European Union (Withdrawal) Bill

Baroness Altmann Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

It is not in my gift. It would be a matter for international treaty negotiation between the United Kingdom and the Republic of Ireland. It is for Ireland to decide who it will admit as citizens of the Republic; it is not for us to demand. That is the answer to the noble Lord’s point.

[Baroness Altmann (Con)]

As a point of interest, perhaps one should recommend to all pregnant mothers in Great Britain that they might consider going over to Northern Ireland to have their babies.

[Lord Keen of Elie]

I am not going to indulge in an issue regarding maternity at this stage. Let us try to keep focus on the amendment, shall we?

We are all aware of the issue and we are also aware of the agreement that has been entered into to protect the rights of EU citizens and their family members living in the UK and of UK nationals living in the EU until the end of the implementation period, set at 31 December 2020. During the implementation period, individuals will still be fully covered by the EU acquis. UK nationals will be able to continue to move around the EU 27 member states and will have the freedom to move to another member state to live and work, as long as they do so before the end of the implementation period.

That reminds me of the point made by the noble Lord, Lord Kerr, about Article 32 of the withdrawal agreement. The position is this: what was proposed in Article 32 was removed as there was no actual agreement on that point. Therefore, there was no reason to have a legal text covering a point that was not the subject of agreement. The United Kingdom pushed strongly for the inclusion of ongoing movement rights during the first phase of the negotiations, but the European Union was not yet ready to include them. Of course, it remains an issue that we wish to pursue. We have already made that clear.

To come back to the amendment itself, it is simply not feasible for us to set upon a course of negotiation that is doomed to failure. We cannot secure EU citizenship for citizens of the United Kingdom after we leave the EU. That is the short point to be made. Therefore, the amendment would set the Government on a course of negotiation that would effectively prevent the present Bill—

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[Lord Keen of Elie]

My Lords, we are engaged in a bilateral negotiation; it has not yet concluded. This Bill is designed to accommodate the situation in which there may not be a conclusion to that negotiation, as well as a situation in which there may be. In the event of the latter case, the withdrawal agreement and implementation Bill will bring the legislation into line with the statute book.

[Baroness Altmann]

Will my noble and learned friend clarify for the Committee, if nothing is agreed until everything is agreed and we may not go into a transition period, how it can possibly make sense to have 29 March written into the Bill?

[Lord Keen of Elie]

Because that addresses a distinct issue, which is the exit date from the EU. It is quite distinct from the question whether we are able to finally conclude an implementation period, which it is our intention to do. Let us be clear about that. The EU has also indicated its intention to do it as well. But we are engaged in a bilateral negotiation.

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[Lord Dykes]

My Lords, one has distinct memories of the European Union Bill and it then becoming an Act. The noble Lord, Lord Adonis, has done a great service by referring to it, although his objectives in so doing might be somewhat different from noble Lords in other parts of the House. That Bill was introduced at the beginning of the coalition period. I have always thought that the coalition was agreed too quickly. Both leaders, understandably, were keen to get going with it and some aspects of the agreement were left vague and unresolved. There was a great deal of excitement about the initial period of this unusual and first-time type of coalition. For those of us who pompously describe ourselves as good Europeans—rather than just fairly keen on the EU— this was a painful moment. Given the celerity of the agreement of the coalition at the beginning, the contents of the Bill were never properly gone into or discussed, despite the substantial vote in the House of Commons to which the noble Lord, Lord Adonis, referred. Again, that was because it was the beginning of the period of this new exercise of the interesting and fascinating coalition.

I believe David Cameron was not much interested in the legislation. He regarded it as a routine inclusion in the incipient contents of the coalition’s programme—not the things that appeared later on—but for the Liberal Democrats it was important. I remember it being described by a senior colleague who was then a member of the coalition representing the Liberal Democrat portion of it—I will not say who—as, “Just routine smoke and mirrors, old boy, don’t worry about it”. However, it was not easy for people to accept it in that sense and I remember vividly a substantial rebellion within the Liberal ranks in the Lords on this matter. There may have been a small one in the Commons as well—I cannot exactly remember those details—but in the Lords there was a substantial rebellion led by Baroness Shirley Williams and others in the team who were not members of the coalition Government because they objected strongly to the contents of the Bill.

The contents were elusive, vague and cynical, That is what put off people who regarded themselves as enthusiastic members of the European Union—members of the club—unlike some other people in Britain who were only half-hearted members of the club, including politicians. For example, a transfer of powers to Brussels had to be accompanied by a referendum and could take place only if the Government got the authority of Parliament to do so. However, the Government could suggest that something was too minor a matter to bother about and just leave it aside.

An extraordinary, ironical conclusion of one of the important items was that the enlargement of the Union would not be included in the Bill. In those days there was a rumour that Turkey was going to join at some stage—there were endless discussions about that possibility—and yet that would not have been part of the matter discussed in the democratic Parliament of the United Kingdom, particularly in the House of Commons. There were other anomalies which looked like opportunism. The rebellion was substantial among the Liberal Democrat ranks here, and the legislation was then forgotten and buried.

