Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Report stage
Wednesday 17th May 2023 Lords Chamber

[Lord Callanan (Con)]

I will pass the noble Baroness’s comments on to Defra, which will write to her again, but she has already received replies to her concerns in emails and she has spoken to Bill team officials about this. As I said, the FSA has said that it is entirely happy that this regulation should be revoked.

[Lord Kerr of Kinlochard (CB)]

I wonder whether I can help the Minister. I support what he said today, and I congratulate him on how he started and what he said about the Civil Service. But I wonder whether he might want to think, before Third Reading, about the addition of an emergency brake. I share the worries of the noble and learned Lord, Lord Hope: supposing it turns out that something is needed and that, before the deadline—before they disappear—a real case is established, could the Government not give themselves the power, by statutory instrument, to leave a particular regulation off the schedule, or to amend the schedule by statutory instrument before the deadline, simply to remove a regulation that it turns out is there in error? I do not ask for an instant reaction, but perhaps the Minister might like to think about this before Third Reading.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.


What are these domestic principles?

[Lord Callanan (Con)]

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

[Lord Kerr of Kinlochard (CB)]

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

[Lord Callanan (Con)]

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

[Lord Kerr of Kinlochard (CB)]

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I think I understood from what the Minister said a few moments ago that I will not get an answer to the question I posed on Tuesday. This time I think he said that he understood the point and would reflect on it. I do not quite know what that means but it is certainly an advance on Tuesday’s position, when the Government were just going to reflect. If we have now reached understanding the point, then we are on the right track.

The point about default is whether we are risking a situation where the courts next year, and in the following years, will have to rule in cases on whether a newly discovered piece of law was retained EU law and therefore died at the end of this year or was not retained EU law and is therefore still in effect. Is it sensible that the default is that the Act is dead? Would not a more sensible default position be that the currently undiscovered but in due course discovered Act remains in force until it is repealed, amended or prolonged? I just do not understand why that uncertainty must be introduced.

[Lord Callanan (Con)]

For the purposes of clarification, I was merely repeating a similar point to the one made by my noble friend Lady Neville-Rolfe. We will reflect on whether it is possible to publish a comprehensive list of laws that might sunset.

I return to the point I made earlier: we are satisfied that the department has identified all the laws for which it is responsible. Lawyers are currently going through it all and our advice to them is that if they are not sure whether or not a law is retained EU law, they should default to preserving it if they think it is important. I hope that answers the noble Lord’s point.

As I was saying, Clause 1 is the backbone of the Bill. It sets the framework for an ambitious and efficient overhaul of all retained EU law. The amendments tabled by noble Lords would add unnecessary time and complex burdens to this process, which, of course, may be the purpose of many of them.

Retained EU Law (Revocation and Reform) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Callanan (Con)]

They are on the dashboard if they are retained EU law. I noticed that, in all the statements and speeches from Members opposite, the words “if” and “could” were doing an awful lot of heavy lifting. I accept that there is no trust from the Opposition in the intentions of the Government and that they want to make their political attacks. The reason I outlined UK employment rights and standards was to demonstrate the commitment of this Government to those rights. The point that the noble Lord, Lord Fox, made earlier is essentially correct: while we have some very high standards, of which we are proud and will maintain, there is a complicated mishmash of laws in this area between some elements of EU and domestic law.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Callanan (Con)]

If the noble Lord will sit down, I will come to him in a second. I will make this point and then I will give way.

UK rights were provided in the complicated mishmash of UK law, with higher standards often based on minimum standards and provisions that were in EU law originally. That is why they have been included on the dashboard. We will conduct a review of all these regulations—which this legislation provides for—and we will do so in the context of the high standards that the UK already has.

[Lord Kerr of Kinlochard (CB)]

I think I understand the noble Lord’s argument, and that he is therefore going to end by saying that he accepts Amendments 1, 23 and 40. If our standards are so high, there can be no question of the Government reducing our standards or amending or sunsetting the legislation spelled out in Amendments 1, 23 and 40. If the Minister is not prepared to accept these amendments, will he explain why, if they are in the Government’s view good, they have to be in doubt until the end of the year and then possibly dead?

[Lord Callanan (Con)]

As the noble Lord knows very well, that is not what I am saying. The reason that I am not saying that goes back to two points made earlier in the debate. First, there is a complicated mishmash of rights and responsibilities across these particular laws, but we will maintain our high standards. Secondly, it goes back to the argument the noble Lord, Lord Fox, made about interpretive effects. If the interpretive effects are being abolished to bring them in line with the rest of UK common law and to reduce some that have the status of primary legislation to secondary legislation, we need to review the whole panoply of employment law as a whole—which we will do, but we will do it in the context of the high standards that we have and will maintain. That is the point I am making

Energy Prices Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Committee stage
Monday 24th October 2022 Lords Chamber

[Lord Callanan (Con)]

I accept what the noble Lord says about it being astonishingly wide but, if he will have a little patience, I will quote some examples to him shortly, and he will see that they are not the biggest items that he can think of.

The powers in Clauses 21 and 22 have been included in the Bill to provide government with the ability to react at pace to unforeseen delivery barriers. Making them subject to the affirmative procedure could delay the provision of support to consumers this winter and put at risk the point when energy suppliers have certainty over the final delivery requirements.

