European Union (Withdrawal) (No. 2) Act 2019

Debate between Lord Callanan and Lord Goldsmith

Thursday 26th September 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I thank the noble Lord for repeating that Statement. I have one question to put to him. He used the formula that the Government will obey the law. I think he used exactly the same formula a number of times in answering questions yesterday. Many people would like to know what the Government think the law is. In particular, do the Government think that it will be complied with by sending a letter, as set out in the Act, and then sending another letter or message in some way saying that we do not really want an extension?

I remind the noble Lord of two things. First, saying what the Government believe the law to be is not the same as saying what legal advice they have received. There is no reason not to tell this House what the Government believe the law is. It is long-standing that that position has been taken. Secondly, the Act requires that the Prime Minister must seek to obtain an extension from the European Council under certain circumstances. All noble Lords would like to know whether, if those circumstances arise, the Prime Minister will seek to obtain an extension—and not with his fingers crossed behind his back or by sending another letter or secret messages to his friends saying: “Please don’t give it”. To seek to obtain means to seek to obtain. It needs to be done in a way which complies fully with the spirit of the legislation passed by this House and the other place. Is that the Government’s view and if not, why not?

[Lord Callanan]

The noble and learned Lord is a distinguished lawyer. In fact, there are a lot of distinguished lawyers in this House. Some may say that there are too many, but nevertheless we have lots of distinguished lawyers and I am not a lawyer. I repeat yesterday’s statement that the law officers made in another place: we will always comply with the law. There are a lot of potential outcomes, and no doubt the Government will wish to consider them all carefully when it comes to it, but we will comply with the law.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Callanan and Lord Goldsmith

Report stage (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

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

Perhaps it would be helpful for the Committee if I said a few words about the amendment. Both my noble friends Lord Forsyth and Lord True are essentially correct, except in one important detail. I should say to my noble friend Lord True that even if the rest of the Committee does not want to hear from him, I do, because he speaks a lot of good sense on these issues.

It is true that initially, during the fast-moving events at a late hour on Wednesday evening, it was our intention to ask the House to remove this amendment. However, since then we have looked at it further. My noble friend Lord Forsyth said that the Government do not support this Bill and do not favour it. We think it is flawed and that this Kinnock amendment tries, but does not succeed, to make it even worse. The amendment is confusingly drafted, is contradictory to the aims of the rest of the Bill and its deficiencies are such that its effect is rendered pointless.

I always hesitate to disagree with my noble and learned friend Lord Mackay but my strong advice is that this amendment is legally inoperable. It appears contradictory with other parts of the Bill because it requires an extension to pass legislation to implement a deal, when, under this Bill, the extension is being sought only because no deal has been agreed.

For all those reasons, as I have said, we think it is inoperable and largely pointless. I am happy to say that it was our original intention to take it out—we had discussions to that effect and so my noble friend Lord True is correct, as always—but since then we have looked at the matter further.

[Lord Goldsmith (Lab)]

My Lords, I am grateful to the Minister for helping the Committee at this stage by explaining the Government’s position. We do not support the amendment. In short, given that the Minister has said the Government’s view is that the Kinnock amendment is legally inoperable, it does no harm to keep it in the Bill. I do not know why noble Lords are laughing because the critical point, which was made by the noble Lord, Lord Cormack, is that the Bill has to pass. We do not have time to send it back to the House of Commons given the guillotine of prorogation imposed by the Prime Minister.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Callanan and Lord Goldsmith

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

[Lord Callanan]

The reason I used that form of wording is that one of the original proposals was that we would guarantee that it would receive Royal Assent. Obviously, we cannot speak on behalf of the Palace so we merely said that we would enable it to be sent for Royal Assent. I think the original guarantee that we were asked for was that it would receive Royal Assent by Monday evening. We could not give a guarantee because obviously that depends on the ability of Her Majesty, so we will send it for Royal Assent if it becomes an Act.

[Lord Goldsmith (Lab)]

But of course it would be open to Her Majesty’s Ministers to advise her to give Royal Assent, and I assume that is what would happen. Can that be confirmed?

