European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Wednesday 7th March 2018 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, my name is also added to Amendment 58 and I support the very compelling case made by the noble Lord, Lords Krebs, and, indeed, by the noble Baroness, Lady Jones.

I, too, speak as an environmentalist. As has already been highlighted, the implementation of EU environmental law in the UK is drawn from several sources, all of which, in our application of it, have equal weight. For the most part, it is a welcome and uncontroversial addition to our UK environmental legal framework; it is often uncontentious and applied without legal recourse. Indeed, few people would argue that we should revert to dirty beaches and polluted bathing water and there is a common consensus that we need to adopt the EU regulations and directives.

Though these standards are very much taken for granted they do not always originate from the same legal source, which is why amendments such as Amendment 58 are so important. All the amendment does is to seek to protect what we have now—nothing more than that. The recitals and preambles which preface the formal wording of the legislation are important for explaining, in layperson’s terms, as the noble Baroness, Lady Jones, explained, what the legislation intends to achieve. They often include important principles which underpin the legislation. I have referred previously to examples of these preambles, such as article 1 of the environmental liability directive, which includes reference to the polluter pays principle, and article 1 of the habitats directive, which spells out the aim to deliver biodiversity conservation. However, there are many others, some of which have gone on to be tested and captured in UK legal judgments, but others have not.

Very simply, my challenge to the Minister is: if these amendments are not acceptable, what will be the future status of these preambles, and how can we be assured that they will have the same effect as we have previously enjoyed? We regard them as an integral part of current EU law, so if there is no place for them in the transposed UK law, does the Minister accept that this will represent a watering-down of the Government’s promise to enhance, rather than diminish, our environmental standards? I hope he can clarify that.

[Lord Mackay of Clashfern (Con)]

My Lords, I would have thought it was clear that when we are incorporating EU law into United Kingdom law, the law in question will not be edited—apart from questions of not working and so on, which are separate—and the whole instrument will be transformed into UK law. Judges always try to understand the legislation as a whole and read the document as a whole. Therefore, I think I can assure noble Lords that the courts here will look with great interest at these recitals and preambles—particularly in view of what the noble Baroness said about the difficulty of some of them—to see if they can help them understand properly and make a proper construction of the instrument in question.

[Baroness Jones of Moulsecoomb]

My Lords, in that case, what is the point of not keeping them in?

[Lord Mackay of Clashfern]

There is no question of not leaving them in. They will be left in in any case. There is no question of putting them out. I will see what my noble and learned friend the Minister has to say about this but so far as I am concerned, it is not necessary because the whole instrument will be incorporated. There is no question of editing it or leaving out half of it or the beginning or anything. My noble and learned friend may be willing to give the assurance that the whole instrument will go in. I must say, I would have hoped that that would be understood without it having to be said.

[Lord Whitty (Lab)]

My Lords, I hesitate to challenge the noble and learned Lord, Lord Mackay, on points of law, but the fact of the matter is that when we have transposed directives and regulations previously, they have excluded the preambles and the recitals, as they have excluded aspects that are in the treaties rather than the individual directives and regulations. It may well be that the courts, in their wisdom, will take into account something that European law has previously said, but unless that is laid down as a central principle of this transposition, whether or not to take it into account will be at the courts’ discretion.

The Government’s commitment was that we would have the European law on day one of Brexit in exactly the same form as we did the day before. That has broken down in the way in which the Bill has been presented in a number of respects. It has broken down on the European Charter of Fundamental Rights; it has broken down with regard to animal sentience, as we debated the other day; it has broken down on the environmental law which the noble Lord, Lord Krebs, referred to; and I was going to use the air quality example that the noble Baroness, Lady Jones, referred to. Unless Parliament gives a signal to the courts that these preambles and recitals must be taken into account —as must, in my view, the principles laid down in the treaties—we are not doing what the Government have promised the people of this country that they would do; namely, that European law would not be changed on day one of Brexit and then only if it was necessary or Parliament so decided. Unless we do something very similar to what the amendment of the noble Lord, Lord Krebs, does, we are not doing what the Government have promised the nation.