The approach that the Bill takes to parliamentary procedure is not unprecedented: for example, a direction under the Electricity Act 1989 has already been used to deliver the energy bills support scheme in Britain. Furthermore, the powers in Clauses 21 and 22 may be used only “in response to” the current energy crisis,

“or in connection with the Act”

or with regulations or schemes made under it. They are therefore time-constrained in that respect. Amendment 39 would reduce the sunsetting provision for powers under the cost plus revenue limit from five years to three and a half years. We consider the five-year sunset appropriate for the Government to respond to the immediate effects of the energy crisis, while ensuring ongoing protection for consumers if gas prices remain abnormally high for a prolonged period. The upcoming consultation will allow the Government to further define the intended use of this power.

Amendments 40, 41 and 42 seek to sunset the powers under Clauses 21 and 22 to two years, with an extension permissible by affirmative regulations. The Bill already makes clear that Clauses 21 and 22 must be used only “in response to” the current energy crisis, or “in connection with” the Bill or with regulations or schemes made under it. Generally, those other provisions in the Bill are already subject to sunsetting. A crisis is, by its nature, something extraordinary and temporary. I submit that the circumstances and timing in which the Government can use this power are therefore already appropriately constrained by the Bill.

Three amendments have also been tabled that relate to requirements to consult. Amendment 19

“would require the Secretary of State to consult before utilising … powers”

on the temporary cost plus revenue limit. It is the Government’s clear commitment to consult as soon as possible; therefore, we do not believe that this amendment is necessary.

Amendment 21 would require the Secretary of State to consult on pass-through requirements on intermediaries. As the schemes are being stood up at pace, this requirement could delay much-needed support being passed through to consumers this winter, and therefore could be positively harmful.

Amendment 23 would require modifications to licences under Clause 21 to be subject to consultation with the relevant bodies. As I mentioned, this clause ensures the Government’s ability to react at pace to unforeseen barriers to delivering the schemes. A requirement to consult would, again, simply delay our ability to deliver the schemes effectively and quickly, and therefore would be counterproductive.

Finally, a set of amendments have also been tabled which would remove certain powers from the Bill, including the opposition of the noble Lord, Lord Rooker, to Clause 22 standing part of the Bill. Clause 22 and its powers enable the Government to issue directions to energy licence holders and the Northern Ireland regulator in connection with schemes under the Bill and in response to the energy crises. The ability to issue directions of a general character is necessary to deliver support under the Bill and to tackle barriers to their implementation. Amendment 26 would limit the Secretary of State’s powers to issue directions of a “general character” to those only of a “specific” character. Amendment 28 would remove Clause 22, which provides that, when a direction to a person conflicts with existing requirements in an “enactment or instrument”, such requirements should be “disregarded”. Currently, we envision limited circumstances in which these circumstances will arise.

I will now give the example asked for by the noble Lord, Lord Kerr: the Government may need to issue a direction to the Utility Regulator in Northern Ireland to ensure that the timing of electricity regulated tariff reviews is aligned with similar reviews in Great Britain. This may be necessary to ensure effective administration of the energy price guarantee in Great Britain and Northern Ireland. In doing so, it may be necessary to rely on Clause 22 to resolve any potential conflict between the terms of the direction and the statutory requirements of independence applying to the energy regulators in Great Britain and Northern Ireland, and any existing requirements as to timing in the supplier’s licences, to enable all parties to comply with the direction for tariff review alignment. Without this, licence holders or the Northern Ireland regulator may be uncertain about their legal position, and this could have the effect of households and businesses missing out on appropriate and timely support. This plays to the noble Lord’s points. I realise that there is a suspicion that there is some malign intent behind these clauses, but they are, essentially, designed to deliver support at pace in a fast-moving environment and to provide the Secretary of the State with the powers to ensure that this happens in a legally correct manner. I reassure the noble Lord that there is no hidden agenda here.

[Lord Kerr of Kinlochard (CB)]

I plead innocent to any imputation of malign intent, but it is an astonishingly wide power. The Minister’s explanation related it solely to Northern Ireland. It is not limited as the Bill is drafted to Northern Ireland, but it would be relatively easy by combining subsections (3) and (5) so to limit it. That would cause me to worry much less about this apparently extraordinarily wide-ranging power to overrule the law of the land or all existing regulation without making a new regulation.

[Lord Callanan (Con)]

The noble Lord asked me for an example. I have provided him with an example of one means that we envisage may be necessary. There could be other licensed modifications that we have not envisaged yet. As I said, this legislation has been drawn up at pace, using the excellent resources of lawyers and parliamentary counsel. It has been enacted very quickly. This is a clause that we think is necessary in order to, if you like, cover something that we have not thought of and that we have missed out in the Bill, but it is limited to use in the specific circumstances that the Bill requires.

Energy Security Strategy

Debate between Lord Kerr of Kinlochard and Lord Callanan

Wednesday 27th April 2022 Lords Chamber

[Lord Callanan (Con)]

I am sorry that the noble Baroness has ignored the quagmire, as she puts it, of some very important subjects. I am sure we will want to debate them in future. She raised this matter with me yesterday. In principle, I understand the point she is making, but I point her to the website of Ofgem, which does the appropriate sustainability checks on the biomass used in Drax. It is from waste sources, and it is renewable. The Greens are shaking their heads, but I am afraid there is a case for it. It is sustainable and renewable, which is why it qualifies, but it is subject to strict sustainability criteria. They are checked and published.

