European Union (Withdrawal Agreement) Bill

Lord Tunnicliffe Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Noakes (Con)]

My Lords, like the noble Baroness, Lady Randerson, I served on the EU sub-committee, led very ably by the noble Lord, Lord Whitty, and took part in the preparation of the report to which the noble Lord referred.

It was very clear from the evidence we received in that committee that some serious issues remain to be resolved. In particular, I single out road haulage, with the issue of permitting. Not all the other sectors present the same degree of difficulty. However, in that committee we took evidence from the Minister in the Department for Transport. While there were no definitive answers, because at that time last year there was a range of possible Brexit outcomes, it is fair to say that the Minister demonstrated a full grasp of the issues involved. I have confidence that the Government are aware of the issues and know what needs to be addressed in order for there to be a successful outcome for all aspects of transport post Brexit: that is, post the implementation period, in effect, so this is not a burning-platform issue.

I cannot support the amendment in the name of the noble Lord, Lord Whitty, because I do not think that reports to Parliament are a particularly useful mechanism, especially in the context of what I believe was relatively clear evidence at the time that the Government were aware of the issues and determined to address them. I look forward to hearing my noble friend the Minister’s response and hope that she will be able to demonstrate to the House that the Government are indeed aware of the issues and committed to finding practical solutions to them.

[Lord Tunnicliffe (Lab)]

I do not normally have sympathy for the Government Front Bench, but I, like the noble Baroness, Lady Sugg, took part in many hours of, broadly speaking, good-natured debates preparing for a no-deal exit. That very action revealed to us the sheer complexity required to make international transport systems work effectively. We were dependent on what we could do for ourselves, because we were in no way able to demand reciprocal action from the EU. Indeed, the EU saw the sheer risks of a no-deal exit and in fact came some way towards providing interim arrangements. Those interim arrangements do not now exist. It is possible that they will emerge between now and the end of December, but given the sheer effort required to do these complex deals, where somehow it is subtly acceptable with our European friends but is not actually like Europe—roughly speaking, that is what the Government are saying—I fear it is impossible.

I do not want to leave the European Union. Most of the House before the election did not want to leave the European Union and probably does not now, but with the odd exception there is virtually acceptance in this House that we have to get Brexit done. We may not like it, but we accept it. However, the sheer practical difficulties the Government face are terrifying.

It also happens that they have picked the worst date of the year. I had a crisis when a permit to operate ran out on 31 December; the alternative was to stop London on 1 January. It was pretty terrifying, because Christmas happens all over the place. Frankly, the end of December is the 22nd if you are lucky. The problem is that everybody else thinks the end of December is the 31st. It turns out that it is not. People are not there—senior people to make decisions and last-minute scrambles, which are what deadlines produce. It becomes utterly chaotic. Anyway, we survived and London did not stop, but it got incredibly close.

During consideration of the Haulage Permits and Trailer Registration Act, we debated the concerns of the freight industry at length. That industry is key to our trading with the EU 27, with millions of road goods vehicles travelling from Britain to the European mainland each year.

Since the passage of the Act, as part of its preparations for a no-deal exit, the Department for Transport began allocating permits via a lottery system, a system that was to be a fallback. Inevitably, because it is so overwhelmed, that became the main allocator. Figures show that less than 1,000 of more than 11,000 HGV operators' applications for annual permits were successful. With a deal now in place and a time-limited transition period running to the end of December, hauliers, drivers and users of other transport modes will be able to continue largely as normal.

However, as with other topics debated in recent days, there is no certainty about the post-December 2020 picture. Indeed, with the Government imposing hard deadlines for a new trade deal, transport operators face a renewed threat of suboptimal contingency measures. I lived in the transport industry. The lead time simply to have the right people in the right places to load the trains, drive the trains, fly the aeroplanes takes weeks and months. If you do not know what you are going to do in an industry that is so integrated, chaos reigns.

I welcome my noble friend Lord Whitty’s amendment and look forward to the Minister providing more up-to-date information. We have had precious little detail from the Government on their plans for future UK-EU transport arrangements, and while we accept that this will be subject to negotiation, I hope the Minister can indicate the type of arrangements that we will be seeking, and that the Government are successful.

--- Later in debate ---

[Baroness Miller of Chilthorne Domer (LD)]

My Lords, I thank the noble Lord, Lord Whitty, for his dogged persistence in pursuing this matter. There is no doubt that, as we move beyond the end of this year, we will start to lose out on all the joint research on the issues around novel foods, scientific research into diseases and threats, pollution, climate change and so on—all the things that scientists are working on—unless we move ahead in the way that the noble Lord has described. It would be criminal if at a time when we are all facing so many common threats, particularly from climate change, we started reinventing the wheel. We do not have the scientific capacity to reproduce the sort of work that goes on at the Joint Research Centre in Ispra in Italy, for example, which is the combined research of the cutting-edge scientists of so many countries.

I doubt that it will be in the lifetime of this Government that we will be able to measure their failure to do the sort of work that the noble Lord is suggesting but, unless a solution is reached along the lines that his amendment suggests, we will certainly suffer in five, seven or 10 years’ time.

[Lord Tunnicliffe (Lab)]

My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.

We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.

Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.

As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.

In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.

I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.

It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.

It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.

The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.

The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.

I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.

European Union (Withdrawal Agreement) Bill

Lord Tunnicliffe Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.

When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with

“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”

arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.

In the Explanatory Notes, the Government had said that

“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”

That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.

Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that

“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”

It reminds us that

“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,


as I earlier cited. It concludes:

“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”


That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.

The delegated powers memorandum says about the justification for taking the power:

“These amendments are necessary to allow the power to function in the revised context of the implementation period.”


We were always going to have an implementation period. I simply do not understand this next sentence:

“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”


We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.

I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase

“not clear in its effect as a result of the operation”

gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.

[Lord Tunnicliffe (Lab)]

My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.

During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?

The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?

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

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.

As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.