--- Later in debate ---

[Baroness Crawley]

My Lords, I also support these amendments. The further embedding of equality principles in our legislation is an argument we would all accept.

[Lord Mackay of Clashfern]

My Lords, I ask the noble and learned Lord, Lord Wallace of Tankerness: assuming the amendment proposed on the status of EU law brought into this country’s law is passed—in other words, if it became primary legislation—what would be the relationship between that and the amendment?

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have heard repeatedly and correctly in the Chamber, given the Government’s assurance that all the rights enjoyed by British citizens on 29 March next year will still be in place on 1 April, that our task is to make sure that is the case. Clearly that is what these amendments are framed to do: ensure that the rights to equality we presently enjoy in accordance with EU law are enshrined in domestic law after exit day. That is needed because we have that safety net at the moment, which means that those rights cannot be removed, but, as I think the noble and learned Lord, Lord Wallace, said, we will need our own homegrown safety net to ensure the rights are protected. As we have heard, Amendment 70A sets the standards that all individuals are equal before the law and all individuals have a right not to be discriminated against by a public authority, which I am sure we all accept. As my noble friend Lord Cashman reminded us, we cannot take those for granted. He dealt with Amendments 161 and 259, so I will not repeat that. I repeat the words of my noble friend Lady Whitaker: we must make sure that there can be no retrograde move away from where we are now.

I feel fairly sure that the Minister concurs absolutely with what we are trying to achieve. I hope he can either accept this method or undertake to provide a similar one so that it can be written into the Bill and does what he and others want: to preserve all the rights we have, so that, on April Fools’ Day next year, we are not April fools.

[Lord Low of Dalston]

My Lords, if the noble and learned Lord, Lord Wallace, does not want to respond to the question from the noble and learned Lord, Lord Mackay, perhaps I might have a go. If I heard him and remember correctly, the noble and learned Lord asked what the relationship to this amendment would be if the Government were to introduce their own right to equality. If that is the question, the answer is quite straightforward. If the Government were to bring in their own freestanding right to equality, they would essentially have accepted the amendment and there would be no need for it because they would have introduced it into primary legislation of their own motion.

[Lord Mackay of Clashfern]

My Lords, I am sorry but that is not exactly the question, which was on the effect of the retained EU law brought into this country, assuming it is given the status of primary legislation. That is a different question from the one the noble Lord, Lord Low, has kindly answered. But it is quite an important question, because there is a danger at least of a degree of conflict between the two. It is just a question that I do not know the answer to.

[Lord Wallace of Tankerness]

I apologise. I will wait before I respond.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

[Lord Goldsmith (Lab)]

My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.

Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.

I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.

Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.

I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.

One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a privilege to follow the noble Lord, Lord Hannay. He and I co-operated as closely as we could on the original attempt to keep us in the European Union. Today, however, we are faced with leaving the European Union and I make no comment on that except to accept it as a fact and to refrain from any prophecy as to what will happen next.

The Constitution Committee of this House has done a very good job, and most of the amendments it proposed would improve the Bill. I just want to mention one or two general points raised by these amendments. The Bill is to bring into the United Kingdom’s statute book legislation passed by Europe but not presently on the statute book. It also provides that this legislation would have priority or supremacy over UK legislation in the same area. This problem is one that the Constitution Committee has solved with great elegance. First, it has said that the direct EU legislation should be treated as primary legislation; that is, as legislation passed by Parliament not under the authority of Parliament. Secondly, it should be deemed to have a date of our leaving date. Because of our system, that will automatically give it priority over any Act with which it conflicts and which preceded it. I regard this as an extremely clever—indeed, wise—suggestion for dealing with this matter. The Government had thought to have a case-by-case decision about this, but I think this is much better and I commend it to the Government strongly.