[Lord Kerr of Kinlochard (CB)]

There is much in the Statement to welcome about the long term but, as Keynes said, in the long term we are all dead. What worries me is that there is not a word in the Statement about how we are going to help people deal with the very real household energy crisis we are in now that will vastly increase in October. The reference period that will decide by how much the cap goes up ends in July. We know now that there is going to be a big increase again; there is no reason for us to wait. It is not very reassuring to be told that

“the Chancellor has promised to review his package of support before October”.—[Official Report, Commons, 19/4/22; col. 75.]

Why is he not doing it now? I suggest that, when he looks at it, he looks not just at little packets of money here and there, but at the possibility of indexing the energy element in universal credit to the energy component in the household expenditure of the people on universal credit. That is the most efficient way of targeting it. It is sad to see a long-term strategy which tells us nothing about onshore wind, storage or the improvements to the grid which are badly needed. The more we invest in wind, the more we will need grid improvements.

[Lord Callanan (Con)]

The noble Lord’s question was somewhat contradictory. He complained that the strategy did not address some of the short-term problems but in the end, he referred to it as what it is: a long-term strategy. The clue is in the title. The reality is that it takes many years to put in place energy infrastructure, and it is right that the Government address these factors and look to the long term to make sure that we are putting in place the appropriate steps, such as the nuclear RAB Bill, to provide the long-term security of supply and power that the country needs. That does not obviate the difficulties that we have in the short term. As I suspect the noble Lord knows very well, I cannot comment on what the Chancellor may do in response before any future fiscal event, before the next price cap comes in. However, I can assure the noble Lord that the problems the nation faces with high energy prices are at the forefront of the Government’s consideration.

European Union (Withdrawal Agreement) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Callanan]

I am not sure I want to get into an arcane legal debate with the noble Lord, my noble and learned friend Lord Keen and others. I do not accept what the noble Lord says; I do not think this undermines the settlement.

We will of course continue to seek legislative consent. We will continue to take on board views and will work with the devolved Administrations on future legislation, whether related to EU exit or otherwise, just as we always have.

[Lord Kerr of Kinlochard]

There was much wisdom from the noble Lord, Lord Griffiths of Burry Port. It would help the atmospherics a great deal if the Minister could reassure the Scots and the Welsh—I think the Northern Irish are reassured already—that they will be included in the United Kingdom team negotiating in the joint committee. I say that because I think it is right to try to improve the atmosphere and because, after all these years, the Lady Griffiths is entitled to a dinner out.

[Lord Callanan]

She is indeed. I hope that at some stage in the future the noble Lord, Lord Griffiths, will repeat the endeavour which failed last night. The noble Lord, Lord Kerr, made a good point. We have already started discussions with Scottish and Welsh Ministers, and I hope that those with Northern Ireland Ministers are to come. I was present at some of the discussions in London a couple of weeks ago. A frame- work was put in place for joint ministerial committees; one on EU negotiations and one on ongoing EU business, which I chair. We will develop those consultations as we go into the next phase, and we are working on proposals to involve them in future negotiations. We will, of course, take that point on board.

We understand the importance of preserving both the spirit and the letter of the devolution settlements and the principles of the Sewel convention as the UK exits the EU. In response to the noble and learned Lord, Lord Morris, I say that international relations are indeed a reserved matter. However, the devolved Administrations do have an important role in implementing these agreements. Any devolved provisions made under the Act will normally be made only with the agreement of the devolved Administrations and we will engage with them on this, as we have always done in the past. The Government are committed to upholding these principles, but this is not changed by restating them in the Bill. Given what I have said, and the reassurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.

Queen’s Speech

Debate between Lord Kerr of Kinlochard and Lord Callanan

Wednesday 16th October 2019 Lords Chamber

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

My Lords, it is a great privilege to be closing this debate following Her Majesty’s gracious Speech, which set out the programme of legislation put forward by this Government. I welcome the noble Lord, Lord Collins, who is restored to full health and with a new beard. He is back enjoying his place on the Front Bench again and we are pleased to see him. He has lost none of his customary wit and influence on the legislation.

The Speech sets out a legislative agenda that seeks to protect our people, promote our prosperity and project our influence on the world stage. I am particularly grateful to noble Lords for their considered and thoughtful contributions made over the course of two days of debate. I will do my utmost to respond to as many points as possible, but I apologise in advance if I do not have time to get through everybody’s contributions.

I will commence, as so many others did, with Brexit and my own department—as expected, it was covered by many noble Lords, including the noble Lords, Lord Desai, Lord Wrigglesworth and Lord Wigley, my noble friends Lord Ridley and Lord Flight, and my noble and learned friend Lord Mackay. The Government’s priority has always been, and remains, to secure the United Kingdom’s departure from the European Union on 31 October, with or without a deal, and without any further pointless delay. Brexit provides us with a range of new opportunities, including the ability to take back control of our money, borders and laws, including on agriculture and fishing, as well as to set out our own independent trade policy for the first time in nearly half a century. I will say more on that later. To seize those opportunities—and here I agree, as I so often do, with the noble Lord, Lord Grocott, and his excellent speech—we must get Brexit done. My noble friend Lord Jopling did not sound so convinced, but it remains the Government’s focus to get a deal this week at the European Council and to leave on 31 October in an orderly and friendly way.

