European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Noble Lords]

Order!

[Baroness Goldie (Con)]

If I can have silence, may I address the Chamber? It is important that this debate proceeds, even at this terminal stage of the first group of amendments, in a courteous manner. The Minister has been accommodating in taking interventions. He needs—

[Lord Adonis]

He has taken one intervention so far.

[Baroness Goldie]

I think the Minister can use his own discretion about what he considers appropriate. I do not think noble Lords would disagree for one moment that we have had a very extensive debate on the first group.

[Lord Adonis]

If I may say so, the Minister has limited experience of this House. He may not be aware that in Committee it is reasonable for him to take interventions on points raised in the debate which have not been properly clarified by his reply. He is not allowed simply to come to that Dispatch Box, read out the brief he has been given and not respond to the debate. That is not acceptable practice in your Lordships’ House.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

I recognise that some of these amendments are probing at this stage. Nevertheless, we strongly support the principles behind them, particularly their call for greater detail and specificity from the Government, as was called for and demanded by the noble Viscount, Lord Hailsham, and by others, and even for the clarity required by the noble Baroness, Lady Deech. Continued co-operation with the EU is vital for our security and our wider interests, and to ensure that we can continue to make a positive impact abroad, as well as maintaining our reputation as an outward-looking nation. These issues are important, and we look forward to hearing what I hope will be a positive and detailed response from the Minister.

[Baroness Goldie (Con)]

My Lords, I thank you all very much indeed for contributing to a genuinely extremely interesting and useful debate. I thank the noble Lord, Lord Adonis, for his very warm words of welcome. I fear that it is inappropriate to say this to someone bearing the name Adonis, but I fear I may be doomed to disappoint him. I will try to deal as best I can with the various points that have been raised.

The Government share with this House the objective of building a close and co-operative relationship with the EU on issues relating to defence and security, as referred to by the noble Lord, Lord Wallace of Saltaire, or to foreign affairs, security and intelligence, as referred to by the noble Lord, Lord Adonis. These are indeed vital matters. The continued security of Europe and of our citizens is paramount to us. It would just not be in our interests to see that co-operation diminish.

The purpose of the Bill is, I suppose, mechanical and rather tedious, but it is a mechanism to try to ensure that the UK statute book continues to function after we leave the EU and that it is not riddled with gaps and holes. That is what this Bill is all about. Amendment 12, as proposed by the noble Lord, Lord Wallace of Saltaire, is about the future relationship with the EU and securing it. That is vital—nobody disputes that—but it is of course inevitably, and I am sorry to use the platitude, subject to the current negotiations. Given that the Government have already committed to providing Parliament with a meaningful vote on any final deal, I respectfully suggest to the noble Lord that perhaps this Bill is not the appropriate forum to raise these concerns. I still think that the debate is an appropriate forum in which to articulate them.

[Lord Kerr of Kinlochard]

Could the noble Baroness reassure me that there is a negotiation going on on the future relationship between the UK when it has left and the common foreign and security policy of the EU? Is there a negotiation going on? I have the impression that there is not. I was trying to say that we should start one by making a proposal now.

--- Later in debate ---

[Baroness Goldie]

The noble Lord will understand that I am a very lowly mortal and that I am not privy to the detail of the negotiations. What is clear from what the Prime Minister has said is—just as the noble Lord, Lord Adonis, very helpfully identified—how extremely important these issues are to the Prime Minister. I am absolutely certain that, within the holistic forum of the negotiations, these matters are certainly being discussed and looked at.

[Baroness Hayter of Kentish Town]

The noble Baroness has said, and it keeps being implied, that these are not issues for this Bill. I am sure that she knows the Bill far better than I, having read it more often, but I remind her that on page 7, Clause 9(1) says that the use of regulations is,

“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union”.

We know that, under Article 50, those final terms of withdrawal have to include the framework for our future relationship, which is almost bound to affect and comment on issues such as this. Although on many occasions Ministers may not want to answer, there is reference in the Bill to the withdrawal deal and surely it is appropriate for us to bring to the Government anything that might be in that.

[Baroness Goldie]

Yes. My position that I advance to the noble Baroness—I was just going to come to this in my speech—is that there will be a subsequent opportunity for Parliament to look closely at whatever the withdrawal agreement is and its implementation. In addition, the Government have committed already to providing Parliament a vote on the final deal. Parliament will be given the opportunity to scrutinise the future relationship between the UK and the EU. That is why I submit that the Bill before us is essentially of a mechanical nature. That is what it is: it is trying to ensure, as we leave the EU, that we make sense of transferring the necessary laws, enactments and regulations, whatever they may be, into the statute book of the United Kingdom. The noble Baroness is quite correct that Parliament should have that right to scrutiny, of understanding what the agreement is and questioning how the implementation will take place; I am pointing out that these opportunities will be there. Parliament will not be denied that opportunity.

[Lord Campbell of Pittenweem]

Will the noble Baroness give way? I shall be very quick.

[Baroness Goldie]

My Lords, I would be happy to give way later, but I am quite anxious to make progress. Important points have been raised. I want to try to keep the theme running as to how I will respond to them.

The noble Lord, Lord Adonis, referred to the Prime Minister’s speech in Munich. She gave a very important speech because she detailed further how the UK envisages future collaboration with the EU on internal and external security. She reiterated our unconditional commitment to European security. I turn to a very important point raised by the noble Lord, Lord Hannay, and echoed by the noble Lord, Lord Adonis. I say without equivocation that we remain absolutely committed to ensuring European security and developing this deep and special partnership. Our desire for a close working relationship on foreign and security policy is not conditional on other areas of the negotiations. I hope that that reassures the noble Lords.

[Lord Campbell of Pittenweem]

We have, effectively, a willing buyer and a willing seller when it comes to security and defence. Why not take the opportunity of concluding that bargain? It would be much easier to do than, for example, the trade agreements that we hope to deal with in the future.

[Baroness Goldie]

This is like the fair in Paisley: things coming from one side, interventions coming from the other side and voices from behind me. I am not sure that I entirely agree with the analogy. It is the case that explorations are taking place, if you like, between a buyer and a seller—that is what a negotiation is—but these are sensitive negotiations. I am trying to make clear in the course of my speech—perhaps if I can make a little progress it might become more apparent—just how committed the Government are to addressing the issues raised by your Lordships. They are issues of real concern and are certainly of vital importance. That is because our shared values—those values between the United Kingdom and the EU—are manifest and universally acknowledged. I hope that universal acknowledgement understands that we do not need the text of the Bill to explain to everyone that it is there. I hope that everything that we have done as a member of the EU and all that we are doing in the conduct of the negotiations, particularly as made clear by the Prime Minister’s remarks, will reassure all just how serious we are about these matters.

We have proposed a bold new approach to security co-operation with the EU, including a comprehensive framework for future security, law enforcement and criminal justice co-operation, and for future co-operation on foreign and security policy. I say to the noble Lord, Lord Wallace of Saltaire, that, as we leave the EU, of course our consultation on the CFSP will change, as it inevitably has to do. With considerable justification, many of your Lordships—the noble Lords, Lord Wallace of Saltaire, Lord Judd, Lord Hannay and Lord Campbell, my noble friend Lord Hailsham and the noble Baroness, Lady Hayter—were anxious to get some idea of what the post-Brexit position would look like in relation to these issues of critical importance.

I say by way of preface to all of this that, as a Government Whip for the Foreign and Commonwealth Office and for Defence, I have regularly found myself at this Dispatch Box outlining positions on foreign affairs and defence which are UK derived. They are positions that we have reached by ourselves and as a consequence of our NATO membership—which is very important, as acknowledged by the noble Lord, Lord Campbell—as part of our P5 position on the United Nations Security Council or as a consequence of discussions with our global allies. We do that now on our own account. I make that point to explain that, while we value the relationship that we have had with the various agencies in the EU, there is another territory out there that is also extremely important to the future security not just of this country and the EU but of our global partners.

[Lord Browne of Ladyton (Lab)]

It is crucial that we understand that the Prime Minister proposed in Munich a treaty for what was referred to as “internal security”, which is internal security within the European Union. It would be a treaty which had plenty of detail and clearly reflected co-operation with the existing institutions of the European Union—that is where we get into discussion about the European Court of Justice. But for external security, there would be co-operation. Why this difference? Why a treaty for internal security, and why just co-operation on global security, with a clear indication that we would leave the European Union’s foreign policy on the date of Brexit?

[Baroness Goldie]

There seems to be an inescapable distinction between these two positions. In relation to the internal security of the EU, there can be a meaningful discussion about what we can do to assist and support that, but when it comes to external security and just as I have outlined, there is a multiplicity of other positions, agencies, alliances, relationships and partnerships which govern what we do. I can see that what would be appropriate to deal with one scenario might not be appropriate to deal with another, but I say that without prejudice to whatever the negotiations are currently covering. I am not privy to the detail of the negotiations, but there seems already to be evidence that constructive dialogue is taking place. From what we have heard from the Prime Minister and her absolute and unqualified commitment to security and to trying to embark on as close and harmonious a relationship as we can get with the EU post Brexit, there is no doubt about her conviction on these matters.

We have to work as closely as we can with the EU post Brexit. The Prime Minister has made that crystal clear and is right to do so. The UK is not without influence. As the noble Baroness, Lady Deech, noted, it enjoys a status in relation to these matters—I refer again to our P5 position on the United Nations Security Council. One area in which people have been sceptical is in their asking why the UK should be treated differently from other third-country partners as we try to negotiate new arrangements with the EU. Taskforce 50 noted in its presentation on external security that the EU would lose one of its two permanent members of the Security Council when the UK leaves. Taskforce 50 recognises that this could merit a specific dialogue and consultation mechanism with the UK.

Perhaps I may return to a very legitimate question posed by a number of your Lordships: what is all this going to look like and is there any sort of shape to it?

[Lord Davies of Stamford (Lab)]

The Minister has just mentioned the matter of our withdrawing from the permanent membership of the United Nations Security Council and that our withdrawing from the European Union will mean that there will be only one EU permanent member. Will that not be a wonderful day for France, which will be able to speak in the councils of the United Nations as representing the EU as a whole, and will no doubt do so?

[Baroness Goldie]

I am sorry, I think that I may have been misunderstood. I did not talk about the United Kingdom withdrawing from being a P5 member of the United Nations Security Council. I said that when we withdraw from the EU, the EU will be left with only one member, which is France. The position of the UK in that respect is powerful and influential, and I am pointing out that Taskforce 50 thought that it could certainly merit a specific dialogue and consultation mechanism with the UK.

It is pretty clear, particularly when there are many in this Chamber much more knowledgeable than I am about these important and technical matters, that to underpin our future co-operation we will seek regular institutional engagements, including specific arrangements on secondments and information sharing—that would seem to be at the heart of constructing any relationship. The nature of the threats that we face mean that we should seek a framework that could be scaled up in times of crisis. One needs a relationship which can be tested against need if situations arise when the partnership, agreement or whatever it is to be has to swing into action.

The United Kingdom intelligence community already works closely with other members of the EU. The heads of the German BND, the French DGSE and the UK secret intelligence services issued a joint statement at the Munich security conference committing to close co-operation and stating that cross-border information sharing must be taken forward on themes such as international terrorism, illegal migration and proliferation of cyberattacks after the UK leaves the EU. We want to do all that. I am trying to explain to your Lordships that there is straw with which to make my bricks. I am not just clutching it out of the air; I am trying to indicate that there are substantive matters that can be the foundation for something very firm and enduring.

Perhaps I may try to deal with one or two particular points raised. The noble and gallant Lord, Lord Stirrup, raised the important matter of sanctions. We have just passed a sanctions Bill which will provide the UK with the powers to implement our own independent sanctions regime, but we would delay these powers coming into force if we could agree arrangements with the EU concerning sanctions co-operation during the implementation period. On sanctions, as with co-operation on foreign and security policy more generally, we seek to consult and develop a co-ordinated approach before decisions are made. To enable such co-operation, we will need consultation mechanisms; for example, regular sanctions dialogues. I was very struck by the contribution from the noble Earl, Lord Listowel, who raised real and poignant issues. Nobody would disagree with that, which underlines why we need close co-operation on these vital issues.

On Amendments 164 and 166 tabled by the noble Lord, Lord Adonis, the Political and Security Committee and the Foreign Affairs Council are of course bodies of the EU. They are attended by member states and are intended for the development of the EU’s policy.

We are leaving the European Union and are not seeking to participate in these meetings on the same basis as EU members. The noble Lord, Lord Kerr of Kinlochard, identified these problems. But, given our historic ties and shared values, we are likely to continue sharing the same goals and we will therefore want to co-operate closely on a common foreign policy. The noble Lord, Lord Kerr, said very cogently that we are not talking about a zero-sum game. It was racy language for the noble Lord, Lord Kerr, but I totally agree with him. We are not talking about a zero-sum game: well established and good relationships already exist which will not just evaporate. We will seek to bind these and tie them in to our new post-Brexit relationship. We want to establish an enhanced partnership with the EU that reflects the unique position of the UK. This will include close consultation in a variety of fora. Attending the Political and Security Committee and the Foreign Affairs Council, however, is not the only means by which we can achieve that.

Amendment 165 was also tabled by the noble Lord, Lord Adonis. This amendment seeks to bind the UK—“bind” is the important word—to follow the EU’s foreign policy objectives regardless of our own views. This would limit the UK’s ability to respond independently to developments in the world post Brexit, and such a restriction would be profoundly undesirable. Of course, on many foreign policy issues the UK and EU will continue to share the same goals and will want to co-operate closely, whether that is by continuing to support the Middle East peace process or by tackling the threat of piracy off the Horn of Africa—but, again, I do not think we need texts and primary legislation to underline what are already our shared values and beliefs.

Amendment 185 was also tabled by the noble Lord, Lord Adonis, and refers to the EU Intelligence Analysis Centre. I reiterate the Government’s unconditional commitment to European security. In the exit negotiations we will work closely to ensure that the UK and EU continue to co-operate closely, including through the sharing of information, to safeguard our shared values and to combat common threats, including threats of terrorism, organised criminal groups and hostile state actors. The precise modalities and arrangements to enable this partnership will be decided in the negotiations. I do not expect this to satisfy the noble Lords, Lord Adonis and Lord Wallace of Saltaire, but I hope that it will provide them with sufficient reassurance of the Government’s commitment to continue close co-operation with the EU and its agencies and that, in these circumstances, they will see fit not to press their amendments.

I will say in conclusion—I reiterate it because the noble Lord, Lord Hannay, raised the point—that the Government have been clear that the UK remains unconditionally committed to European security. In the exit negotiations we will work to ensure that the UK and EU continue to co-operate closely to safeguard our shared values and to combat common threats, including terrorism. A partnership where we can build on the existing structures and arrangements—because it is not a zero-sum game—to improve processes will enable us to go further to respond to the reality of these. I hope that this will provide your Lordships with sufficient reassurance of the Government’s commitment to continue close co-operation with the EU and its agencies.

[Lord Kerr of Kinlochard]

Before the Minister sits down, perhaps I may say to her that she will have responded to this debate admirably if she can think of a way of conveying to the Foreign Secretary—it might be relatively easy since he is here—that there are at least some in this House who believe that the right way of advancing the dossier of co-operation with the EU that we have left on a common foreign and security policy would be for us to put forward a draft treaty now—not waiting for the other side, not waiting for the Commission, the expertise of which is not on foreign policy, but putting forward a treaty drafted by the Foreign Secretary, with all his detailed, forensic skills.