[Lord Kerr of Kinlochard]

May I repeat to the Minister the question that Mr Marr put to Mr Gove? Will the Government act on the law of the land if this Bill becomes an Act and receives Royal Assent?

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[Lord Goldsmith]

I am just thinking through the implications of what the noble Lord has been saying. I have been hearing and reading that the Prime Minister has said he is negotiating and that the negotiations are going very well. I took that to mean that something was being discussed that he thought might be acceptable, not just the existing withdrawal agreement, and he jumped at the idea put to him by Angela Merkel of coming up with alternatives in 30 days. Is he now telling us that if the Bill passes, the Prime Minister will decline to negotiate any further? Is that the Government’s position?

[Lord Callanan]

No, that is not what I said at all. I am saying that it makes the Government’s position very difficult to persuade the EU to do any kind of alternative deal because all the other options remaining on the table are perfectly acceptable to it. In our view, as I said, the Bill would wreck any prospect for a renegotiated deal ahead of 31 October. It clearly would not honour the referendum result. It would be another pointless and harmful delay and would continue to contribute to the rancour we are experiencing in this House and in the public debate generally. It will come as no surprise to noble Lords whatever that the Government cannot support the Bill. I urge all noble Lords across the House who are committed to leaving the EU and to respecting the referendum to therefore vote against it.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Callanan and Lord Goldsmith

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Goldsmith]

My Lords, I will respond on my Amendment 5, which is the one that has been moved. A couple of points need to be emphasised.

As has been discussed already, we are in unusual circumstances, and they demand some unusual responses. This Bill does not take away or give back the entirety of the royal prerogative. It says—this is why I made an intervention earlier—that it is for the other place, on a Motion put forward by the Prime Minister, to say what date she should seek. It may be that the European Council will accept that date, in which case it is done so far as the negotiations are concerned. It may come back with a different date, and the questions we have been considering are for those circumstances. Does she have to seek approval during the next two to three days before she can respond to it, or is she able to respond by agreeing to it or by putting forward a slightly different proposal?

There are two different amendments—my amendment would remove the fetters requiring her to come back, and that of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, would enable her to reach an agreement without having had that prior approval. It seems to me that a balance is being struck between royal prerogative and necessary control by Parliament. It is absolutely the case—as the noble Lord, Lord Faulks, said—that of course the royal prerogative can be adjusted and amended by what Parliament says. On this occasion, the other place has said: “We believe that we should tell the Prime Minister what date she should seek. What happens after that will depend upon the circumstances but, whatever it is, it has to be done in this time”.

I invite the House to agree Amendment 5 and then we can move on to the other amendments.

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

As the noble and learned Lord, Lord Goldsmith, was kind enough to point out, I have not benefited from the disadvantages of a legal education, but I think I know flawed and badly drafted legislation when I see it. Nevertheless, it remains the reality that this has been approved by the House of Commons, and that is a principle that I believe should be respected. Noble Lords opposite can be assured that I will remind them of their newfound enthusiasm to respect the will of the House of Commons when we come to future legislation.

I will comment first on the amendments. As my noble friend the Leader of the House said, the Government support Amendment 5, moved by the noble and learned Lord, Lord Goldsmith. This seeks to remove Clause 1(6) and (7) from the Bill. As currently drafted, should the European Council propose a different date to extend Article 50 from that agreed in Parliament by virtue of approval of the Motion as set out in the Bill, the Bill would require the Prime Minister to return to the House of Commons on 11 April and put the EU’s counterproposal to that House for approval through a further Motion. As the Government set out last week, we have very real concerns about how that would work in practice.

The Government hope that Amendment 7 will also be successful, which would allow us to reach agreement with the EU on Wednesday, so long as that extension ends no later than 22 May. The Government have been clear, as I said earlier, that we are seeking an extension to 30 June.

In response to the question posed by the noble and learned Lord, Lord Goldsmith, and the noble Baroness, Lady Ludford, scheduling of any further debates after the European Council on 10 April is a matter for the other place. I am sure it is paying close attention to our debates.

[Lord Goldsmith]

I think the Minister said, in relation to the date, “not later than 22 May”. It should be “not earlier than 22 May”. Perhaps he can confirm that. It is obviously a very important difference.