The Government have had fruitful and constructive discussions with the European Commission over the last few days. I have been here in the House but I am told that, as I speak, the technical talks are continuing with the Prime Minister’s Brexit Sherpa, David Frost, and the UK negotiating team. Their talks last night were constructive and the teams worked late into the night. They met again this morning and are continuing discussions today. I agree that, as the right reverend Prelate the Bishop of Coventry reminded us, it is important that throughout this process we must work constructively together and seek to nurture our relationships, both in Europe and further afield.

I will address the points made on EU meetings by the noble Lord, Lord Hannay, and the noble Earls, Lord Kinnoull and Lord Sandwich. As I informed the House last week, it is now the policy of the Government that UK officials and Ministers will attend EU meetings only where the UK has a significant national interest in the outcome of discussions. This will enable officials to better focus their talents on our immediate national priorities—our top priority being work on preparations for Brexit. This decision is not intended in any way to frustrate the functioning of the EU. The UK’s vote is delegated in a way that does not obstruct the ongoing business of the remaining 27 EU members. I look forward to meeting the noble Earl, Lord Kinnoull—I think we have a date in the diary for next week—and no doubt he will want to discuss the matter further.

The noble Baroness, Lady Quin, asked about the implementation period. We are still awaiting the final agreement but I remind her that the existing withdrawal agreement sets December 2020 as the end of the implementation period, and for good reason: it is the end of the EU’s existing multiannual financial framework. There is an option in there to extend. I am not aware that that will change, but let us wait and see what the final agreement says.

[Lord Kerr of Kinlochard]

Putting together the last two points that the noble Lord has made, if we do leave and there is an implementation period that lasts until the end of next year, does it really make sense that we will be applying in this country laws which are written in rooms in Brussels in which there is no Briton present? How do these two points fit together? If there was nothing happening in that room that could be relevant to us, I can see an argument for us not being there. But if until the end of next year we will be applying rules and regulations written in the European Union, surely we ought to go on having a say in how they are written.

[Lord Callanan]

My response to the noble Lord is that we are. He will know of the slow decision-making process of the European Union. Most of the new directives and regulations that would be implemented during the implementation period are already being discussed, or indeed have been decided, so we are taking part in discussions on those matters.

Brexit: Preparations

Debate between Lord Kerr of Kinlochard and Lord Callanan

Tuesday 8th October 2019 Lords Chamber

[Lord Callanan]

I do not have the figures for the number of organisations in front of me, but I will gladly write to the right reverend Prelate with them. But we have given guarantees to organisations receiving EU funding that they will continue to receive that funding after a no-deal exit.

[Lord Kerr of Kinlochard (CB)]

My Lords, with regard to security, page 154 shows that we are taking powers to ensure that,

“Border Force Officers will have greater scope to refuse entry on the basis of criminal behaviour”.

How will they access real-time information about criminal behaviour in future?

Brexit Readiness and Operation Yellowhammer

Debate between Lord Kerr of Kinlochard and Lord Callanan

Wednesday 25th September 2019 Lords Chamber

[Lord Callanan]

I do not know what the noble Lord’s definition of ambiguity is, but in response to the question “Do you wish to remain in the European Union or leave the European Union”, the country replied, “leave the European Union”. The noble Lord might think that is ambiguous, but I do not.

[Lord Kerr of Kinlochard (CB)]

Just before we were so rudely interrupted on 9 September, the Secretary of State, Mr Gove, gave evidence to your Lordship’s EU Committee, and undertook that an up-to-date version of the Yellowhammer paper would be published shortly. When I saw there was to be a Statement on Yellowhammer today, I assumed that it was good news and we were about to see the up-to-date version, because the Government had been at pains to say—although the Sunday Times did not agree—that the version we had seen was out of date. When will we, when will business and the people who really need to see it going to see the Yellowhammer paper?

The Minister was delightfully optimistic about the progress of our negotiations, as he was earlier in the afternoon—Pangloss rules in Newcastle—but I ask him to take note of two things. First, in Brussels the most striking development of the last two years, has been British negotiators revealing that the text in the political declaration indicating that we wished to preserve a level playing field on social, environmental and labour law, state aid and business taxes, was going to have to go and we no longer believed in it. That has fed the impression in Brussels that we are planning for a wave of deregulation and on becoming a low tax, low welfare society, that would be highly competitive with the European Union. That may be what we are planning for—it is not what we have told the country—but that is the implication and it has had a considerable effect in Brussel. That is why in Brussels they are saying that progress in the last two weeks has gone backwards. Secondly, could the Minister also say, whether in his view, creating that impression assists or does not assist the search for ways of maintaining an open border on the island of Ireland?