The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.

Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.

--- Later in debate ---

I apologise to the House for the essentially technical nature of the explanations, but I hope my reassurances and explanations will enable the noble Baroness, Lady Ludford, to withdraw the amendment.

[Lord Tunnicliffe]

Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?

[Lord Callanan]

We certainly have no current plans to extend it any further.

--- Later in debate ---

[Lord Warner]

My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.

The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.

We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.

[Lord Tunnicliffe]

My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.

I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a

“broad, comprehensive and balanced security partnership.”

However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.

Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.

In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that

“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]

Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.

To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.

[Baroness Williams of Trafford]

I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements of co-operation that are so crucial in keeping our citizens safe.

It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.

On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.

The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.

I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.

Brexit: Positions on the Pound

Lord Tunnicliffe Excerpts

Monday 30th September 2019 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, the noble Lord, Lord Macpherson, one of the country’s leading civil servants, a Permanent Secretary to the Treasury for over a decade and a man who probably knows more about these issues than the rest of us put together, made a statement yesterday. Does the Minister agree with the noble Lord’s comment yesterday when he said that it,

“is right to question the political connections of some of the hedge funds with a financial interest in no deal … They are shorting the pound and the country, with the British people the main loser”?

[Lord Callanan]

No, I do not agree with the comments of the noble Lord, Lord Macpherson, and it is frankly sad that a person of his reputation is indulging in these ridiculous conspiracy theories. As Forbes business magazine put it, this is yet another “tin-foil-hat conspiracy theory”.

Brexit: Withdrawal Agreement Scrutiny

Lord Tunnicliffe Excerpts

Wednesday 31st October 2018 Lords Chamber

[Lord Callanan]

I am sure that the committee of the noble Lord, Lord Boswell, does not leak at all. We are committed to providing as much information as possible, but it is important that we protect the sanctity of the negotiations. Many EU member state Governments have also not been briefed on the final detail and compromises that inevitably will be arrived at. But when we are in a position to share as much detail as possible on the final agreement of course we will do so, alongside the appropriate economic analysis.

[Lord Tunnicliffe (Lab)]

My Lords, the Minister simply does not understand the situation. Our friends in Europe, from day to day, understand where the negotiations are at, the nuance of the negotiations and the places where advantages may be taken. We are being taken back to documents produced months ago and there is very poor communication. Will he make a total commitment to ensure that the committee of the noble Lord, Lord Boswell, is fully briefed before we embark on the debate on the most important decision of our lifetime?

[Lord Callanan]

Of course we will make sure that the committee of the noble Lord, Lord Boswell, is fully briefed, as we will ensure that all Members of both Houses are fully briefed. When we have a deal, the Secretary of State will appear in front of the noble Lord’s committee, we will publish all the details of the deal and the appropriate economic analysis, and sufficient time will be made for debate in both this House and the other House before the meaningful vote.

Brexit: Preparations and Negotiations

Lord Tunnicliffe Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I rise as the last speaker before the Minister, very conscious of the fact that the most important thing I can do is be brief and sit down.

[Noble Lords]

Oh!

[Lord Tunnicliffe]

Having achieved a level of agreement, I celebrate.

I will, however, make a few comments on the White Paper. We should pause a moment to look at it, not from our point of view, which is where most of the speeches have come from, but from a neutral point of view. The White Paper is overwhelmingly cherry picking in nature. It is all about, “Can we have the good bits?” Its central theme on the free trade area and the common rulebook suggests a complicated system of the UK charging EU tariffs at our borders. That was complicated enough, but now we have the ERG amendment, which requires reciprocity.

However, even before that amendment, Michel Barnier had set out his reaction. He said that the facilitated customs arrangement raised practical, legal, economic and budgetary questions. Setting out the questions he had posed to the new Brexit Secretary Dominic Raab during their first meeting on Thursday, Barnier said that he was concerned that European business would mean higher administrative costs, and there would be increased opportunity for fraud. He also questioned whether a non-EU country could collect EU customs without being subject to EU oversight. For this reason, EU diplomats say privately that the British plan can never be accepted.

The EU is also deeply concerned that the customs plan would give outside companies a competitive edge over European rivals if Britain and other countries used the UK as a route to avoid higher EU tariffs.

“Are the British proposals in the interests of the EU?”,


Barnier said. This is what we have to recognise—that the people we are negotiating with are there to get the best deal for the remaining 27. Very probably, they are trying to do the best they can for the people whom they represent.

The White Paper assumes that we are going to get wonderful trade deals. One wonderful trade deal that we have to get is with America, where we have President Trump, who seems to have succeeded in starting four trade wars—first, with both his neighbours, Canada and Mexico, and then with China and the European Union. If he negotiates a trade deal with us, he will have one objective: to have better access to the UK, on his terms. Trump is nothing if not honest. He believes in, and was elected on, “America first”. How long do we really believe it will take to do a trade deal with America, and how good do we think it will be? Why should the UK, with a population of circa 60 million, do better than the EU with 500 million? That is not in the real world.

Let us look at the White Paper’s aspirations on the movement of people. Once again, it is a cherry-picking arrangement. It wants to control workers from the EU on our terms: we want only the best and cleverest. Freedom for business people and tourists we want as part of the deal, but we want to control movement of workers.

Let us just look briefly at services. There was a briefing today from the City of London, which was terribly polite, but what it means is, “They’ve abandoned us”. The White Paper abandons the City and the service sector.

What does the White Paper ask for? It asks for the essence of being in the European Union, in one sense—for free access to the EU—but it wants conditions. When you compare that with the situation of a member of the EU, it has to agree to the four freedoms to get that access. EU members expect to pay money, if they are more successful members, because they rightly believe that the EU is a safer and fairer place with transfer of money between the richer and poorer members. In this White Paper, do we offer anything to the EU? No.