[Lord Callanan]

Yes, I take the noble and learned Lord’s point. He is right on that.

As I said, I am sure that the other place is paying close attention to our debates and will address this when the Bill returns to the House of Commons for further debate this evening.

Brexit: Logistics Industry

Debate between Lord Callanan and Lord Goldsmith

Tuesday 8th May 2018 Lords Chamber

[Lord Callanan]

I assure the noble Baroness that we have had many meetings with the Port of Dover. We continue to engage extensively, at both ministerial and official level. Of course, it is one of 275 ports and airports—albeit one of the largest—that we need to engage in discussions with to make sure that we put in place the logistical arrangements to make the border as frictionless as possible.

[Lord Goldsmith (Lab)]

My Lords, in an earlier answer the Minister identified two potential solutions to the customs issue. Can he please tell the House when he expects the Government to solve that problem and decide which of them they will choose, if either, and how?

[Lord Callanan]

The “how” is that we will look in detail, using our excellent teams of officials, at all the available options. We will announce in due course what the best solution is for the United Kingdom and then, of course, we will have to discuss those matters with our European partners.

European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Goldsmith

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Callanan]

My Lords, we have just debated an important issue, and later I shall turn to some other very substantive matters. Nevertheless, I ask for a moment of the House’s time while I make the case for the five government amendments in this group, especially for the noble Lord, Lord Adonis, who apparently does not believe that we are tabling any amendments to the Bill.

These are all consequential amendments on the status provisions that we debated on day two of Report, and which I am pleased to say that the House accepted without a Division. I know the House will look again at these complex provisions at Third Reading but, as I said on day two, I hope there will be no further amendments beyond anything that relates to additional matters where the distinction between primary and subordinate legislation is important, and therefore we should insert that distinction between retained principal direct EU legislation and retained minor direct EU legislation.

Amendments 93A, 93B and 93C clarify types of legislation that are included in the definition of “enactments” in the Bill. This definition includes a non-exhaustive list of enactments. The new status clause provides that enactments are to retain the same status as they had before exit day. The intention behind the provision was to address the concerns of some noble Lords about the effect that the Bill has on domestic legislation via Clause 2 and whether it changed the status of that legislation. As part of the Government’s commitment to ensuring clarity and certainty, we have tabled the amendments to make it clear that these additional types of legislation all continue to have exactly the same status that they had before our exit from the EU. The amendments clarify that Church Measures, Orders in Council made in exercise of Her Majesty’s prerogative and devolved enactments made in exercise of the prerogative are within the definition of “enactments” and therefore will retain the same status that they held prior to exit day. The Government have of course consulted with the Church of England, the Palace and devolved authorities before tabling the amendments. The amendments also make it clear that in the highly unlikely case that any of these instruments are related to the EU and contain deficiencies, the Government could correct those deficiencies if appropriate, although in these cases it is likely that others would use their own existing mechanisms to so do.

Amendments 112BA and 112BB simply insert the new definitions of “retained principal direct EU legislation” and “retained minor direct EU legislation” into the Interpretation Act so that the terms do not need to be defined in future legislation. I hope noble Lords will find nothing to object to in this group, and I beg to move.

[Lord Goldsmith (Lab)]

My Lords, I understand and am grateful for what the Minister has said about the purpose behind the amendments. He is quite right that, for example, the first three amendments identify as enactments things, including Church Measures, that would normally be regarded as such but were not included. My question for him is simply this: he said in moving the amendment that one of the advantages of the amendments would be to enable deficiencies, if there were connections with EU law, to be corrected through secondary legislation. Could he explain how these amendments will enable that to be done? I did not quite follow that.

[Lord Callanan]

As I said, we think it is highly unlikely that any of these instruments that are related to the EU will contain deficiencies. If appropriate, we could use secondary legislation powers to correct those deficiencies but, as I said, in virtually every case it is likely that others—the devolved Administrations, the Church and so on—would want to use their own existing measures to do so.