--- Later in debate ---

[Baroness Goldie]

Is the noble Lord, Lord Liddle, making an intervention? I want to be clear what the order of speaking is.

[Lord Liddle]

I was responding to my noble friend’s point.

[Baroness Goldie]

I think your noble friend thought that he had been usurped.

[Lord Adonis]

My noble friend’s intervention is excellent and gives the Minister more to respond to. I know he is short of points to deal with at the end of this debate.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I do not like to start by contradicting my noble friend, but I have not heard the Government ask that we leave the Eurovision Song Contest, so there is one thing they are content with despite the name containing “Euro”.

This amendment is important not simply for the amount of money being spoken about but what it is used for. I think I heard the noble Lord, Lord Callanan, say from a sedentary position “It is our money”, somewhat missing the point of the amendment, which is about having regard to the principles of social and economic cohesion which we signed up to, welcomed and have benefited from. In fact, it is particularly important given the drive to equality whether in this country, Europe or both. The noble Lord, Lord Wallace of Saltaire, reminded us that England has the deepest regional disparities of any country in Europe. That is why it is not just the money, although I will come on to that, but what we want to use it for and how, and the need for a long-term aspect, as my noble friend Lord Adonis said.

This article enables funds to be used in a way that particularly led to our disadvantaged regions benefiting enormously from the Cohesion Fund, the European Regional Development Fund and the European Social Fund. In the period 2014 to 2020, they will have brought £12 billion our way, and it is not simply the money but the way it is aimed to reduce disparities and concentrates on what the EU calls less developed, transition or other regions. These are significant amounts, but it is the aims and objective that are important. They help create jobs, with start-up businesses, and with research and development. They have had a particular impact in Cornwall, west Wales and the valleys—some of us have to declare an interest there. We have heard of particular cases which have already benefited from this sort of money, including through the environmental impact of some of them, as mentioned by my noble friend Lady Young.

The important thing now is to look forward. As we have heard, the Government, in preparing for our departure from the EU, committed themselves to what they call a,

“UK Shared Prosperity Fund … using money returning to the UK from European structural fund”—

if it has not already gone to the NHS or anywhere else. The idea, as laid out in the Conservative manifesto, is to use that same amount of money. The Exchequer Secretary, Robert Jenrick, promised,

“to consult widely ahead of its launch”.

However, he did not commit to matching ERDF funding after Brexit, so the consultation would presumably be about its use. We have been told:

“The design … is currently being considered, including its funding arrangements, and further details will be set out in due course”.


Although he is not replying to this amendment, the Minister often reminds me that in a year and a month today, we are due to leave. That is not much time for getting these details, even in draft form, let alone for consultation or beginning to think about how people might use these funds. There is undoubtedly some urgency.

I hope that we could maybe have that detail from the noble Baroness as well as the basis on which the Government are planning to allocate the money. Will it be, as we heard suggested, under the Barnett formula, which is on a per head rather than per need basis? Will it be long term? What will the other attributes be? Will it be whoever wants matching funding or something else? Will it be concentrated in the same sort of areas as before? These are important questions, as I am sure she appreciates. It is a matter of funding, otherwise we might lose £8.4 billion from the sort of work that has been done to reduce inequalities. We need to know not just the amount but that it will be targeted towards achieving the same sort of ends as Article 174.

[Baroness Goldie (Con)]

My Lords, first, I thank your Lordships for a genuinely interesting and very helpful and useful debate. I particularly thank the noble Lords, Lord Foulkes, Lord Judd and Lord Wigley, for the amendment to which they put their names. I again thank the noble Lord, Lord Adonis, of course for his kind remarks, although I fear he will dismiss me as a huge disappointment when he listens to my observations. I will try to deal with the points raised, because the amendment raises a very important issue, around which numerous very legitimate questions arise. I do not dispute that for one moment. Although I will not be able to answer every point raised in detail, I will do my best to try and give a helpful—I hope—indication of the direction of travel.

I know the amendment is well intentioned, but I shall endeavour to argue that, with the existing proposals which the Government have put in place, it is unnecessary. I will explain that in greater detail and expand on that proposition. The Government have an industrial strategy that covers many of the areas of cohesion policy and, as numerous noble Lords mentioned, are developing a new UK shared prosperity fund, which will replace EU structural funds. Furthermore, existing legal powers in place in this country in our domestic law already cover some of these issues, and I shall expand upon that.

To reassure the noble Lords, Lord Foulkes, Lord Wallace of Saltaire and Lord Judd, who all referred to this, I say that the Government have a manifesto commitment to replace cohesion policy funding with a new UK shared prosperity fund. It will reduce inequalities and raise productivity across our four nations, and we shall engage extensively with the devolved Administrations on that fund later this year.

[Lord Foulkes of Cumnock]

The Minister said that the Government would consult about the shared prosperity fund later this year. We are already 21 months past the referendum and, as my noble friend Lady Hayter said, have just over a year to go. When are we going to get the proposals? When are the people hoping to benefit from this actually going to see it? When is the consultation going to start? I hope the Minister will not say “shortly” but will give us some clear indication because, as my noble friend said, people are desperate to see it and to know the details.

[Baroness Goldie]

I shall come on to that and endeavour to address the points that the noble Lord has raised. I was merely going to observe to the noble Lord, Lord Wallace of Saltaire, who was concerned about what he saw as a sort of Home Counties-centric Administration, that, looking at this Front Bench, there is not much Home Counties representation here, with the honourable exception of the bicycling baronet. Across this Front Bench there is a genuine understanding of all parts of the UK—including, to be fair, the Home Counties—and that is very important. The Government are very anxious to reflect the pan-UK need and relevance in conceiving and constructing policy to address the issues that are the subject of the amendment.

As I understand it, the noble Lord’s amendment seeks to transfer the provisions of Article 174 of the Lisbon treaty, which provides the legal basis for EU cohesion policy, into UK law. Indeed, that policy is one of the key policies of the EU, as the noble Lords, Lord Foulkes and Lord Wigley, recognised. It recognises the importance of reducing inequalities between communities and reducing disparities across the EU. At the same time, leaving the EU allows the UK to begin to take its own decisions on the future of regional development. Arguably, perhaps, it will be better placed to ensure that those are better tailored to UK priorities rather than the priorities of the EU.

The noble Earl, Lord Listowel, raised important points, to which I listened with care. I think they are more a matter for the Ministry of Housing, Communities and Local Government and the revenue support grant, but I am informed that the local government financial settlement has allowed additional flexibility in meeting costs for adult social care, which I understand has been widely welcomed.

[The Earl of Listowel]

I thank the Minister for saying what she has said. That is true about adult social care, but we need the same arrangement for children’s services. That is my concern; I do not think it has come in. If she could say during the passage of the Bill that that will indeed be made available for children’s services, that would go a long way towards assuaging my concerns in this area.

[Baroness Goldie]

I assure the noble Earl that I am listening to what he says.

The noble Lord, Lord Adonis, specifically raised the issue, which I will deal with here, of UK access to the European Investment Bank. The UK wishes to explore options for maintaining a relationship with the EIB in the second phase of negotiations. To avoid doubt, I say that the UK will leave the EIB when it ceases to be an EU member state, but that is all I am able to tell him at the moment. I think that will be an important feature of the second phase of negotiations. He rightly identified that the bank has been an important source of investment finance.

The noble Lord, Lord Foulkes, rightly wants to know the shape of all this and what the Government are actually doing. If your Lordships will permit me, I shall try to outline the situation. The Government have already set out their long-term strategy in many areas covered by the noble Lord’s amendment. In November, my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy launched the Government’s industrial strategy, which sets out the long-term plan to boost the productivity and earning power of the UK. It sets out how we will help businesses to create better, higher-paying jobs in every part of the UK with investment in the skills, industries and infrastructure of the future.

The strategy will boost productivity and earning power across the country by focusing on five foundations of productivity. It is worth repeating them: ideas, people, infrastructure—in that connection, let me say that I listened with interest to what the noble Lord, Lord Adonis, said about the value of long-term strategic thinking; he made a number of important points, which the Government will want to bear in mind—business environment, and places.

All these foundations have links to cohesion policy, but it is perhaps that final foundation which is most relevant: places. This recognises that every region of the UK has a role to play in boosting the national economy, including North Yorkshire, to which the noble Lord, Lord Wallace of Saltaire, referred. The UK has a rich heritage, with world-leading businesses located around our country. Yet—and this is disappointing —many areas are not fulfilling their potential, and that despite receiving cohesion policy funding. The UK still has greater disparities in regional productivity than other European countries.

The challenges and opportunities facing us are shared across the union. We recognise that the devolved Administrations are acting to identify and deliver their own priorities, and we respect the devolution settlement. But devolution has never meant that the Westminster Government should stop delivering for people, businesses and places in the devolved nations.

As part of the industrial strategy, we will agree local industrial strategies that build on local strengths and deliver economic opportunities. We want to work with all relevant bodies in England and partners in the devolved nations to consider how local strategies can deliver for places in Scotland, Wales, Northern Ireland and, of course, England. I hope that that to some extent reassures the noble Baroness, Lady Hayter, who asked how all this would flow out across the UK. We are also introducing a new £115 million strength in places fund to build excellence in research, development and innovation across the UK.

We are already seeing the opportunities and benefits of a focus on places. In the year that we launched the northern powerhouse project, we saw productivity in the north rise at a faster rate than London and the UK average. We have also seen further exciting developments outside England. Our city deal programme demonstrates how the UK Government can work hand in hand with our partners in the devolved Administration Governments and local authorities to deliver co-ordinated, locally led interventions that have a real impact on local economies. As confirmed by the Chancellor in the Budget, we are currently working with regional representatives from Stirling and Clackmannanshire, the Tay cities, Belfast, north Wales and the border lands between Scotland and England to negotiate new city deals.

Meanwhile, under the people foundation, we also want to tackle regional disparities in education and skill levels so that we build on local strengths and deliver opportunities for people wherever they live. The industrial strategy will do this through a major programme of reform to ensure that our technical education system can stand alongside our world-class higher education system and rival the best in the world. There will also be investment of an additional £406 million in maths, digital and technical education, helping to address the shortage of STEM skills.

The industrial strategy recognises the importance of ensuring that all areas in all parts of the United Kingdom can meet their full potential. The strategy recognises that every region of the UK has a role to play in boosting the national economy, but the noble Lord’s amendment refers to a number of specific types of region in particular, including regions which suffer from what he described as demographic handicaps, and rural areas. These are very important matters. In responding to the challenges of demographic handicaps, the industrial strategy recognises these. The ageing society grant challenge aims to bring an innovation, productivity and growth lens to the challenges and opportunities of our ageing population.

[Lord Foulkes of Cumnock]

With respect, these are fine words beautifully delivered, but the word “guarantee”, which my noble friend Lord Judd mentioned, has not appeared so far. Will all those projects, three or four of which I described, and which reasonably expected funding right up to 2020, be guaranteed funding under the strategy described by the noble Baroness?

[Baroness Goldie]

The noble Lord would not expect me to be able to deliver specific information on figures. That would be unreasonable, but he knows that the Government fought an election on a manifesto commitment to replace the cohesion policy. I am outlining the structures on which the Government propose to base replacing that cohesion policy. I am trying to outline how that strategy has been constructed to have regard to the whole of the United Kingdom and to deal with the issues about which the noble Lord has expressed concern in his amendment.

[Lord Judd]

The noble Baroness says it is unreasonable to expect figures, and there is a certain amount of sympathy with her on that. However, is she really telling us that she cannot guarantee that any projects in train, those planned on the basis of agreements, or any undertakings will be fulfilled?

[Baroness Goldie]

I heard what the noble Lord said and I am coming to that; I hope what I am about to say will reassure him. I am explaining what the new proposals and structures are in order to give some context to my response to what is a very important amendment. The amendment also refers to rural areas. The Committee will be aware that my noble friend Lord Gardiner is the Government’s rural ambassador. He is working to ensure that government policy is addressing the challenges faced by rural areas. The House will recall that the noble Lord, Lord Cameron of Dillington, carried out a review in 2015 on the effectiveness of the Government’s rural-proofing policy, to which the Government responded. They have taken action based on his recommendations. That now includes practical guidance published by Defra to ensure that government departments make rural issues a routine policy consideration.

Looking beyond England, the devolved Administrations obviously have responsibility for rural policy, and I know that Scottish and Welsh Ministers will be thinking about how to ensure that their own policies and initiatives reflect the needs of rural communities. The Government’s industrial strategy and other existing policy initiatives therefore already cover the areas covered by the EU cohesion policy, which the noble Lord’s amendment seeks to preserve.

[Lord Wigley]

One of the core principles of the EU cohesion funds is the element of additionality. In previous UK regional policies, before we went into the EU structural funds from 2000 on, there was not that element of additionality, and initially the UK Government refused to recognise the need for additionality for European funding. Can the Minister therefore give an undertaking that the funds that will replace the money now coming from Europe will be additional, over and above existing regional policy?

[Baroness Goldie]

What I can say to the noble Lord is that we are in new territory. We are leaving the EU and having to construct successor policies and funding streams to deal with what we were accustomed to as a member of the EU. I have tried to explain what the principal strategy underpinning that would be, but as the noble Lord is aware, there are other funding sources. There is the United Kingdom shared prosperity fund, which will be a very important source of the funding streams to which I think he alludes. Before I come on to that, I shall deal with matters raised by the noble Lord, Lord Judd, because they are important.

--- Later in debate ---

[Lord Wallace of Saltaire]

Can I ask an additional question? Interreg is very much about cross-border schemes and co-operations. As we all now understand, there is one very important cross-border relationship, which we have somehow to maintain, between the United Kingdom and Ireland. Will the Government’s devolution of these funds back to national level include a specific Irish co-operation dimension?

[Baroness Goldie]

It will in as much as, post Brexit, the United Kingdom will work within each of its component parts, which obviously includes Northern Ireland. I anticipate that discussions would principally rest in that respect on the subject of the question that the noble Lord has raised.

[Lord Wallace of Saltaire]

Not necessarily with southern Ireland?

[Baroness Goldie]

I think that, in the first instance, as we look at how we will fund different parts of the United Kingdom, the primary discussions will be with those parts of the United Kingdom—they would have to be. That is without prejudice to the Executive in Northern Ireland, who I hope will be established. We will want to pay proper respect to that Executive when they are constituted and consider what they want to do. I would be very surprised if there were not a desire to have constructive discussions with the Republic of Ireland in the interests of trying to determine how best to address these needs, if there is a relationship. The Republic of Ireland, at that point, will be an international country separate from the United Kingdom, as it will be in the EU and the United Kingdom will not. We have to respect these new relationships and new boundaries.

[Lord Wigley]

This will be the last time I trouble the noble Baroness. On the Interreg question, one area that has benefited greatly has been the western Wales coast, particularly the seaports with their connections with southern Ireland. Given the pressure that there will be on Holyhead and other ports arising from Irish trade coming through the UK, surely this is an area where a version of Interreg has a very significant role to play. Can the Minister keep that in mind as the thinking on these issues develops?

[Baroness Goldie]

I thank the noble Lord; I think he raised an important point. The Government, as my noble and learned friend Lord Keen said, are very keen to listen. One benefit of debates like this is that points arise which merit careful consideration, so I thank him for raising that point.

The amendment strayed on to a more technical area. It would create provision for a Minister of the Crown to make provisions for programmes to implement cohesion policy domestically. I argue, however, that these powers are unnecessary. For example, under Section 126 of the Housing Grants, Construction and Regeneration Act 1996, the Government already possess power to provide financial assistance for the areas currently supported by EU cohesion policy and European structural funds. It allows the Secretary of State to give financial assistance in activities that contribute to the regeneration or development of an area, which include contributing to or encouraging economic development, providing employment for local people and providing or improving training services for local people. These activities cover much of the support provided under current European structural funds.

