European Union (Notification of Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

The real issue is why we have heard nothing in response from the Government—I think there were just three rather measly paragraphs in the White Paper. Whether it be a strategy document or a White Paper, some serious work is needed now on what the alternatives might be, because the benefits of our membership are clear—noble Lords will have received lots of comments from the Institution of Mechanical Engineers and others—for our nuclear industry, for IP and for our scientific staff and our scientific centres of excellence. Their situation will be difficult if we have to come out. A lot of reassurance is needed. I hope we can be promised a proper strategy, with the full engagement of all those involved, but we certainly seek reassurance that the Government will make sure there is no possibility of our leaving Euratom until an equivalent framework and safeguards are in place.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, when one lawyer comes face to face with many scientists and nuclear experts and the issue is one of science, I know where my money would be. However, the issue is not one of science at this stage; it is essentially one of legal competence in the context of the treaty provisions that we have to face up to.

I thank all noble Lords for tabling these amendments and enabling a debate on our withdrawal from Euratom. I thank them, too, for raising the critical issues that surround Euratom and our participation in it. We share those interests and we share concerns about our position in Euratom. If nothing else, the amendments give me the opportunity to offer some reassurance—indeed, complete reassurance—that the Government are committed to maintaining the highest standards of nuclear safety and safeguards and to make clear that our aim is to maintain our mutually successful civil nuclear co-operation with Euratom. The issue is how we do that.

Amendments 11 and 23 would exclude Euratom from the parliamentary authorisation to trigger the Article 50 process. The noble Baroness has proposed an amendment that would separate withdrawal from Euratom from that from the EU so that the two could run, effectively, on different timescales.

The noble Lord, Lord Teverson, asked whether any of this was required, to which my response is that we consider that it is. Clause 1(2) of the Bill deals with the disapplication of the European Communities Act 1972, which would be required pursuant to the decision of the Supreme Court in Miller. Section 3(2) of the European Union (Amendment) Act 2008 deals with an interpretive issue and not with an operative issue so far as the European statutory provisions are concerned. It makes the point, as is underlined by other matters to which I will come in a moment, that references to the EU include references to Euratom. As has been noted already, the provisions of Article 50 of the Lisbon treaty were then incorporated into the Euratom treaty by Article 106a, so that we have those side-by-side mechanisms.

Let me seek to explain why, when we trigger Article 50 and start the process of exiting the EU, we will also start the process of leaving Euratom. We clearly recognise that Euratom provides the legal framework for civil nuclear power generation and radioactive waste management for members of the Euratom Community. All Euratom member states are EU member states, and vice versa. Of course, Euratom has relationships with other countries such as the United States, Japan, Canada and so on through the medium of international nuclear co-operation agreements. At the present time, Euratom is a party to those agreements, but it means that that there is an international family of countries interested in maintaining essentially the same standards with regard to civil nuclear generation and related matters concerning trade.

Although Euratom is a separate treaty-based organisation, one that came into existence in 1957 and which we entered in 1972 when we entered the European treaty pursuant to the 1972 Act, it shares a common institutional framework with the European Union. This makes the European Union and Euratom uniquely legally joined. For example, the Euratom Community relies on a common set of institutions provided for under the EU treaties, including the European Commission, the Council of Ministers, the European Parliament and the Court of Justice. The noble Lord, Lord Liddle, asked whether it was just that we did not want to be associated with the European Court of Justice as a matter of ideology, but that is not the case at all. The two treaties have institutions which are common. The United Kingdom’s participation in these institutions, either as Minister, Commissioner, MEP or judge, currently makes no distinction between EU and Euratom matters.

Reference was made to the referendum—

[Lord Lea of Crondall]

On the point, often made, that X, Y or Z is not what people voted for in the referendum, did people consciously vote to leave Euratom?

[Lord Keen of Elie]

I am most obliged to the noble Lord for his second sight, because I was about to address that very point.

In the context of the referendum, people voted to leave the European Union institutions. They voted to leave the European Parliament. They voted to leave the European Commission. They voted to leave the Council of Ministers, and they voted to leave the European Court of Justice. They spoke in terms of reshoring their sovereignty and the supremacy of UK law. You cannot leave those institutions if you remain within Euratom.