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[Lord Goldsmith]

My Lords, the amendments have been moved so powerfully and comprehensively by the noble Lord, Lord Low of Dalston, supported by the noble and learned Lord, Lord Wallace of Tankerness, and my noble friends Lady Lister of Burtersett and Lord Cashman that I do not want to spend much of the House’s time commenting on them. I just want to make a few points. First, I congratulate the noble Lord, Lord Low of Dalston, on the new advisory role that he mentioned—or, perhaps even more, the Equality and Human Rights Commission for taking him in that advisory role. That will be very valuable for the commission.

Secondly, I very much support what the noble and learned Lord, Lord Wallace of Tankerness, said about the benefit of statements that Ministers have to make; that focuses their minds on what they are doing. I know from my own experience that that is a valuable example from the Human Rights Act, and I have no doubt that it will be very useful here.

Thirdly, on the point made by my noble friend Lord Cashman, we are talking not about preventing amendments being made to the level of protection, but preventing them being made through delegated legislation without considerably more care and scrutiny. That takes me to my final point. Amendment 11, which has already been referred to, moved by my noble friend Lady Hayter of Kentish Town, will be doing exactly that. It is a very important amendment that was accepted in your Lordships’ House. It will be one of the ways in which the very important continuing protection for equality may be maintained.

I support the amendment and look forward to hearing what the Minister says in opposition.

[Lord Callanan]

My Lords, I am grateful to the noble Lord, Lord Low, for his time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. I appreciate the discussions on this topic that he has had with the Bill officials and my ministerial colleagues. Before addressing the noble Lord’s Amendments 83A and 83E, the Government have reflected on our conversations with him, and today tabled amendments that will extend the statements regarding the Equality Act under Schedule 7 to SIs made under the consequential power in Clause 17(1).

This and other amendments we debated in Committee have sought to reflect in statute the political commitment that the Government have already made in this area—we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU. Following requests for assurances on this point in the debate in the other place, we tabled an amendment that will secure transparency in this area by requiring ministerial Statements about the amendment made to the Equality Acts by every piece of secondary legislation made under key delegated powers in this Bill.

The statements will, in effect, flag up any amendments made to the Equality Acts, and secondary legislation made under those Acts, while ensuring that Ministers confirm in developing their draft legislation that they have had due regard for the need to eliminate discrimination and other conduct prohibited under the 2010 Act.

As previously stated, the language of a political commitment does not translate to the statute book. So while our commitment to existing equality protections works perfectly well politically, and indeed in the wider world outside this place, these terms do not and could not have a sufficiently clear and precise meaning for the purposes of statute. These statements as tabled in the other place—

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[Lord Goldsmith]

My Lords, there is nothing more I want to say about that, but it would be inappropriate to finish immediately without from these Benches thanking everybody for the part that they have played in this Report stage as we move towards the conclusion of this Bill at Third Reading—and towards 10.40, which I notice it now is.

[Lord Callanan]

The House will be pleased to know that I shall not repeat all the arguments against the amendment, but, following on from the questions that the noble Lord asked me in Committee, it would perhaps be helpful for him to know that the Government intend to commence this provision of the Bill shortly after Royal Assent. That was a question that the noble Lord asked me in Committee and I wanted to be up front with the House about it.

European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Goldsmith

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Goldsmith]

I am delighted to be described as a Minister in that question—not a role that I am eager to take on—but it may be that the question was intended for the Minister himself when he comes to respond.

The important point, as the noble Lord, Lord Tyler, made clear, as did other speakers, is that, as the Bill stands it is subjective and imposes a vague, low test. It is subjective because it is what the Minister considers, and it is a low test because it is what he considers appropriate.

As I told your Lordships previously—I will repeat it just this one last time—as someone who has spent a life as a practising lawyer, a court advocate, advising Ministers and being a Minister, I know that there is all the difference in the world between saying, “You can do this if you consider it appropriate”—nobody can second-guess that—and saying, “You can do this if it’s necessary”. It introduces an objective test, and that is what matters. This is what we invite the House to say to the Government is necessary in these circumstances. That is the only power they should take, and I hope that when the noble Lord presses the amendment to a vote, it will be supported by many Members of this House.

