Brexit: Financial Settlement

Lord Mackay of Clashfern Excerpts

Tuesday 11th September 2018 Lords Chamber

[Lord Callanan]

I hope we will not get into these scenarios. The Vienna Convention on the Law of Treaties 1969 has been mentioned and that might also apply in such circumstances but, as I said, we do not want to get into these scenarios. We are confident that we will reach a deal and as part of that deal we have agreed a financial package.

[Lord Mackay of Clashfern (Con)]

My Lords, it will not surprise any of us that there should be differences of legal opinion about this sort of question. I hope the Government will be able to press forward with the best proposal I have seen—the one agreed at Chequers—in order that this becomes a purely academic question.

[Lord Callanan]

Obviously, it is to be hoped that we do not get into any disputes. We remain committed to the Chequers deal; as I said yesterday, we are awaiting a formal response from the EU. We think it is a good proposal, involving compromise on our behalf. We need now to see similar movement and compromise on the EU’s behalf.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, your Lordships will know that I took part in the debate on the amendment tabled by the noble Lord, Lord Warner. A clear decision on this matter was made by the Court of Appeal long before Brexit; it exists in our law and is based on European law. I know of no better assurance than that. The principle is clearly set out in the Court of Appeal and the High Court judgment in the packaging case. I do not know the nature of the legal advice to which the noble Baroness referred, but there are legal advices and there are legal advices. My advice is certainly very clear: if you have a judgment of the Court of Appeal on European law, which was part of our law before Brexit, under the retained law arrangements it will be part of our law after Brexit. If I had any reason to suppose that this amendment had been proposed according to that legal advice, I would feel that the amendment that we had before was, if anything, rather better.

[Baroness Wheeler (Lab)]

My Lords, on behalf of my noble friend Lord Hunt, who is unable to be here today, I fully support the amendment of the noble Baroness, Lady Finlay. It was helpful to be reminded of the strong concerns expressed on Report; I also endorse the comments made by the noble Lord, Lord Warner. It is important to have clarification that the need to preserve Article 168 of the Lisbon treaty as part of retained EU law is recognised, and I look forward to hearing the Minister’s comments.

I commend the Minister’s willingness to work with noble Lords across the House on this important matter and his helpful role in facilitating this and working through the issues referred to by the noble and learned Lord, Lord Mackay. Article 168 places public health protection and health improvement at the epicentre of policy-making, and the Government’s assurances that our domestic law implementing EU public health requirements will continue to be interpreted by reference to relevant EU law, including Article 168, will be welcome.

The Minister’s assurance of the Government’s commitment to ensuring that the UK remains a world leader in public health following Brexit would also be welcome. I hope he will provide the House with this, to be noted for the record.

Finally, it is important once again to pay tribute to and place on record the work of the wide coalition of major public health bodies, medical colleges, charities and the wider health community in helping us, one hopes, reach a consensus on the way forward.

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[Lord Beith (LD)]

My Lords, I will not add to the exposition of the amendment and the reasons for tabling it, which have been so clearly set out by the noble Lord, Lord Pannick. The committee felt that we ought to see whether we could get a more secure place for retained European law in the hierarchy of law as it would be viewed by the courts in this country. There will probably be difficulties in this area and we are probably persuaded that they cannot be resolved by the kind of declaratory amendment that we have tabled on this occasion.

There are further difficulties which the Minister might refer to, which have been pointed out by Professor Alison Young, who was referred to earlier. For example, constitutional statutes are not subject to the doctrine of implied repeal in the same way as other legislation. What will be the position if an item of retained European law is considered to be constitutional in character and appears to be in conflict with subsequent legislation passed post exit day, when the supremacy principle has fallen away and this has to be resolved?

In passing an earlier amendment which removed a discretionary power from Ministers to, in effect, decide whether matters could be put before the courts, we wanted to assert that, wherever possible, we should protect the courts and the legal system from having to be the subject of individual ad hoc ministerial decisions in particular cases. That was part of the motivation for what the committee sought to do in this case. But clearly it cannot be solved in the way that we first suggested.

[Lord Mackay of Clashfern]

My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.

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

My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.

On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:

“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.


As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.

My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.

The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.

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[Lord Kerr of Kinlochard]

The noble Lord probably knows more about it than me. I only know what I read in the UK press, which is almost nothing, and in the Scottish press. But my point is a slightly different one. I thought I would be attacked by the noble Lord on slightly different grounds. I want SNP representation in this Chamber. On previous occasions the noble Lord has reminded me that it is entirely the theology of the SNP that prevents it being represented in this Chamber—and he is completely correct about that. I do not understand why the SNP, represented in the other place, adopts towards this House the policy that Sinn Féin adopts towards the other House. I do not understand it at all. The onus is of course on members of the SNP to change their minds if they wish to take part in our debates, but I would ask the Minister to say what some of his colleagues in the past have said: if SNP MPs were to change their minds, the Government would be delighted to see them represented in this place.

[Lord Mackay of Clashfern]

My Lords, it is certainly not my purpose to say or do anything that makes it more difficult to reach an agreement with the Scottish Government—that is the last thing I want to do. But I want to say, in answer to one of the points that the noble Lord, Lord Thomas of Gresford, made, that the provisions that we are talking about in relation to the frameworks are provisions in which the Scottish Parliament does not have jurisdiction because the framework is for the United Kingdom as a whole. Therefore, it is not within the jurisdiction of the Scottish Parliament. That is why I have said so far that the consent of the Scottish Government is not necessary at that stage. But I would like to see a consent to the arrangements: then they can go through pretty well formally in the Parliament of the United Kingdom.

I had understood from Mr Russell from the early days—I will say a little more about this when we come to considering the Bill passing, which I hope we will do in due course—that the Scottish Government have said that they require to consent to the Parliament of the United Kingdom passing these. But, so long as their views are fully heard by the Parliament of the United Kingdom, that is the correct way to approach this. The legal competence in this matter lies with the Parliament of the United Kingdom. Therefore, technically, consent is not necessary from any of the devolved legislatures: otherwise, one of them could make these regulations impossible for the others. So consent at that stage is not necessary. It is highly desirable, which is why I was trying to concentrate on an arrangement under which it should happen.

I think that I am right in saying that the memorandum provides that, in effect, the Sewel convention will apply before these things are put to the United Kingdom Parliament. As I said before, the amendment and memorandum that the Government proposed went slightly further than I had suggested, by giving the opportunity for the dissenter, whichever Government it was, to put their point of view in their terms before the Parliament of the United Kingdom before it was considered.

So far as the question of consent is concerned, the technical question is: what is required? The intention of the legislation so far is that a decision has to be taken by each of the devolved Governments before anything is put in this connection before the UK Parliament. In other words, every opportunity is given for them to reach consent in their committees. I would like to see this settled, but the decision as to what is required is a legal decision, which, so far as I am concerned, does not require as a matter of law the consent of the Scottish Government—although that is very desirable. I am entirely in favour of doing everything that we can to deal with these matters.

Talking of papers going out and so forth, I saw an article about papers dealing with fisheries. It said that the document contained the idea that the UK Parliament can deal with fisheries in the world. Of course, we do not need to have discovered that in this paper, because it is in the reserved matters in the original constitution of 1998. The fact that the UK Government and the UK Parliament are responsible for international relations is well known; it is not a discovery one makes from a recently leaked document. That sort of thing does not help the atmosphere.

I certainly support strongly all that has been said about doing our level best to get the best atmosphere with the Government of Scotland as well as with the Government of Wales—and I would love to see a Government in Northern Ireland as well.