It is the Government’s view that, once we have left the European Union, we will seek to engage with the members of Euratom, just as do many other nuclear-enabled countries around the world, by way of nuclear co-operation agreements. However, once we have left the EU, substantive negotiated changes to the Euratom treaty would be needed if we were to continue participating in Euratom, whether on a permanent or temporary basis. Not only is it difficult to see how that can be done given the commonality of the institutions, but it is extremely doubtful that the remaining 27 member states would be willing to take on such negotiations, particularly for a temporary change. Therefore, when we formally notify of our intention to leave the EU, we will also commence the process for leaving Euratom.

Let me be clear: the United Kingdom supports Euratom and wants to maintain continuity of co-operation and standards. As many of your Lordships have quite rightly stated, the nuclear industry is of key strategic importance to the United Kingdom. Therefore, we want to maintain our mutually successful civil nuclear co-operation with Euratom and, indeed, with all of our other international partners, which we do by means of nuclear co-operation treaties.

We maintain that the UK remains a world leader in nuclear research and development, and there is certainly no intention to reduce our ambition in that area. We fully recognise the importance of international collaboration in nuclear research and development, and we will ensure this continues by seeking alternative arrangements for our collaboration in international fusion research and development projects.

Reference has already been made to the JET project, which is based in Oxfordshire. At present, the financial commitment to JET runs to 2018 and there are proposals that that should be extended to 2020. We are committed to seeing that extension.

There is also the ITER project, which is to be based in France and is not limited to Euratom members; it is hoped that that will be operational by 2025. Again, we can foresee a commitment to further fusion research in that context.

[Lord Hutton of Furness]

I really did not want to interrupt the Minister; he has been very candid and helpful. Is it the Government’s intention to seek associate membership status of the Euratom treaty in order to continue to participate in the research programme at Cadarache?

[Lord Keen of Elie]

It is not at present, as I understand it, our determined intention to seek associate member status, but that will be a matter for discussion in negotiation.

Let us be clear: this is an area where there is enormous mutual interest. It is not just the UK as a supplicant, putting its hand out. We are one of the world’s leaders in nuclear research and development. We have something to offer our partners, just as they have something to offer us. That is how we see it: a continuing partnership, albeit one in which we cannot credibly continue with the institutions of the EU, which are central to the operation of Euratom itself.

[Lord Hutton of Furness]

But the only way that non-EU members of Euratom have been able to contribute and participate in the research programmes has been through associate membership.

[Lord Keen of Elie]

I fully appreciate the noble Lord’s point. That is why we will engage with Euratom and its members in order to determine continuity. Whether it will be by associate membership or by means of some additional agreement has yet to be determined.

A number of points were raised about whether we can maintain trade and standards. We trade, we have safety standards and we intend to maintain them. We had the opportunity to secure mutual recognition of our standards and trade by means of international nuclear co-operation agreements.

I have been asked by a number of noble Lords about the question of strategy and consultation. Let me be clear: we are at the beginning of this process, not at the end of it. We appreciate the need to develop a clear strategy in order to implement our desire for continuing co-operation with Euratom going forward.

A number of particular questions were posed with regard to where we were on certain issues of strategy and relationships with other international nuclear partners and how we intended to demonstrate the development of our forward strategy for nuclear research and development. The noble Lord, Lord Redesdale, raised the question of how important this was in the context of the proportion of our energy that is actually provided by nuclear installations. I understand that the figure is 17%, rather than the figure he quoted.

[Lord Redesdale]

If you look at Energy UK, which gives it by the half-hour, it is about 17% at the moment, but it goes up to about 22% and down to about 14%.

[Lord Keen of Elie]

I am most obliged for that clarification. It will elide the need for me to write any letters.

BEIS has a very direct interest in how its strategy is going to be developed, and here I commit not myself but my noble friend Lord Prior, because, going forward, he would be pleased to meet with any of your Lordships who have particular issues that they want to raise in the context of developing strategy and consultation on this point. At this stage, however, I do not consider that it would be appropriate for me to become engaged in that detail.

However, we have come to the very firm conclusion that, if we are to give an Article 50 notice that is effective going forward and that reflects the will of the people of the United Kingdom as expressed in a referendum, it must involve us withdrawing from the institutions of the European Union. Given the inextricable link between the European Union, as properly defined in some quarters, and Euratom, so far as those institutions are concerned, it will be necessary that that notice applies both to the EU as it is generically termed, and to Euratom itself, as defined as part of the EU, pursuant to Section 3(2) of the 2008 Act.