Many people are clearly comfortable with the idea of no deal, but let us make it clear that we are not comfortable with that idea. We believe that it would produce hard borders and kill the Belfast agreement. The borders would have queues and delays. I know something about running transport operations, and the smallest delays spiral completely out of control. It would cut out co-operation with EU agencies. A big chunk of the White Paper talks about all the things that we want to opt into. None of these would be available in a no deal situation. There would be no agreement on aviation or road haulage, and the IMF says that growth would be 8% less. We know that that 8% would not be spread among most of us; it would be spread among the poorest and weakest in our society. No deal is simply not acceptable. If we really refused to pay the divorce bill, we would be overwhelmed with legal action, trade wars and the worst relations with Europe since the Second World War.

In negotiations it is important to try to understand the other side. Having spent many years in negotiations, I believe that they consist of three directions: emotion, power and logic. In my experience, emotion is the most powerful and logic the least. We have to remember who we are negotiating with in Europe. We are negotiating with people, many of whom have spent their lives making the European Union work, and doing so in the belief that the European Union has preserved peace in Europe. It is so easy to forget that the last 70-plus years has been one of the most peaceful periods in the history of Europe, going back 1,000 years. We are saying to these people, “We don’t like your club—it’s not good enough for us”. We have to remember that we have hit an emotional headwind.

Power is the next thing that matters in negotiation—what cards you have. Frankly, we seem willing to offer nothing, and we have no credible threats. Perhaps only in logic is there any argument. Yes, it is almost true that a bad deal for us will hurt most European nations as well, but on average, it will hurt them less. It is clear that Ireland will suffer significantly in a bad deal situation, but the European Union so believes in itself that it will sort that out.

The Government should go back to the drawing board, change this White Paper and produce a plan that has some chance of success.

European Union (Withdrawal) Bill

Lord Tunnicliffe Excerpts

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

[Baroness Smith of Newnham]

My Lords, we have been told frequently that this Bill is about providing legal certainty on the day that we leave the European Union. We have already heard from three noble Lords a whole range of issues that will be extremely difficult in the transport sector when we leave the EU. If we cannot stay in the European agencies, are the Government doing to do at least as much as proposed new subsection (2) suggests and establish,

“an effective equivalent within the United Kingdom”?

If we are to have legal certainly, it is not enough simply to enshrine EU law into United Kingdom law. We need to know what the standards will be on the day that we leave. This is not something that is just hypothetical; this is not about widgets—it is about how our transport system functions on the day we leave. So far, we have not had sufficient answers on this, so I hope that the Minister might be able to tell us something that goes beyond the idea that this is simply going to be about the negotiations.

[Lord Tunnicliffe (Lab)]

My Lords, I look at this amendment and note that it is about the continuity and safety of transport. I have fewer fears than my colleagues about the matter of safety, because the industries concerned were moving towards standardisation decades before the EU was formed. The area where I am very alarmed is the whole issue of traffic rights. I spent 22 years in aviation, 20 of them working for BOAC and British Airways and, towards the end, as the number 2 in British Airways’ marketing department. That was the world pre-open skies and pre-EU, and it was horrific. Literally every city pair had a different agreement about it. All of them had to be agreed. Those were the days when Hong Kong was a colony, which was a golden card in negotiations. The idea of having to start from scratch and do all 134 city-pair negotiations is very difficult to understand.

Similarly, we have the same problem on the roads. The professionals who talk about the port of Dover say that the slightest delays through the port will cause chaos to the point where we have to worry about fresh food getting to our plates. The noble Baroness, Lady Sugg, laid on for interested Peers a meeting with the Secretary of State. He gave a very smooth presentation, which I would précis as, “It’ll be alright on the night”. He justified this by saying that it would be in both parties’ economic interest to conclude sensible and rational agreements. I think he is a bit heroically naive; I have spent most of my professional career in negotiations, and I have always found rationality to come a rather poor third place after emotion and power. The reality of these negotiations is that they will be conducted by politicians and bureaucrats.

The great thing about the EU is that it is refreshingly transparent. Perhaps more people should read what it produces more frequently. From time to time, in this negotiation, it produces guidelines. The first sets of guidelines were more or less delivered as agreed by the Council, and the latest set was agreed on 23 March. A six-page document was published with those guidelines adopted by the European Council at the meeting on 23 March; one paragraph says that,

“the European Council has to take into account the repeatedly stated positions of the UK, which limit the depth of such a future partnership. Being outside the Customs Union and the Single Market will inevitably lead to frictions in trade. Divergence in external tariffs and internal rules as well as absence of common institutions and a shared legal system, necessitates checks and controls to uphold the integrity of the EU Single Market as well as of the UK market. This unfortunately will have negative economic consequences, in particular in the United Kingdom”.

They are very clear about just how firm their position is. One has to recognise that they are representing the EU 27. They are there to meet their demands, and every member has a veto on this agreement. We have left the club: they are not looking after us anymore; that is not their responsibility.

So where do we stand? We have an emotional battle to fight—emotional or political, call it what you like—and we also have a power battle to fight. Do we have any cards? One card that we have with the EU is money, but we more or less agreed that anyway, so that one goes away. The other thing that we used to fight on over the decades after World War II when establishing air rights was reciprocity. That means, “You can’t come to our airfield unless we can come to yours”. The problem with that is that we are a bit of everybody else’s aviation activity. For us, the world is where we need to be and the world, at the moment, is determined and available through the European Union. If we cannot have access to the world, then our industry will be seriously damaged.

I hope that my pessimism is not justified, but I think that getting a better deal than the status quo is, sadly, highly unlikely. I hope that the Minister will be able to assure us that the energy is there to try to achieve the status quo, because otherwise it will damage us and it will damage our EU friends, but it will damage them a great deal less than it will damage us.

[Baroness Goldie]

My Lords, we have bags of energy here; let me try to reassure the noble Lord, Lord Tunnicliffe, that there are bags of energy in the negotiations.

[Lord Tunnicliffe]

That statement implies that the negotiations have started. If so, it would be good to have some refreshingly open details of them in the transparent way that the EU works.