The second point relates to the jurisdiction of the European Court of Justice and to references by our courts to that court. The idea of the statutory reference is being swept away, but that still leaves the question of whether our courts should have regard to decisions of the European court. My experience, such as it is, of this is that our courts are free to look at any court decision they want—from Australia, New Zealand, Canada, the United States, or even Scotland. They are absolutely free to do that. Originally, I was therefore rather minded that this should continue as far as the European Court of Justice is concerned. If something helpful was said in that court, there is no reason why our courts should not take that into account. The noble and learned Lord, Lord Neuberger, as President of the Supreme Court, pointed out that such was the political heat of that sort of suggestion, it would be very unwise to subject judges to that kind of conflict. Therefore, it would be right for Parliament to take responsibility for saying when they could refer to the European Court of Justice. The Constitution Committee has recommended a very sensible way of dealing with that: where a court here, considering a piece of pre-Brexit legislation from Europe, finds that the European Court of Justice has later made a decision relevant to that sort of case, it is entitled to turn to it.

My final point relates to the devolution settlement. I regard this as absolutely fundamental but also as extremely difficult, because there are various levels of power in Europe that may be in, for example, the area of fisheries. First of all, there are international powers in relation to that. Our current international relationships in relation to fisheries are with the European Union. If that power is returned here, it should belong to the state of the United Kingdom. On the other hand, detailed provisions about what happens to fisheries are made at a more local level, under the present devolution settlement. Therefore, there is a problem with how this should be done, which I regard as very much a matter for negotiation between the Government of the United Kingdom and the Governments—where they exist—of the devolved Administrations. I very strongly support the view that it would be most unfortunate if Northern Ireland continued without an Administration. I hope that will not continue and that the new Secretary of State—I am saddened by the health difficulties of the former Secretary of State for Northern Ireland—will, perhaps with the Prime Minister’s help, be able to restore the Administration. Anyhow, it is a matter for negotiation between the devolved legislatures—the Ministers of the devolved Governments —and the Government of the United Kingdom. I certainly hope and believe that the best solution to the Clause 11 amendment is for the Government to come forward with an amendment agreed by those parties. I have great confidence that they all seek a solution to what I regard as a very difficult problem. I hope they will succeed. If they do, I am sure it will be with the greatest pleasure that we will give effect to that agreement.

The last point I want to make—just after the last one, as it were—is that the European Charter of Fundamental Rights is a big subject. The noble and learned Lord, Lord Goldsmith, said a good deal about that. I will not take time on it now, since my time is up anyway.

European Union (Notification of Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Baroness Symons of Vernham Dean (Lab)]

My Lords—

[Lord Mackay of Clashfern (Con)]

My Lords—

[Baroness Altmann (Con)]

My Lords—

--- Later in debate ---

[Lord Mackay of Clashfern (Con)]

My Lords, I will first take up the point that the noble Baroness has just mentioned about the judgment of the Supreme Court. Naturally, I have studied it with a certain amount of care. Both sides, the Government and the applicant, agreed with the basis that they should treat the Article 50 notification as irrevocable. Lord Justice Reed pointed out clearly that that had not been the subject of a decision by the court but that, from the point of view of the judgment, it did not matter so long as it was possible that it was irrevocable. If that was the case, the danger to Acts of Parliament existed even if it turned out that it might be revocable. If it was possible that it was irrevocable, once it was triggered, these Acts of Parliament came into danger. It was as simple as that. I think we must assume—I am prepared to anyway—that the government lawyers took the view that Article 50 notification was irrevocable because they took the case on that basis. Of course, some doubt about that might have helped them if they thought there was a real argument that it was revocable—the bullet and all the rest of it that the noble Lord, Lord Pannick, talked about in the decision would maybe not have occurred. The Government’s lawyers definitely took the view that it was irrevocable.

The point tonight is different. The Prime Minister and the Minister in the Commons both gave an undertaking that a Motion would be put before both Houses of Parliament for approval of the final deal and for the way in which we might leave the European Union. They both gave that undertaking but they did not say that the Prime Minister would necessarily be bound by the decision of both Houses.