I have tried to set out why I think the noble Lord’s amendment is not required. The Government already have an industrial strategy which covers many of the areas of the amendment. There are also existing powers in place that make the amendment unnecessary. I have endeavoured to outline our plans for new funding to replace cohesion policy programmes—I appreciate that it has not perhaps been with the detail that the noble Lord might be seeking, but I hope I can reassure him that there is a plan to provide successor mechanisms to the European funding sources. I hope I have tackled his concerns and I urge him to withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, this debate has ranged rather more widely than I had expected, and the noble Baroness has given us a very comprehensive answer, for which I am grateful. I was particularly intrigued by the reference by the noble Lord, Lord Wallace of Saltaire, to George Thomson, who I remember very well. I see that the noble Lord, Lord Steel, is here; he will remember George Thomson, who represented Dundee before he became a Commissioner and was responsible for this major development within the European Community that we are talking about today.

He once told me that he was very excited at being selected as the candidate for the Member of Parliament for Dundee. He was employed by DC Thomson at the time and went to tell his employer that he had been selected as the prospective parliamentary candidate. He thought that his employer would be delighted. Instead, his employer said, “You realise if you’d stayed with us you could have gone on to be the editor of the Beano”. So instead of being editor of the Beano, he went on, thankfully, to do a very good job in the European Community.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I start by affirming that we on these Benches—or what is left of us—support the thrust of Amendments 26 and 28, which deal with significant issues raised in Clause 4. As the Constitution Committee avers, as drafted,

“Clause 4 will … domesticate all directly effective treaty provisions, whether or not they will be capable of meaningful application”.


What is the point of such an outcome? What is the point of creating a situation under which in the case of domesticated provisions which have,

“no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions”?

More substantively, what is the Government’s response to the damning conclusions of the committee in paragraphs 37 and 38 of its report? These describe the implications of the Bill for reciprocal rights as “uncertain” and state:

“The full impact of Brexit on reciprocal rights will not be known until the UK’s future relationship with the EU is determined”.


What is the Government’s position on this issue?

Given the concerns of the committee, what, if any, estimate have the Government made of the consequences of the Bill’s impact in this area, and what is their response to the committee’s observation that:

“The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill”?


The committee concludes its observations on this part of the Bill by stating starkly:

“The ambiguities need to be resolved”.


Does the Minister agree that there are ambiguities? If so, how and when will the Government address the problem?

[Baroness Goldie]

My Lords, I rise to respond to these amendments with one very clear thought in my mind: I wish my noble and learned friend Lord Keen were standing at this Dispatch Box. We are dealing with issues that are clearly perplexing much greater intellects than mine, but I shall do my best. These amendments, tabled by the noble Lords, Lord Krebs and Lord Pannick, concern the operation of Clause 4 and I am grateful for the opportunity to further explain and discuss the Bill’s approach to directly effective provisions arising from EU directives, one of the issues raised by these amendments.

As the Committee is aware, one part of EU law that the Bill is not converting into our domestic law is EU directives. The reason for this is clear: as they are not a part of our domestic law now, they should not be after we leave the EU. Indeed, my noble and learned friend Lord Mackay of Clashfern made this point very succinctly in the earlier debate. Instead, the Bill is saving the domestic measures that implement the directives under Clause 2, so it is not necessary to convert the directives themselves. My noble and learned friend Lord Keen clarified that in the earlier debate. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease and it makes no sense to retain the direct effect of this category of law within our domestic law.

However, the Bill recognises one important exception to this approach: where, in a case decided or commenced before exit day, a domestic or European court has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will provide for that right, power, et cetera, to continue to have effect in domestic law.

The debate seemed to centre around the nub of phrasing in Clause 4(2)(b). In the earlier debate the noble Baroness, Lady Ludford, raised the interesting question of what “kind” means in the phrase “of a kind”. That question was repeated by the noble Lord, Lord Pannick. In Clause 4(2)(b) “of a kind” is to be read in the context of a right recognised in a decided case. Rights recognised in particular cases are often described in specific terms particular to that case and to the individual who has brought the action. The phrase “of a kind” is designed to ensure that comparable rights particular to other cases and individuals are also retained by Clause 4 but in respect only of decisions pertaining to that same directive. It is the opinion of the Government that this strikes the right balance, ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty in our statute book about what will be retained in UK law at the point of exit. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, encapsulated that point very neatly.

The amendment of the noble Lord, Lord Krebs, which is similar to the one tabled by Lord Pannick, would instead remove this balance. These amendments could have the effect that pre-exit directives would give rise to a directly effective right that has not previously been identified, for an unspecified period after our exit. Such rights would therefore become part of our law. The Government have always conscientiously implemented EU legislation, in accordance with our obligations as a member state, but once we are no longer in the EU, we should have no enduring obligations in relation to the implementation of EU directives. To accept these amendments would be to undermine the certainty that this Bill seeks to achieve. Businesses and individuals will be placed in the difficult position of not knowing when their rights might change, and our courts could face practical difficulties.

The amendment of the noble Lord, Lord Krebs, goes even further. It would place Ministers under a continuing duty and obligation to make regulations where there has been incorrect implementation of any of the EU law that is retained through Clause 4. I would argue that this provision is harmful for several reasons, and it would not be consistent with the principle that we are separating our domestic statute book from that of the EU.

First, binding Ministers to legislate to give effect to any incomplete or incorrect directly effective EU law retained through Clause 4 would effectively require the UK to act on obligations of implementation relative to the EU framework that it was no longer under—a situation that would be simply inappropriate following exit day. Such an approach would impact on the certainty that the Bill aims to provide in our domestic statute book. By potentially allowing developments in the EU to continue to flow into UK law past the point of exit day, the clear snapshot—I know some Members do not care for the term but I think it is the best term we can come up with—taken by the Bill will be distorted, giving rise to confusion about what our law actually is and where it comes from.

[Lord Krebs]

The Minister has just said that it would be inappropriate to rectify omissions or incorrect translations. But if the overall aim of the Bill is to move what is currently governed by the EU into UK law and, as it happens, maybe by accident or some other reason, we have made a mistake in the past, surely it would be right within the overall aims of the Bill to rectify errors in the translation, rather than to say, “We made a mistake in the past so we will persist with the mistake”. I just do not understand the logic of not wanting to rectify mistakes.

[Baroness Ludford (LD)]

Can I repeat something that I have raised in the Chamber before and about which I had correspondence with a Minister? The European Investigation Order, one of the directives cited by the Prime Minister in her Munich speech that she wants us to stay part of, was transposed at the end of last year into UK law, but incorrectly. It is like a European arrest warrant, but for evidence. Instead of saying that it could be opposed on the grounds that it breaches the European Charter of Fundamental Rights, which is what the directive says—I know, because I was one of the MEPs who battled to get that in—it says that it could be refused if it breaches the European Convention on Human Rights, which is not an EU measure. That has therefore not been transposed correctly. What is the status after exit day? Can someone challenge an EIO on the grounds that it breaches the charter, or only on the grounds that it breaches the convention?

[Baroness Goldie]

In response to the noble Lord, Lord Krebs, and the noble Baroness, Lady Ludford, we must go back to the fundamental principle of this Bill, which is that we have to have a cut-off point and beyond that point, law-making will revert to the United Kingdom. If there are corrections or incompletions or other matters that we are required to address, we can do that through domestic legislation. That is what any Government of any complexion would want to do. The matters referred to by the noble Lord, Lord Krebs, might take years to emerge. Therefore, it would be essential for Governments to pay attention to whatever was emerging, some of which might be de minimis. We do not know, but my argument is that this would confuse and cause difficulty about understanding what our law is and certainly where it is coming from.

I was going on to say in relation to the amendment of the noble Lord, Lord Krebs, that there is a lack of clarity regarding when exactly Ministers would have the duty to make such regulations under this amendment. Is it intended that all the instruments that currently give effect to EU directives should be reviewed so that such regulations could be repaired? Such a review would have considerable resource implications for both the Government and Parliament, and that should not be underestimated. Furthermore, it would be unnecessary: as I have already mentioned, while the UK has been a member of the EU, we have sought fully to meet our obligations and give effect to EU law in accordance with them. In the case of implementing directives, we have conscientiously discharged our obligations. To require potentially a proactive review exercise, as the noble Lord’s amendment could require, is, in my submission, pointless.

I have tried to address the concerns and issues raised; I believe the effect of these amendments would be profound, undermining the Government’s clear and coherent position on retained EU law. I hope I have explained in sufficient detail why the current design of Clause 4 is right and appropriate, and I would therefore ask both noble Lords not to press their amendments.

[Lord Pannick]

I thank all those who have spoken in this debate, and in particular the noble Lord, Lord Krebs, whose amendment I support. I said in opening this debate that I, and the Constitution Committee, found Clause 4(2)(b) very difficult to understand. I am reassured that even the noble Lord, Lord Carlile, with his experience dating back to 1361, with the Justices of the Peace Act, finds it puzzling.

The position is this: there is no dispute—it is well established in the case law of the Court of Justice—that an unimplemented directive does have direct effect and confers individual rights in national courts where it is clear and precise and unconditional. I understood the Minister to say that Clause 4(2)(b) is intended to exclude reliance on such a directive after exit day unless there has been a court case before exit day, either in Luxembourg or in this country on that specific directive. I find that a very odd approach—it certainly is not consistent with the language of Clause 4(2)(b) of a kind. It does not suggest that you are concerned with a court case on that specific directive.

--- Later in debate ---

[Lord Beecham]

My Lords, at this late hour, I am more than content to rely on the amendment moved by the noble Lord, Lord Pannick, and the questions he has raised.

[Baroness Goldie]

My Lords, this will be brief, because my soulmate and prop has deserted me. With this amendment, the noble Lord, Lord Pannick, has raised what he sees as the potential conflict between the EU law retained under Clause 4 and the domestic legislation preserved under Clause 2. His amendment seeks to ensure that rights, powers, obligations et cetera provided for in EU directives which have been implemented into EU-derived domestic law—and therefore are already subject to an enactment—will not need to have their directly effective provisions domesticated through Clause 4.

The Government consider this amendment unnecessary. To the extent that there is any potential overlap between Clause 4 and Clause 2, this is no different from the situation at present in relation to EU law and how we see it given effect in UK law. A judgment may establish direct effect, and domestic legislation to implement that finding may follow. But this does not cause any practical difficulties now—indeed one process complements the other—so we simply do not agree that there will be practical difficulties under this Bill as phrased.

I am of course grateful for the suggestion made by the noble Lord, Lord Pannick, but the Bill’s position is clear and consistent with existing practice, and his amendment is unnecessary. In these circumstances, I ask him to withdraw it.

[Lord Beith]

The noble Baroness is bringing out an explanation which the committee has already considered and was not satisfied by. As the noble Lord, Lord Pannick, explained, there is a remaining ambiguity. Can I suggest to her that she composes a note to her very good friend, the noble and learned Lord, Lord Keen of Elie, saying she was given a very difficult time over this and that the Government really have to look at it again? If she is agreeable to doing that, we will not spend much time making a fuss about it.

[Baroness Goldie]

I thank the noble Lord very much indeed. I am sure my noble and learned friend Lord Keen does not even need the note. He will know that I have had a very difficult time.

[Lord Pannick]

I am very grateful to the noble Baroness. The problem is, as I sought to explain, that under existing law we know which takes priority: it is EU law. The problem under the Bill is that the EU obligation, which is retained EU law, and the existing domestic implementation, which is also retained EU law, because Clause 2 says so, are in conflict, and the Bill does not provide any order of priority between them. I had assumed that the noble and learned Lord, Lord Keen, had gone off because he wants to sit in the Library and think about the answer to this problem. I very much hope that before Report he will come up with the answer and that this can be resolved. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Goldsmith (Lab)]

My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.

Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk—although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.

Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:

“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.


The middle part of that, on what the significance is of,

“rulings on cases that have been referred … before exit day”,

is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.

It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.

I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.

[Baroness Goldie (Con)]

My Lords, this may have been a short debate but it concerns a significant issue, and I am grateful to the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Goldsmith, for their contributions. I am aware that a key issue of interest in this Committee is how pending cases before the European courts will be resolved, and I hope that I can respond relatively briefly to these amendments in the name of the noble Lord, Lord Bassam.

As was acknowledged in their contributions, the Government have been clear regarding their approach to cases which have been referred to the European courts before exit day and we have made good progress in achieving this outcome in our negotiations with the EU. As such, I applaud the similar concern expressed by the noble Lord that there should be legal certainty in this area. However, as I have said previously, and indeed as my ministerial colleagues have also said, the purpose of this Bill is to provide a functioning statute book on the day we leave the EU, irrespective of the result of the negotiations on any final agreement with the EU.

The Government have been clear throughout the passage of the Bill through this House and the other place that it is not intended in any way to prejudge the negotiations or to predict an agreement between the UK and the EU on their future relationship. For that reason, I would submit that the Bill is not a suitable vehicle for such amendments to take effect. Future legislation will be needed to implement the withdrawal agreement, including the treatment of cases that are pending before the European Court of Justice. That legislation will need to be informed by the precise terms of the agreement. The Government have already committed to introducing a withdrawal agreement and an implementation Bill, but let me try to clarify a couple of the specific points raised.

I think it was the noble and learned Lord, Lord Goldsmith, who in effect asked about the status of a case that has been referred to the European court before exit, but does not proceed to a judgment until after then. The intention is that a case which starts and has been referred to that court before exit would proceed to a judgment, which our courts would be bound by. That is the intention but—let me make this clear—this is pending an agreement with the EU about these issues. In relation to the request of the noble Lord, Lord Bassam, for a list my understanding is that, at the moment, cases registered at the Court of Justice of the European Union are made available online, so after our withdrawal we will have certainty as to how many pending UK cases have been referred to the court.

I apologise to the noble Lord and the noble and learned Lord if I have not specifically addressed some of their concerns. The difficulty, as was made clear in December, is that there is a clear statement of intention made in good faith by the Government, surrounding heads of agreement that have been achieved between the United Kingdom and the EU. But we need to continue with our negotiations to fine tune that, and hopefully then reduce it all to the final agreement. But I cannot pre-empt what may be in the final agreement and I hope that, in these circumstances, the noble Lord, Lord Bassam, will feel able to withdraw his amendment.

[Lord Goldsmith]

I apologise for not having properly identified the noble Baroness, Lady Goldie, as the Minister responding to this debate. I wonder whether she will allow me to just press one question. She has very helpfully identified the position in relation to pending cases that have started but for which rulings have not been given at the date of exit. These amendments include an additional category of cases, as I understand it, such as cases where the cause of action has arisen prior to exit: for example, where EU law is in place and there is an issue of EU law that a litigant wants to raise but they have not actually started the case at the moment we leave; or where the case has started but a reference has not been made at that stage, because the court does not make a reference until it comes to a particular point in the proceedings. In line with her helpful answer in relation to the category of cases that are pending in the CJEU at the date of exit, does she think the same principle ought to apply, subject to agreement, to cases where the cause of action has arisen before exit or the case has started but not got any further than that? Could she help on that point?

[Baroness Goldie]

I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.