--- Later in debate ---

[Baroness Goldie]

The noble Lord raises an important point. Again, I have to say that yes, that will be part of the negotiation process. It is all to do with what the Government seek to achieve, which I have tried to outline. However, I think the noble Lord will fully understand that I am unable to say whether this or that will happen or be possible, as it is entirely subject to what we are able to negotiate.

It is important that, as negotiations proceed, your Lordships are kept as fully informed as possible. The noble Lord, Lord Tunnicliffe, was good enough to refer to the meetings which have been taking place; he was perhaps a little dismissive of their value, but it is important that Ministers engage with your Lordships, and I and my noble friend Lady Sugg will certainly continue to do that.

[Lord Tunnicliffe]

I was dismissive not of the value of the meetings but of the level of assurance.

[Baroness Goldie]

I thank the noble Lord for his clarification. This issue will continue to be an important factor as we engage in the negotiations. I have endeavoured in so far as I can to set out for your Lordships the current situation, what the Government’s objectives are and how the Prime Minister anticipates the way forward. I invite the noble Lord, Lord Whitty, to withdraw his amendment and observe that the Government do not intend to return to this matter at Third Reading.

European Union (Withdrawal) Bill

Lord Tunnicliffe Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Leigh of Hurley (Con)]

I shall speak briefly to Amendment 183. I am aware of the EIF because of its investment in the UK venture capital industry, in which I serve on a professional basis from time to time. I understand that the Chancellor has committed an extra £2.5 billion to the BBB specifically to make up for the loss of future investment from the EIF into venture capital funds in the UK, which would negate the need for this. There is a problem in that the EIF, from Article 50 being triggered, has announced that it is looking only at funds where two-thirds of the investment will be in the EU and at least 50% in continental Europe. So organisations that contribute enormously to our economy—for example, social impact investment companies such as Bridges, which is 100% investing in UK companies—have, from the moment of Article 50 being triggered, had the decision-making process frozen by the EIF. This has been damaging to them. I suggest—the Minister might care to comment—that the problem is not here and then after we exit the EU but in the transition period. For some unknown reason, the EIF is freezing the money rightfully due to UK investments.

[Lord Tunnicliffe (Lab)]

My Lords, I can at least discuss the EIB with the qualification of someone who nearly borrowed money from it. I commend the comments of the noble Baroness, Lady Randerson, because it was EIB expertise that helped me to persuade the Government to fund the Jubilee line extension. We were then able to have even cheaper money called government grants, so it was all right in the end.

This group of amendments illustrates that in the whole Brexit debate there are unintended consequences that were clearly not thought through at the time of the referendum. We discussed some on Monday, such as haulage, airlines and so on. What we need to hear from the Government tonight is either that they intend to pursue this course and try to produce appropriate associate agreements—or whatever the right term is—with these institutions, or that they will set out how they will provide the money and expertise that make sure that they do not put a serious dent in the already inadequate investment programmes in the United Kingdom.

--- Later in debate ---

Moved by

[Lord Tunnicliffe]

195: After Clause 9, insert the following new Clause—
“Economic outlook taking account of the terms of the withdrawal agreement
(1) Following the completion of negotiations between the United Kingdom and the EU on the terms of the withdrawal agreement, the Secretary of State must commission an economic outlook from the Office for Budget Responsibility.(2) The economic outlook provided for by subsection (1) must—(a) take account of the terms of the withdrawal agreement, and(b) be laid before both Houses of Parliament before Parliament considers legislation to approve the withdrawal agreement.”

[Lord Tunnicliffe (Lab)]

My Lords, the most significant actor in forecasting the development of the UK economy is, of course, the Office for Budget Responsibility. It is mandated to provide two forecasts each year, yet there has been no updated forecast on the impact of Brexit since the Economic and Fiscal Outlook of November 2016. Uncertainty about how the Government will respond to the choices and trade-offs they face during the withdrawal negotiations renders forecasting extremely difficult. There has been no meaningful basis on which to form a judgment on the final outcomes.

The Government have given the OBR short shrift, referring it to the Prime Minister’s Florence speech as definitive. In that speech, Theresa May said the UK would seek to achieve a deep and special partnership with the EU and that this should span a new economic relationship. Not surprisingly, the OBR did not consider that a basis on which to update its analysis. However, the OBR did set out to forecast the outcome for certain parameters of the negotiations. It made several key assumptions about what will happen when the UK leaves the EU next March. New trading arrangements with both the EU and leading states will slow down the pace of import and export growth over the 10 years following the 2016 referendum.

The Treasury Select Committee finds this situation highly unsatisfactory, given that the OBR is required to produce regular reports analysing the risks surrounding the economic outlook for the UK. Committee members saw no reason why the OBR should not provide an update, the rationale being that it already has information on migration flows and can assess the likely state of the public finances, plus the OBR has already formed the judgment that,

“the consequences of Brexit on economic growth, whether positive or negative, are likely to be so substantial as to dwarf the impact of the financial settlement”—

a settlement that has so exercised members of the Cabinet through and since the referendum campaign.

While the Select Committee report came too late to be considered in the other place during its debates on the European Union (Withdrawal) Bill, it is being discussed tonight. The amendment in my name and the names of my noble friends Lord Davies of Oldham and Lord Judd offers this opportunity and calls on the OBR to publish a fresh economic outlook, something that would incorporate the terms of the withdrawal agreement and inform Parliament’s conclusions on whether to act on the outcome of the negotiations. Challenging as this task might be, a flow of firm and up-to-date information will obviously be in demand over the course of this year. Parliamentarians have the right to ask the OBR, the best placed institution, to provide the information we so clearly require. I beg to move.