The difficulty in this amendment is that it formally requires the approval of both Houses. There is no question—it is as clear as can be. I do not claim to be a prophet, so exactly what will happen after two years I do not know, but I feel absolutely certain that the negotiations will be difficult and that it will be very difficult at this stage to tell what sort of outcome we may get. If we can get such an agreement in relation to economics as the Prime Minister indicated in her speech, that might be very good. On the other hand, some people who know more about it than I do think that may not be likely.

As I said, I do not know what will happen. The Prime Minister and the Minister have agreed that both Houses of Parliament should have a Motion put before them for approval, but neither said—I believe that may be why they phrased it as they did—that the approval of both Houses would be necessary.

I want to point out the danger of not getting this right. I see no reason why it should not be put right, if people agree that it is not quite right. The House of Commons should be the prime source of authority on this matter. Your Lordships will remember, if you read the newspapers—I am sure most of us do, although perhaps selectively—the suggestion that this was all a scheme for this House to try to defeat the Brexit vote. I do not want it to be said unnecessarily, in any circumstances, that we give colour to that, because I feel certain that nobody in this House wants to engineer a blockage of the Brexit vote as the Prime Minister goes ahead. I feel sure of that, and I think I am right. Somebody this morning mentioned the word “tribal”. I do not feel myself part of any particular tribe, but I want the matter to be right. If the amendment is sent back to the Commons, I would like it to be correct, so that nobody could suggest that we were trying to create a scheme that might block Brexit, because we refuse our approval and the House of Commons approves it.

[Lord Lester of Herne Hill]

As I understand the noble and learned Lord’s speech, he is saying that, provided the primacy of the House of Commons is made clear, he would support the amendment. Is that right?

[Lord Mackay of Clashfern]

I am saying that I think it would then simply incorporate the Prime Minister’s and the Minister’s undertaking.

[Lord Lawson of Blaby]

But not proposed new subsection (4).

[Lord Mackay of Clashfern]

Of course, the bit at the end is a separate matter, and on the whole I do not feel very inclined to get into it. There is the problem that, as was said, Brexit, once initiated, may go out of hand and terminate without any voluntary agreement on the part of the Prime Minister. The amendment does not really deal with that—but I do not see too much harm in the amendment. I cannot foresee exactly what will happen, but I sincerely hope that it is the first two parts of the amendment that will come into play in the end and there will be an agreement that can be put before the Houses of Parliament. Nobody knows—I cannot tell—and we can only hope. But it would be very desirable for any amendment of this kind, going from this House, to recognise the supremacy of the House of Commons.

[Baroness Altmann]

My Lords—

European Union (Notification of Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Warner]

The noble Baroness’s amendment is very flexible. It refers to a period of at least three months. There is nothing in the amendment to stop the Government serving their own interests by being more forthcoming more frequently. I am sure that the noble Baroness would not mind having reports made on a more frequent basis.

[Lord Mackay of Clashfern (Con)]

My Lords, I am sure that the Government share the sentiments expressed from the Front Bench opposite—indeed, from both Front Benches opposite. The proposal would be entirely in the interests of the smooth development of policy in this difficult area, which I am sure we all understand is extremely difficult. The more help the Government can get, the better, and I think that they are sufficiently humble to know that.

If there were any slackness on the part of the Government, we would have plenty of means in this Parliament for getting them to respond, but I do not agree with putting that into an Act of Parliament, and the reason for that is simple. If something is put into a general Act of Parliament, the idea is that the courts are the enforcers, but one thing that the courts cannot do, in view of the Bill of Rights, is to interfere in proceedings in Parliament. Therefore, this is useless as a formal amendment, but the spirit of it is first-class. I feel almost certain that my noble and learned friend will be able to accept that, because the Minister in the Commons said just as much in a passage that I may refer to later.

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

My Lords, I am obliged for the contributions that have been made to the debate. This short Bill has already invoked many hours of debate, so I intend to keep my remarks very brief.