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[Lord Pearson of Rannoch]

I have saved noble Lords an awful lot of time. I hope that students of Brexit will read what I said at Second Reading on 30 January in column 1392. The core of my argument was that the Government were underestimating the strength of our hand in Brussels, because politicians and bureaucrats do not understand how to do deals; that they should have resiled from Clauses 2 to 4 of Article 50, which give the Eurocrats control over our leaving process; and that they should have dictated our terms for leaving to the Eurocrats. Those terms have not changed, and remain in the interests of the real people of Europe—as opposed to those of the Eurocrats, with their determination to keep afloat their failing project of anti-democratic integration. We should be generous with those real people, by offering them wide mutual residence, our ongoing security support and the continuation of our free trade together, which their exporters need so much more than ours. If the Eurocrats accept all that, we should be generous with the cash that we give them. If they do not, we should leave anyway, and give them no more cash after 29 March next year.

As the Bill leaves this House for the Commons, the Government still do not seem to believe that we can legally resile from those Article 50 clauses and leave anyway —yet I am advised that there have been some 225 unilateral withdrawals from international treaties and organisations since 1945. I recommend Professor de Frankopan’s opinion in Money Week on 21 November 2016, which covers supportive decisions from the German constitutional court and confirms that leaving without the Eurocrats’ consent is just a matter of political will.

The area in which the Government seem most confused—and most unnecessarily under the thumb of Brussels—is trade. We have free trade with the EU, so why do we not simply offer to continue it with a new arrangement under the jurisdiction of the World Trade Organization and threaten to go under the WTO’s normal remit if the Eurocrats do not agree? As I have said, continuing free trade would be much to the advantage of the EU exporters to us because, if it stops, they would pay us some £13 billion a year in tariffs—under present WTO terms—against the £5 billion that we would pay them. Nothing would change. We would all just go on as we are and the inflated problem of the Irish border would simply disappear. Moreover, there is even an article in the treaties that I do not think has been mentioned in these proceedings. It obliges the EU to continue free trade with us after we leave it and become part of the wider world. Article 3(5) of the Treaty on European Union contains the following:

“In its relations with the wider world, the Union … shall contribute to … free and fair trade”.


Have the Government pursued this clause with Brussels?

I conclude with two further observations on the passage of the Bill. First, I regret that not one of our five former EU Commissioners who spoke, and only one of our 17 former MEPs who spoke, saw fit to declare their EU pension entitlements. I refer especially to the entitlements of the former Commissioners, which can be lost if they fail to uphold the interests of the communities—now the EU. Secondly, our 156 hours of debate so far have shown me something that I had not spotted before: Europhilia is a hallucinatory illness. It affects otherwise quite sensible people and leads them to see the European Union as a good thing, when any normal person can see that it may have been an honourable idea in 1950, but now it does nothing useful that could not be done much better by the democracies of Europe collaborating together. It has become a bad, pointless, corrupt and very expensive thing, which the British people, I am glad to say, have seen through. I trust that they will also see through the blandishments of so many of your Europhile Lordships in our debates so far, and take pride in the decision they so wisely took in the referendum on our membership.

[Lord Mackay of Clashfern]

My Lords, I would like to say a word about my attempts for Scotland. I am going to read this from my note, because I have shown it to Michael Russell. As I said to your Lordships, on the Monday before Clause 11 was due to be discussed in Committee, I met a member of the SNP, Ian Blackford, to whom I said that I had not received any briefing from the Scottish Government on that clause. Next day I received briefing from the Lord Advocate and Michael Russell, the Scottish Minister in the consultation on Clause 11. Having carefully thought over what they said, I tabled an amendment to provide a mechanism for the consultation that I thought would meet their concerns, and in Committee I stated my view of the relevant law that would return on Brexit.

On Report the British Government tabled amendments that fully met my suggestions, and indeed went further. I had suggested that, if the consultation failed to reach agreement, the participants should provide an agreed statement of their disagreement to the UK Parliament before it was asked to approve the instrument approving the framework agreement in question. The government amendment also proposed that any dissenter should have an opportunity to state the reasons for their dissent in their own terms. Your Lordships will understand my dismay when I learned from Michael Russell that the Scottish Government could not accept that amendment.

The First Minister of Scotland then wrote to the Lord Speaker with a number of amendments that she asked him to circulate, which he did. My noble and learned friend Lord Hope of Craighead and I decided that we should table the principal amendments in the letter: he would introduce them and I would explain the reasons why we could not support them. This we did. No member of your Lordships’ House questioned my explanations. The First Minister of Scotland has not corresponded with either of us; we have not corresponded with anyone other than Michael Russell and the Lord Advocate on this matter, and I have had talks with the UK Ministers and officials. Michael Russell has publicly and graciously acknowledged the help that my noble and learned friend and I have given, and I thank him for the courtesy he has shown in all his correspondence with us.

I am satisfied that Clause 11 as now amended is entirely in accordance with the devolution settlement, and is an appropriate way of dealing with the unique problem of adjusting the EU provisions for the internal market in the United Kingdom to the post-Brexit situation.

I have had my home in Scotland all my life, having been trained as a Scottish lawyer, and I am profoundly sad that I have been unable to achieve the agreement of the Scottish Government to these proposals. Although my concern was principally with my native land, I am glad that the Government of Wales have accepted the arrangements, and I send my best wishes to those in the other place, in the hope that they will succeed where I have failed.

[Lord Wigley]

My Lords, as one who—unlike certain other colleagues—has barely missed an hour of the 156 hours of discussions on this Bill, may I say a few words before we send it back to the other place? I join others in thanking the team of Ministers for their patience and good humour, even on occasions when those could have been sorely tested. The noble Lord, Lord Duncan, the noble and learned Lord, Lord Keen, the noble Baroness, Lady Goldie, and the noble Lord, Lord Callanan, have had a heavy workload, and I am sure that they and their officials will be glad to see us pass Third Reading. I thank in particular the noble Lord, Lord Bourne of Aberystwyth, for the way in which he responded, and made himself and his team available to discuss issues of concern. In particular, with his background in the National Assembly, he could readily identify with the concerns emanating from Cardiff Bay, even if his brief did not allow him to respond as fully as many of us—and perhaps even occasionally he himself—might have wished.

I have no doubt that the Bill we now return to the other place is significantly better than the one we received. Ministers should concur with this sentiment. After all, of the almost 200 amendments that have found their way into the Bill, all but 15, and a handful of consequential amendments, have come from the ranks of government itself. Let no one—the Daily Mail or anybody else—claim that this Chamber has delayed proceedings. We have not. The Government have their Bill bang on time, even if, at times, we had to spend 11 hours or more a day on our deliberations to make that possible. The Government clearly needed all this time: as we heard from the noble and learned Lord, Lord Mackay, a moment ago, it was only at the very last moment of Report that they were able to move the final form of amendments that they saw necessary to make Clause 11, as was, workable in the way that they desired.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Grocott]

My Lords, the interventions reflect what we have known throughout the passage of this Bill—and, indeed, politics since the general election. The overwhelming majority of Members in both Houses voted for remain in the referendum and, through all sorts of different mechanisms, they want to either delay or stop the whole Brexit process. It is Parliament’s right to do that, and if the House of Commons decides to do so, that is what will happen. I personally strongly recommend against it in the light of the referendum, but that is what parliamentary democracy means and that is how it operates.