[Baroness Kramer]

My Lords, I shall say only a few words because of the lateness of the hour, but I support this amendment. The Government have continually used the argument that they cannot provide detailed forecasts of the impact on the UK economy, jobs and other opportunities either because they do not know the full clarity of what the end agreement will look like or because any disclosure might compromise their negotiating position. I have always found that a little strange. Having negotiated trade agreements on our behalf for 40 years, there is, in fact, more expertise about the impact of these arrangements on the other side of the channel than there is on this side, so we are really not fooling anybody in any of the discussions that we have.

Setting that aside, at the point that the noble Lord, Lord Tunnicliffe, describes, neither of those arguments stands any more. We will have completed our negotiations and will know the details of what we have negotiated. Do the Government not agree that transparency is both possible and crucial at that moment and, therefore, that the analysis that the noble Lord just described is vital and owed to Parliament and the British people?

--- Later in debate ---

[Baroness Kramer]

But this will surely be one of the most important debates and most important votes ever held in this House. Is the noble Baroness suggesting that it is not appropriate and necessary for the OBR to provide the information that probably only the OBR is capable of providing to make sure that that vote is taken with the best knowledge available? That would be extraordinary.

[Lord Tunnicliffe]

Surely the OBR is up to its ears in political debate. It produces the document on which Parliament discusses the Budget, taxation and all parts of the economy. The OBR is part of the political process. It is a neutral and independent part of the political process, but it is not without the political process.

[Baroness Goldie]

The noble Lord identifies the important characteristic of the OBR, which is its statutory independence. That is a strength and something we all commend. In response to the noble Baroness, Lady Kramer, we have to respect what the OBR by statute is required to do, and we expect it to do that.

There are practical difficulties in addition to those which I was just beginning to outline when the noble Baroness made her intervention. If the Government agreed to have a forecast ahead of the withdrawal legislation being considered by Parliament, there is simply no guarantee the OBR would be able to take the terms of the agreement into account in its forecast. For example, if there was only a short period of time between the agreement being made public and the point at which legislation is introduced, then the OBR may not have capacity to conduct a thorough analysis.

--- Later in debate ---

[Baroness Goldie]

I must apologise; I am clearly explaining this very poorly. I am trying to indicate to your Lordships that it is not a matter of resource or of intent; it is a matter of whether or not the OBR would have sufficient information available to conduct its analysis and come forward with any conclusions. I have made clear that, under statute, the OBR has to produce at least two forecasts per financial year, and these must include the impact of government policy. What I am anxious to avoid is that this House puts the OBR in a different situation. I was going on to explain to the noble Baroness that, as the OBR has flagged at previous fiscal events, even once the outcome of negotiations are known, its forecast will be subject to considerable uncertainty. This is particularly the case around the associated economic and fiscal consequences of the withdrawal agreement. In addition, there is another body here, the reaction of which is extremely important: the Bank of England. Its reaction is difficult to forecast, yet that reaction will have a large impact on the analysis.

I have tried to explain why I totally understand the desire for transparency—that is understood and we sympathise—but I am pointing out that the amendment would impose an unacceptable statutory obligation on the OBR in terms of its current responsibilities and its capacity to discharge them in any meaningful fashion.

[Lord Tunnicliffe]

My Lords, I have to admit to be stunningly underwhelmed by that response. It seems to me that the request is perfectly reasonable. It may need some tuning to fit in with timetables and so on or a condition here and there, but I hope the Government will take this idea away—it is clearly popular around the Committee—and come back with a more positive view so that the Government and Parliament at the time can be better informed. With that comment, I beg leave to withdraw the amendment.

Amendment 195 withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, for the reasons that have already been given, I also support this amendment.

[Lord Tunnicliffe]

My Lords, that was even shorter than my speech. The Government have to accept that they have to come to some sort of accommodation on statutory instruments. We all know that a lot of them will be required, and we have got to have a good system that satisfies everybody, both in this and the other House. The amendment of the noble Lord, Lord Sharkey, sensibly makes that task simpler by making it uniform across the Bill. I am very persuaded by his argument and that of the noble and learned Lord, Lord Hope, and I hope that the Government are as well.

[Lord Callanan]

My Lords, I first thank the noble Lord, Lord Sharkey, for tabling this amendment so that we can have a discussion about this and for the extremely courteous discussion that he had on this matter with me and my officials.

Many of us here today are opposed, in general, to making sweeping fixes to the whole statute book through one Act. Indeed, that is the cause of many of the concerns about the powers in this Bill, and an issue that the noble Lord, Lord Sharkey, addresses with his amendment. I am therefore wary of inadvertently undermining the delicate and proportionate balances struck within other Acts between haste and scrutiny. The need to deal with the detail of how the Acts differ from one another is, however, what makes these Henry VIII powers necessary.

Nothing in this Bill directly changes the scope or functioning of other delegated powers. The exceptions that this Bill provides are that, within the context of and with the scrutiny attached to the original powers, they can be used to amend retained direct EU law. The Bill also clarifies that it lifts any implied EU-related restrictions from exit day, a necessary consequential step to our leaving the EU’s legal architecture. It is right and proper that, within their context and limits, other powers can be used for the same purposes as Clauses 7, 8 and 9. This amendment, if it is broadly constructed by the courts, could render moot any debate that this House has had or is having on scrutiny provisions in other Bills. This also extends to exit-related Bills and, in this field alone, this could catch the trade, sanctions and customs Bill.

It is I think best to let the sleeping dogs of my noble friend Lord Strathclyde lie, so I shall skate over the very concerning question of how financial privilege would apply under this amendment to the powers to correct deficiencies in the customs Bill.

I call noble Lords’ attention back to the crucial importance of the ability to exercise the powers in the sanctions Bill at speed and the additional information requirements added to that Bill. Even if parallel changes were to be made to this Bill, these would be tailored to the specifics of this Bill.