I endorse the observations of the noble and learned Lord, Lord Mackay of Clashfern, both as to the appropriateness of this amendment and as to the spirit in which it will be and is being received by the Government. As noble Lords will be aware, the Prime Minister gives a Statement to the other place following European Councils. We know that there will be a Council this month, and indeed quarterly thereafter. That means that a Statement will be made to Parliament at least once every quarter on European issues, and it will be repeated in this House. Of course, that is just the beginning of a much wider process over which this Parliament has control at the end of the day.

DExEU Ministers have responded to more than 600 parliamentary Written Questions, appeared at 13 Select Committees and given six Oral Statements to the House on developments regarding our exit. The Secretary of State has agreed to give evidence to the Exiting the EU Select Committee on 15 March, alongside the Permanent Secretary at DExEU, and will shortly afterwards give evidence to the Lords EU Committee on 22 March.

The Government are committed to parliamentary scrutiny, and Parliament will play a key role in scrutinising and shaping our withdrawal. As my noble friend Lord Bridges observed last week, we have had take-note debates, debates on Select Committee reports, debates in government time and Select Committee appearances. All this will continue in order that Parliament can scrutinise the development of negotiations in so far as is possible to put those in the public domain and in so far as they come into the public domain.

The noble Baroness, Lady Hayter, referred to secrets, and the noble Baroness, Lady Ludford, referred to nasty secrets. This may reflect a difference of approach, but at the end of the day there will not be any secrets. You cannot conduct such a process in secret, ultimately, and then expect Parliament to consider that it is being kept properly informed, as it should be, if you have what are termed secrets. We are committed to keeping Parliament at least as well informed as the European Parliament as negotiations progress.

A Bill to repeal the European Communities Act will follow. There will be primary legislation on issues such as immigration and customs, and a vote at the end with regard to the process on the final deal to exit.

With all that in mind, I will pose a few questions. Is the Prime Minister already bound to give a Statement to Parliament after every quarterly European Council? The answer is yes.

Have the Government been willing to give frequent Statements to Parliament? The answer is yes.

Have DExEU Ministers and other government Ministers appeared in front of Select Committees? The answer is yes.

Have the Government listened to Select Committee reports? The answer is yes; we published a White Paper in February this year.

Do the Government aim to respond to the Select Committee reports about Brexit within two months? The answer is yes.

Have the Government said they will give more information to Parliament, so long as it does not undermine our negotiating position? The answer is yes.

Then there is the core question: what is the present Bill about? The Bill is about giving the Prime Minister the authority to give notice of withdrawal from the European Union.

With great respect to the House and to all noble Lords, let us proceed and pass this Bill. It will not be improved by unnecessary decoration and, as the noble and learned Lord, Lord Mackay of Clashfern, has already observed, it is not appropriate that this amendment should proceed. As I believe all Members of your Lordships’ House who have spoken would acknowledge, it is not necessary that this amendment should proceed in these circumstances. Therefore, I invite the noble Lords to withdraw the amendment.

European Union (Notification of Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, what faces us today is an extremely serious issue, and I want to put before your Lordships the way I happen to look at it. Throughout the European Union there are a large number of people who were born in one European country—by that I mean a country that is a member of the European Union—and now reside in another, under the protection of the laws prevalent in these countries in consequence of the treaty that puts the EU together. Many people in our country and in other countries are in this situation.

I believe that the moral high ground is to treat all these people equally. They are absolutely equal people—and they are people. I completely repudiate the idea that I should treat any fellow human being as a bargaining counter or anything of the kind. I thoroughly reject that and have no truck with it whatever. I believe it is essential that all these people be treated properly and equally. The problem is that their rights of residence in the countries in which they live are now threatened by the vote that this country has taken—against the views of a number of people here, including my own—to leave the European Union.