My final point is in response to the noble Lord, Lord Wallace. I have heard on a number of occasions that, somehow or other, if we query in any way the relationship between the Government and Parliament, we are denying the central argument of the people who want to leave the European Union: to enable Parliament to restore its authority, which it lost in substantial measure with the passing of the European Communities Act 1972. My answer to that is this. Quite simply, if anyone in this House, or the other one come to that, is deeply concerned about parliamentary sovereignty—and indeed if they love parliamentary sovereignty, as I do—the best thing they can do is to make sure that the European Communities Act 1972 is repealed as rapidly as possible. That is far greater a restriction on the authority of Parliament, and on the House of Commons in particular, than anything the amendment to hand attempts to remedy.

I am not going to be accused of in any way challenging parliamentary democracy because I do not think that this is a terrific amendment, but I will not lose any sleep if it passed, for the reasons that I have said: Parliament can do what it likes and the House of Commons can do this in any case. However, we must not miss the wood for the trees. As far as the sovereignty of Parliament is concerned, the problem comes from the European Communities Act 1972 and not from any amendment that this or any other House can pass.

[Lord Mackay of Clashfern (Con)]

My Lords, it had not been my intention to take part in this debate because I read in the newspapers a forecast of what the result would be. That suggests that, for most of your Lordships, the decision has already been taken. However, having listened to the debate so far, I thought it was right for me to say a word or two.

I have never been a Member of the House of Commons, but by the constitutional arrangements that then existed I was given a very senior position in Her Majesty’s Government, which lasted for almost 10 years. One of my fundamental approaches to the matter of discharging that office was to respect the views of Members of the House of Commons who were members of the Government. There are colleagues of mine here who know in practical terms that that was so. On the other hand, it was always possible to suggest ways in which their policy could be implemented with less danger to the community than otherwise might have happened.

I had the privilege of nominating my noble friend Lord Hailsham to be a silk. Her Majesty the Queen graciously accepted that nomination. But I did not have the opportunity to exercise power that would have enabled him to have the title “learned” in this House. That does not in any way derogate from the force of what he had to say except that, from my point of view, it is arrogant in the extreme for Members of the House of Lords, together or otherwise, to tell the House of Commons what to do.

I learned in the course of my experience as Lord Chancellor that it was very wise for Members of the House of Commons to be given what they wanted so far as possible. I am sorry to say that my colleague, the lady Speaker at that time in the House of Commons, is not in her place, but I remember that in relation to arrangements for things in which we were both involved it was universal that her wishes were implemented. There is an arrogance in our House telling the House of Commons how to go about its business. I agree entirely with what the noble Lords, Lord Grocott and Lord Howarth, said about that. As I said, I had not intended to speak, but I feel that this House needs to think about its attitude to the powers and discretion of the House of Commons.

[The Lord Bishop of Leeds]

My Lords, I find myself torn between pragmatism and principle—the principle of parliamentary democracy and upholding and preserving the constitution; and on pragmatic terms, the ability the Government need to manage the process we are in. But I keep hearing in this debate the language of “telling the House of Commons what to do”. Call me ignorant, but I did not think that that was what we were doing. I thought the role of the House of Lords was to scrutinise, improve and ask the Government to think again. That is what we are called to do and that is where the principle applies. Then it is up to the House of Commons and the Government to decide what they do with the arguments put forward from this place. Not to do that is to deny the appropriate role of this House in doing its job.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Judge]

My Lords, I want to add my voice and underline, if I may, how serious the issue arising under subsections (3) to (7) is. There are many executives that would be desperately pleased to have provisions such as these in primary legislation. There is no reason whatever why Parliament should not be able to deal with any issue arising in the context of sentient animals—there is no exclusion about that. However, to exclude the possibility of somebody seeking a remedy before the court would be an astonishingly dangerous principle to put into any legislation. The fact that it arises in this very sensitive issue relating to animals is one thing, but a lot of citizens, and individuals who happen to live in this country, rely on the possibility of taking the Government or the local authority to court to make them account for the exercise of, or failure to exercise, their powers. This would set an alarming precedent.

[Lord Mackay of Clashfern (Con)]

My Lords, the subject of animals is an extremely important one and I have great sympathy with the spirit behind both the amendments in this group. However, this subject needs to be properly dealt with in a statute of the United Kingdom. I know that criticism has been made of the attempts so far, but there is always room for improvement, and constructive suggestions have been liberally made in the consultations. As far as I am concerned, it would be much better to have a good United Kingdom statute for these animals than to try to do it through adapting part of an EU treaty.

The technical question of judicial review is quite difficult. I am not sure just how crucial it is to the amendment from the noble Lord, Lord Trees, but, years back, skilful Lords of Appeal—Lord Reid, a Scottish judge, and Lord Wilberforce from this jurisdiction—developed a theory that makes it next to impossible to prevent judicial review in an Act of Parliament. They did so by saying that what Parliament has protected is the judgment that is supposed to be come to, but, if the judgment that is come to has been falsified by some mistake or lack of proper process, then it is not a judgment protected by these provisions—Anisminic was the case. As was said by the noble and learned Lords, Lord Hope and Lord Judge, at the end of a long process, the attempt to restrict judicial review was eventually torpedoed by these judges, with support of course. It is for that reason that the Government decided some considerable time ago not to put such protected clauses into legislation, because it is apt to mislead the public—they think that these clauses are, at face value, worth while, but when Lord Reid and Lord Wilberforce got on to them, they were not worth the paper they were written on.

[Baroness Byford (Con)]

My Lords, I will speak briefly to these amendments. I am one of perhaps three or four people in the Chamber today who took through the original Animal Welfare Act 2006, so I am supportive of anything we can do to make sure that animal welfare is top of the agenda. As an associate member of the BVA and the royal college, and as somebody who has had animals on the farm, this is a key interest of mine.

I have talked often with the noble Lord, Lord Trees, about the fact that although I am 100% behind what he is trying to do, I am not sure in my mind that this amendment is the right vehicle. I apologise if that is a disappointment to him. I am grateful for the observations of the noble and learned Lords, which were above the understanding I had before the debate started. It is very clear that the Government have tried to rectify a problem that was raised in the House of Commons by bringing forward a draft Bill. I think they realise, in hindsight, that that Bill is not sufficient to do what they wish it to. As others have said, it is quite difficult to deal with this on Report because we have to wait and then we cannot come back. However, I am hopeful that the Minister will be able to give us much greater clarification than we have had up to now as to the Government’s thinking about where we stand. While we are not fully behind the wording of the amendment, I hope no one thinks that we in any way do not believe in the full commitment we should have to animal welfare. Although I have no idea what the Minister is going to say, I hope he will bring us up to date on where we are and what the Government’s thinking is.

I say to my good friend the noble Lord, Lord Trees, and others that I am grateful to them for bringing forward this amendment. It has given the House another chance to reflect on an issue that some people might think is not important but which, I say to my noble friend the Minister, is hugely important. I hope his words will give greater resolve to those of us who wish to see this welfare issue taken forward in a meaningful way.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I hold the legal profession in high esteem. However, in Committee, it was obvious to me as a lay person—a person on the Clapham omnibus—that the lawyers disagreed and kept disagreeing. That was very upsetting for me, because it meant chaos instead of clarity—and the same thing is happening again. When I support this amendment, all I can do is apply my intelligence and political knowledge and think about what the safest thing to do is.