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

My Lords, I first thank all those who have contributed to today’s relatively brief debate, and the many noble Lords I have either spoken to or exchanged letters with between Committee and Report. The scope of the delegated powers in the Bill has, rightly, been one of the most intensively scrutinised areas, and I do not for one moment doubt the best intentions of many of those who have spoken against the Government’s position today. However, I hope noble Lords will listen to my remarks with an open mind, as I hope to offer some new content that we did not cover in Committee.

Let me start by addressing the specific proposition of the amendments on the Marshalled List—Amendments 31, 42, 86 and 87, tabled by the noble Lord, Lord Lisvane. As has been said, they would remove from the main powers in the Bill the discretion of ministerial judgment on appropriateness, and permit action only where it “is necessary” in the context of the specific power. This has been touted as a change from a subjective test to an objective one. But I hope to demonstrate that this is not the case, as I would question what exactly “necessary” means.

For example, in the context of Clause 7, would the course of action a Minister takes have to be no more than necessary to correct the deficiency? Or must it be necessary to correct a deficiency for the power to be engaged in the first place—and if so, necessary for what purpose? Let me address these different scenarios in turn. First let us say, hypothetically, that a court interprets the amendments to mean that a course of action taken by Ministers must be necessary to correct an identified deficiency. It might follow that Ministers could follow only the course of action that does no more than is strictly necessary to correct that deficiency, rather than the course of action that is most sensible.

I know the House likes concrete examples, so let me give an example of how I think this would lead to worse policy outcomes. Take, for example, Section 105B of the Communications Act 2003—with which I am sure all noble Lords are completely familiar. This includes an obligation for Ofcom to notify its regulatory counterparts in other member states, as well as the European network and information security agency, when Ofcom is made aware of a security breach that affects a public electronic communications network or service, and Ofcom thinks it appropriate to make such a notification. It could be argued that it is not strictly necessary to delete the obligation at all. Let us assume, however, that a court accepts that some action is needed in this scenario. A test of necessity could then be taken to mean that the Government should take the minimum action possible to address the deficiency. That might be simply to remove the requirement to share information.

However, the Government's preferred policy, which this House would surely support, is to change it into a discretion that makes it explicit that Ofcom may make notifications of this kind if it wishes. This is intended to support proportionate information-sharing about security matters after EU exit. That amendment is appropriate but arguably not strictly necessary, and might fall foul of the increased restriction offered by the amendments tabled by the noble Lord, Lord Lisvane. I understand the notional appeal of permitting Ministers to act only where it is necessary. But here I agree with my distinguished predecessor, my noble friend Lord Bridges, the midwife, as he put it, to the Bill. It should not be the role of a Minister to be a statutory firefighter, dousing deficiencies in the statute book only where it is absolutely necessary. Instead, I would argue that a more proactive role is the only way that we can ensure the best possible outcome for the statute book.

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[Lord Goldsmith]

I wonder whether the Minister would kindly consider this question: is he saying that he would want Ministers—and indeed, civil servants—to have the discretion to make policy changes from EU retained law without reference to Parliament?

[Lord Callanan]

The powers in this Bill cannot be exercised by civil servants; it has to be Ministers who make the decisions. We have said on a number of occasions that defining a policy change is quite hard. A pure correction can involve a slight policy choice—for instance, whether to designate one agency or another. It can still be a technical correction but it is a policy choice about what to do. But we are clear that we are not trying to make substantive policy choices through this secondary legislation power.

I will refrain from making the full case for the government amendments as they are not on the Marshalled List today, but I will quote the Constitution Committee in justifying our position. It said that such amendments,

“will require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially. In this way, the Government can secure the flexible delegated powers it requires while Parliament will have a proper explanation and justification of their use that it can scrutinise”.

That, to me, sounds like a sensible solution.

Before I finish, let me add the words of the noble Lord, Lord Pannick, who I am sorry to see is not in his place.

European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Goldsmith

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Goldsmith]

My Lords, I think three things emerge from that. First, there is a recognition, with thanks, that the Minister and the department have accepted that their previous approach to how you identify the status of retained EU law is not acceptable. That was the primary point made in the reports that we discussed at earlier stages of the Bill, and that is the first point that the noble Lord, Lord Pannick, made. I entirely agree that that is undoubtedly a step in the right direction.