The European Union, in its wisdom, has formulated a way in which such matters should be settled—by the terms of a negotiation under Article 50. Some members of the European Union have refused to get into any kind of negotiation until that mechanism, set up under the treaty, is triggered, and this Bill is intended to enable our country and our Government to trigger that mechanism. The Bill is necessary because it is appreciated, and was appreciated in the courts at both levels where the cases were heard, that this would affect people’s rights, secured by Act of Parliament, in this country. Of course, that applies to the same extent in the other countries of the European Union, because the law of the Union, by virtue of the treaty, has to be accepted as the law in those countries as well. So those people’s rights are all rights in terms according to the Treaty on European Union.

The European Union has stipulated a way in which, if any country wishes to leave, it should do so—and Article 50 is that way. I think that all these people have to be treated fairly. They are all in the same boat, and they are all people whose security in the country in which they are residing is threatened until that matter is settled under the European Union negotiation structure. I believe it is right that that should be done in a way that is fair to them all.

I am the first to acknowledge that we owe a tremendous amount to people from other European countries who are resident here—in the National Health Service and a whole lot of other places. I myself have often seen extremely good work done by people who have come from, for example, Poland, to work here. The work they do and the benefits they give to us are very great. However, that is not a reason to give those people preference over the other people who are affected in exactly the same way.

As the most reverend Primate has said, the right thing is for Article 50 to be triggered and for the Prime Minister to immediately ask—as she has said she will—for this to be settled, in a way which would cover the whole of the European Union. The only excuse that has been offered so far in Europe for not agreeing to this is that Article 50 negotiations, which are the way out of the European Union, have not been triggered. I would confidently expect—I have the greatest possible respect for the noble Lord, Lord Hannay of Chiswick—

[Lord Anderson of Swansea (Lab)]

What is the argument against a unilateral gesture on the part of this Government, generating good will which could permeate the rest of the negotiations? There is no need for any negotiations.

[Lord Mackay of Clashfern]

A unilateral declaration of that kind is not treating fairly all the people who are affected by this problem. The moral high ground is fairness and that is the only ground we can take in a negotiation of this kind. I thoroughly believe that the chances of a complete settlement of this matter are greatly increased if the negotiations are triggered and the Prime Minister makes this the very first requirement, as she has said she will. Nobody in the European Union has so far given any reason for not agreeing with it for all European nationals who are in other countries of residence.

[Baroness Royall of Blaisdon (Lab)]

I respectfully point out to the noble and learned Lord and to the noble Lord, Lord Howard, that Liam Fox said at the Conservative Party conference that the uncertain status of EU nationals living in the UK is one of the “main cards” in the Brexit negotiations. For that reason, I do not trust the Government on this issue.

[Lord Mackay of Clashfern]

My Lords, I do not regard myself as bound by remarks made by Dr Liam Fox anywhere. I have been given the responsibility, so far, of being a Member of this House and of attempting to explain to your Lordships, as fully and briefly as I can, what I believe to be the moral high ground: to treat all people from the European Union who are in countries other than their countries of origin according to the rights secured by the European Union treaty. The time for a fair negotiation of the whole matter is when that treaty is departed from, in accordance with the rules set out in Article 50. That would come very quickly because, as I have already said—I am repeating myself now but I will not do it again—I have heard no argument from Europe against this, except that the negotiations have not been triggered in accordance with the provisions of the treaty itself.

[Lord Oates (LD)]

My Lords, I will speak to Amendments 16A and 38 and I also support Amendment 9B. Whether or not one favours a unilateral guarantee to EU citizens in this country, as I do, there are key questions about the Government’s approach which can and need to be answered now. Amendment 16A is a probing amendment which seeks to draw out the answers to these questions. I hope that the Minister will respond to them fully when he winds up. First, what rights do the Government intend to provide for EU citizens and their families in the UK and to seek for British citizens and their families in the EU? The Government should tell us now. If they did so, they would provide much-needed clarity for EU citizens here and British citizens in the EU. Those citizens need to know that they and their families will not just have a right to residence and to work, but also have access to public services—in particular, health—without which, for many, the right to residency is meaningless.

Thirdly, what procedure do the Government envisage by which EU citizens in the UK will gain rights of residency under British law? As the report of the EU Justice Sub-Committee on acquired rights makes clear, the current indefinite leave to remain procedure would not be suitable. It would not be able to cope with the applications which would have to be processed and it requires documentation which, in many cases, EU citizens simply will not have because they have never needed it, or had any expectation of needing it.