I always thought that rather than object to the repeal—I can understand why the noble Lord, Lord Adonis, is suggesting it—the infamous 2011 Act should be repealed as quickly as possible. That needs to be on the agendas of both the Lords and the Commons for the future. At the moment, therefore, I am torn between agreeing with the noble Lord, Lord Adonis, for the reasons he has enunciated, and saying that it would be a mistake and that this should be included in the total repeal list. After all, getting rid of that obnoxious legislation would not be a precursor to any other anticipated legislation following the same theme later on.

[Baroness Altman (Con)]

My Lords, the 2011 Act was introduced by the elected Chamber for the express purpose of safeguarding major constitutional changes in respect of our relationship with the EU and I support the amendment, to which I have added my name.

The Act, among other matters, provides for a referendum throughout the United Kingdom on any proposed EU treaty or treaty change which would transfer powers from the UK to the EU. Parliament voted for this power in order to protect the sovereignty of the United Kingdom and it is this aspect of our constitutional framework that it is important for the Committee to be mindful of as we negotiate our future relationship with the EU. Surely the proper time for the 2011 Act to be repealed is when we conclude our relationship with the EU. However, the Bill as it stands allows a Minister to repeal it at any time after Royal Assent.

The Conservative Party manifesto in 2010 led to this Act. It is worded not in terms of transfers of power but in terms of the extension of the competence or objectives of the European Union and decrease in the voting power of the United Kingdom. If we go into a transition period, there will be a new form of treaty relationship with the EU, one in which the UK has surrendered powers to the EU. The transition or implementation phase is a subordination of power to the EU 27 and binds us to them with fetters in a new international treaty. I contend that even if one believes wholeheartedly in leaving the EU there are strong grounds not to repeal this Act before we have actually and finally departed. Parliament does not yet have the terms of any deal for Brexit, nor will it have before Royal Assent. I therefore believe that it is vital that the 2011 Act is not repealed in this Bill as that would remove a safeguard which currently exists to protect the United Kingdom and our constitutional position. Parliament enacted that legislation for a specific purpose and Ministers should not be allowed to repeal it at will without proper debate and discussion unless we have already concluded our exit terms.

The other place did not have an opportunity to debate this amendment and it seems to have been missed, or perhaps honourable Members might have assumed that the repeal of the Act would apply only on the date of exit, but it turns out that it could be before that date by ministerial diktat. Given the uncertainty that still surrounds this Bill and the entire Brexit process, as well as the lack of clarity on our future relationship, I urge my noble friend the Minister to agree to this amendment. It safeguards the constitutional position enacted by Parliament in 2011 and maintains the sovereignty of Parliament over the Executive to protect the UK from deleterious treaty change that has not received prior approval from Parliament or the people.

[Baroness Ludford]

My Lords, I am delighted to take part in this the last debate of the Committee stage, and I am grateful to the noble Lord, Lord Adonis, for providing the opportunity for it. The noble Lord, Lord Dykes, took us down memory lane. I am sorry to say that I was deprived of the delights of participation in the debates on the 2011 Bill, as I was exiled to the European Parliament at the time. Obviously, I was denied a most enjoyable opportunity.

There is an arguable case that the 2011 EU Act referendum requirement could apply on the grounds that the standstill transition and/or the future relationship removes powers from the UK relative to the EU. There is much legal argument, as the noble Lord, Lord Adonis, noted, about whether it could apply, and indeed litigation is taking place on that very question. It would therefore be premature to abolish the Act either while the litigation is progressing or before it is clear whether the relationship between the UK and the EU during the standstill transition and beyond that into the future entails a loss of sovereignty such as to trigger the need for a referendum under the Act. The standstill transition most certainly does entail a loss of sovereignty, as we discussed earlier today. We will be mere rule takers who are obliged to obey with no say; that is already clear. It is a clear transfer of power to the EU.

The Government’s emerging Brexit policy, as articulated in the Prime Minister’s Mansion House speech, suggests that their plan is for us to take our instructions on the facts from Brussels for many years to come and indeed into the long-term future, so the Act ought to be retained in the tool-box and abolished by Parliament only as and when it is genuinely no longer needed. Certainly it should not be repealed before exit day or subject only to ministerial regulations.

Members on these Benches make no bones about the fact that a further vote for British citizens on the Brexit deal is justified in its own right. That is our major argument for a further opportunity for the citizens of this country to have their say on Brexit. It would be a wholly different exercise from the 2016 referendum because citizens would be able actually to evaluate what kind of Brexit we are going to get. Is it the kind of Brexit that some have advocated, or is it Brexit in name only? There have been no lesser advocates than Jacob Rees-Mogg for having a two-stage process. In 2011, he said in the context of one or other of the plans to renegotiate our membership:

“Indeed, we could have two referendums. As it happens, it might make more sense to have the second referendum after the renegotiation is completed”.—[Official Report¸ Commons, 24/10/11; col. 108.]


For that, one can substitute the Brexit negotiations.

I recall my noble friend Lord Newby quoting recently that a majority of Conservative voters want to have a referendum on the final Brexit deal. In London, that figure reaches 61% to 25% opposed, and the support for people to have the chance of a vote on the deal is growing all the time. So the major case for that to happen rests, as I say, on substantive rather than procedural grounds.

Until things are clear, it seems to Members on these Benches that there is validity in retaining the possible use of the EU Act, which is about the loss of sovereignty and the transfer of powers to the EU. That is precisely what we are going to be faced with.