The second point that emerges is the one made by the noble Lord, Lord Cormack, that this touches on the amendment passed by the House and moved by my noble friend Lady Hayter, and the Government therefore have to take account of what this House has said. That leads to the third point, which is that this is very complicated, which was apparent from what was said by the noble Baroness, Lady Bowles, and it is perhaps difficult for us all to completely grasp the implications. Under normal circumstances it would have been enormously helpful if the Government had tabled something like this at an earlier stage so that it could have been considered by our very expert committees, the Constitution Committee and perhaps the Delegated Powers Committee. It makes it more difficult for us. However, the Minister has recognised that more needs to be said about this and more needs to be discussed, which is why he proposes that—as the noble Lord, Lord Cormack, says, perhaps alone of the matters that we have discussed—this issue can come back at Third Reading.

I am not quite sure at the moment exactly what the Minister has in mind. Does he want to press these amendments today and then discuss them—or just leave them until Third Reading, which would be very welcome? I am glad that he is giving a nod that that is what he has in mind, which is what I would hope. In those circumstances, meetings with noble Lords, and indeed noble and learned Lords, can be organised to consider the matter further. Obviously we will read what he said very carefully in Hansard, and if there is any further information that the Minister can give before the meetings then that would be helpful as well. On that basis, we express qualified support for the principle of the movement that the Minister has indicated.

[Lord Callanan]

My Lords, I can be very brief in the light of the debate. I thank all noble Lords who have contributed. I express particular thanks to the noble Baroness, Lady Bowles, for tabling her amendment, which has resulted in this helpful debate.

As I said in opening, I recognise that the state of this legislation is a complex and vexed issue. As a non-lawyer, I have been struggling to get my head around it all as well. The approach that we have taken is one of pragmatism, recognising the existing hierarchy within EU law and seeking to balance effective scrutiny with the need to ensure that the law continues to function. This has not been an easy task but obviously I believe that the solution that we have arrived at is the right one. I accept that the remarks I made earlier were long and detailed and Members will want to reflect on them, so I shall repeat what I said: we think we have addressed the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions so far with many both inside and outside this Chamber have not identified any other such matters, but I repeat that I am happy to return to the issue at Third Reading if other areas are identified.

I thank my noble friend Lord Cormack for his contribution. I hope my remarks were not seen as dismissive of the House’s amendment the other day; of course we accept the decision that was made, but I thought it helpful for us to outline our initial thinking on the possible effects of that amendment at the earliest possible occasion. I also thank the noble Lord, Lord Pannick, for his remarks. I am happy to confirm that either I or officials are happy to meet any other noble Lords who have concerns once they have had a chance to read the remarks that I made earlier today. With that, I hope I have convinced the House that our approach is the right one, and I beg to move.

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[Lord Callanan]

I wanted to move the amendments now. I am happy to reflect further if any points are identified in the meantime that can be brought forward at Third Reading, but I still want to move the amendments.

[Lord Goldsmith]

I was asking the Minister whether he was prepared to leave these amendments to be moved at Third Reading or whether he wanted to proceed with them and then allow amendments to them. I had understood from the body language that was exchanged between us that he would move them at Third Reading, which would allow time for discussions and possible tweaking or perhaps something more radical. If he is going to move them now, though, it is important that he confirms he would not have a problem if amendments to his amendments were put forward at Third Reading, because that at least would mean that whatever was required could be dealt with then, rather than him moving his amendments now and for us to be told at Third Reading, “Sorry, too late, that amendment has been passed. You can’t bring it back”. Could he confirm that? Again he is nodding but I am reluctant to interpret the nod without an element of verbal assurance. Perhaps he can help with that.

[Lord Callanan]

Yes, I am happy to provide that assurance. As I said, it was a long and detailed speech on this area, and Members will want the opportunity to read it in detail and reflect further on it. I think I want to move my amendments now while indicating that, if there are still concerns, we would be prepared to return to the issue at Third Reading.

[Lord Goldsmith]

Forgive me; would he accept that amendments could be made even to these amendments? I am not suggesting that he will accept our amendments, but does he accept that they can be made?

[Lord Callanan]

I accept that, yes.

European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Goldsmith

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Goldsmith]

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.

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

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]

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]

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.