[Lord Bassam of Brighton]

I am grateful to the Minister for her response. She partly satisfied my concern, but not wholly. I do not really think it is satisfactory that the cases that will be floating around in the ether will be left with the degree of uncertainty that she has suggested may be the case. The fact that the legislation that is going to cover this point will be left until the final Bill—the transition and withdrawal Bill or whatever it is finally called—does not satisfy me greatly. I think that will leave uncertainty for litigants in cases that could be incredibly complicated. I am rather worried that this issue is going to get caught up in the Government’s general dislike for the CJEU. My recollection is that this is one of Theresa May’s red lines: she does not like the CJEU and therefore part of taking back control is getting rid of it. We have got news for the Minister dealing with this: it is going to take the UK some time to extract itself from CJEU processes. The quicker the Government wake up to that fact, the easier it will be for us all to deal with it. In becoming more realistic in their approach to the court, the Government will give some greater certainty as to how we intend to proceed in future.

While I am happy to withdraw my amendment for the moment, I may come back to this at a later stage, because our legal system and litigants require greater certainty. This is not necessarily the small issue I dreamed it might be when I came across it in the Constitution Committee’s excellent report. I am grateful for the debate we have had, but I am not so grateful for the answer. We will probably require a bit more from the Minister at a later stage. I beg leave to withdraw my amendment.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Beith]

My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:

“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.


In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?

[Baroness Goldie (Con)]

My Lords, this has been a short but interesting debate covering an important point. When my ministerial colleagues in the other place moved the amendment that inserted into the Bill the subsection that Amendment 80 would remove, the Government’s reasoning was accepted by the other place without a Division. That is an onerous responsibility upon me, and I hope I can replicate that performance and satisfy any concerns the noble Baroness has.

As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, was as said then, the Government are looking forward to using the expertise of this House to tighten any slack in the power and ensure that it is capable of neither too much nor too little. I have just addressed the importance of retaining Clause 7(3)(b), but I repeat that the Government believe we can be a responsible Government only by ensuring that we can provide for all the types of deficiency we discover.

Subsection (3)(a) provides that the meaning of “deficiencies” in Clause 7 includes those of a similar kind to those set out in subsection (2). The noble Baroness, Lady Ludford, and the noble Lord, Lord Beith, asked what this means and whether there are any examples. This ensures that, for example, deficiencies relating to arrangements between public authorities in the British Overseas Territories and the EU and its member states, or between the UK and the EEA and EFTA states are caught by the definition of a deficiency. They are not included in the list in subsection (2) but are very much of a similar kind to the types of deficiencies listed, and it is important that the power is wide enough to allow the Government to correct them. This House accepted at Second Reading the principle of resolving all the deficiencies in retained EU law using the power in Clause 7, and we cannot do this without both a type of sweeper—I think the legal term is “ejusdem generis”—and a power to provide for additional kinds of deficiency if they are later identified. I say to the noble Baroness, Lady Ludford, that that is why the clause is drafted the way that it is.

May I seek clarification from the noble Baroness, Lady Hayter? I was not quite clear whether she wanted to speak to Amendment 82 or whether she is forgoing that for the moment for the purposes of this debate.

[Baroness Hayter of Kentish Town]

I am speaking to only a part of Amendment 82 and to Amendment 82A —in other words, to the bits about not using Clause 7 to remove any rights and standards or to repeal or revoke the Equality Acts 2006 and 2010 or any subordinate legislation made under them. There is obviously much more in Amendment 82. There is stuff about criminal sanctions, raising taxes and setting up public bodies. I was making the point that I am not talking about those now because we have separate groups on those topics. The bit of Amendment 82 and Amendment 82A are about not using this power to make any changes under the Equality Acts.

[Baroness Goldie]

I am very grateful to the noble Baroness. I am looking at my speaking notes. It is a little difficult to disentangle the points to which she has just alluded. If the Committee will indulge me, I will perhaps try to cover the general points.

[Baroness Hayter of Kentish Town]

I emailed the Minister’s advisers very early this morning and spoke to them earlier, so I would hope they had got the Minister’s notes in the right place.

[Baroness Goldie]

I thank the noble Baroness. I shall soldier on as best I can with the material I have. By way of general comment on Amendment 82, I hope I can reassure the Committee that I understand the concerns many noble Lords have regarding the scope of the powers we are seeking to take in the Bill. I shall use this opportunity to allay, I hope, some of the concerns as we look at the general premise of this amendment in relation to the Clause 7(1) power.

The general concern is about the ability to create new public authorities, which was alluded to by the noble Baroness. Let me make it clear that we have been listening to Members of this House and the other place; the noble Baroness is not alone in having these concerns. As such, we have made it a priority to find a solution that will satisfy both Parliament and the objectives of the Bill, and the Government are looking very closely at whether the key powers need to be drawn as widely as they are in this regard. We will revisit this matter in more detail when we reach the amendments in the name of the noble Lord, Lord Newby, but I hope this satisfies the noble Baroness on this point for now and signals our commitment to listen to the concerns of noble Lords.

The noble Baroness, in her amendment, expressed some concerns about the power to create criminal offences. We will come back to this in more detail later in the debate on these clauses when we respond to the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Viscount, Lord Hailsham. If the noble Baroness wishes me to do so, I will deal with that in more detail now, but perhaps that is one of the areas she is happy for us to deal with later.

The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.

The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make it clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.

To reassure noble Lords of the Government’s commitment to ensuring transparency around any amendments made to equalities legislation, we tabled an amendment in the other place that will require Ministers to make a statement in the Explanatory Memoranda of all SIs made under this power and the Clause 8 and 9 powers confirming that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010.

Would the noble Baroness like me to respond on data protection? It is very helpful to get that reassuring shake of the head. In conclusion, I thank the noble Baroness for perhaps simplifying the matters immediately before us. I hope that the points I have raised in addressing her first amendment, and then those parts of her Amendment 82 she is concerned about, are enough to demonstrate the need for the power to have such scope and to be able to address all the deficiencies, including those alike to the types listed in Clause 7(2). In these circumstances, I urge the noble Baroness to withdraw her amendment.

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[Baroness Goldie]

I would say to the noble Baroness that our elected counterparts in the other place were able to scrutinise this Bill in detail. The Government were transparent in what they were doing when they brought forward the amendment that passed without a Division. Indeed, it was for Members of that place to raise objection to the way in which the amendments were structured, and I understand that no such objections arose—and at the end of the day, it passed without a Division.

Let me deal with the substantive point raised by the noble Baroness. I was trying to explain that if we accept the principle, as the House appears to, that we need this corrective provision to let us deal with deficiencies on withdrawal, the Government are trying to ensure that there is a flexibility. I made it clear in responding to the noble Baroness, Lady Hayter, that this is about having the powers to do what we need to do, but being conscious that we do not want these powers to enable Governments to do too much. It is equally important that they are empowered to do what they need to do and that the powers do not restrict them so that they are only able to do too little.

Part of the difficulty with the complexity of what confronts the statute book is that there is a degree of unpredictability in the events with which we are dealing. We do not know quite what difficulties may arise. That is why there is a desire to build in the flexibility created by Clause 7(3). I did endeavour, in responding to the point raised by the noble Lord, Lord Beith, to give an example of the kind of things that are not in Clause 7(2) but would actually be covered by subsection (3). There is no further comment I can make to the noble Baroness, other than to repeat my reassurance that the Government are anxious to work with this House in trying to make sure that this clause is responsible, but also workmanlike and capable of managing the difficult situations that may arise, so that action can be taken to correct deficiencies without harm being caused because the power does not exist to do that.

[Lord Adonis]

I took it as quite a significant move on the Government’s part for the noble Baroness, Lady Goldie, to say that she was open to discussions about limiting the power to create new public bodies—and it is one that we welcome. That power, I know, has caused concern in the House. The noble Baroness has shown herself to be so emollient that we very much hope to hear a great deal more from her in the next six days of Committee. We will welcome her presence at whatever hour of the night she wishes to speak.

[Baroness Goldie]

I am not one to spurn the comments of attractive gentlemen, particularly when they are honeyed compliments uttered by the noble Lord, Lord Adonis. As I have said in previous debates, I may not always be able to acquiesce on points that he makes, but I understand that my noble friend the Minister is prepared to look again at the creation of new bodies. I cannot provide further detail at this stage, but it is an area where we have an open mind.

[Baroness Hayter of Kentish Town]

I thank the noble Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public bodies—perhaps even tonight. I will deal firstly with the amendment to take out Clause 7(3) on page 5. I was a little worried when the Minister said that it allowed some flexibility—which I take to mean wriggle room, or wanting to do something that is not quite allowed for. The noble Baroness, Lady Ludford, described the problem of subsection (3) better than I could. Our concern is partly that we are again back to the implications of where the Minister considers something—which is a very wide way of saying that where a Minister considers, without any test, they can then define something as “similar” to another deficiency. We may have to return to this, because I do not think that it is robust enough.

Her particular example did not help her case, given that Clause 7(2)(d)(i) involves the EU, an EU entity, a member state, or a public authority and a member state. EFTA and NATO must be the only other two bodies: could we just not write those in? To put in a whole clause just to allow for EFTA does not seem to me, with all that discretion, very appropriate. So I think we may want to return to that.

Amendment 82, as amended by Amendment 82A, is very much about not using regulations to amend, repeal or revoke either the Equality Act 2006 or the Equality Act 2010—or, indeed, to reduce any right conferred on a person by retained EU law, if it were to be made less favourable. The Minister may have said that that was not the intention but, without the words in our amendment, clearly that would be possible. For the moment, I hope that we can revert to the specifics, such as public bodies, taxes and criminal offences and put that to one side. However, we may need to return later to subsection (3). I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Baroness Ludford (LD)]

My Lords, when she replies, will the Minister comment on the remarks of her noble and learned friend Lord Keen of Elie on 28 February, when we discussed this issue in the context of directives whose implementation date was beyond exit day? The noble and learned Lord addressed this issue, partly because the noble Baroness, Lady Hayter, mentioned regulations. In his reply, he said something rather interesting: namely:

“There are examples of regulations … where we accept that the regulation has come into domestic law but its actual operation is deferred, perhaps until 2020”.


I think that date was given just as an example. The noble and learned Lord continued:

“That regulation … will form part of our domestic law at the exit date, even though the operative provisions come into force only after the exit date”.—[Official Report, 28/2/18; col. 690.]


Will the Minister clarify whether she believes that the clinical trials regulation falls into the category envisaged by the noble and learned Lord, Lord Keen of Elie? If not, why not?

[Baroness Goldie (Con)]

My Lords, I am very grateful to the noble Lord, Lord Patel, for raising this extremely important issue, and to all your Lordships who have contributed so authoritatively to the discussion on this amendment. It provides me with the opportunity to set out the Government’s position on the regulation of clinical trials and the introduction of the new EU clinical trials regulation.

As I am sure the noble Lord is aware, the MHRA is working towards the implementation of the new clinical trials regulation. The new regulation, agreed in 2014, is a major step forward as it will enable a streamlined application process, harmonised assessment procedure, single portal for all EU clinical trials and simplified reporting procedures, including for multi-member state trials. This has been widely welcomed by the industry.

A key priority for the Government throughout the negotiations is to ensure that the UK remains one of the best places in the world for science and innovation. Noble Lords will be aware that the life sciences sector in the UK is world-leading, a point emphasised by my noble friend Lord Ridley. It generates turnover of over £63.5 billion per annum and the UK ranks top in major European economies for life sciences foreign direct investment. There are over 5,000 life sciences companies in the UK, with nearly 235,000 employees, and the Government are determined to build on this success as we leave the EU.

But it is not just UK industry that benefits from a thriving life sciences sector. More importantly, UK patients benefit from having access to the most innovative and cost-effective treatment available. That is why the Secretary of State for Health and Social Care committed to a post-exit regulatory system underpinned by three key principles: first, patients would not be disadvantaged; secondly, innovators should be able to get their products to market in the UK as quickly and simply as possible; and, thirdly, the UK should continue to play a leading role in promoting public health.

The UK has a strong history of collaborating with European partners through EU, pan-European and other multilateral and bilateral initiatives. I entirely agree with your Lordships that it is in the interest of patients and the life sciences industry across Europe for the UK and the EU to find a way to continue co-operation in the field of clinical trials, and for continued sharing of data and information, even if our precise relationship with the EU will by necessity change.

As the Prime Minister outlined in her Mansion House speech on 2 March, the UK is keen to explore with the EU the terms on which the UK could remain part of EU agencies such as the European Medicines Agency. Membership of the European Medicines Agency would mean investment in new, innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster as firms prioritise larger markets when they start the lengthy process of seeking authorisations. But it would also be good for the EU, because the UK regulator assesses more new medicines than any other member state. These matters are all key components of the negotiations.

[Lord Warner]

Can I ask for clarification on the subject which we discuss fairly frequently in this House: the jurisdiction of the European Court of Justice? Is it the Minister’s understanding that any disputes under this new regulation, when it is in operation, would be settled under that jurisdiction whether or not the UK was in the EU? Would she therefore accept that there is a risk that we might not always be able to benefit from the advantages in this set of regulations?

[Baroness Goldie]

I thank the noble Lord for his intervention. This is an area where a dispute resolution procedure will have to be agreed, and that is currently part of the negotiations.

I will continue with the point I was making; there were many frankly authoritative contributions to this debate. I cannot pre-empt the negotiations, nor can I disadvantage the UK’s position in these negotiations by giving premature guarantees at this time.

[Lord Hannay of Chiswick (CB)]

Could the noble Baroness answer the question that was posed by the noble Baroness, Lady Ludford, and the noble and learned Lord, Lord Mackay of Clashfern? She seems to think that this will be a matter for negotiation. However, if the Government were to rule that we would bring within the scope of the Bill European laws which had been adopted but whose date of entry into effect fell after the exit date, you would not need to negotiate at all. Have not the Government enough things to negotiate about?

[Baroness Goldie]

With respect, I am not sure that I entirely agree with the noble Lord. I am coming to the points raised by the noble Baroness, Lady Ludford, and my noble and learned friend Lord Mackay of Clashfern.

I assure noble Lords that the Government will continue to seek the best possible deal for the UK and that the Government continue to undertake a huge amount of preparatory work relating to the UK’s exit from the EU under all scenarios. This includes correcting any deficiencies that could arise from withdrawal in relation to the regulation of clinical trials where the UK’s exit from the EU would result in the retained EU law which governs the regimes being deficient or not operating effectively. The application date of this regulation is linked to a new EU portal and database being in place. As a number of your Lordships have observed, this has been delayed on multiple occasions, and the latest intelligence suggests that it will apply from March 2020. Perhaps I may clarify for the noble Baroness, Lady Ludford, that, for that reason, it is almost certain that this regulation will not be caught by Clause 3 of the Bill. The existing UK legislation, based on the current EU clinical trials directive, will be corrected using the—

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[Baroness Goldie]

At this point, we are not entirely in control of matters regarding the future. I know that it is frustrating for many of your Lordships, but that is where we have to deal with the negotiations.

[Lord Forsyth of Drumlean (Con)]

I am not an expert in any of these matters, but it is a bit of a puzzle. Why would we want to bring into our legislation regulations which everyone accepts are not fit for purpose, and not bring into effect immediately—

[Lord Forsyth of Drumlean]

I am referring there to the old regulations. The new regulations would provide for a better regime and—this is the most important point, which I hope my noble friend will deal with—enable people to plan ahead for their clinical trials in the future. They need to know which regulatory regime will apply.

[Baroness Goldie]

I thank my noble friend for his intervention. I was about to say that the existing UK legislation based on the current clinical trials directive will be corrected using the powers in this Bill so that that regime continues to function properly when the UK is no longer a member of the EU. This will mean that there is no interruption in UK clinical trials approval. Perhaps I may deal with the point raised by the noble Lord, Lord Kakkar.