I hope that in these circumstances, the noble Lord will consider it appropriate to withdraw the amendment.

[Lord Oxburgh]

Twice in his speech, the Minister has commented that the UK was an international leader or a world leader in nuclear energy—I am not quite sure of the words he used—but it would be very unfortunate if our Ministers or officials entered any negotiations in this general area with that belief. There are certain areas in which UK achievements are considerable, but to describe it as such or imply it across the board would, sadly, be misleading.

[Lord Keen of Elie]

I am most obliged to the noble Lord, because it gives me the opportunity to refine the statement that I made. Essentially, we are world leaders in the area of nuclear fusion.

[Baroness Young of Old Scone]

I should say that I am also a member of the Science and Technology Committee, which is looking at this issue at the moment. I am also a former nuclear waste regulator. Is it true to say that this caught the Government on the hop as an unintended consequence of leaving the European Union? Will he tell us how many more of these unexploded bombs there are in there?

[Lord Keen of Elie]

I am obliged to the noble Baroness. This Government are never caught on the hop.

[Lord Teverson]

My Lords, I thank everybody for their contribution to this extended meeting of the Science and Technology Committee of the House. I hope that the noble Earl will make sure that we are all on the attendance list next time it meets. Again, I thank the Government and I thank the noble Lord, Lord Prior, who is in his place, for the conversations that we have had.

However, what this debate shows us is that this is a hazardous route to go down. It has risk. In my corporate life, we have risk registers, and I suppose that coming out of Euratom would be somewhere up in that top, right-hand red box. It would be right up there. The board of the company would then say, “How do we mitigate this risk?”. The obvious answer would come from the newest non-executive director who had not yet got into groupthink. He would say, “We actually don’t do it”. For the moment, it might be the strategy and objective that we have as a nation and as a Government, but actually, doing this while we are doing all the rest is not a very good idea at the moment.

Furthermore, I was disappointed with the Minister’s response; I find it very difficult tonight and I want to come back on some of the legal arguments, but I do not agree with them. The two are separate institutions.

More importantly, he mentioned the question on the ballot paper. The question was very clear—it gave me no movement to get out of it, as someone who regrets the decision—because it said, “Shall we leave the European Union or shall we remain in the European Union?” Euratom is not the European Union. I take his point about the institutions, but the public did not vote specifically about the institutions; they voted about getting out of the European Union. Using that argument devalues the direction that that argument goes in.

Lastly, sure, staying in Euratom even for just another two years has its challenges organisationally and in trying to make that work, but the point is that those challenges and risks are absolutely nothing in comparison with coming out altogether.

I will withdraw my amendment and thank everybody for debating this issue. I will engage more with the Minister and other colleagues who put forward amendments —in many ways, they are better than mine. I suspect that, together, we will consider bringing this back on Report, but at this stage I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

I thank noble Lords who have contributed to this part of the debate. The lateness of the hour does not reflect the importance of the issues being considered. I recognise the power of feeling in the House with regard to the issues being debated and the amendments that have been proposed, and acknowledge the interest that various Members have in maintaining and promoting each of the constituent parts of the United Kingdom, including London, and the contributions they have made.

As the Prime Minister has said, it is more important than ever that we face the future together, united by what makes us strong: the bonds that unite us. The Government are determined to ensure that the interests of all parts of the United Kingdom are fully taken into account in our negotiations with the European Union. We recognise the importance of engaging closely with the devolved Administrations as we embark upon the forthcoming negotiations with the European Union, and we welcome the input of the Scottish and Welsh Governments and the Northern Ireland Executive. As the Prime Minister has said, consideration of the proposals of the devolved Administrations is an ongoing process. Work will need to be intensified ahead of triggering Article 50 and continued at the same pace thereafter.

We have to remind ourselves that it was a United Kingdom referendum and the United Kingdom that voted to leave the European Union. The legal and constitutional responsibility for the United Kingdom’s relationship with the EU lies with the United Kingdom Government and Parliament. We have been clear that no part of the United Kingdom can have a veto over that process. As the noble Lord, Lord Empey, observed, aspects of these amendments could ultimately constitute an exercise of veto by the legislature in one of the devolved areas.