In Committee, we heard some noble Lords on the Government Benches insisting that the charter was some sort of bureaucratic bogeyman created by the EU to destroy parliamentary sovereignty and create a whole load of new rights that were fundamentally opposed to the British way of life. Now, later, other noble Lords, including the Minister, assert that the charter does absolutely nothing of significance and that all the charter rights exist elsewhere. Both those points of view cannot both be right—and in fact neither of them is right.

I am not convinced that what we heard is a fair representation of what exists. If two views are so opposed, what are we to believe? We are losing rights that are fundamental to our modern way of life. Very many people outside your Lordships’ Chamber think that Brexit is nothing more than an attempt by elites—that is us and others like us—to tear up everyone’s rights and freedoms. I voted for Brexit, but that was not the Brexit that I had in mind. If we lose the Charter of Fundamental Rights today, I will feel that I have been complicit in doing exactly that. I will leave it to other more learned Lords to try to work out what the exact effect would be of retaining or losing the charter. However, on the Clapham omnibus it feels as if we are spinning round in circles.

I will ask a very simple question. If I am unusually kind and give the Government the benefit of the doubt and accept that the charter rights are all in our law elsewhere, one question would remain. Why would your Lordships’ House replace a simple codified charter with a complex and diffuse legal mess? I simply do not understand that. The general trajectory of good law- making is to take complexity and make it simpler and more elegant. This House often takes a chaotic mix of case law, statutes and treaties and rewrites them in codified statutes which put them all together in one place and make them easier to understand. I cannot think of another example in this or any other Bill where this House has been asked to take a simple legal situation and make it infinitely more complex while seeking to achieve exactly the same thing. It simply does not make sense to scrap the Charter of Fundamental Rights. It is our duty as a revising Chamber to make sure that people outside understand exactly what we are trying to preserve, which is fundamental rights and freedoms.

[Lord Mackay of Clashfern (Con)]

My Lords, I will say a few words about this amendment. First, it is important to notice that the charter applies only when the EU law is implemented; therefore, the non-discrimination that the noble Lord, Lord Cashman, talked of is applicable only when EU legislation is implemented. There is a recent case in the Supreme Court which says exactly that. It did not allow claims of non-discrimination in a case where the law which was being implemented was not EU law. Therefore, this charter is very restricted in that respect. In addition, while we are in the EU we are implementing EU law, but there is a serious question as to whether we will be implementing EU law at all after Brexit. This is a matter of how you interpret the idea of bringing EU law into our law on Brexit day. However, it is extremely important that the whole charter is being incorporated by this amendment, including these serious restrictions, which are not easily applicable in Northern Ireland or elsewhere. I was interested to hear in Committee about the situation as regards Northern Ireland. The implementation of the charter in its present form in our law would be extremely defective.

Secondly, once we are out of the EU, surely the fundamental part of our constitution should be respected—that is, that the courts of Westminster Hall, as they were, and the courts of justice of our land have no jurisdiction to set aside Acts of Parliament. One of the fundamental aspects of this charter is that it professes to give the right to set aside Acts of Parliament when they are in breach of these particular responsibilities. In my submission it has been a fundamental part of our constitution for many years that Acts of Parliament cannot be set aside by the judiciary. That is nothing to do with the qualifications of the judiciary; it is to do with setting a reasonable control in a democracy in the hands of the elected representatives. You have only to look at the United States to know how different it is where the Supreme Court has the ultimate authority over the constitution of the United States and what the House of Representatives and the other aspect of its legislature can pass.

--- Later in debate ---

Therefore, in that instance, Article 168—in so far as it was utilised by the courts when Mr Justice Green drew upon it and recognised that it was “at the epicentre” of European policy-making—will be available in the future to UK courts to draw upon, both its elements and its interpretation, and those elements will be available afterwards. I hope that those remarks are helpful in clarifying where we stand; I will of course return later on to engage with the full debate.

[Lord Mackay of Clashfern]

My Lords, I had the privilege of hearing the noble Lord, Lord Warner, explain the position in Committee. When I heard him speak, it roused in my mind the thought that the decision in the packaging case was extremely important. In particular, the doctrine that the noble Lord, Lord Warner, seeks to establish must have been relied upon by the Secretary of State to defend that decision; important rights of the tobacco companies were at issue as well, such as complicated trademark legislation. When I looked at this, I thought it was absolutely clear that Mr Justice Green was relying upon Article 168 and the principle of the high value of human health in his judgment in favour of the Secretary of State. Therefore, that must have been part of our law at the time when Mr Justice Green was deciding the case, which was in 2016. If it was part of our law then, it will remain part of our law in light of the provisions in the Bill when Brexit comes along.

I was not privy to the earlier situation which the noble Lord, Lord Warner, described, and there may have been some difficulty in having this clarified. Mr Justice Green was deciding this in the High Court. The case went to the Court of Appeal, where in one judgment given by three judges—they say that they all contributed to the judgment—they absolutely affirm that the judge was right and that his approach was in accordance with EU law. That is EU law as it was; part of the law of the United Kingdom in 2016. Therefore, I consider that it must be preserved by the retention of the EU law that we have here. In my view, what the noble Lord the Minister has now said makes it clear that the Government now accept that position. It does not depend so much on the Government’s word as on the fact that the courts recognise this principle as part of EU law applicable in 2016. I cannot see any answer that can be given to try to rule it out. Therefore, I am content with what the Government have come out with and glad they gave me the opportunity to discuss this with them this afternoon. There were quite a number of members of the department there and we had a fairly frank discussion which has, I am glad to say, produced what I think is a reasonable result.

[Baroness Finlay of Llandaff (CB)]

My Lords, it is most helpful that the Minister has given a reassurance and further clarified the position. However, I have a lingering concern about what happens if we do not have Article 168 in the Bill. If a trade deal and negotiation end up going to court, something has already gone terribly wrong. The advantage of having this stress on public health in the Bill is to strengthen the arm of the Government to make sure that public health is not inadvertently compromised.

I found a recent review of the Trans-Pacific Partnership Agreement, which looked at the health impact in the context of trade negotiations. Particular areas of concern related to food labelling, alcohol labelling, tobacco control and the cost of medicines. As this House knows, we have a major problem with obesity in this country. If people are to make real, sensible choices over what they are buying, they have to know that food labelling covers all aspects of food safety, including exposure to toxic pesticides, herbicides and so on, and animal husbandry methods, which have been of concern.

Our producers may not want that degree of labelling because it may damage their profits. I can see that in negotiating trade deals there will be, at times, a balance between profits and establishing the trade deal and holding back in some areas because of public health. The same may happen with atmospheric pollution. and so on. So while I fully accept the intention of the Government to make sure that as, in that article, public health protection and health improvement will remain unequivocal and at the centre of things, I have a lingering concern that there may be drift over time and difficulty in negotiations if we do not have this formally in the Bill.

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[Lord Hunt of Kings Heath]

Perhaps I may ask the Minister to clarify what he said about providing no comfort. Speaking for the Official Opposition and, I think, for the Lib Dems, we have not had sight of the intervention that the Minister made this afternoon. I found that intervention helpful, as was the interpretation given by the noble and learned Lord, Lord Mackay. I am suggesting to the House and to the noble Lord, Lord Warner, a way forward. If the Minister agrees that this matter can be brought back at Third Reading, we will have time to read that intervention. I think that that is a constructive response from the Opposition Front Bench. The noble Lord, Lord Warner, will have to decide what to do but clearly, if we are not allowed to come back to this at Third Reading, we will probably have to test the opinion of the House. It seems to me that a sensible, consensual way forward is to give us time to look at what the Minister said.