[Baroness Ludford]

I thank the Minister for letting me ask her a question. First, how will that operate if we continue to apply the directive and the other member states apply the updated regulation? There is a rather peculiar situation in justice and home affairs where that is envisaged, although I have never been sure how it is supposed to operate. Perhaps she can tell us how it will operate for clinical trials and how we will avoid a bumpy playing field. Secondly, can she explain what the noble and learned Lord, Lord Keen of Elie, meant? What category of regulations was he talking about if he was not talking about the clinical trials regulation?

[Baroness Goldie]

Taking the last point first, I will need to check that out in Hansard because I do not recall in detail the point to which the noble Baroness is referring. I say to my noble friend Lord Forsyth that the practical difficulty we have is that we have something that we all agree is very good but is not yet functioning EU law. Of course, this Bill is concerned with a snapshot—making sure that we do not go down a large legislative hole with gaps in our body of law. The Bill means that we have to bring over what is there at the point that we leave. One consequence of being in charge of our own legislative functions after Brexit is that we are free to make such changes as we wish. Perhaps I may try to deal with the point—

[Lord Warner]

My Lords—

[Baroness Goldie]

With all respect to the noble Lord, Lord Warner, I will come back to him but I am trying to deal with a point that has been raised. I think that two issues are getting conflated. My noble and learned friend Lord Mackay raised an interesting point about alignment of our law post Brexit. As I have just been trying to explain, to that extent matters lie in our own hands, and obviously any Government would legislate in the best interests of the UK. However, my noble friend’s question also embraces matters which, under the new clinical trials regulation, will reach into the EU. They will concern EU agencies and regimes, and these will be capable of being embraced by the UK only if we can negotiate that.

[Lord Warner]

I think the noble Baroness might want to have a conversation with the noble Lord sitting on her left. As a former pharmaceuticals and life sciences Minister, I know only too well that the pharmaceutical industry, including the biotech industry, makes decisions on planning its clinical trials quite a long way ahead. It would be a pretty strange company that, knowing there were going to be a new set of rules for 27 countries in the EU, which it would be of much greater benefit to participate in, entered into clinical trials with the one country that was not in that set of arrangements and which was using the 2004 clinical trials directive. Can the Minister explain how she expects big pharma and biotech companies to make sensible investment decisions on the basis of the sorts of assurances she has given the House in this debate?

[Baroness Goldie]

I think these businesses understand the very real and practical challenges that confront the Government in the unprecedented complexity of a process to leave the EU: that is, when we leave, we will not be part of the body of EU member states nor its regimes, agencies and institutions. However, there is no reason to imagine that in the UK post Brexit we will not continue to be at the forefront of the life sciences or that we will not have the most excellent regime of clinical trials regulatory structures. These will fall within our control.

[Lord Winston]

I am increasingly puzzled by this conversation. If you are doing a clinical trial, you have to harmonise all the arms of that trial for it to be randomly and properly assessed and for its statistics to be valid. Is the noble Baroness suggesting that we do our own small trials, irrespective of what is going on in a much larger pool of people? Does she not understand that, given the genetic diversity of the European population, the more people who are involved in the same trial, the more relevant the answers to the trial are, particularly in cases such as cancer, where they are all under the same rules?

[Baroness Goldie]

I am not in any way diminishing the important point that the noble Lord makes. I am pointing out that there are many types of clinical trials—for example, at the moment we are engaged in partnerships with non-EU countries. However, the Prime Minister has made it clear that we desire to have the closest possible relationship with the EU. We think that the systems we have been engaged in around clinical trials have been very strong, good and important.

[Lord Patel]

My Lords, it was not my intention to intervene. I am sorry to do so but it has been forced upon me. I think there is a fundamental failure of understanding here. Clinical trials are planned over a long time: it takes at least six to eight months to plan a clinical trial; it takes a lot of collaboration to find out whether we will be able to recruit the same category of patients; and we are required to understand whether the people who volunteer to join the trial have the necessary patience to do so. Because of this time lag, my amendment seeks to raise a very simple question. We had agreed to a regulation—the new clinical trials regulation—and we believed that it would come into force this year and therefore would be incorporated into the current European Union (Withdrawal) Bill. By a quirk of fate, that will not happen. But we have already agreed to have it in the Bill, so, as the noble Lord, Lord Forsyth, said, what is the problem with incorporating it in the Bill?

[Baroness Goldie]

The problem is that the Bill is intended to transfer a body of law from A to B. At the moment, this regulation is incomplete: it has not been enacted and it is not currently in the body of EU law. That is why there is a risk that it will not be covered under this Bill.

[Lord Kakkar]

I wonder whether the noble Baroness will take this slightly different point. If, as is argued, the clinical trials regulation will not form part of the applied European law at the time of exit, clinical trials will still have to be conducted under some form of law in our country, and that will be the 2004 directive that currently applies. If that goes forward, what ultimately will happen is that everything we know that is wrong with that directive, and which has been corrected by the new regulations, will apply in our own country. Even if we continue to be active participants in clinical research, we will be so under the less satisfactory situation of the current 2004 directive unless the Government decide to modify that directive. As there must be a legal basis for undertaking clinical research, does it not seem logical simply to apply what we have already agreed is a sensible approach rather than having to reinvent a new basis for legal provision to undertake clinical trials in our country?

[Baroness Goldie]

I partly agree with what the noble Lord is saying because if this regulation has not become law before we leave, we can use Clause 7 of the Bill to attend to deficiencies, amend or correct, and that is what we will do to keep our own regime of law up to date. However, at this point it is impossible for the Government to go further than that and embrace matters which are potentially directly enactable under this new regulation and involve the EU, which implies that you have to be a member of the EU and a part of the agency. We have a strong desire to see that kind of partnership continue, but it can only continue if it is successfully negotiated.

[Lord Kakkar]

Does not the Minister consider there to be a substantial risk? As I understand it, non-member states of the European Union are obliged to be fully compliant with the 2004 clinical trials directive. If we become non-members of the European Union and do not have an agreement in this area prior to leaving, will we not be forced to continue under the 2004 directive if we wish to participate in the data and information generated from clinical research being applicable more broadly for those who wish to take their arguments for adoption of those findings, and authorisation of new medicinal products as a result of those findings, in the European Union?

[Baroness Goldie]

My noble friend Lord O’Shaughnessy, who is advising me, says that once there is a new regime in Europe, all non-member states will have to make a decision about whether or not to be compliant with that. We hope that in our Brexit negotiations we have made clear—the Prime Minister has emphasised this—the huge importance we attach to these issues. They are massively important and we want to get a positive outcome in the negotiations, but it would be premature at this stage to incorporate into this Bill the anticipated enactment of the new regulation because it might be inert law.

[Baroness Thornton]

I have already written to the Minister asking for a meeting to discuss this issue and have copied the letter to many noble Lords. It is important that we have the meeting before the next stage of the Bill.

[Baroness Goldie]

I am happy, as are my colleagues, to engage in and attend meetings and to listen to the views expressed.

I was going to make an observation about the amendment of the noble Lord, Lord Patel. The noble Lord, Lord Kakkar, made an important point about how we deal with whatever law we will have if this new regulation has not become law when we leave. It is important that we have the flexibility in the Bill to deal with such matters but, under the amendment of the noble Lord, Lord Patel—I am sure it is not intentional—there could inadvertently be a delay in dealing with them as we leave because his amendment stipulates that Clause 7 powers could not make regulations until a report had been laid before both Houses assessing the costs and benefits of adopting the new EU regulation. We do not know when that is coming through. We think it might be March 2020—we do not know—but in the meantime we could be in limbo in trying to do the very things that noble Lords want us to be able to do in respect of the existing law. For these reasons, I urge the noble Lord to withdraw his amendment.

[Lord Carlile of Berriew (CB)]

Can the noble Baroness clarify her constant references to Clause 7? As I understand the clause, it is intended to allow Ministers for a period of two years to introduce regulations to remedy deficiencies that come to light during that two-year period. But if we know patently, as has been illustrated in this debate, that there is a severe deficiency that we know about before Brexit, Clause 7 is not designed for that at all and the noble Baroness should not be relying on it. She should instead accept an amendment of this general kind.

[Baroness Goldie]

Clause 7 is designed to address identified deficiencies post Brexit where our existing clinical trials regime may include references to EU bodies and institutions, but those would no longer be correct or competent and an amendment would be necessary. In response to the point made by the noble Lord, Lord Carlile, it goes back to what may be, and I hope will be, a very positive outcome to the negotiations. In that case, many of these fears will be assuaged, but I cannot second guess the negotiations and I cannot give premature guarantees that might be completely inappropriate.

[Lord Lawson of Blaby (Con)]

My Lords, I do not think that I am the only Member of the Committee who is listening with increasing bewilderment to my noble friend’s reply to this amendment, particularly her constant references to negotiations. This is not an issue for negotiation, this is an issue where we have agreed to the new directive and there is nothing to negotiate; rather, we will implement it in the best and most effective way we can. Is she suggesting that if we say we wish to implement the directive, the European Union will come back to us and say, “No, you can’t”?

[Baroness Goldie]

With the greatest respect to my noble friend, it is a matter for the negotiations. We cannot remain part of the European Medicines Agency unless that is agreed in the negotiations. The other aspects of the regulations, if they are subsequently enacted, will require us to adjust and adapt our UK law to be consistent with whatever the regulation provides.

[Lord Wallace of Saltaire (LD)]

My Lords, perhaps I may make what I hope is a helpful suggestion. This is not a unique regulation. There is a class of regulations and directives, some of which have now been agreed but not implemented and others that, as the noble Lord, Lord Wigley, and others have observed, are currently moving through the policy-making process and may or may not have been agreed by March 2019. The Government must have a list of all of these and must have a clear idea of which ones they think we automatically ought to accept, others that we would prefer not to accept and those about which they are not entirely decided. Since we are all concerned about giving business as much certainty as far ahead as possible, will the Government commit to publishing that list so that we can see where we are and come back on a more informed basis to discuss which of these directives and regulations that have been passed but not yet implemented automatically ought to go into British law and which of those going through are or are not thought to be in the national interest?

[Baroness Ludford]

Perhaps I may draw the noble Baroness’s attention to Clause 3(3)(a):

“For the purposes of this Act, any direct EU legislation is operative immediately before exit day if—


(a) in the case of anything which comes into force at a particular time”.

The regulation came into force in June 2014, 20 days after its publication in the Official Journal and is stated to apply from a later date—that is, 2020 when the EMA certifies that the portal and the database are ready,

“it is in force and applies immediately before exit day”.

This regulation is not only in force, but it applies before exit day according to the Government’s own proposed legislation. Have I misread Clause 3(3)(a)?

[Baroness Goldie]

I am looking at the provision and my understanding is that technically, the character of the regulation that we are discussing is that it is not currently in force.

[Baroness Ludford]

Forgive me, but according to Article 90-something of the regulation, it came into force 20 days after it was published in the Official Journal. That was in May 2014. Therefore, it was in force some time in June. It applies from a date to be specified once the EMA has done its homework.

[Baroness Goldie]

I am certainly interested in the point that the noble Baroness raises. I suspect that we have probably exhausted all possible aspects of this discussion, but I undertake to look at that point. As I said, I do not have technical information available, but I will certainly have that point clarified.

[Baroness McIntosh of Pickering]

We have established in this debate and in the earlier debates on Amendments 18 and 81 that precisely what the Government may wish to do, and what this amendment and Amendment 18 try to do, to which my noble and learned friend Lord Mackay has given a very elegant solution, are not permitted by the Bill. There is no legal basis. Will my noble friend come forward with a form of words to cover the 23 eventualities in the form of directives identified by the Library and other situations in the directive that apply to regulations, such as this, to give a legal basis to permit the Government to have the discretion where they choose to do so to implement the content of those directives and regulations at that time?

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[Lord Judge]

I ask the Minister merely to consider it; that way, we might have a solution.

[Baroness Goldie]

I must apologise to the noble and learned Lord; the Chief Whip sat down and bumped into me, so I was distracted from hearing what he had to say. I certainly offer to come back to that point.

[Lord Patel]

My Lords, it is difficult for me to sum up. The message is quite clear to me, although that might merely be perception, that my friend, the noble Baroness, Lady Goldie, is in some difficulty. It is quite clear to all those who understand the amendment—and, more importantly, the European trials regulation and the law as specified in the Bill—that there is no reason why we cannot incorporate this into the Bill.

The noble Lord, Lord Warner, suggested that we might need to bring another amendment; I suppose he means with the view to having a vote. That was not my intention when I tabled the amendment. It was merely to clarify the Government’s position on importing the European trials regulation into the Bill as we are the prime movers of the regulation and we are formulating it. The solution identified by the noble and learned Lord, Lord Mackay of Clashfern, seems to be the answer to cover all such regulations that we might have agreed to and might come into force. This is not the first time that he has come to my rescue. He has done so twice before, on admixed embryos and on mental health having equal esteem. Both times they were put to the vote and the votes were won—so that is a warning.

I hope the Minister might agree that more work needs to be done on this by Ministers. I am glad to understand that the noble Lord, Lord Callanan, is to meet with Cancer Research UK and others at some stage in March, I assume to discuss this and other science issues. I hope he will agree that there might be a place for the Ministers to meet and see whether there is a solution. Otherwise, I fear that either there will be an amendment in the form suggested by the noble and learned Lord, Lord Mackay, or, if it is not me, somebody else will table an amendment. We can tell from the support this amendment received even from strong Brexiteers such as the noble Lords, Lord Lawson and Lord Forsyth, and the noble Viscount, Lord Ridley, that such an amendment might be carried.

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[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Warner, and speak to Amendment 88 and the other amendments in this group. I very much support the words and the very comprehensive introduction that was given by the noble Lord, Lord Stevenson. It is vital to many key sectors—manufacturing, retail, health, information technology and financial services in particular—that the free flow of data between ourselves and the EU continues post Brexit with minimum disruption. With an increasingly digital economy, this is critical for international trade. TechUK, TheCityUK, the ABI, our own European Affairs Sub-Committee and the UK Information Commissioner herself have all persuasively argued that we need to ensure that our data protection legislation is treated as adequate for the purpose of permitting cross-border data flow into and out of the EU, post Brexit.

Fears were expressed in Committee and eventually the Data Protection Bill was amended on Report and at Third Reading to show that some principles, at least, were incorporated in the Bill, despite the fact that the European Charter of Fundamental Rights will not become part of UK law as part of the replication process in this Bill. The noble Lord, Lord Stevenson, quoted the Prime Minister’s recent Mansion House speech, a speech that I am sure will be quoted many times, when she said that,

“we will need an arrangement for data protection. I made this point in Munich in relation to our security relationship. But the free flow of data is also critical for both sides in any modern trading relationship too. The UK has exceptionally high standards of data protection. And we want to secure an agreement with the EU that provides the stability and confidence for EU and UK business and individuals to achieve our aims in maintaining and developing the UK’s strong trading and economic links with the EU. That is why”—

this is exactly what the noble Lord, Lord Stevenson, said—

“we will be seeking more than just an adequacy arrangement and want to see an appropriate ongoing role for the UK’s Information Commissioner’s Office”.

Whether or not something more than adequacy will be available—the noble Lord, Lord Stevenson, also dealt with this—depends on the EU, which states quite clearly, in paragraph 11 of its recent draft negotiating guidelines:

“In the light of the importance of data flows in several components of the future relationships, personal data protection should be governed by Union rules on adequacy with a view to ensuring a level of protection essentially equivalent to that of the Union”.


