everyone that the contribution of young people was absolutely crucial to defining the needs of children and young people and responding to them. I recognise that the Minister says that they have talked to CRAE—for which I have the highest regard—on the rights of the child, but have the Government actually listened to what children have to say on this? I would like some evidence of that.

As I said, we have made progress on involving and protecting children, but we should be big enough to take criticism when it comes—and we are criticised. We are not rated highly at international level on how we deal with children. I gave the example of youth justice. We should not be complacent.

This is an important set of amendments, spoken to most forcefully by colleagues. I hope that the Minister will call a meeting of those present today and others to discuss how we can move forward on issues relating to Brexit and children. My questions and those of others have not been sufficiently answered. I still have reservations and I would like to meet the Minister to talk about them. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Callanan Excerpts
Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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My Lords, as we have heard, these amendments relating to reciprocal issues are key to continuing to protect and assist British citizens after Brexit, including children and protected persons, in ways that hitherto our EU membership and cross-border agreements have provided. In particular these are the European arrest warrant, the mutual recognition of family court judgments, information exchange, Europol and Eurojust.

The Government’s approach to these issues must be agreed in principle with the EU in time to be included in the framework part of the Article 50 requirements and form part of the withdrawal agreement, so a satisfactory approach to these will be key to the future vote on that deal. However, as we have heard from speakers tonight, there seems to be an extraordinary lack of urgency, especially if there is any chance—I am not sure whether this is what the noble Lord, Lord Hannay, hinted at—that a standstill transition agreement could not cover these issues. That would make it even more urgent.

I ask in particular about the Government’s urgency, or lack of it, as I began asking Written Questions on this a year ago. The noble and learned Lord, Lord Keen, will remember it very well: it was on St Valentine’s Day last year—I do not think he chose it to be that day, but never mind—that he answered some of my questions on matrimonial and maintenance proceedings. It was very reassuring: he said that the Government,

“recognises the importance of the issues”.

Wow. There was no more than that then, nor indeed on civil judicial co-operation and cross-border disputes and family law when he replied to a similar Written Question in August. I worry about the lack of progress since then.

As the Prime Minister has remarked and others have repeated, keeping our citizens safe is the first mission of any Government. Therefore, like others, I welcome that she used the Munich speech to reiterate her desire to negotiate continued, and in some cases enhanced, co-operation with EU nations and particularly with these bodies and schemes. As we have heard, the amendments cover the Schengen Information System, the European arrest warrant, the European Criminal Records Information System, Europol and Eurojust. Given what we have heard today and in earlier debates, the Minister will recognise the importance of our continued participation in all of those, but also the challenges that that will bring to them in negotiating.

While we heard from Munich the desire for this comprehensive agreement, it is time for the Minister to offer a bit more detail and clarity sooner rather than later. It is about the direction of travel or the objectives. It does not undermine any negotiations for us, not just our Parliaments, to know what the Government want to do. As the noble Lord, Lord Deben, said, it is time for the Government to move from intention to reality. These issues, as has been touched on just now, are partly held up by an obsession with red lines around the ECJ. They cannot be allowed to stand in the way of some logical and sensible solutions to these problems. These issues are too important to be left to a divided Cabinet. At the moment I see a pantomime horse, or Dr Dolittle’s pushmi-pullyu, being pulled in two different directions, mostly about red lines that are immaterial to the issues we have been discussing. I hope we can hear about some direction and some practical steps from the Minister, particularly on how these negotiations are taking place.

Lord Callanan Portrait The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
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I thank all noble Lords and noble Baronesses who have contributed to what has been a fascinating debate. I reiterate the Government’s commitment to ensuring that the outcome of our negotiations with our partners in the EU delivers continued close co-operation on internal security matters.

There are parallels between the effect of Amendment 13 in the name of the noble Baroness, Lady Ludford, and that of Amendment 12 in the name of the noble Lord, Lord Wallace of Saltaire, which was debated previously, in so far as they both seek to discuss the future relationship with the EU, which is, of course, subject to the negotiations. The noble Baroness’s amendment seeks to prevent the Government from bringing regulations into force until agreed procedures for continued participation in EU internal security measures have been approved by both Houses. The Government have already committed to providing Parliament with a meaningful vote on any final deal. This will give Parliament the opportunity to scrutinise the future relationship between the UK and the EU in all these areas. For this reason, it is our view that the amendment is not needed.

I must come back to the points made by my noble friends Lord Hamilton and Lord Lamont. Many noble Lords have pushed me and asked for further detail and clarification on the negotiations. This Bill is negotiation agnostic; it is not concerned with the negotiations. I understand why people want clarification in all those areas, but, of course, when we have reached an agreement, it will be the subject of future legislation that noble Lords will no doubt want to comment on in great detail. However, I will attempt to answer as many questions and go into as much detail as I can. I suspect that the noble Lord, Lord Adonis, may be a little disappointed yet again, but I will do my best.

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Lord Adonis Portrait Lord Adonis
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Can the Minister answer the question put by the noble Lord, Lord Thomas, as to which Minister is taking the lead in the security negotiations?

Lord Callanan Portrait Lord Callanan
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I will come to that later in my speech, but I will answer that question.

In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.

We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.

The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.

On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.

The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.

Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.

The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.

In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.

I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:

“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.


The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.

The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.

The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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Can the Minister tell us if the European Union has appointed anybody to represent the 27 other countries in conducting the other side of treaty negotiations?

Lord Callanan Portrait Lord Callanan
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Michel Barnier is the EU chief negotiator. I thought that that was fairly obvious.

Finally, the noble Lord, Lord Adonis, asked about no deal. Of course, we approach these negotiations not expecting failure but anticipating success. We are confident that continued practical co-operation between the UK and the EU on law enforcement and national security is very much in the interests of both sides, so we approach these negotiations anticipating success. We do not want or expect a no-deal outcome. However, a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government. The UK uses and benefits from a range of international information-sharing tools in the area of security and law enforcement, which are by no means limited to EU mechanisms but include bilateral and multilateral channels, including Interpol and the Council of Europe.

I hope I have answered all the questions—

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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Do I understand the Minister to be saying that the people conducting the trade negotiations will deal with the security stuff as well? Is that what he is saying? Are there no lawyers on the other side to conduct the negotiations on behalf of those 27 other countries? What is the situation?

Lord Callanan Portrait Lord Callanan
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There are lead negotiators on each side but they are supported by a whole range of officials and Ministers from various departments. David Davis is our negotiator, Michel Barnier is the EU’s negotiator, and they have different members in each of the teams—

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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But is the withdrawal agreement the same thing as the treaty or are they separate?

Lord Callanan Portrait Lord Callanan
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No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.

Lord Pannick Portrait Lord Pannick (CB)
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May I just ask the Minister about his comments on the European Court of Justice? Is there anything in the case law of the ECJ that justifies the Government’s reluctance for it to continue to be the dispute resolution procedure for the matters we are discussing?

Lord Callanan Portrait Lord Callanan
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We have been clear that respecting the Brexit vote means delivering on having control of our own laws. Our Supreme Court will be the ultimate arbiter of our own laws and it would not be appropriate to submit ourselves to the jurisdiction of a foreign power.