[Lord Mackay of Clashfern]

My Lords, perhaps I may break the rules of Report and intervene. The Government have said repeatedly that they cannot do anything about this or that. They have said, “If you want to vote on this, you have to do it now and not at Third Reading”. However, this is a rather different situation in that their position has been made clear rather close to dealing with this amendment, and it is only reasonable that the House should be given an opportunity to study it. I do not think that that would be a breach of the general rule that we try to get rid of everything before Third Reading, and I do not anticipate that those who have tabled the amendment will want anything else.

An important point is that the amendment has raised an issue which I think the Government now accept is covered by the terms of the Bill as it was—the principle of the value of human health recognised in EU law. They have accepted that and the Bill carries it forward. It is only right that those who have brought forward the amendment should have the opportunity to study what has been said. I know that that is not in accordance with the general rule that the Government have set for Ministers but I think that this is an entirely exceptional circumstance, and I will certainly be very disappointed if, instead of getting an agreement, which I believe we have, we have an unnecessary vote.

[Lord Grocott (Lab)]

I very much agree with the point that the noble and learned Lord has made. It may not be within the normal rules of a Report stage debate to have the kind of circular arguments that we have had but, without having the Companion in front of me, I am pretty certain that I am accurate in saying that this is precisely the kind of occasion when it is appropriate to consider a matter again at Third Reading. The rules on when you can bring forward amendments at Third Reading are quite restrictive but, where the Government effectively announce a change of policy or, at the very least, give a further clarification which this side of the House has no opportunity to consider in detail, I cannot see that anyone loses any face whatever. It is entirely consistent with the way in which Third Reading operates for the Government to say, “We may or may not be able to accommodate it but we’ll look at it again at Third Reading”.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I have had the privilege of being involved in this sort of question for some time. Clinical trials need to be in a system which makes it relatively easy to set them up. The new regulation to which this amendment relates has very much simplified the system. Unfortunately, for fairly technical reasons to do with the portal, it has not come into force yet but the assurance that the Government have given in relation to this seems the best that they could give. It is entirely in accordance with the agreement that we came to yesterday; namely, that the Government will do all they can to bring the regulation into effect. Of course, if it happens during the implementation period then nothing more is required but if, unfortunately, it does not come into force during that period the Government will do everything possible to avoid delay and give certainty to those who plan clinical trials. As your Lordships know, planning clinical trials is not something that happens the day before they start; there has to be a good deal of planning so that such trials may be effective. I think the Government have done all that can be done in this situation to give effect to the intention of the noble Lord, Lord Patel.

[Lord Kakkar (CB)]

My Lords, I thank the Minister for her very full response to the amendment moved by my noble friend Lord Patel. She has given a powerful reassurance that the important elements of the European clinical trials regulation that can be applied independently of the European Union to improve the situation for the conduct of clinical research in our country will be brought into force. That is vital, as the Minister said, for ensuring that those who plan clinical research can do so with absolute certainty over a period of time prior to implementation. I, for one, am most grateful to her for this reassurance.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I am certainly interested in family law, and have been for some time, but this amendment strikes me as rather otiose and ineffective. It says:

“Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law”.


It has nothing to do with reciprocity in the sense of other people’s laws; it is that they will continue to exist in domestic law. As I understand it, this Bill transforms into our law all existing EU law to this effect—that is what the Bill is supposed to do. And if it is deficient in that respect, it is for the noble Baroness, with all her expertise, to point that out. So far as I have understood it, all law that applies here on Brexit day will become part of our law, and therefore there is nothing to report in respect of that because that is what EU law was before—which would now be the law here.

[Baroness Kennedy of The Shaws]

I do not know whether I am entitled to interrupt someone who speaks subsequent to me, but I want to explain. We are introducing this into domestic law, but take, for example, the current position for a wife divorced from an Italian spouse. She can go to her local court here in Britain and obtain an order which is then—because of reciprocity and the special arrangements—enforceable in Italy against her ex-husband, who lives there and has not been paying maintenance for his children. It is the business of reciprocity that is problematic. I am sure the noble and learned Lord knows that very careful arrangements have been made as to which court in which country takes cognisance of a case and where the matter is dealt with if there is conflict. All those rules, which have now been set down in regulations, need to be settled with our partners in Europe. It is not enough to introduce it into UK law; we have to have the component of the other party and the other court in agreement. That has to be part of the negotiations. Bringing this into UK law will not do it on its own.

[Lord Mackay of Clashfern]

I think the noble Baroness has demonstrated the truth of what I am saying: namely, that she is concerned with the rights afforded by EU law in this country. The fact that those rights will continue to be enforced in this country is what the Bill is about. Therefore, I do not see any possibility of this amendment having any effect. The noble Baroness has just mentioned its operation in Italy, if the husband is there. That depends not on the domestic law of this country but on the law of Italy, and that is not part of what we can do in this Bill.

[Lord Marks of Henley-on-Thames]

I am terribly sorry to interrupt the noble and learned Lord when he has already been interrupted, but the point is that these provisions are all about reciprocity. They are about the mutuality of enforcement in other member states and in the United Kingdom. Subsection (2) of the proposed new clause seeks to address the problem with reciprocity. It says:

“The report provided for under subsection (1) must include … the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law”.


The point of that reciprocity is to ensure that United Kingdom citizens can enforce rights in other members states under the regulation in the same way as member state citizens—or former member state citizens as they would be—can in the United Kingdom.

[Lord Mackay of Clashfern]

I take what the noble Lord is saying, but such a report would not be dealing with subsection (1). That is my point. Subsection (1) is the operative subsection and it deals with domestic law, and reciprocity is not a matter that can be dealt with by domestic law. The only thing we can do, as I said on the last occasion on which we discussed this, is make sure that our arrangements are suitable for reciprocity and, if the reciprocity comes, that we have the right arrangements to deal with it. That is our domestic side of reciprocity. The rest of the reciprocity belongs to the rest of Europe, and I hope it will see the benefit of this as much as us. However, as far as we are concerned, we are bringing the whole of EU law that refers to family matters into our law by virtue of this Bill, and a report about that would be otiose.

[Lord Inglewood (Con)]

My Lords, if I may, I want to make a brief comment that I should like to have made in Committee but the time was not appropriate. Like a number of your Lordships in the Chamber, I was a Member of the European Parliament for 10 years. Looking back on my experience, the most distressing aspect of the job was dealing with problems relating to family law. I make a plea to everybody concerned with this: the personal unhappiness and anguish that surrounds these circumstances is severe, and when dealing with this the Government should please remember that we are talking not about money but about people. They must find a way—I am sure they can—to resolve these horrible circumstances in the most humane way possible.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I endorse everything that the noble Lord, Lord Tyler, has said in moving Amendment 305 in the unavoidable absence of the chairman of the Delegated Powers Committee, the noble Lord, Lord Blencathra. I know, the noble Lord being absent on parliamentary business, how much he regretted the unavoidable clash of commitments at this time. The noble Lord, Lord Tyler, was much too modest in his mention of the substitutes’ bench a moment or two ago.

In their delegated powers memorandum the Government have sought to make comparisons with procedures already established in the devolution legislation. I can be very brief, given the conspectus that the noble Lord, Lord Tyler, has given us. The sweeping effect of Clause 11 and Schedule 3 is to reserve to Westminster all returning competences unless the position is changed by Order in Council. The Delegated Powers Committee distils the problem effectively in paragraph 31 of its later, 12th report. The Government have said that the purpose of the Order in Council procedure is to provide an “appropriate mechanism”—there is that word “appropriate” again—to broaden the parameters of devolved competence in respect of retained EU law. However, as the noble Lord, Lord Tyler, made clear, the concept of the definition of retained EU law is anything but straightforward. The fundamental point is that something as important as the distribution of competences should not be left to take-it-or-leave-it statutory instruments. This is something for primary legislation and the much-enhanced scrutiny that it would receive.