I stress the Government’s commitment to proper scrutiny of the powers under this Bill; they are a unique, time-limited solution to a unique problem. None of this, however, should be a reason to render irrelevant any specificities of scrutiny that this House has insisted on in other Acts. I therefore urge the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I believe that the noble Baroness, Lady Stroud, was absolutely right to say that respect for family life lies at the heart of this matter. That in particular was the basis for the regulation we are looking at, Dublin III, and this provision, which is talking about those unaccompanied adults and children from outside who wish to join a family member who is already here in order to make the application. It is about respect for family life as well as seeking to give the benefit of the asylum application under the convention, to which we are, after all, already parties. So without elaborating and with great respect to what has been said by everyone who has spoken so far, I too support the amendment.

[Lord Tunnicliffe]

My Lords, it is a great shame that there is not more of a consensus between the two—or three—parties on the issue of refugees. We have debated it much over the years. Recently, we have got to what I would loosely call an uneasy peace, which is essentially based on my noble friend Lord Dubs’s Section 67 and Dublin III. That has produced modest numbers, but there are very real numbers of people meeting very real problems.

The noble and learned Baroness, Lady Butler-Sloss, put her finger on it. The rights individuals have as a result of Dublin III must be maintained. I hope the Minister will be able to assure us that the Government will either accept these amendments or make a very firm commitment to assure us that, one way or another, the effect of Dublin III will be maintained after Brexit.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

I thank noble Lords who have contributed to this evening’s debate, particularly the noble Lord, Lord Dubs. I think the word “noble” is appropriate in so many different ways in the manner that we have been discussing this matter this evening.

It is a number of years since I worked for the Scottish Refugee Council. At that time, I was struck by a number of challenges experienced by those fleeing and seeking refuge across the globe. I was very much aware of the challenges experienced by refugees and asylum seekers; I draw a distinction between the two, as does the law. My frustrations were also manifest as a Member of the European Parliament at how the Dublin regulations were discussed, ultimately moved towards law and, frankly, not enforced in the manner in which I believe they should have been across the EU. While we often look towards Brussels for leadership in these areas, quite often we are disappointed by what happens when we move from the high words which can be found in certain of the discussions towards the realities of delivery, which can be quite different.

I particularly thank my noble friend Lady Stroud, who has again helped us realise some of the realities which we face. She is right to point out one of the greater challenges, which is finding unaccompanied minors in a difficult situation which they have not chosen to be in.

I turn specifically to the amendment. Noble Lords will be pleased that my noble friend Lady Williams is in her place beside me. I believe that on a number of occasions she has affirmed the Government’s commitment to ongoing support for those who are seeking asylum or who fall under the refugee convention. However, we must remember that the Dublin regulation is not, and never has been, a route for family reunification. It is a mechanism to determine the member state responsible for consideration of an asylum claim. Dublin confers no long-term right to remain in an EU state, whether on the grounds of family relationship or on any other basis. If someone is transferred under Dublin to the UK to join an asylum-seeking family member, should that asylum claim fail, they can be removed to their home country. In the UK, around 60% of those who claim asylum are found not to need protection.

The Dublin regulation rules are fundamentally different from the family reunion procedure in the Immigration Rules, which allows refugees under the Geneva convention, or recipients of humanitarian protection, to bring their close family members to the UK, where they are entitled to leave to remain. Furthermore, the Dublin regulation does not create refugee family reunion rights because it deals with asylum seekers, not refugees. Once a person is recognised as a refugee in the EU, they are no longer in scope of the Dublin system and the family unity provisions in the regulation do not apply.

More broadly—this is perhaps worth stressing as we consider movement outside the EU—the system has reciprocal effect in all participating states. It is a two-way process which governs the movement of asylum seekers into and out of the UK. Unilateral rules that place an obligation on only one state do not work. They need to be reciprocal.

Going forward, we seek a relationship with the EU that will address the entire spectrum, not just asylum seekers but refugees and the wider question of illegal migration, not solely on the basis of family reunion. A relationship with the EU on this matter above all will be how we are judged, and I note the noble Lord, Lord Judd, noting that point. We will be judged on this, and we need to get this right. However, I stress that the EU also needs to get this right and, if I may be so bold and so frank, I do not believe that the EU has got this right either. It is seeking to find that solution and, for as long as we are a member, we will be part of that struggle. At the moment, there is no easy way forward, as the EU is finding and as I do not doubt we will find.

However, as long as we are guided by the noble intentions of individuals such as the noble Lord, Lord Dubs, I believe we will be moving in the right direction. On that basis, I ask him to withdraw the amendments.

European Union (Withdrawal) Bill

Lord Tunnicliffe Excerpts

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

[Lord Bourne of Aberystwyth]

My Lords, I accept that they are not the same thing. Perhaps by definition, Clause 9 relates to the withdrawal agreement, but that will be made by the United Kingdom Government. As the member state, it will be the United Kingdom Government who will sign the withdrawal agreement. There may—indeed, I am sure there will—be issues about ensuring that our law is compliant with the withdrawal agreement in all parts of the United Kingdom, in both the Westminster Parliament and the devolved Administrations. That is why we need it.

Noble Lords will be aware that it is quite normal to use delegated powers in such ways, including Section 2(2) of the European Communities Act 1972, which amends the devolution statutes to ensure that our legislation reflects the most accurate position in law and ultimately to ensure that we fulfil our international obligations. To give an example, the Treaty of Lisbon (Changes in Terminology) Order 2011 was made under Section 2(2) of the European Communities Act. It amended the Scotland Act, the Northern Ireland Act and the Government of Wales Act to give effect to new terminology relating to the EU. This is not the stuff of power grabs, believe me; it is the stuff of ensuring that day-to-day business can continue. Leaving the EU requires changes of a similar technical nature across the settlements, and we will need the flexibility to ensure that these important Acts operate effectively once we have left the EU. That is precisely what these powers enable.