[Lord Callanan]

The noble Lord, Lord Kerr, asks a number of questions. In response to his first question, yes, we are intending to update the Yellowhammer documentation and it will be published shortly. I cannot give him a precise date yet; it is a fairly weighty document. With regard to the level playing field, as the noble Lord knows very well, we already exceed EU minimum standards in most areas of social and environmental legislation. There is an ongoing question about whether we should continue to have identical legislation aligned to the European Union, or whether we might choose to do things differently. In my view, one of the huge advantages of Brexit is that we no longer have these things dictated to us—we can argue for them in this Parliament, and we can decide what standards we wish to have. I am in favour of higher environmental standards, and we already have higher environmental and social standards than many countries in the EU. Those decisions would be for this Parliament to take in future and I do not know why noble Lords are so keen to contract out those decisions to a foreign body.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

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

[Lord Kerr of Kinlochard]

My Lords, it is a pleasure to follow the noble Lord, Lord Cashman. There are moments when one is reminded of what a privilege it is to be in this place. This debate is one of them. I think, in particular, of what the noble Lord, Lord Cashman, just said; how the noble Lord, Lord Patten, ended with his warning on Northern Ireland; what the noble Lord, Lord Cormack, said; and what the noble Lord, Lord Hain, said. I do not intend to address any of the great themes that they touched on today, but it is a privilege to take part in a debate of such calibre. I did not feel that about yesterday’s debate for some reason.

I want to address two themes: a constitutional theme and a negotiating theme. One concerns our domestic affairs and the other our relationship with the EU 27. Both arise directly from the terms of the Bill we are debating. The noble Lord, Lord Patten, quoted my hero, Kenneth Clarke, who yesterday, in the House of Commons, referred to an element of disingenuousness in the prime ministerial position. I found it shocking that the documents revealed in the court case in Edinburgh show that the Prorogation plan and timing was decided in the middle of August and, for another two weeks, the No. 10 spokesman denied that there was or could be any such plan. I found it very shocking that the Prime Minister, when the plan became clear and the proclamation was issued, maintained that his motives had nothing to do with Brexit. Nobody in the country believed that, but it was still shocking to me to see in these documents from Edinburgh that it was precisely about Brexit. It was knowingly and deliberately about Brexit. Ken Clarke said that it was “disingenuous”. We have an issue of trust here.

The No. 10 spokesman said this morning that, if the Bill we are debating now becomes an Act, the Government and Prime Minister will not abide by it. I assume he misspoke, but we recall Mr Gove discussing this with Andrew Marr last Sunday and refusing to say whether the Government would implement the law of the land. They will wait and see what it says. On the same day, we saw that, among the clever plans that Mr Cummings is cooking up is simply not sending the Bill for Royal Assent. This is not exactly the “good chaps” theory of government. I find it difficult to deal with this issue of trust. I spent a long time in public service, and one did not see one’s political masters being disingenuous or telling lies. One saw them avoiding answering difficult questions. One found ways to help them avoid answering difficult questions. One gave them answers to other questions, which might be suitable, but one never drafted a lie. In 36 years of public service, I do not think I ever told a lie. Telling a lie is a stupid thing to do, because it creates a subsequent problem of trust. So we are legislating against a peculiar background.

I was interested in the discussion of legitimacy by the noble Lord, Lord Howard, and this being an opposition Bill. I found that discussion more interesting than the historical disquisition, where I do not entirely share his views. I do not share his views on the discussion of legitimacy at all. A Bill is a Bill. A Bill has been passed by the House of Commons and comes to us here. It is legitimate and the voice of the House of Commons. If we approve the Bill, it is then the voice of two Houses of Parliament. It does not matter who drafted the original; it is legitimate. It would be wholly illegitimate for the Government to decide to do what Mr Cummings hinted, which was to sit on it and not send it to the Palace, or what the spokesman this morning said they would do, which was to ignore it. That is a major constitutional issue.

When the Government reply to this debate, I hope they confirm that, if the Bill is passed by this House tomorrow, it will be sent for Royal Assent; and that, once it has received Royal Assent, it will be acted on. These are ridiculous questions to ask in our parliamentary democracy, but such is the issue of trust that one has to ask them.

My second theme is our relationship with the European Union.

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

It may help the noble Lord if I inform him that, as part of the agreement last night, we said that, if the Bill is passed and becomes an Act, it would be available to the House of Commons on Monday and sent for Royal Assent.

[Lord Kerr of Kinlochard]

It will be sent for Royal Assent, but would it then be acted on? No one asked that question yesterday because it is an absurd question. I only ask it because a No. 10 spokesman said today that it would not be acted on and that the Prime Minister would not abide by it.

[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?

[Lord Callanan]

The Government will abide by the law.

[Lord Cormack]

I remind the noble Lord that the last monarch to refuse Royal Assent was Queen Anne, over 300 years ago. Subsequently, every Act passed by Parliament has been submitted for, and received, Royal Assent.

Brexit: Negotiations

Debate between Lord Kerr of Kinlochard and Lord Callanan

Tuesday 9th October 2018 Lords Chamber

[Lord Callanan]

I said we are planning for a no-deal Brexit. I do not know what the noble lord means by a “confirmatory vote”. If he means a second referendum, then, no, we are not planning for a second referendum, because we have already had a referendum and the vote was clear.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Wallace, drew attention to the possibility of a black hole between the end of the implementation period and the entry into force of the future relationship treaty. As I understand it, the present draft of the withdrawal treaty contains no extension provision. Would it not be as well to include in the treaty the possibility of its extension? I can see that might be controversial with some in this country and with some lawyers across the Channel, but building in the flexibility to be able to bridge that gap could be very valuable. The noble Lord, Lord Wallace, is certainly right that it will take several years to negotiate the agreement, but probably another year to ratify it, since it will be a mixed agreement. So the possibility of extending it being built into the draft—both parties would clearly have to agree—is surely desirable.