[Lord Mackay of Clashfern (Con)]

My Lords, I sought to explain in reference to the amendment I moved last week my belief about the simplicity of the real issue in this area. It seems absolutely clear that all the devolved Administrations—and the UK Administration themselves—are subject to EU law. However, on Brexit day that will all disappear and there will be the powers—these are the ones I am particularly interested in—that were kept to the EU. I said last week, and nothing I have heard since has persuaded me to change my mind, that all the powers which are effectively exercised within a single devolved area should be devolved immediately. That is the result of the EU no longer being in charge of our procedures. In addition, those powers the EU has which to be effective require to operate in more than one of the devolved areas should go to the UK Parliament. I thoroughly believe that that is the only way in which this can be properly accomplished. The idea of doing it with some form of legislation other than primary legislation is doomed to failure. So far as I am concerned, for example, the amendment tabled by my noble and learned friend Lord Hope, which we will come to later, relates only to the idea that something of this kind can happen by statutory instrument. There is no power which creates statutory instrumental authority for this kind of thing. Therefore, what has happened is what Bishop Berkeley once said about the philosophers:

“We have first raised a dust and then complain we cannot see”.


That may have affected other areas of our national life.

This is a simple matter, and the simpler it is, the better what we are trying to do will be understood by ordinary people—the people who read the papers. Otherwise, we will be arguing away about what I certainly cannot understand and I venture to think that, if I cannot understand it, it is likely that one or two others will not understand it either.

[Lord Morgan (Lab)]

My Lords, this is one of a number of issues where it seems that the Government have created extraordinary difficulties for themselves—a quite unnecessary threat to the cohesion of the union in the long term—as well as the other problems introduced by this legislation.

I am a member of the Constitution Committee; the chairman of that distinguished body is sitting behind me. I am not speaking on behalf of the committee, but for myself. The committee has already noticed that the provision about EU-derived measures is quite inappropriate. It ignores the devolution settlement. As the noble and learned Lord, Lord Mackay, explained, these powers should automatically go to the devolved legislatures—where they belong—but they are given no powers of redress or scrutiny. There seems to be very little consultation. I do not understand why such a high-handed and frankly colonial attitude is being adopted toward the legislators of Scotland, Wales and Northern Ireland. Needless complications are being caused. In Wales, which has had a growing accretion of reserved powers under the Government of Wales Act, unnecessary animosity that is not relevant to the Act is being created. It is a form of centralism that goes against the spirit of recent legislation and the consensual spirit in which this has taken place. Much of that consensus is owed to the noble Lord, Lord Bourne. It is comforting to see him sitting on the Government Benches; I hope he can suggest the reversal of this.

--- Later in debate ---

[Lord Morgan]

My Lords, I respond with considerable enthusiasm to what my noble friend Lord Liddle just said—and, if I may say so, with considerable pride, because a long time ago I once had the privilege of teaching him. Everything he said about introducing possible discord is profoundly true. I just make two points. This is trying to impose a static uniformity on a United Kingdom whose pluralism has increasingly been made manifest. It is simply the wrong approach: a heavy-handed, imperial approach which is inappropriate. We heard so much during the campaign about “take back control”. Well, control for whom? It was established in the courts by that courageous lady, Mrs Gina Miller, that it should be control for Parliament, because ours is a parliamentary democracy, but the clutch of issues we have been discussing this afternoon raises the additional point of control being vested not merely solely in the Executive, but in the Executive in Westminster, in a situation of pluralism and partnership. At this time, with other tensions emerging all over the European continent, it is very important that the Government get this right.

[Lord Mackay of Clashfern]

My Lords, it is important to remember that this debate is about a fairly limited matter. No doubt it has consequences, as the noble Lord, Lord Liddle, said, but my principal concern is to get a procedure which is adequate and reasonably simple. As for differences in taxation, the noble Lord will know that for taxpayers in Scotland, there are differences already and even more to come—which may not altogether suggest that he should come to live in Scotland.

This committee has started looking at individual areas of devolved policy. It has come up with a tremendous number and has tended to look at them from that point of view. We now gravely need to look at things from the point of view of the ultimate result. The framework agreements are described in the documents as intended to promote the single market, and that is how I see them—trying to ensure the continuation of the single market which presently exists in the United Kingdom and which everyone, as far as I can see, would like to continue.

That approach has led to people saying, “This area is okay. You do not need a framework”—because of minute descriptions which I shall not attempt to recite—“but if you need a framework, the United Kingdom Government must create some form of control which enables them to lay out such an agreement”. That is the idea of the power to select 24 areas where statutory framework agreements were necessary; and there is another group where memoranda of understanding were thought to be necessary.

That way of looking at it is bound to be complicated, and you have to have some power to hold the devolved area that is to be subject to the single market requirement in order to put the single market requirement into effect. That is the purpose of this rather remarkable proposed new clause: giving Ministers power to hold for a time that particular policy area. Once that happens, I can see that some form of time restraint will be necessary, because you do not want to be waiting too long.

My suggestion, which I put forward in relation to my amendment last week, is that you forget all that and remember that the areas of devolution are defined by the areas which are presently controlled in Europe but which can effectively be legislated for in one of the devolved areas. Scotland cannot legislate for Wales, much as it might like to, and nor can Wales legislate for Scotland. Scotland can legislate only for itself, so it cannot set up by its own legislative authority a single market. Therefore, if the single market is to be legislated for, it has to be done by the Parliament of the United Kingdom—and all devolved areas are appropriately represented in the Parliament of the United Kingdom. We must not forget that.

I suggest that the committee should be defined as a group in the way that I have sought to set out, looking for consent for all the necessary provisions to enable a single market, as far as it is agreed to be required, in the United Kingdom. I sincerely hope that that will be agreed because, as I told your Lordships last week, when I spoke to the Minister from Scotland, he was very insistent that the chances of reaching agreement were very high—so I am working particularly on that assumption. It does not absolutely need to be fulfilled, for a reason that I will come to in a moment, but I certainly hope that it can be. That is why I think we should have a group in which the four different countries—three of which are devolved—should be more or less equally represented. That is what the proposed group is for—it is proposed only for this special purpose. I am not seeking to incorporate this into the Government of the United Kingdom for the future, as some people have suggested. I am thinking only of a group to solve this present problem, which is quite urgent, quite important and not too difficult.

We should remember that a single market exists in the United Kingdom already, so we do not have to invent it all. We may need to make modifications, but there is a kind of plan available to look at—so I think the chances of this group reaching agreement are very strong. If so, what I believe should then happen is that the things they have agreed should be incorporated in a United Kingdom statute. If they are all agreed, the sole convention should provide that there be statutory consent. I see no need for any kind of system for dealing with disagreements at that stage. The United Kingdom Parliament has a responsibility and will have to deal with it on its constituents.

I have also tried to make sure that the group is as united as possible, so I have provided that, where there is a disagreement, it should state precisely, in an agreed form, what it is, so that the Parliament of the United Kingdom—if it had to come to that—would have only that question to determine. I think that this is a better system than anything that starts from the bottom and seems to come up. Consent would come in the group right across the whole field and, if that works, as I hope it will, there is no difficulty whatever. If there is any difficulty, the Parliament of the United Kingdom will have to try to solve it and then the Sewel convention will apply to that United Kingdom Parliament. That is my solution—and, of course, the amendment of the noble and learned Lord, Lord Hope, would then not arise. That is a much better system than trying to work up from the individual in 24 areas, or whatever it is.