Amendments 148 and 149 also speak to the concurrent powers for United Kingdom Ministers and would apply a requirement for devolved Ministers to consent to their use. We will consider this matter fully in the next group, but I am very willing to engage with noble Lords on the subject that the noble Baroness, Lady Randerson, raised when she talked about the use of the word “normally”. “Normally” is not subject to definition by government, it is subject to definition in law, but of course we would normally expect the consent of devolved Administrations in conducting discussions on these matters. A lot of this, believe me, is down to ensuring good housekeeping and common sense. If we have the prospect, by agreement, of dealing with this just once in one United Kingdom Parliament rather than repeating it in all the different legislatures of the country, that makes sense.

I shall try to deal quickly with the points raised by noble Lords, I hope in more or less the order in which they were raised. Forgive me if I miss points; I will try to pick them up by letter and will place a copy in the Library for those who did not participate in the debate.

First, I restate my thanks to the noble and learned Lord, Lord Hope, for tabling the amendment and ably and cogently setting out what it was about. I followed precisely what he said and sympathise with a lot of it. I suspect we may disagree on some of the detail and emphasis, but I am certainly willing to engage with the issues he has raised. I also thank the noble Baroness, Lady Suttie, for bringing forward the Northern Ireland dimension. She asked who we will engage with. Sadly, we cannot engage with an Executive at the moment, but we continue to put all our energies into ensuring that we have an Executive in place to engage with. Whatever our differences with them will be, that is far a more desirable form of government and governance of Northern Ireland.

I think the noble Lord, Lord Wigley, spoke next, and spoke also on behalf of the noble Lord, Lord Foulkes. As I said, we will look at Clause 11 later. If I am not mistaken, we sought and obtained agreement from both Scotland and Wales to publish that. There are deep dives, as the parlance has it, going on in all framework areas—I think we are now down to 24 from 27. Full and active engagement on that is the way forward, and significant work is being done.

The noble and learned Lord, Lord Morris, spoke next. He has massive experience and knowledge of this area, so I listened very carefully to what he was saying. I appreciated our earlier chat. I can confirm that these framework areas are frozen, as it were, until we can get down to the substance in the deep dives of the things that need to be devolved and the things that need to be held in the centre. I think there is common agreement, including in Scotland, on the principle that some things will have to be retained in the centre. If we are seeking to pull something back—I do not see that that will happen, but if we were, through some of these other Acts—of course we would need LCMs just as we are seeking an LCM on this legislation. That is, again, a reassurance that I am able to give.

I thank the noble Baroness, Lady Finlay, for the engagement that we have had on this. I can confirm that we are seeking an LCM, as I believe she knows, on this legislation in both Scotland and Wales, and on the other legislation—on agriculture and so on—insofar as this involves potentially encroaching on devolved areas. Of course, once again we would seek to have long and deep discussions, as we are doing. If it were to impinge on devolved areas, we would fairly clearly need that LCM.

I hope I have answered on deficiencies; all of those will be covered in the Bill. An example of an international obligation would be something perhaps not mundane, but, for example, complying with a new law of the sea if there was a new law of the sea convention. That may be something we would seek to amend. It would be that sort of issue.

My noble friend Lady McIntosh asked for full details of the amendments. She will see that we have published the Clause 11 amendments. The amendments to Clause 7 will be tabled on Report. I have given that undertaking. They are not yet ready for reasons I have sought to explain but they will be there for Report stage. I hope she will take some comfort from that.

The noble Baroness, Lady Randerson, spoke with great experience of the devolved areas, and I thank her for her contribution about how things have moved and how there are still rough edges. I share some of the frustration of the noble Baroness, Lady Finlay, because we tried to solve some of this together on asbestos. This is not a power grab. Nobody knows where that power lies. Indeed, there is perhaps a little bit of, “You do it”, “No, you do it”. It is just lack of clarity rather than a power grab, but I hope we will be able to solve and settle it before too long.

I think I have dealt with the point made by the noble Lord, Lord Adonis, who is not in his place at the moment, on the Good Friday agreement. It will not involve any amendments in relation to that agreement, to which we are totally wedded, but there will be some amendments on Report in relation to Northern Ireland and some of the deficiencies that need correcting, in just the same way as in relation to Scotland and Wales. I thank the noble and learned Lord, Lord Wallace, once again for the clarity of what he said. I agree that we should look, perhaps through conversation and discussion, to move this forward. Like my noble friend Lord Forsyth, I have grave doubts. We will not be moving to a position of consent but I would certainly like to see us talking and consulting, and I am very happy to engage with that. To move to a position of consent in non-devolved areas would be dangerous to the union.

I thank my noble and learned friend Lord Mackay of Clashfern once again for what he said. I totally agree: if we think this is difficult, just wait until we get to Clause 11. I think this is relatively straightforward and I can see a way through this where we would have broad agreement. As the noble Lord, Lord Griffiths, indicated, Clause 11 will be a much more difficult area.

The noble Lord, Lord Elystan-Morgan, knows so much about this area, through both his political and legal experience. I agree with him that it is important to move to a position where, for things related to devolved areas, there is a convention that has grown up and is widely accepted about consent. I thank the noble Lord, Lord Griffiths, for his clarity. I agree with him about the importance of transparency and coming up with some common sense; I think that is essentially what he was saying and I do not disagree at all.

We have probably reached agreement on Clause 7. In relation to Clauses 8 and 9, I am very happy to look at the points that were made and discuss them further ahead of Report stage. In the meantime, I ask the noble and learned Lord and the noble Baroness to withdraw their amendments.

[Lord Tunnicliffe (Lab)]

I believe the amendment under debate is that of the noble Baroness, Lady Suttie.