[Lord Callanan]

The terms of the implementation period are already agreed and both sides agreed with the proposal to end the implementation period co-terminous with the end of the current multiannual financial framework. There is no possibility of extending that built into the agreement.

Brexit: Financial Settlement

Debate between Lord Kerr of Kinlochard and Lord Callanan

Tuesday 11th September 2018 Lords Chamber

[Lord Callanan]

Of course, we will respect our legal obligations. We are a law-abiding nation; that goes without question. But there are several conflicting legal opinions as to our liabilities. Your Lordships’ House held a committee of inquiry under the chairmanship of the noble Baroness, Lady Falkner, on which I was privileged to serve. Its conclusion was:

“On the basis of the legal opinions we have considered, we conclude that, as a matter of EU law, Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments”.


There are alternative legal opinions—in fact, I have spent the morning reading most of them—but it is a complicated area of law. Of course, we want none of these scenarios to come to pass; we want to reach an agreement. Indeed, we have reached an agreement, and we will honour our commitments within the context of the withdrawal agreement.

[Lord Kerr of Kinlochard (CB)]

Did the Minister notice that the head of the NAO has said, formally and on the record, that we will be responsible for paying the bills whether or not there is a withdrawal agreement? Does he accept that the costs of £39 billion are the costs of past commitments, not of future access? They are computed as the cost of the commitments we have already entered into. Is he seriously contemplating that the UK would become a defaulted state?

[Lord Callanan]

At the risk of repeating myself, I said we will honour our legal commitments, but it is a complicated legal area. There are some great legal brains in this House who would, no doubt, want to opine on the matter, but there are different opinions. Ultimately, I suspect this will come down to a matter of politics. We do not want to get into a dispute on these matters and so we have negotiated a settlement. It is hugely complicated, there are a number of different financial areas involved, but we remain confident that we will reach a withdrawal agreement and meet those commitments.

EU Exit: Future Relationship White Paper

Debate between Lord Kerr of Kinlochard and Lord Callanan

Thursday 12th July 2018 Lords Chamber

[Lord Callanan]

I totally agree with my noble friend, who speaks great sense as always on these matters. Of course, free trade is in the mutual best interest of both parties; we cannot say that too often.

[Lord Kerr of Kinlochard (CB)]

My Lords, I am grateful to the Minister for making sure that we, unlike our friends in another place, were able to read the White Paper. I have got as far as page 16 and it is there that I would like to ask for some elucidation. It is very good that we have at last put some cards on the table. That is a couple of years too late but better late than never. The White Paper is clearly a very substantial body of work, which will take a lot of reading by us and, I would have thought, a great deal of negotiating in Brussels.

I want to start on an element which the Minister highlighted. The FCA or facilitated customs arrangement, referred to on page 12 of the Statement and pages 16 to 18 of the White Paper, says:

“As if in a combined … territory with the EU, the UK would apply the EU’s tariffs and trade policy for goods intended for the EU. The UK would also apply its own tariffs and trade policy … However, the UK is not proposing that the EU applies the UK’s tariffs and trade policy at its border for goods intended for the UK”.


I have two questions. First, what happens at Dover to goods from, say, Asia which entered the EU via, say, Rotterdam? Where do the customs dues, tariffs and quota checks take place?

Secondly, as the Minister will be well aware from his long experience in the European Parliament, customs dues are an own resource which go straight into the common EU budget and it is 11 years since OLAF, the antifraud agency, started warning us that our border controls on Chinese textiles and footwear were inadequate. We are now in court for unpaid duty, calculated at more than €3 billion over a 10-year period. As he will be well aware, too, we are also in court over VAT fraud at Felixstowe, where the charge against us is $3.2 billion. Does he really think that once we have shaken off the ECJ, the Commission and OLAF, we will be accepted as trustworthy collectors of the EU’s external tariffs and customs duties at our ports, against the background that it believes that we have consistently under-counted for the last decade, having admitted false invoices and incorrect value declarations? How are we going to persuade the European Union that, as non-members of a customs union, we should collect the duties which go straight into its common budget? Would it not be simpler simply to have a customs union, as this House voted for by a majority of 123?

[Lord Callanan]

To answer the noble Lord’s last point first, for the sake of repetition, we have been clear that we are leaving the customs union. The reason why we are leaving is that we do not want to contract out our trade policy to the European Commission. He might think that is a good thing but I do not and I disagree with him. We want to come to an independent trade policy and this model would allow us to do that. I accept that there will be some challenges in negotiating this matter. However, we have put forward a proposal in good faith and intend to persuade the EU of its virtues and benefits.

On the noble Lord’s question about collecting duties, we intend to agree with the EU a mechanism for the remittance of relative tariff revenue. The UK is proposing a tariff revenue formula, taking account of goods destined for the UK entering via the EU and goods destined for the EU entering via the UK. I am afraid I cannot comment on the court proceedings that are taking place but I understand that we are vigorously resisting the sums that have been claimed.