[Lord Wigley]

My Lords, I am glad to follow the noble and learned Lord, Lord Mackay, again. I welcomed very much the points that he made last week with regard to looking for a mechanism. We can split hairs about the detail of it, but the need for a mechanism to be there is clear.

I thank the noble and learned Lord, Lord Hope, for proposing this amendment and, particularly, for proposed new subsection (3), which states:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


I personally believe that it is much easier to look at an issue like this if one looks at a specific aspect and asks oneself how it would work out in practice. I referred in an earlier debate in this Committee to agriculture, which is one of the areas which at present is under the common agricultural policy at a European level, but with devolution with regard to the working of agriculture in Wales and Scotland.

The nature of agriculture in Wales—I think that the noble Lord, Lord Liddle, mentioned this—is different because of the sheep meat regime. We have 12 million sheep in Wales—four times more sheep than we have people. The sheep meat regime is massively important in Wales, and more important relatively than it is in other parts of the United Kingdom. Within the European context it has been possible to find ways of enabling Wales to follow its own policies in some regards within the overall framework of the CAP for Europe. Indeed, at times there have been opportunities for Welsh Ministers to speak in Brussels on behalf of the UK, when there was something relative to a specialist interest in Wales, such as sheep, on the agenda.

The fear in Wales now is that, if the power over agriculture is in London primarily, the ability to fine-tune and develop new policies in Wales that has been exercised up to now will become more constrained—things such as the agro-environmental schemes that have been developed in Wales, for example. The fear is there because the nature of agriculture in England, and the dominant role of those interests in England, are very different to those in Wales. Therefore, if one is trying to secure a single market within the UK, which is obviously common sense, there has to be some mechanism of give and take. It may be all right for a regime in Wales to work in a way that gives added benefits to the Welsh sheep farmers, provided that is bringing them up to the overall level and not giving them unfair competition in the marketplace over other people—but the initiatives for those will need to be developed in Wales, within the context of Welsh circumstances.

That is why I believe that it is essential, whatever the final Bill contains, that it has this element not only of consultation but of agreement. My belief is that, with most things, there would be immediate agreement—and, if there is no immediate agreement, another problem will come and hit us down the road in a year or two, which will build up the type of tensions to which the noble Lord, Lord Liddle, referred. It is far better that we have this model working by agreement between the devolved Administrations, and it might come as a considerable surprise to find how willing people were then to work together.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I completely agree with what the noble Lord, Lord Chidgey, just said. Noble Lords might be forgiven for thinking that in the exhaustive debate on the previous group of amendments the cause of democracy was well and truly vindicated. However, the defects these amendments seek to rectify are just as much of an onslaught on democracy, for the reasons so well set out by the noble Lord, Lord Lisvane, and the noble Baroness, Lady Smith of Newnham. I therefore hope that the Government will take them into account in a total redraft of Clause 9.

[Lord Mackay of Clashfern (Con)]

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

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

[Lord Beith]

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

[Lord Mackay of Clashfern]

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

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

[Lord Hope of Craighead (CB)]

My Lords, I mentioned on Monday that an aspect of Clause 9(2) is of concern to the devolved Administrations. How does the Sewel convention fit into the scheme which Clause 9(2) sets out? If one were making the amendments which are being contemplated by an Act of Parliament it would be plain that the Sewel convention, with its effects, would apply to that statute—and the Government have always shown their willingness to follow the convention according to its terms. But if a Minister makes a provision by delegated legislation then, as I understand it, the Sewel convention does not apply, because Sewel was talking about primary legislation. Is the Minister prepared to undertake that the principle of the Sewel convention will apply to an order made with reference to Clause 9(2), which makes a provision that would otherwise be made by an Act of Parliament?

The importance of this question has been highlighted, if I may say so, by the point made by the noble and learned Lord, Lord Mackay of Clashfern, because by necessity this would have to deal with legislation which affects the devolved Administrations in areas devolved to them. The ordinary rule is that that would not be done without their consent. Clarification is needed. The Minister may feel that she cannot give me a clear answer today. If she cannot give the undertaking that I am looking for, I would be very grateful if she would write, because this affects the way I would view any vote on this issue. It may also affect what we talk about on Report.

This is a very important matter. The issue has really been thrown up by the way in which the clause has been drafted—and it has no doubt been drafted in this way for good reasons, as the noble and learned Lord, Lord Mackay of Clashfern, has explained. If one is to have this clause, clarification is required.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I accept that, with regard to “once in a generation”, the Scottish National Party is guilty of not living up to what it said, but it is not right to say that, once the ink was dry on the paper, it totally forgot it. What was in that agreement informed both the Section 30 order that was passed and the legislation then passed by the Scottish Parliament in conformity with the agreement. A substantial part of that agreement was carried through in good faith by both parties.

The detailed wording of Schedule 5 to the Scotland Act was important in getting the right balance in the devolution settlement. If in the normal course of events that were to change, it would require an order under Section 30 of the Scotland Act, which requires an affirmative vote not only by both Houses of this Parliament but by the Scottish Parliament. What we are proposing is consistent with what would happen in the normal course of events when the balance of the devolution settlement was changed. That is why I strongly encourage the Minister at least to show willingness to think about this matter and reassure us that the Government are sensitive to it. That could go some way towards establishing a better basis for trust as we look forward to our debates on Clause 11.

[Lord Mackay of Clashfern (Con)]

My Lords, the amendments introduced by the noble and learned Lord, Lord Hope, might be perfectly okay from the point of view of the UK Government. The only change likely under Clause 7 is to something where it says “EU law”; it would have to be changed to something else. The powers in Clause 7 are intended to enable the knitting together of existing UK law and existing EU law which is not already part of it. That is a difficult job. These descriptions are meant to cater for that. I do not see it as likely that much will be required in relation to Scotland in that respect.

The main question is what happens under Clause 11. The Government promised that it would be brought before the House of Commons and hoped that it would be agreed. Your Lordships may or may not remember that I was keen at Second Reading to stress the need for agreement, because it is the only answer. Intense negotiations have gone on at official level over the last while. It now appears sadly possible—I do not make it any stronger than that—that the Governments may not be able to reach agreement. Therefore, it is important before anything further happens that your Lordships get a chance to apply your great experience to the problems separating the two parties. I greatly regret that there is no proper representation for Northern Ireland. I had the responsibility of being a Minister in Northern Ireland for 10 years; I feel very sad that the present situation has been reached and only wish that it could be resolved. From what I hear, I fear that it may not be very easy until after Brexit. In any case, agreement is essential if it is possible. I do not want to say or do anything that would impede the reaching of such agreement.

As for Clause 7, to retain a power to amend the Scotland Act seems unimportant in this situation, although I think the number of amendments generated by a proposal of this kind would be very small and the Government may feel it worth while to forgo such a power in the interest of making peace and progress.