Fourthly, what do the Government intend to be the qualifying date for the rights that they grant to EU citizens? Will it be the date of withdrawal—as it was in the case of Greenland’s exit from the European Union, which is the only precedent we have—or do the Government intend some other date? Again, people need to know the Government’s intentions so that they can get on with planning their lives.

Next, there is the question of comprehensive sickness insurance cover, or CSIC. As my noble friend Lady Ludford said—many noble Lords will be aware of this—there is a dispute between the UK and the EU on whether the National Health Service qualifies as comprehensive sickness cover. The EU maintains it does, but the UK maintains it does not. Whatever the merits of the dispute between the EU Commission and the UK Government on this matter, three facts are clear. First, many EU citizens had no idea this requirement existed. Secondly, those who did thought they were covered by their right to use the NHS—a reasonable assumption, given that that is the position of the EU Commission. The third and final stark fact is this: if the Government adhere to their current position on CSIC, thousands of people, many of whom have been resident in this country for decades, will find themselves without the right to remain in the country that they have made their home—that cannot be right. This issue is causing huge anxiety to millions of people and it is in the power of the Government to resolve it by stating that evidence of CSIC will not be a requirement for EU citizens to gain permanent residence. They should do so now.

Amendment 38 simply makes explicit the unilateral guarantee to EU citizens resident in the UK and provides that no agreement under Article 50 can be entered into which does not protect the rights of UK citizens and their families in other EU countries.

It is not my intention to put either amendment to a vote this afternoon, but I hope that the Minister will address the questions raised by both of them. I will support the cross-party amendment because it offers the best opportunity to send a clear signal to the elected House. But I will want to come back to the issue of British citizens in the EU, addressed in Amendment 38, because their rights are also of crucial concern to my noble friends, myself and many noble Lords across all parties in the House.

Many British citizens living in the EU have contacted me and many other noble Lords to say how abandoned they felt by the elected House and how heartened they were that this House was addressing their concerns. We must not abandon them again. Through no fault of their own, as the result of a referendum from which the majority of them were excluded, millions of British and other EU citizens suddenly find their future at the mercy of the whims of politicians. They fear that they may be excluded from the countries that they have made their home. In some cases, they fear being split up from their husbands or wives or partners. These are not spurious fears; they are not the result of scaremongering; they are the result of the Government’s failure to provide either moral leadership or administrative clarity. Take the example of an elderly couple—

Brexit: Article 50

Lord Mackay of Clashfern Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I entirely agree with my noble friend that the principles of judicial independence and of freedom of the press are fundamental to our constitution. However, my freedom as a citizen does not entitle me to assault my neighbour, and the freedom of the press certainly does not entitle the press to insult, in a vicious and vocal manner, judges who are carrying out their statutory responsibility.

[Noble Lords]

Hear, hear.

[Lord Mackay of Clashfern]

Everybody who took part in the case made it clear that the judges were asked to determine a question of law, which was entirely within their jurisdiction. They made it abundantly clear that they had no views to express on Brexit or anything associated with it except on the question of law which was put to them, which is simply whether the prerogative power enables this triggering to happen. I express no view upon that matter because it has been appealed to the Supreme Court and I verily believe that in due course, it will address it and I await its judgment. In the meantime, however, I am concerned about the reaction of a substantial section of the press, which needs to be dealt with now, which is why I felt it necessary to say what I have said. It is entirely necessary that the independence of the judiciary should be respected, and I believe that all my colleagues in this House are of the same opinion. I hope that the Minister is also of the same opinion.

[Lord Bridges of Headley]

My Lords, I entirely agree with my noble and learned friend that the independence of the judiciary and the right of the judges to determine without fear or favour the issues before them are absolutely sacrosanct. They are there to use their best endeavours to interpret and apply the law, which is clearly what they have done and will continue to do.