I have slightly more extensively quoted paragraph 11 of the recent guidelines, but the difference between those two statements is notable. Both the statements recognise the fact, as many of us emphasised in this House during the passage of the Data Protection Bill, that the alignment of our data protection with the EU is an intensely important issue. There will be a spotlight on the question of whether we meet an adequacy assessment by the European Commission, which I think we all agree is necessary and essential.

As I said on Report and at Third Reading of the Data Protection Bill, the Government added a new clause designed to meet the adequacy test in future, yet this Bill also gives Ministers power to make secondary legislation to amend any retained EU law, which would include laws governing data protection rights. So the Government could give with one hand and take away with the other. This amendment, as the noble Lord, Lord Stevenson, emphasised, is exactly designed to avoid a situation where our data protection law does not meet the adequacy test, to the great disadvantage of our digital economy and other sectors. Set against this danger, it cannot be necessary or desirable to exercise any of the powers in Clauses 7, 8 and 9 to repeal any part of our data protection legislation, which we have so carefully crafted and adopted. These are probing amendments but I certainly hope the Minister can give us the necessary assurance to make sure that such amendments do not reappear on Report.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Stevenson, for bringing before us what are undoubtedly very important issues. I am grateful to the noble Lords, Lord Warner and Lord Clement-Jones, for their contributions. I say by way of preface that the general data protection regulation comes into force on 25 May this year. Noble Lords will be aware that there is, as the noble Lord, Lord Stevenson, referred to, a Data Protection Bill currently before Parliament which fully implements the current EU framework, including the GDPR. We would not have chosen to legislate in this way if we were not committed to that EU framework. To be fair, the noble Lord, Lord Stevenson, was gracious enough to acknowledge that. I also say that to seek to reassure the noble Lord, Lord Warner. Let me try to help a little further.

As the Prime Minister has set out, the Data Protection Bill will ensure that we are aligned with the EU framework, but we want to go further than that and further than the typical adequacy agreement—I think that this was the concern of the noble Lord, Lord Stevenson. We want to seek a bespoke arrangement to reflect the UK’s exceptionally high standards of data protection. To reassure the noble Lord, Lord Clement-Jones, this would include an ongoing role for the UK’s Information Commissioner’s Office and effective representation for UK businesses under the EU’s new one-stop shop mechanism for resolving data protection disputes.

Even with that background and that backdrop it is nevertheless crucial that we have powers to correct any deficiencies that arise as a result of the current text of the GDPR being retained in the UK, post exit, word for word. For example, at its simplest we will need to replace references to “Union law” and “member states” with references to “UK law” and “the UK” respectively. We will also need to replace specific articles that do not make sense in a UK-only context; for example, article 3 on territorial scope. These are, of course, exactly the same kinds of changes that will need to be made to a wide range of EU-derived legislation to ensure a smooth exit. Where I slightly differ from the noble Lord, Lord Stevenson, is that while data protection is extremely important, there is nothing particularly special about data protection in this regard.

The difficulty about the amendments tabled—we have to be quite clear about this—is that they would remove the powers that allow the Government to remedy these deficiencies or make any other adjustments to the GDPR to ensure we have complied with our international obligations or implemented the withdrawal agreement. Alarmingly, this would damage the integrity of our regime and put at risk the data flows between the UK and the EU, which are crucial, I think we all agree, for our shared economic prosperity and wider co-operation, including on law enforcement. It is essential that we have the powers to ensure that the UK legislation framework remains functional after our exit. Of course, I accept that exactly how the powers in Clauses 7 to 9 will be used in relation to data protection depends on the outcome of negotiations, but I hope it is helpful to noble Lords to have the illustrative examples I have provided on the record.

I hope I have reassured noble Lords of our commitment to both data protection and the flow of data between the UK and the EU and in these circumstances I urge them not to press their amendments.

[Lord Clement-Jones]

My Lords, since we are in Committee I have a question for the Minister. She has said that there may be some need to slightly alter data protection legislation, but this is very broad. Surely, there is scope for a much narrower formulation, so that those adjustments could be made without any radical changes to our current data protection law.

--- Later in debate ---

[Baroness Goldie]

I say to the noble Lord that a phrase I used last week was that we need the powers to be broad enough to be useful and to let us cope with what will arise, but not so narrow as to restrict us in doing what we have to do. The difficulty is trying to quantify exactly what may require adjustment and tweaking once we leave; that is a genuinely challenging logistical problem.

[Lord Warner]

Could the Minister say something about the points I made in drawing on the debate we had earlier today on Amendment 84? Will the Government consider the rather thoughtful interventions of the noble and learned Lords, Lord Judge and Lord Mackay of Clashfern, about issues similar to the issue of data protection which might be given special protection in the Bill?

[Baroness Goldie]

I say to the noble Lord that I am still recovering from the debate on Amendment 84. I listened very carefully to it, as I know my colleagues did—my noble friends Lord O’Shaughnessy and Lord Callanan, the Minister on the Bill—and as did the officials. We will certainly look at the suggestion that my noble and learned friend Lord Mackay made.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

On the amendments in the name of the noble Viscount, Lord Hailsham, who opened the debate, the concept of a sunset clause is interesting. I listened carefully to what he said, and the orders in relation to which he mentions a sunset clause are only those that have been brought in to address what the Minister deems are deficiencies, which should be a limited area. I am interested to hear the Minister’s response on this, because that could be a sensible approach to ensure accuracy, and that it is not just on a ministerial whim. I am concerned about the ministerial discretion in this area. I hope the Minister will take on board the comments made by the noble Viscount, Lord Hailsham, in this regard.

[Baroness Goldie]

My Lords, this is a wide-ranging group of amendments. I will begin with my noble friend Lord Hailsham’s Amendments 109, 134 and 188 on the effect of regulations made under the main powers of the Bill. My noble friend was commendably brief and very clear—very blunt—about what he seeks. My difficulty is that these amendments would end up running counter to the fundamental aims of the Bill. We have heard from my noble friend himself that these amendments are intended to cause any regulations made under Clauses 7, 8 and 9 to lapse two years after exit day. Quite simply, this would prescribe a rigid legislative timeframe for the Government to replace them and would risk unnecessary disruption. If we could not find an alternative vehicle to write these regulations into law by the two-year deadline, it would create holes in the statute book. However, it is surely illogical to force the Government to make these regulations again in an identical form when they have already legitimately made them once.

The powers themselves, quite rightly, already have their own sunsets: for Clauses 7 and 8 it is two years after exit day, and for Clause 9 it is exit day itself. That is a sensible way in which the Executive have constrained these delegated powers to avoid their being available in perpetuity. But surely the regulations made under these powers should not necessarily be so transient. They will, of course, be doing vital work to ensure that we have a fully functioning statute book for when we leave the EU. We do not want our functioning statute book, or bits of it, to lapse after two years. I sympathise with the intention behind the amendments, but it is too rigid a fetter on the Government and Parliament’s ability to manage legislative priorities and workload between now and 2021, and it certainly would exacerbate the very uncertainty that the Bill is seeking to reduce.

Amendments 111, 137 and 192, all tabled by the noble Baroness, Lady Hamwee, deal with stakeholder consultation. It is my pleasure to tell the Committee that departments are very keen to engage with stakeholders on current matters and progress of the negotiations, and will continue to do so where this is possible and does not negatively impact the negotiations in any way.

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

[Baroness Goldie]

I say to the noble Baroness, Lady Young of Old Scone, that it is a pleasure to be asked to do the prodding rather than be the recipient of the prodding, which has certainly been my sensory experience standing at this Dispatch Box. I understand her concerns and will certainly relay them to my noble friend Lord Gardiner.

Similarly, I will refer the point raised by the noble Baroness, Lady Hamwee, to my noble friend Lady Williams. I understand the concerns; there must be a degree of frustration. It may of course simply underpin the enormity of the challenge confronting departments, in that at this stage it is extremely difficult to try to map exactly what lies ahead. Some of it might be predictable but some of it is unknown and will depend on the negotiations. However, I undertake to do what I can to seek some assistance.

The requirement in the amendment of the noble Baroness, Lady Hamwee, for relevant stakeholders to be consulted on all the provisions contained within all statutory instruments made under Clauses 7, 8 and 9 goes, I believe, beyond what is reasonable in this instance and belies the nature of those instruments. I appreciate the concerns that we have heard throughout this debate about the potential breadth of the power—something that clearly concerns my noble friend Lord Hailsham—but I hope that the Committee will accept at the least that a great many instruments will be technical and minor, and will merely ensure flexibility, swiftness in dealing with identified defects and, of course, continuity of our legal framework.

A specific legal requirement to consult could also impact on our negotiations with the EU. It could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues. Compulsory consultations would also impact on the tight timeline for Parliament to scrutinise instruments. The consultation process requires resources and time from government and stakeholders, and we want to focus the energies of those inside and outside government on the most important measures rather than have them occluded by the sheer volume of consultations on what might, at the end of the day, be very minor technical matters. That is the challenge that could arise under these amendments. I hope that the noble Baroness understands why the Government cannot accept her amendment, and I urge her not to press it.

[Baroness Hamwee]

Before the noble Baroness moves on to the other amendments, is she able to expand a little on the point about upsetting negotiations? We are talking about moving existing legislation over the break point into the future. I am quite puzzled by that part of her response.

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

[Baroness Smith of Basildon]

Can the noble Baroness give us an example of where that might conflict with the negotiations? Some of us are struggling to understand the rationale behind that.

[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

[Baroness Young of Old Scone]

I share my noble friend’s perplexity. We are talking about a government commitment, in my field of expertise, to take existing European environment law and bring it safely across to preserve the same standards. It will not be a great surprise to the European Union and those with whom we are negotiating if what we propose is exactly the same in intent as what currently exists—if the Government are indeed genuinely committed to making sure that we enjoy the same standards post Brexit as we did previously. Therefore, I find it difficult to believe—I have not been able to think of an example—that there will be something monumentally important as regards the negotiating process.

[Baroness Goldie]

I merely observe that the breadth of activity implicit within the negotiations could anticipate issues arising that we are unable at this moment to specify. The Government have been sensible in retaining the flexibility in the negotiations to deal with these if they do arise. It is important in that event—

[Lord Newby (LD)]

My Lords, the whole House is perplexed. Maybe we are perplexed because we are very tired, but might I suggest that the noble Baroness write to noble Lords with at least one or two examples of the problem she is describing? It is clearly the case that, for most of us, it sounds like a Sir Humphrey excuse and not a substantive point.

[Baroness Goldie]

It is not meant to be a Sir Humphrey excuse; it is meant to be an attempt to anticipate what is for most of us a very challenging scenario. However, I will of course take back the noble Lord’s suggestion and I will be very happy to try to produce some examples.

I shall return, if I may, to the amendment in the name of the noble Baroness, Lady Young of Old Scone. I hope I am pronouncing her title correctly; those who come from Basildon may be interested to learn the pronunciation.

[Noble Lords]

Oh!

[Baroness Goldie]

We do not do “scohnes” in Scotland.

The difficulty with the noble Baroness’s amendment is that the scope of future legislation that is caught by it has the potential to be enormous. I have no doubt that the amendment is well intended—that is beyond question—but it is not necessarily as helpful as the noble Baroness thought it might be. The additional scrutiny provisions of this amendment are not confined to the powers in this Bill but, as drafted, would apply to any regulations which replicate EU legislation, with or without modification, or any regulations which amend or modify legislation that was made to implement our EU obligations.

To add an additional scrutiny provision to such a large body of future legislation is simply not feasible. The parameters set out in this amendment are so vast that this would not only represent a significant burden of additional procedure for government departments now but could also mean that Governments decades into the future would be bound to this three-month consultation period for every single amendment made to retained EU law. This is very undesirable, given that many of these regulations are likely to be uncontroversial and technical in nature. Indeed, there are times when it is widely agreed that speed is of the essence.

The noble Baroness is rightly concerned about a range of important issues, so let me try to reassure her. Her amendment focuses particularly on environmental and social issues, so I will repeat what the Government have said on this. We were elected on a pledge to be the first generation to leave the environment of England in a better state than we inherited it.

On social issues, I am proud to say that the UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international rights obligations. The decision to leave the European Union does not change this. Indeed, the Government have made clear their firm commitment to protecting these rights throughout our exit. Additionally, of course, Clause 9 is already explicitly prohibited, like Clauses 7(1) and 8, from being used to amend, repeal or revoke the Human Rights Act or any subordinate legislation made under it.

On employment issues, also of concern to the noble Baroness, we have made a clear commitment to protect workers’ rights and to ensure that they keep pace with the changing labour market. We do not need to be part of the EU to have strong protections for workers, and in many areas the UK goes beyond the minimum standards set by the EU. For example, the rights of workers to annual leave, paid maternity leave and parental leave all go beyond the EU standards.

This amendment, like several others that have sought to protect environmental protections and social matters, fails to refer to specific rights and protections. As there are a vast number of laws on our statute book that relate to these matters in some way, the risk of judicial review of any statutory instrument made under this amendment would be inappropriately high.

The noble Lord, Lord Adonis, is not in his place, but the noble Baroness, Lady Hamwee, raised the issue of public consultation. I do not know whether she was embracing the issues raised in the noble Lord’s amendment, but let me say briefly that the Cabinet Office code of practice which the noble Lord suggests must be followed has already been in use by all departments for some years. Indeed, departments are already held to account by the Secondary Legislation Scrutiny Committee.

[Baroness Hamwee]

My Lords, on the code of practice that is the subject of the amendment of the noble Lord, Lord Adonis, my experience from the Secondary Legislation Scrutiny Committee is that it is honoured in the breach as well as in the observance.

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

[Baroness Smith of Basildon]

I suggested listing the drafts for consultation.

[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

[Viscount Hailsham]

My Lords, this group of amendments has enabled the Committee to identify matters of considerable importance. I think that the Committee will say to my noble friend that she has tried to be helpful. We do not always agree with her but we are grateful to her for the way in which she has responded. Important issues have been raised with regard to statutory instruments and consultation with stakeholders. These matters will be addressed later on in future sessions of this Committee. The hour is late and, with the consent of the House, I would like to withdraw my amendment.

--- Later in debate ---

[Baroness Young of Old Scone]

My Lords, I will speak briefly to support the amendments. As chief executive of the Environment Agency, I lived through the process of designing and delivering REACH, and it was a joy to work as closely as we did with British industry and industry across Europe in devising a system that was shared between government, regulators and business. It is a bit of an object lesson in how to go about it, and much admired globally. I welcome the Prime Minister’s expression of support, but would just take issue with one thing the noble Lord, Lord Fox, said. I do not think we should be aiming at a parallel system in any way—we should be a full and absolute member of the REACH process. It works, it is elegant and I hope we can get an assurance from the Minister tonight that we will move rapidly to find a way to give industry clarity about how the REACH process will operate post Brexit.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Whitty, and, in his absence, the noble Lord, Lord Adonis, for their amendments concerning the very significant issue of chemicals regulation.

The Bill will incorporate current EU law into domestic law and allow it to be corrected in order to operate properly, giving consumers and businesses as much certainty as possible. This includes regulations relating to chemicals. The Bill will convert the REACH regulation into domestic law, meaning that the obligations on duty holders and the environmental standards and principles that underpin REACH will continue to apply in the UK, including in the devolved areas. These include the specific measures included in the amendment in the name of the noble Lord, Lord Whitty.