European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

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

My Lords, it is a great pleasure for me to resume our debate after the Easter Recess. I hope that all noble Lords enjoyed a good break. I spent most of it studying amendments to this Bill. I hope that some doubts about how seriously the Government take these debates have now been dispelled, as noble Lords will have seen that the Government have already tabled many amendments on key aspects of the Bill. Further amendments will follow, relating to the provisions on delegated powers and on devolution. It is our firm and consistent desire to find consensus in this House on the contents of the Bill wherever possible, and I hope that our debates can proceed on a reasonably collaborative basis.

Unfortunately, as in Committee, we start our proceedings with some amendments to the Bill that the Government cannot envisage accepting—or indeed any variant on them. That is not, of course, to impugn the motivation of those supporting the amendments or to deny the importance of the subject matter. Put simply—this will probably surprise nobody in the House—the Government simply do not agree with the proposed approach.

I am, of course, grateful to all those who have taken part in this debate on the vital issue of our future economic relationship with the EU. As the Prime Minister stated in her Mansion House speech, we are seeking the broadest and deepest possible partnership, covering more sectors and co-operating more fully than under any free trade agreement anywhere in the world today. The Government have been clear that the UK, in its entirety, is leaving the customs union. For the sake of clarity, a customs union—as has been pointed out by many noble Lords—has a single external border and sets identical tariffs for trade with the rest of the world. International trade policy is consequently an exclusive competence of the EU, to avoid the creation of different customs rates in different parts of the EU customs union.

The nub of the issue is this. If the UK were to remain in the customs union and be bound by the EU's common external tariff, it would mean providing preferential access to the UK market for countries that the EU agrees trade deals with, without necessarily gaining preferential access for UK exports to such countries. Alternatively, we would need the EU to negotiate with third countries on the UK’s behalf. This would leave us with less influence over our international trade policy than we have now, and would not, in our humble assertion, be in the best interests of UK businesses.

By leaving the customs union and establishing a new and ambitious customs arrangement with the EU, we will be able to forge new trade relationships with our partners around the world and maintain as frictionless trade as possible in goods between the UK and EU, providing a powerful and positive voice for free trade across the globe. There are real opportunities for the UK from increasing our trade with fast-growing economies around the world. The EU itself predicts that 90% of future world GDP growth is expected to be generated outside Europe—a trend expected to continue over the next five to 10 years.

In assessing the options for the UK’s future customs relationship with the EU, the Government will be guided by what delivers the greatest economic advantage to the UK, and by three key strategic objectives. First, we want to ensure that UK-EU trade is as frictionless as possible. Secondly, we want to avoid a hard border between Ireland and Northern Ireland—a commitment that was solidified by December’s joint report. Thirdly, we want to establish an independent international trade policy.

Last year, in its future partnership paper, the Government set out two potential options for our customs arrangements with the EU. These were reiterated by the Prime Minister in her speech at the Mansion House earlier this year. I will give a few more details of those options.

Option 1 is a new customs partnership between the UK and the EU. At the border, the UK would mirror the EU’s requirements for imports from the rest of the world whose final destination is the EU—including by applying the same tariffs and the same rules of origin as the EU for those goods. By following this approach, we would know that all goods entering the EU via the UK would pay the correct EU duties, removing the need for customs processes at the UK-EU border. But, importantly, we would also put in place a mechanism so that the UK would be able to apply its own tariff and trade policy for goods intended only for the UK market.

The second option would be a highly streamlined customs arrangement under which, while introducing customs processes between the UK and the EU, we would jointly agree to implement a range of measures to minimise frictions to trade, together of course with specific provisions for Northern Ireland. This option would include measures to simplify the requirements for moving goods across borders; it would reduce the risk of delays at ports and airports; and it would see the continuation of existing levels of UK-EU customs co-operation, with mutual assistance and data sharing.

Of course, the precise form of any new customs arrangements will be the subject of negotiation, and this will form a key part of our future economic partnership with the European Union. The Government have formed this policy not arbitrarily but because we do not believe that a customs union is in the best interests of the UK and of UK businesses.

I understand that many noble Lords disagree with our analysis, or believe that our goals are unreachable. However, we cannot support Amendments 1 and 4, tabled by the noble Lord, Lord Kerr, and Amendments 2 and 5, tabled by the noble Lord, Lord Wigley, which would have the effect of requiring the Government to make a Statement to Parliament on the steps taken towards the delivery of an objective the Government have clearly ruled out.

We in the Government are trying to seek the best possible future arrangements for the UK. I am confident we will succeed, and the progress we have made already in areas that many thought impossible demonstrates how all sides have been willing to break new ground in order to move forwards. We have set out our two potential options for a future customs relationship with the EU, but these amendments would send a signal that the Government will not seek to negotiate them, and instead pursue an outcome that the Government have ruled out.

I hope that noble Lords will accept our sincerity in our negotiating goals. I will also add, before noble Lords make a final decision, that I do not seek to give false hope that the Government will reflect further between now and Third Reading. I therefore hope that the noble Lords, Lord Kerr and Lord Wigley, will not press their amendments.

[Lord Kerr of Kinlochard]

I thank all noble Lords who have taken part in this fascinating debate. Some made speeches that were more predictable than others, and the Minister’s was a classic restatement of the position that the Government have explained all along; I am grateful to him for repeating so clearly what he has said so many times before.