The Clause 11 procedure is much more difficult. It is important to bear in mind that the Scotland Act—this goes for the Wales Act as well—was set up and legislated within the European Union. Therefore, the only powers that were dealt with were the powers that existed in the Parliament of the United Kingdom when these Bills became law. That did not involve the powers that the EU had and therefore I think it is not determinative of how these powers should be distributed on return to look at what was decided in the original Acts setting up the devolved Administrations, because the powers are now wider. It is therefore very much a matter of trying to resolve the issues between the parties by agreement. If we can help in that respect, so be it: I very much hope that we can. Certainly, I hope we do not do anything to hinder it. So far as I am concerned, I am prepared to trust all the parties to do their best to reach an amicable solution.

[Lord Elystan-Morgan (CB)]

The contributions already made make it perfectly clear how fragile and in many respects how insubstantial is the basis of devolution as we know it. The sovereign Parliament of Westminster has created a sub-Parliament in respect of Scotland and Wales. The sovereign authority that created that Parliament can undo that Parliament any day that it wishes to do so. If it did so I have no doubt that the noble Lord, Lord Wigley, would agree with me that it would be the best recruiting sergeant that Plaid Cymru ever had. Be that as it may, the power is there to do exactly that. It is, of course, utterly understandable that nobody expects that power to be used. In fact, in Clause 1 of both the Scotland Act and the Wales Act of last year there is written in what is intended to guarantee the permanence of the Scottish Parliament and the Welsh Assembly. In terms of law, it has no restriction whatever; it is purely cosmetic but well intentioned. I do not think that, in so far as any legal interpretation is concerned, there is a different view held, but I will be corrected on that point.

Nevertheless, those two Parliaments exist at the mercy, as it were, of this sovereign Parliament. I do not know whether one can change the situation, because the concept of sovereignty means that it can be withdrawn at any time. Unless, of course, one has some self-abnegative discipline—for example, to say that there is a convention. In the Miller case that came before the Supreme Court some time ago, the argument was raised that there was a basic authority that related to each of the Parliaments. No, said the Supreme Court, it is a convention. However, nobody had defined a convention. If Parliament went out of its way to define a convention and said, “In this context a convention means a, b, c and d”, that might get us somewhere. It is a suggestion.

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[Lord Mackay of Clashfern]

Does the noble and learned Lord, Lord Hope, think that it would be possible to deal with his point by amending the memorandum of understanding so that it meets a new situation?

[Lord Hope of Craighead]

My Lords, I can see the force of that, but I do not know whether that option is available in the present climate. As regards reassuring the parties in Cardiff and Edinburgh, something in the Bill is looked for. Again, it is a matter of trying to find a way to soften the atmosphere, which is highly unfortunate at the moment. I deliberately have not discussed Clause 11, because that is quite a different debate. However, the more we can do to clear the air by getting these points out of the way before we get into Clause 11, the better, and that is the basis on which I have moved this amendment.

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[Lord Mackay of Clashfern]

My Lords, it is quite important that the number of occasions on which this power will be used will be considerably lower than the number of adjustments for EU law. Therefore, it would probably be easier to make adjustments to what is required in the way of precautions when these powers are exercised than is the case with the huge number required in the other field. One thing I feel strongly about is that we want to find a way of doing it that is practical in the time and with the number of these other regulations that require to be put in place. This one is easier from that point of view, which perhaps makes it more suitable for the Government to consider further precautions.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, much has been said in support of the amendment. I do not see how the Government can argue against us going along with the flow of modernising regulation.

I hope that in responding the Minister might consider what we will lose if we do not go down this route. Quite apart from losing the ability to attract pharma here and so on, it is important to record that many research groups that currently collaborate with European researchers know that their only future to pursue research—and want to do so under the new, better framework—means that they will effectively have to move, either to Dublin or Amsterdam. Those are the two main university hubs currently being looked at, although others in other parts of Europe are too. It becomes very easy for very high-powered researchers to move into different academic units, yet if we do not have biological and life sciences research here as new discoveries are made, we will not reap any economic rewards from those discoveries—quite apart from then not having the industries to produce whatever has been discovered.

I hope the Minister will consider very carefully that the amendment is absolutely essential going forward. Irrespective of what we think of Brexit, we need to be part of this group. If we are not, we will massively become a loser.

[Lord Mackay of Clashfern (Con)]

My Lords, I entirely support the main thrust of the amendment in the sense of seeking, if at all possible, to secure the benefits of the agreement already entered into—but not yet implemented—to which the noble Lord, Lord Patel, referred. This is not the only one that we have come across in the course of our discussions to date. The amendment does not actually produce anything except a sort of stop, so I wonder whether it would be possible, indeed acceptable, to Her Majesty’s Government to amend the Bill to allow discretion to use EU proposals to which we have already agreed and, in some cases, initiated and worked out in great detail—this is certainly a very important one, but there are others; that is, an amendment that would move, in a sense, the centre of the Bill. Of course, the Bill is a snapshot of what happens on Brexit day, but unfortunately some of the good things may escape because they are not yet implemented in time for Brexit. I therefore wonder whether it would be feasible to introduce an amendment to the Bill to give the Government a discretion to put into effect, in our law, agreements already made which are judged to be of use to this country after Brexit.

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[Lord Judge]

My Lords, my name is to Amendment 126. I do not want to say very much. I can think of another word to add to that great list and I could give my view of the history of how taxation became the weapon for democracy, ultimately. Taxation is the ultimate control that the Commons has over the Executive. Just reflect on the set-to in the United States of America a few weeks ago: Senate and President at odds over money. These issues must be resolved at parliamentary level and House of Commons level—not by regulation.

[Lord Mackay of Clashfern]

The general principle referred to by the noble Lord, Lord Turnbull, which has been very clearly enunciated by the courts, is that no public authority, including local authorities, has the power or statutory authority to exact money that exceeds the amount that the local authority—or other person making the imposition—sets. The charge the person is required to pay must be just equal to the amount that will be needed to carry out the service, or other thing. If it does exceed it, it is taxation and that covers all forms; it does not matter whether it is a payment, charge, fee or anything else. That is a general principle. Therefore, the provision in Clause 7(7), preventing the regulations imposing or increasing taxation, prevents any local authority or other power having the power to make any such imposition.

On the amendment proposed by the noble Lord, Lord Lisvane, I wonder whether the first part of the clause —Clause 8(1), I think—is the subject of Amendment 126. My noble friend Lord Deben wondered why we were talking about this in a withdrawal Bill, but the clause says that we may have an international obligation that is breached by withdrawal; it therefore seems reasonable to deal with that in the withdrawal Bill because it is a consequence of withdrawal. That amendment implies that this power cannot be used to make any financial settlement that would cause a cost to the United Kingdom because, if it did, it would inevitably require taxation—presumably, whoever makes the settlement does not intend to defray the cost out of his or her own pocket. It is a fundamental restriction on the way in which these matters of international obligation may be resolved. I think I am right in that, but no doubt the noble Lord will tell us its effect on the amendment in due course.

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

My Lords, Amendments 86, 126, 127 and 155—in the name of the noble Baronesses, Lady Hayter and Lady Kramer, and the noble Lords, Lord Turnbull, Lord Lisvane and Lord Higgins—concern Clauses 7, 8 and 9 and the ability to provide for taxation or fees and charges under those powers.

Let me start by saying that the Government are aware of the concerns of many noble Lords about the raising of fees under these powers. On Report, we will look closely at how we can resolve those concerns. Let me explain the various issues, beginning with Clauses 7 and 9. I am glad to be able to reassure noble Lords that the restrictions in Clause 7(7)(a) and Clause 9(3)(a) already prevent Ministers establishing charges of a type that would involve any element of taxation or tax-like provision under these powers. Beyond that specific issue, I want to set out the Government’s intentions with regard to those fees and charges.