We are working to ensure that we have a functioning chemicals regulatory and enforcement system in the UK for day one. For example, the Environment Secretary has given the go-ahead for the development of six new systems, including one for chemicals. Work has started on delivering the new IT system that will enable registrations and the regulation of chemical substances placed on the UK market. This will provide continuity for businesses after EU exit.

Let me be clear: our priorities are to maintain the effective and safe management of chemicals to safeguard human health and the environment, to respond to emerging risks and to allow trade with the EU that is as frictionless as possible. We have been engaging with a range of stakeholders to understand the detailed impacts of Brexit and are grateful for the pragmatic approach that the chemicals industry is taking to Brexit and for its positive approach to working with the Government to understand the impacts and deliver the best possible outcome for the industry after exit. We are committed to continuing this engagement throughout the process.

With regard to chemicals, REACH is underpinned—this is explicit in Article 1—by the precautionary principle. So, once REACH is translated into UK law through the withdrawal Bill, the precautionary principle will continue to exist directly in UK law in relation to REACH. The precautionary principle is also embedded in international conventions relevant to the regulation of chemicals, such as the Stockholm convention on persistent organic pollutants, and the UK is and will continue to be a signatory to the convention in its own right.

Further, our 25-year environment plan sets out our intention to publish a chemicals strategy that will set out our approach as we leave the EU. It will set out our priorities for action and detail how we will achieve our goals, building on existing regulatory approaches and tackling chemicals of national concern. The Government will discuss with the EU as part of the exit negotiations how best to continue co-operation on chemicals regulation in the interests of both the UK and the EU. As the noble Lord, Lord Whitty, acknowledged, in her Mansion House speech the Prime Minister said we want to explore with the EU the terms on which we could continue to co-operate with the European Chemicals Agency and participate in certain processes, the point that the noble Lord, Lord Fox, sought clarification on. As for the specifics, I think your Lordships will understand that I cannot go into more detail because this is the subject of live negotiation in the negotiation process.

[Lord Fox]

That is very clear, and I thank the Minister for what she has said so far. What is not clear to me is whether the overall idea is to avoid divergence from EU REACH. It does not sound as if the UK is inside REACH in the way that the noble Baroness, Lady Young, pointed out; it sounds as if the aim is to run a parallel system. Have I misunderstood?

[Baroness Goldie]

I can only repeat the Prime Minister’s stated intention in her speech, and that is specifically to explore with the EU the terms on which we would continue to co-operate with ECHA and participate in certain processes. I say to the noble Lord, Lord Fox, that clearly, EU REACH is an EU organisation and to be a member of it you have to be an EU member state. After Brexit we shall not be that, but it is in the interests of the UK and certainly of industry that we work, in so far as we possibly can, in tandem with what is happening within the EU. That is certainly what the Government’s objective will be. The precise detail of that will be the subject of the negotiations.

The UK is strongly committed to the effective and safe management of chemicals and pesticides, and that will not change when we leave the EU. I hope this provides the noble Lords with sufficient reassurance that they will not pursue their amendments.

[Lord Whitty]

I thank the Minister for that reply, and I thank my noble friend Lady Young and the noble Lord, Lord Fox, for supporting the amendments. I am afraid the Minister’s speech was not as forthcoming as I was hoping due to the way that I had been led, in my usual spirit of optimism, to interpret the Prime Minister’s speech. I am therefore going to have to say slightly more than I promised the Chief Whip.

It seems that the Minister is saying that we will be outside the REACH process but will develop our own parallel process and might, if we can negotiate it, still in some way be party to the agency. I had hoped that being party to the agency as part of the Prime Minister’s aim meant that she had been convinced by the industry and others that it would be sensible to be part of the process. The Minister’s reply today narrows that hope somewhat.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Collins, and the noble Baroness, Lady Randerson, for their amendments, which are effectively seeking transparency. The Department for Exiting the European Union is leading cross-government work, including with the Foreign and Commonwealth Office treaty section, to assess and act on the international agreements for which, as a result of the UK’s withdrawal from the EU, there will need to be arrangements to ensure continuity for business and individuals. Alongside this, we are also working with our international partners—the EU 27, the Commission and third countries—to identify the full range of agreements which may be impacted by our exit from the EU, and we will be taking their views into account.

I might observe to your Lordships that it is not common practice to publish assessments on treaties that have expired, ended or been superseded. However, I assure noble Lords that any treaties which require new or amended implementing legislation and/or parliamentary scrutiny before ratification will go through the appropriate well-established procedures. Where the powers in subsection (1) are used, these will be subject to the scrutiny procedures set out in this Bill. To set all this in context, my noble and learned friend Lord Mackay of Clashfern rightly identified that the instances where these provisions may be used are not likely to be plentiful. As I have explained, given that the Government’s approach to international agreements is to achieve continuity, I believe this renders unnecessary the impact assessment that the amendment would require.

I can confirm that we will, of course, continue publishing impact assessments to accompany legislation, in line with existing practice. I take this opportunity to remind the Committee of the Government’s overarching policy approach to international agreements after we leave the EU. As set out in the technical note recently published on this issue, we are seeking to ensure that our existing international agreements continue to apply to the UK during the proposed time-limited implementation period. Our officials are working with the Commission on the precise mechanics of this. The focus, both during the implementation period and beyond, is on seeking, wherever possible, to continue our current arrangements with third countries and international organisations. We recognise the need to promote stability for businesses and individuals and we will aim to transition agreements as seamlessly as possible to ensure an orderly withdrawal.

I hope that that background and this explanation provide the necessary clarity and with this insight, I respectfully ask the noble Lord to withdraw his amendment.

[Lord Collins of Highbury]

I thank the Minister for that explanation, but I fear that we will need to return to this issue. The noble and learned Lord may be right that there is limited scope, although I think we have heard in the debate that there are lots of examples. There are lots of conventions and agreements that, since our membership of the EU, we have had exemptions from because we are complying with EU law. But when we are outside the EU, we will find that we will need to ensure that we have the mechanism, so that those agreements and conventions are properly implemented. That is the issue.

Regarding the process we are going through on the Bill, at the end of the day—I hear what the noble Baroness, Lady Randerson, says—I do not really think that the people of this country understand exactly what will be required to ensure that Brexit is effective, or the sorts of agreements and international conventions that might affect them. I hope that the issue of transparency will be one not just of implementation but of ensuring that we all know and understand better the full implications of the decision that has been made. But in the light of the comments made, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Lisvane (CB)]

My Lords—

[Baroness Goldie (Con)]

My Lords, the Chief Whip has asked me to indicate that there is some concern about the availability of facilities if we do not adjourn the Committee. I therefore propose that at this point we adjourn and I suggest that we resume after Questions have concluded.

House resumed.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[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?

[Baroness Goldie (Con)]

My Lords, I thank the noble Lord, Lord Davies, in his absence for this amendment and thank the noble Lord, Lord Tunnicliffe, for moving it and speaking to it. The Office for Budget Responsibility’s remit is clearly defined in legislation, under the Budget Responsibility and National Audit Act 2011, as being,

“to examine and report on the sustainability of the public finances”.

In doing so, the OBR must produce at least two forecasts per financial year, which must include the impact of government policy where it can be quantified with reasonable accuracy.

The Government expect the OBR to include the impact of the withdrawal agreement alongside its forecast of the UK’s economic and fiscal outlook as soon as sufficient information is available. That would contribute to the transparency which the noble Baroness, Lady Kramer, is looking for. But the Government cannot dictate when that might be. This is the important distinction. It is therefore not appropriate to request the OBR to produce analysis specifically for a legislative debate, as this will draw the OBR into political debate, which could undermine its reputation as an independent and objective institution.

--- Later in debate ---

[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.

[Lord Liddle]

I have the most recent report from the OBR here. It seems to me that the time point is irrelevant. If we are serious about letting our own Select Committees look at the proposed withdrawal agreement, there will be time for the OBR to do a forecast. It is one of the things that it complains about in the recent report:

“We asked the Government if it wished to provide any additional information on its current policies in respect of Brexit”—


but all the Government did was send it a copy of the Prime Minister’s Florence speech. The report goes on:

“Given the current uncertainty as to how the Government will respond to the choices and trade-offs facing it during the negotiations, we still have no meaningful basis for predicting a precise outcome upon which we could then condition our forecast”.


As soon as the withdrawal agreement is known, the OBR will want to produce that. Is the noble Baroness saying it should not?

[Baroness Goldie]

On the contrary, as I made clear in my initial comments, the Government expect the OBR to include the impact of the withdrawal agreement alongside its forecast for the UK’s economic and fiscal outlook. In fact, the noble Lord perhaps makes the point better for me than I make it myself. The OBR’s comments, which he has just read out to me from the report, are not redolent of criticism of the Government but of an acceptance of the reality of the difficulties of the negotiation.

--- 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.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Noble Lords]

Order!

[Baroness Goldie]

For once, I am grateful to the noble Lord opposite. Can I ask one of my colleagues to determine who should precede the other?

[Baroness Oppenheim-Barnes]

I would just like to put the opposite view. Some of the regulations that we have had to accept from the EU on health matters were likely to be completely unhelpful and possibly even make matters worse. I remember when people were concerned about harmful additives in food and parents, in particular, wanted to know more, so the EU produced a regulation in which the information was to be given in tiny letters, smaller than anything else on the label. You had the vision of a busy mother with a child on each arm who possibly needed her glasses to read what it said. She would get a completely opposite view because the writing was so small: she would think that it was the good thing that they should have when in fact it was trying to warn her against it. I was unable to get that amended at the time. That was just one small example of such misinformation or lack of information. I am looking forward, when we complete everything and achieve Brexit, to redrafting a number of these regulations that we had to accept to make them much more sensible for those who are rightly concerned about these matters.

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[Lord Marlesford]

I am concerned purely with immigration and the movement of people across borders. I want to make the border of the island of Britain the border between Britain and the island of Ireland.

[Baroness Goldie]

My Lords, your Lordships are going to have to tolerate AP Herbert’s elderly hypochondriac. I thank my noble friend Lord Marlesford for highlighting this issue. The Government are committed to ensuring that the common travel area with Ireland and the Crown dependencies is maintained. The common travel area has special importance to many of the people of these islands going about their daily lives. Importantly, maintaining the common travel area protects the ability of British and Irish citizens to move without hindrance across the border between Northern Ireland and Ireland, recognising the symbolic significance of this in the implementation of the Belfast Good Friday agreement, and removes the need for immigration controls on journeys from Ireland to the UK.

The common travel area with Ireland was formed many years ago, long before either the UK or Ireland were members of the EU. It is reflected in each state’s application of national immigration policy and provided for by bilateral agreements and arrangements. The common travel area arrangements are recognised in European Union law, confirming that the UK and Ireland can continue to work together to make arrangements for the movement of people between our states. Let me reassure my noble friend Lord Marlesford that the Government are committed to maintaining these arrangements. The common travel area has proven to be resilient over the years, withstanding legal challenges and new policy and political developments. It has been staunchly protected by all its members. Both the UK Government and the Irish Government are firmly committed to protecting and maintaining co-operation as part of the common travel area arrangements.

The Government have endeavoured to set out, from the Prime Minister’s Article 50 letter and her Florence speech to our position paper in August, that preserving these arrangements and the unique relationship between the UK and Ireland is a priority for the negotiations. Perhaps I may remind noble Lords that, importantly, paragraph 54 of the December joint report includes recognition from the EU that the common travel area with Ireland is protected after the UK has left the EU. As with all the commitments made in the December joint report, we are determined to ensure that this is turned into legally binding text in the withdrawal agreement. To reiterate, the withdrawal agreement and implementation Bill will implement the major elements of the withdrawal agreement, including the protection of all the Northern Ireland and Ireland commitments in the joint report. All of that is of course a matter for the future Bill rather than the one that we have before us.

As well as the clear commitment of this Government to maintain the common travel area, I am also clear that these arrangements can be maintained after the UK has left the EU. The UK’s approach to the common travel area is provided for by primary legislation in the Immigration Act 1971. Our approach to arrivals in the UK from within the common travel area is distinct from our membership of the EU and will therefore be unaffected by the UK’s exit. The high level of collaboration with Ireland on border security, on strengthening the external border of the common travel area and on promoting legitimate travel within this special travel area can continue. In these circumstances, I suggest that the amendment moved by my noble friend is unnecessary and I hope that, with my explanation, he will feel able to withdraw it.

[Lord Marlesford]

I thank the Minister for her comments, which are what I very much expected. The simple fact is that a solution has not yet been produced to avoid having any sort of hard border between Northern Ireland and the Republic of Ireland. What I was seeking, as far as the movement of people is concerned, is to make it possible to allow the situation to remain as it is. We are not talking about the impact of leaving the EU; we are talking about national security and the present unsatisfactory position that it appears is going to cause further problems as a result of leaving the EU. However, the hour is late and I am sure that we shall return to these matters. I beg leave to withdraw the amendment.

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[Lord Teverson]

Before the Minister stands up, perhaps I might ask for some clarification. The draft transition agreement was published today. I read through what it says on Euratom—it is in green, meaning that it is completely agreed apart from any legal, bureaucratic changes that might be made, yet I am still unclear from that document whether during the transitional period the ONR is responsible to the International Atomic Energy Agency for safeguarding in the UK or Euratom continues to be responsible under the acquis. I ask the Minister to clarify that tonight—it must have been agreed because it is in green—so that we are clear for the debate tomorrow.

[Baroness Goldie]

My Lords, having listened to the very distinguished contributions, I can say that I bring to this matter only my ignorance. I was not a star in the physics class at school and I am feeling much humbled by the calibre of the contributions. I welcome the sentiment behind Amendment 227BK, moved by the noble Lord, Lord Broers. The UK is a world leader in nuclear research and development, as he acknowledged, and the Government are committed to ensuring that that is not put at risk.

I will try to advance a proposition for why the Government consider the amendment unnecessary. We are taking the future of UK participation in nuclear fusion and fission research and development programmes very seriously, and we have already taken practical steps to protect them. The Joint European Torus—JET—facility at the Culham Centre for Fusion Energy is currently the most advanced fusion reactor in the world, I understand, and has helped the UK become a world leader in this technology. Let me be clear: the Government are committed to maintaining and building on this hard-won position as we leave the EU.

As noble Lords indicated, we have already announced that the UK will continue to pay its fair share of the JET operating contract, should it be extended to 2020. That commitment is independent of the outcome of the Brexit negotiations. Furthermore, the Government recently committed £86 million for a national fusion technology platform to support further development of fusion technologies in the UK and to underpin our commitment to continued international collaboration. As noble Lords will be aware, the Government are also working closely with the UK Atomic Energy Authority and the Nuclear Innovation and Research Office to engage with our EU partners and determine the best way forward for the UK’s nuclear research and development sector.

The Government have consistently been clear that we want to find a way to continue science and innovation collaboration with Europe. The Prime Minister recently set out the UK’s commitment to establishing a far-reaching science and innovation pact with the EU. This will enable continued participation in key programmes alongside our EU partners. More specifically, in September our future partnership paper on science and innovation made it clear that the UK wants to find a way to continue to work with the EU on nuclear research and development. In January, we went further. A Written Ministerial Statement made by my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy confirmed that the UK’s specific objectives in respect of the future relationship are to seek,

“a close association with the Euratom Research and Training Programme, including the Joint European Torus (JET) and the International Thermonuclear Experimental Reactor (ITER) projects”.—[Official Report, Commons, 11/1/18; col. 10WS.]

Of course, these matters are all subject to the negotiations.