[Baroness Suttie]

I thank the Minister for his characteristically detailed and courteous response. We look forward to examining these amendments in greater detail ahead of Report stage, when we will probably have many longer discussions about them. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Liddle]

I understand the noble Lord’s explanation, and I will not speak for 11 minutes. However, I will say something and ask the Minister serious questions. The facts have been explained by the noble Lord, Lord Bilimoria, and the noble Baroness, Lady Altmann, and the Government are perfectly well aware of these facts. They produced a paper on customs arrangements, I think last July or August. What work has been done on developing the proposals in those papers? If the Government were serious about developing what the noble Lord, Lord Robathan, wants, they would have presented a proposal to Brussels in the last couple of months. In December, in the agreement that the Prime Minister is so proud of—I was delighted that it occurred —it was said that joint work would be done on the Irish border and the other issues to draw up a draft withdrawal agreement in the coming months. What work has happened? How many meetings were there between British and Commission officials before the Commission produced its draft withdrawal agreement? If the Government had a clear view of how the problems set out by the noble Lord, Lord Bilimoria, could be addressed, they would have come forward with a compelling alternative proposal to what the Commission has come forward with. Can we therefore please have a balanced, sensible explanation of what the Government are doing and why they refuse to face facts and produce objective reports on how they will deal with very serious economic issues?

[Lord Tunnicliffe]

My Lords, it may be convenient for the Committee for me to set out the Opposition’s view—

[Lord Wigley]

My Lords—

[Lord Tunnicliffe]

The noble Lord may speak after me, and as many times as he likes, but—

[Lord Wigley]

Not on this amendment, because these points have not been covered. This is Committee, and we have a right to put our points.

[Lord Tunnicliffe]

Those who are familiar with the rules will know that as many Lords as they like can speak after me. They cannot speak after the Minister.

I think it will be useful if I simply set out the position of the Opposition. The seriousness of the situation, as described by a number of speakers, is entirely accepted. Those of us who have slogged through the road haulage and trailers Bill know that the extant law that a no-deal would fall back on is totally unfit for purpose and would give us perhaps only 4% of the capacity we need. I think there is a consensus on that. The fear of customs friction, which, once again, we raised at Second Reading, is acknowledged. It was neatly summed up by the chief executive of the Road Haulage Association:

“Simply using current customs practices and applying them to UK/EU traffic risks delays of biblical proportions which would strangle growth and hurt the entire economy”.


Basically, these amendments say, “Sort this mess out before you start executing change through Clause 7”, and, “Don’t misuse the regulations to do it”. We broadly agree, and we hope everybody agrees. We hope everybody recognises that we need these problems solved in road haulage—I will not repeat myself later; it is the same in railways and in aviation—before we can contemplate leaving the Union. They are not related to soft or hard Brexit, although each means different problems; they are related to transport problems. No deal means no transport, and that has to be sorted out.

Are these amendments the best way of doing that? I am not sure. At the moment we have an open mind on that. Perhaps this is an opportunity for the Government to propose a series of meetings for interested Peers off the Floor of the House with senior Ministers—no doubt with the noble Baroness, and perhaps the Secretary of State should intervene because this is so important—so that we can get to the bottom of the progress that the Government are making and find out how they propose to tackle what is a real problem. We have a common interest in it being tackled, and the Government have a duty to put a lot of effort into convincing sceptical Peers. They should tell us what they plan to do, respond to ideas and come back with amendments to assure the House that we are not going to drift into a disaster of biblical proportions.

[Lord Wigley]

My Lords—

--- Later in debate ---

[Lord Whitty]

It was both the EU and Mr Davis and they were both wrong because in all negotiations whenever you enter negotiations you agree some things and you then park them. We could have agreed this. It is ridiculous that airlines are now faced with selling tickets in three weeks’ time not knowing whether they can deliver on them. I just make that more general point because the Minister keeps saying it is all down to the negotiations, but the negotiations went wrong from day one, and this is one example where we could have delivered something, albeit it would need to be part of a total package at the end of the day.

[Lord Tunnicliffe (Lab)]

My Lords, I shall be brief. I spent 22 years in the airline industry from the mid-1960s onwards as everything from co-pilot to number two in the marketing department. I learned two things from that. One was that aeroplanes are very dangerous. When I first joined the industry, we would crash a jet aircraft about every two years in the United Kingdom, and it has been a long, hard slog. That slog has not been all UK—it was the UK, the US, Canada and France, working together through international co-operation, producing the safety we take for granted today. It is crucial that those mechanisms stay in place to achieve that.

The other thing I remember is what air services agreements are. They are treaties, and if you are not part of one of these more modern situations, such as the European one, there are country-by-country treaties between pairs of countries—all of which would have to be renegotiated. Falling out of the present situation would create enormous problems. I am very sorry that the Minister did not like my suggestion of contact between interested Peers and senior transport people on these three groups. I hope that perhaps that could be reconsidered—I am glad they are nodding now on the Front Bench, but the Minister said nothing in either of his two speeches to suggest that. Obviously in all parts of the House there is a genuine concern that progress is not being made in these very important areas. I do not want to have that concern; I want to share the Government’s optimism. At the moment, given the responses we have had, I do not.

[Baroness Altmann]

I rise briefly to explain why I have added my name to these important amendments. One thing that has not been mentioned in Committee so far is the idea that the arrangements we have with Europe also protect the safety, maintenance and repair facilities around our country for our aviation and aerospace industries. We must maintain alignment of regulation. We have 100 airports and 172 maintenance and repair facilities, and if we jeopardise the standards of safety, if we are not in the open skies agreement and not in EASA, then the US apparently is already planning to send its own inspectors to make sure that our standards are up to scratch. If we cannot reassure people that we will maintain those standards, we will not have a functioning aerospace and aviation industry.

Another important element that must not be forgotten is that if we do not maintain our membership of the open skies agreement and EASA, the flights taken by ordinary citizens will increase in price. One estimate from the consultancy Oxera is that if all flights operated by third country airlines were removed, air fares for UK passengers would rise by between 15% and 30%—a Brexit surcharge which people were never told to expect to pay when they voted to leave the EU. These restrictions cannot be overcome simply by airlines setting up subsidiaries in Europe, because ownership restrictions do not allow non-EU investors to own a controlling interest in EU airlines.

I urge my noble friend the Minister to make a commitment to the Committee that we intend to maintain membership of EASA and the open skies agreement, notwithstanding the jurisdiction of the European Court of Justice.