[Lord Wigley]

We have heard that there are problems in Northern Ireland and, perhaps, an unwillingness to accept some of the attitudes taken by the Government in Scotland. However, the Government have an agreed White Paper from Wales. Will the Minister—and, perhaps, his colleague the noble Lord, Lord Bridges—undertake to study this very carefully indeed to see whether there is a basis here for policy which is not just acceptable in Wales but may also be relevant in other parts of the United Kingdom as a positive way forward.

[Lord Keen of Elie]

My Lords, I can absolutely assure the noble Lord that we are taking into consideration not only the White Paper from Wales but the submissions prepared by the Scottish Government. All these matters have been taken into consideration in the context of our negotiating position following the triggering of Article 50. All the proposals outlined in these papers will be the subject of keen scrutiny by the Government. What we are considering today is a Bill to implement the referendum result and respect the judgment of the Supreme Court. We are not engaged in considering a vehicle for determining the terms or shape of the broader negotiations that will follow the triggering of Article 50. As has been said on many occasions, that will be a hugely important milestone for the United Kingdom but it is only a milestone, not a cut-off point. It is not the end of the process—it is merely the beginning.

Since the referendum result there has been regular and ongoing political engagement. I noticed that the Prime Minister’s very first visit following the referendum result was to Edinburgh, quickly followed by Cardiff and Belfast. I remind the House that the principles which underpin relations between the United Kingdom Government and the devolved Administrations are set out in a memorandum of understanding. There is the joint ministerial committee which should operate—I say should—by consensus, because as the noble Lord, Lord Empey, and the noble Earl have observed, it is not always possible to achieve consensus, but these bodies have that aim.

At the plenary session of the joint ministerial committee in October last year, the four Governments agreed to create a Joint Ministerial Committee on EU Negotiations, chaired by the Secretary of State for Exiting the EU. Under that structure, Ministers and officials from the UK Government and the devolved Administrations have engaged closely in the process of considering our exit from the European Union. That committee has been meeting monthly and a wide range of matters has been discussed on each Government’s requirements for the future relationship with the EU, and the future relationship between the devolved Administrations and this Government.

Over the autumn, we also undertook important work with the devolved Administrations to fully appreciate their priorities and interests. In that context we have taken account of the publication that the noble Lord referred to—namely, the White Paper from the devolved Administration in Wales, and the Brexit papers published by the Scottish Government—which was submitted to us for consideration in the context of that process.

Outside the formal processes that I have described, we have also engaged extensively with stakeholders in England, Scotland, Wales and Northern Ireland to try to ensure that the interests of all these areas are reflected in our negotiations with the European Union. Ministers have regularly visited the devolved constituent nations of the United Kingdom on numerous occasions for the purposes of those discussions. They have met with a whole variety of stakeholders from SMEs to multinational companies. We have met with MSPs as well. We have tried to engage right across the areas of interest that will be touched upon by our departure from the EU.

A point that was alluded to by a number of noble Lords was how the devolved Administrations will be engaged in determining where repatriated powers should sit in the future. It is a matter of interest to all of us. We must work carefully to ensure that, as powers are repatriated from Brussels back to Britain, the right powers are returned to the United Kingdom Parliament, and the right powers are returned to the devolved Administrations—whether in Scotland, Wales or Northern Ireland.

This will be a matter for further discussion. The Prime Minister has been clear that no decisions currently taken by the devolved Administrations will be taken from them. That is not the end point, but the starting point for this form of negotiation, and we appreciate and understand the importance of addressing how we deal with the repatriation of the acquis in due course. It is important to have these debates, but it is equally important not to tie the Government’s hands as they approach the forthcoming negotiations. In these circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hayter of Kentish Town]

I thank the noble and learned Lord for his response. My only response is to the noble Earl, Lord Kinnoull, where I agree with the noble Baroness, Lady Ludford. The only agreement was about the way to talk and that wording is the JMC’s terms of reference at the moment. The Minister said the Government are trying to engage—I say let us try a little harder. The lack of pre-information, before the White Paper, caused a slight frisson, but maybe that is well behind us. I hope that we are marching forward on slightly firmer ground. On that basis, I beg leave to withdraw the amendment.