I ought to pay tribute to my past—my various masters from the past—who are marking my homework so harshly. I owe the noble Lord, Lord Lawson, an apology. I am sure that he explained to the country at large the truth about the customs union and that he did it every day, morning, noon and night, but I am not sure that the country was listening. What I remember is the man who is now the Foreign Secretary telling the country, “Nobody is even talking about leaving the single market”. He published that the day after the referendum, having said it throughout the referendum campaign. So I exonerate the noble Lord—I have to; he was my boss.

As for the noble Lord, Lord Lamont, and a number of others, including the noble Lord, Lord Howarth, I ask them to please read what the amendment says. We are not asking for Britain to stay in the EU customs union—we cannot. As a non-member of the EU, we cannot be a member of the customs union. We are asking for an arrangement that enables us to participate in “a” customs union, and I say to the noble Lord, Lord Lamont, that it does not follow that we can only get the deal that the Turks got. At the time, Turkey’s main concern was the export to the EU of its walnuts. I do not believe that that would be the principal concern if the Government were to act on this and start negotiating for a customs union. I cannot answer the noble Lord, Lord Forsyth, but he is much better informed about Labour Party policy than I am.

In the course of my speech I was very worried to see the noble Viscount, Lord Ridley, nod enthusiastically. I hesitated, but I realised that it was only because I had cited Professor Patrick Minford. I will know not to do it again.

Although the Minister’s response was a beautiful restatement of government policy, it did not deal with any of the arguments advanced by those of us who tabled the amendment. The best argument made in the debate was that of the noble Lord, Lord Wigley. The customs union was not fully debated in the House of Commons as it dealt with this Bill. It is the job of the House of Lords to give the House of Commons the opportunity to debate whether we should seek a customs union. There are plenty of customs unions of various kinds between various countries around the world, and they are all sui generis. I do not know what terms we could get but we will never know unless we find out. I should like to test the opinion of the House.

European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Callanan

Monday 19th March 2018 Lords Chamber

[Lord Callanan]

When we have negotiated the deal it will be an extremely significant moment. We will put that deal to both Houses in a Motion to approve or not, as the case may be. This House has already considered the issue of a second referendum and rejected it. The public rejected it in the last general election.

[Lord Kerr of Kinlochard (CB)]

Is the Minister seriously saying that it would be out of the question for the House of Commons to consider, in addition to whether the deal should be accepted or rejected, whether there should be an attempt to improve the deal or whether it should be put to the people? Are these options to be ruled out altogether? Is it Hobson’s choice? Is it this deal—good, indifferent or bad—or no deal and no question of an extension or trying to improve it, or putting it to the people? If that is the Minister’s position, it is almost as astonishing as the suggestion from the noble Lord, Lord Forsyth, in his seventh intervention, some time ago, that the people would be outraged if they were given the final decision. I do not know if the Minister thinks that, but what he is saying about the meaningful vote is rather outrageous.

[Lord Callanan]

I am sorry that the noble Lord is outraged, but I am not going to stand here and try to instruct the House of Commons on what to do. It is quite capable of taking its own decisions. Many Members of this House have been Members of the House of Commons. I have not, but I am sure that if they want a vote on any subject they like they are quite capable of deciding the matter themselves.

Our focus now should be on making a success of Brexit, working to get the best deal possible, providing certainty and taking decisions on what kind of country the UK will be in the future. That is the clear instruction given to this Government in both the referendum and the general election. We believe that it is our duty to deliver upon it. A second referendum would pose a—

Brexit: Revocability

Debate between Lord Kerr of Kinlochard and Lord Callanan

Wednesday 20th December 2017 Lords Chamber

[Lord Callanan]

I thank my noble friend for his opinion. He is of course correct.

[Lord Kerr of Kinlochard]

This being the season of good will, I absolutely do not want to get the Minister into hot water again. Does he recall the view of the President of the European Parliament:

“If the UK wanted to stay, everybody would be in favour”?


On the legal issue of unilateral withdrawal of an Article 50 notification, does he recall the article enjoining honesty published on 9 November by his distinguished predecessor, the noble Lord, Lord Bridges of Headley, in which the noble Lord made it clear that there is “no legal basis” for the view that a notification cannot be unilaterally withdrawn? Does this perhaps explain why the Minister is so reluctant to reveal the law officers’ opinion?

Brexit: Data Transfer

Debate between Lord Kerr of Kinlochard and Lord Callanan

Thursday 16th November 2017 Lords Chamber

[Lord Callanan]

My Lords, we have said that, in exiting the European Union, we will bring to an end the direct jurisdiction of the Court of Justice of the European Union in the UK. This is without prejudice to the final details of the negotiations and the implementation period—but we are very clear on that point.

[Lord Kerr of Kinlochard (CB)]

My Lords, I am very grateful to the Minister for correcting the record of what he inadvertently said on Monday when he affirmed that the Supreme Court expressed no view on the question of revocability—on which I have a clear view. Perhaps he might suggest to his noble friend Lord Ridley, who misled him into misleading the House, that it would be appropriate also for him to withdraw his remarks.

[Lord Callanan]

The noble Lord has a widely expressed opinion on Article 50, but I think he will find that 17.4 million of our fellow citizens also had an opinion.