Both the noble Lords, Lord Hunt and Lord Fox, raised specific issues about what they perceive as a distinction in the Government’s treatment of different EU agencies. I undertake to look in Hansard at the points raised by the noble Lords and will try to come back with a more specific response. I do not have detailed information available to me. What I can say is that the Secretary of State has also committed to report back to Parliament every three months about overall progress on Euratom, covering the EU negotiations and other important matters such as research and development, by way of further Written Ministerial Statements. The first of these updates is expected to be published before the House rises for the Easter Recess.

The UK’s contribution to EU nuclear research programmes is valued, and it is in no one’s interests for the UK to be excluded from these efforts. We are working constructively and with great determination towards a successful and mutually beneficial outcome for this important area of the negotiations. I realise that what I say may not totally satisfy your Lordships and may be short of what the noble Lord, Lord Broers, is looking for, but I suggest that, in the circumstances, he might feel able to withdraw his amendment.

[Lord Teverson]

My Lords, I ask the Minister again to clarify—this has to be clarified because it is in the draft agreement—who is responsible to the international community for safeguarding during transition. Is it Euratom, on our behalf, or is it the Office for Nuclear Regulation?

[Baroness Goldie]

I am sorry, but I do not have a specific response to the noble Lord. I shall find out and write to him.

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[Lord Lisvane]

My Lords, I think that if it were an SI concerned only with imposing a fee or charge, noble Lords would not have it laid before them.

[Baroness Goldie]

My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.

Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.

Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.

As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.

The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.

To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.

It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.

I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.

The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.

I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.

The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.

I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.

I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.

I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.

I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.

Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—

[Baroness Hayter of Kentish Town]

My Lords, before the noble Baroness leaves the issue of fees, it was fairly clear earlier that the House probably would not accept that fees could be charged without primary legislation: we do not accept that the power to do that should be by secondary legislation. Assuming that we win on that, which I think we might, when we come to Report, I think it unlikely that the House will want to accept the idea that those fees could then be hiked by a Minister without coming through the affirmative procedure. Given that the Minister said that she would look at this in the broader context that this is a new power to set up fees for new functions being brought over, raising them without an affirmative procedure is perhaps a step too far.

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[Baroness Goldie]

I have undertaken to look at the contributions to the debate. I have not suggested that all matters are de minimis; I am merely pointing out that some are, and trying to find proportionality in how we deal with our response to this. However, I undertake to look at what the noble Baroness and noble Lord have said and reflect further on the position.

I return to Amendment 236, in the name of the noble Lord, Lord Adonis, which requires all regulations made by Northern Ireland departments under their Schedule 2 powers to follow the affirmative procedure. As drafted, the Bill provides that the criteria for triggering the affirmative in the Assembly are the same as those for this Parliament. It is right that, where this Parliament confers powers on the Northern Ireland Executive, it should provide for those powers to be scrutinised. We do not necessarily have to provide that those procedures be the same for Northern Ireland departments and UK Ministers if there is good reason that they be different. However, that decision cannot be taken without a view from the Assembly as to the level of scrutiny that is required. In the absence of an Executive, we cannot invite the views of the Assembly and the Executive as we have for the Scottish Parliament, the National Assembly for Wales, and the Scottish and Welsh Governments.

It is also right that we do not introduce an entirely new procedure, such as the sifting committee, without a view from the Assembly, and that we should preserve the competence of the Assembly to challenge the scrutiny provisions if they see fit. That is only respectful and it is what this Bill does. If we were to provide a set of scrutiny procedures entirely different from those for UK Ministers’ powers, or for the Scottish and Welsh Ministers’ powers, as this amendment would do, we should do so only where we are satisfied that this reflects the needs and wishes of the Assembly.

I have tried to cover the main points of concern and, I hope, to include the presence of a comfort blanket to reassure your Lordships that the Government are prepared to reflect on this. On the basis that we cannot, at this present time, find what the noble Lord wants, I ask for his indulgence and suggest that he withdraws his amendment for the moment.

[Lord Adonis]

My Lords, the noble Baroness is so mellifluous and so reasonable when she says that she is not actually prepared to accept anything you have said but there are, none the less, very good and sufficient reasons why—she may not be personally familiar with them, but they are extremely compelling and she proposes to give them full consideration outside the Chamber—that one cannot possibly end up without agreeing with her. However, I latch on to the words, “sifting process”, because everything in the judgment depends on whether we should have negative or affirmative instruments on that process. At 12 minutes before midnight, the sifting process is the groups of amendments we are about to proceed to. The best service I can give the Committee is to enable it to move immediately on to them. The warm and mellifluous words from the noble Baroness will probably ensure that she gets them all completed by midnight. I beg leave to withdraw.

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There is one other objection, however, that has to be addressed very seriously: the number of statutory instruments that are going to be brought forward under the Bill. We are told that there will be 800 to 1,000, of which perhaps 20% will be affirmative resolutions. That is a serious challenge and one that I acknowledge, but there may be a way through it—a compromise, building in part on what my noble friend Lord Hodgson has been saying. There is absolutely no reason why, in Standing Orders, we should not appoint a committee to identify which statutory instruments of an affirmative character may require amendment. That decision could then enable the SI to be amended. If we did that, only a relatively small number of statutory instruments would be the subject of amendments—but it would assert the principle of parliamentary control and, building on what the noble Lord, Lord Tyler, said, it may serve as a precedent for the way in which we handle other SIs arising from different legislation.

[Baroness Goldie]

My Lords, I have to say that I have been called many things in my life, but the appellation by the noble Lord, Lord Adonis, of a “parliamentary anaesthetic” is a first. As we approach the last contribution from the Government on today’s business, though, maybe a metaphorical sleeping draught is appropriate as noble Lords contemplate their slumbers.

As I have stressed, the Government are committed to full and proper scrutiny of the statutory instruments that will come under the Bill. The sifting process seeks to provide transparency where there has been ministerial discretion in choosing the procedure that will apply to an instrument, and it is therefore extended to the main powers under the Bill. All instruments under the Bill will be subject to an appropriate level of parliamentary scrutiny. We have also provided for additional explanatory material to ensure that there is a proper level of transparency for all the instruments and that Parliament is fully informed and can properly sift and scrutinise all the secondary legislation that is to come. If noble Lords do not approve of their contents—and sometimes that happens—the proper way to express that is to oppose the instruments and ask the Government to come back with an alternative proposal.

Nothing in the Bill is intended to be an alteration to the long-established and, in this House, well-functioning procedures for the scrutiny of secondary legislation. The Government understand the concerns around the powers in Clause 17, and I have listened closely to what your Lordships have been saying. We will consider how we might be able to provide reassurance and address concerns when we reach that clause, as we shall imminently do.

The amendments in this group raise similar issues to those in earlier groups, but I shall address—in, I hope, sufficient detail—my noble friend Lord Hodgson’s Amendments 238 and 239 concerning the creation of a new super-affirmative procedure for the scrutiny of statutory instruments under the Bill.

I cannot shy away from the fact that a significant number of statutory instruments will come before us under the Bill. I reassure your Lordships once more that a very significant element of what needs to be done will be strictly technical, making de minimis changes such as the adjustment of reference to EU law or to retained EU law. Procedures such as that suggested by my noble friend, which were described as “turbocharged” procedures, are simply disproportionate to these changes, and a procedure of the kind mooted by my noble friend is simply unnecessary. The powers in the Bill can be used only for limited purposes and are themselves subject to a number of restrictions.

For the types of major policy change that a number of your Lordships appear to be concerned that the Government might seek to make under the Bill, we do not shy away from parliamentary scrutiny. The proper means for scrutiny of such changes is primary legislation—rather than seeking to design, at pace, a new, bespoke super-affirmative process.

I know that some of your Lordships are wary of relying on assurances from the Dispatch Box but, in this case, we have acted on those assurances already, as can be seen through the passage of the Nuclear Safeguards Bill and the sanctions Bill. I understand noble Lords’ wish to ensure that Parliament can give the SIs to come consideration which is akin or similar to the consideration given to primary legislation, but I suggest that there must be some delineation—there always has been—between things that merit such full consideration and those that do not. Frankly, the alternative is legislative logjam: a complete constipation of the process.

For each of those categories, the Government wish to use the well-established procedures that Parliament has already set down. I have to say that all precedent suggests that procedures such as those suggested by my noble friend can take six months to a year or even longer. Quite simply, in the context of what we are engaged in, we do not have that time. Adopting a super-affirmative procedure would therefore prevent us from being able to deliver on a key objective of the Bill: making timeous and necessary change to maximise certainty for businesses and individuals by ensuring continuity through a functioning statute book in time for exit. In my opinion, that would be a grave failing.

My noble friend Lord Hailsham’s amendment, Amendment 248, crosses similar ground to Amendment 247 in the name of my noble friend Lady McIntosh. They bring us to a discussion of some of the fundamental assumptions of the debates we are having today, have had on previous days and shall have in regard to other Bills, about secondary legislation. I understand the concern of my noble friends, echoed no doubt by others in the Committee, that this is a framework Bill and that the detail, wherein the devil always lies, will be available only in secondary legislation, with which we can only declare ourselves content or not content. However, I must make it clear that the Government cannot support these amendments as a solution to this problem.

It is by the processes involved in passing primary legislation that the House can amend law as it passes before Parliament. That process involves long and detailed scrutiny and debate, with the Government given an opportunity to explain their case in great detail and others given an opportunity to challenge and test that over multiple stages and in both Houses in sequence.

[Lord Beith]

I should like the Minister to envisage that she is responding on behalf of the Government to a debate on a statutory instrument which the House in general is saying that we need to have but which has a fundamental flaw that has been identified by many noble Lords. At that point, is she really going to say to the House, “The proper course for you to take is to reject this instrument, and then I will be forced to take it away and come back with a corrected instrument”? Or will she say, “We’ve no time for that now, you will just have to accept it as it is”?

[Baroness Goldie]

That would of course entirely depend on the circumstances of the instrument, the extent of the change being effected by the instrument and what was an appropriate response to the concerns being raised. I am certain that the Government would respond in a sensible manner if that situation were to arise.

I repeat that it is for primary legislation to set a policy direction and establish the framework in which government may operate. Secondary legislation has a different place in our legal framework. The Hansard Society, which many in the House will accept as an expert source in this area, has said that the power to amend SIs would be,

“essentially undermining the principle of delegation”.

If wider review of the legislative process is proposed—as a number of noble Lords would like—this Bill is not the place to do it. I note the recommendation of the Constitution Committee, in its report The Process of Constitutional Change, that substantial constitutional change should be clear when a Bill is introduced. This Bill is substantial in its repeal of the ECA, but that was clear even before the Bill was introduced and I do not think a change of this type would be appropriate for a Bill which has already completed its passage through the other place.

In the other place, my right honourable friend Dominic Grieve proposed a triage mechanism and both he and the Government accepted the sifting mechanism proposed by its Procedure Committee. This will increase the transparency surrounding secondary legislation, but will not change its nature. Secondary legislation can be scrutinised and debated and, indeed, can be of great importance. However, its purpose is to fill in the spaces where Parliament has set a course under primary legislation and empowered the Government to provide for the details in subordinate instruments. As has already been said, if Parliament is not content with an SI, it can be rejected and the Government can consider and return with another. To open statutory instruments to amendment would essentially be to create a new kind of legislation, without the scrutiny afforded to primary legislation but, at the same time, conferring on the new kind one of the essential qualities of primary legislation.

[Baroness McIntosh of Pickering]

If the Government are not minded to accept an amendment to statutory instruments under these circumstances, where there is a substantive policy change, would they be minded to bring back that proposal as an Act of Parliament, so that all the proper scrutiny procedures could be undertaken?

[Baroness Goldie]

I respond to my noble friend as I did to the noble Lord, Lord Beith. That hypothetical situation would depend entirely upon the practicalities of the situation confronting the Government if and when such a situation arose.

[Lord Wigley]

A moment ago, the Minister said that we would effectively be according to statutory instruments the role of primary legislation. However, throughout the Bill we are having the amendment of primary legislation by order. In other words, the statutory instrument system is being used—excessively to my mind—in the primary legislative system and we cannot get away from that.

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[Baroness Goldie]

I have tried to make it clear that we are not attempting to equate delegated legislation with primary legislation. I have been trying to clarify when the Government consider primary legislation is appropriate and should be used—for policy change, for example. However, we are in an extraordinary situation, as all noble Lords acknowledge. It is beyond argument that the Government are having to contemplate the transfer of a body of law of huge volume and massive complexity. We owe it to the people and businesses that rely on that law to make a good fist of getting it transferred from A to B by the critical point of exit day.

My noble friend Lady McIntosh mentioned the Civil Contingencies Act 2004, which is one of the very few examples of where statutory instruments made under an Act can be amended by Parliament. The emergency regulations made under that Act are very unusual instruments. The nature of the situation with which they are intended to deal is self-explanatory. It is in a state of emergency and is such that Parliament cannot scrutinise these instruments before they are made. None of the normal scrutiny procedures of this House applies. That is intrinsic to the very unusual approach under that Act, drafted for unusual and extraordinary circumstances. Noble Lords may be interested to note that in the history of the Civil Contingencies Act no Government have ever made any emergency regulations.

We are not proposing in this Bill anything of the sort of action envisaged by the Civil Contingencies Act. I cannot think that allowing amendable SIs is the solution to the concerns expressed by my noble friends. Nor, I repeat, is reform of the legislative process the role of this Bill. It is merely intended to provide continuity and certainty in our statute book.

The amendments would not only fundamentally alter the nature of secondary legislation but imperil the Government’s programme of secondary legislation and Parliament’s opportunity to scrutinise it. If this legislation is subject to continued movement back and forth, we run the risk that crucial provisions are not in place in time to allow businesses and individuals to prepare for exit, and that so many SIs would become bunched at the end of the process that they would not be properly scrutinised. I have endeavoured to deal—I hope—fully with the very important points raised by colleagues in the Chamber, and I hope that my explanation reassures noble Lords and the noble Baroness. I ask that the amendment be withdrawn.

[Lord Mackay of Clashfern]

I was wondering whether my noble friend had any special comment on proposed new sub-paragraph (4) in Amendment 248, which seems to have nothing much to do with the amendments and seems in conflict with what the noble Lord, Lord Tyler, was saying earlier.

[Baroness Goldie]

At this time of night my reading qualities are not at their most alert. May I look at that in more detail and revert to my noble and learned friend?

[Lord Hodgson of Astley Abbotts]

My Lords, I thank my noble friend for her reply. She short-changed herself in only one sense: that was that the noble Lord, Lord Adonis, described her as mellifluous. Never was she more mellifluous than in dealing with the noble Lord, Lord Beith, and my noble friend Lady McIntosh. The hour is late; we have had a long and helpful contribution from my noble friend the Leader of the House which demands careful scrutiny, so all that I would like to do now is to thank all those who participated in this short debate. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.

With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.

I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.

If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.

[Baroness Goldie (Con)]

My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.

As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.

Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.

It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.

[Lord Thomas of Gresford]

I do not understand the expression “sub-delegation” that the Minister uses. Does she suggest that when powers are given to Ministers in the devolved Administrations, that is “sub-delegating”? I do not think that is the appropriate term.

[Baroness Goldie]

It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.

I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.

[Lord Morris of Aberavon]

May I pursue the intervention made by the noble Lord, Lord Thomas? “Delegated” is not an appropriate term here; they are devolved powers, not delegated powers.

[Baroness Goldie]

I accept the distinction drawn by the noble and learned Lord. I am trying to address the amendments of the noble and learned Lord, Lord Hope, in the context of what the provisions do and his concern that they appear to cut off what he considers an entitlement of the devolved Administrations. I have tried to explain why, inevitably, these aspects are interlinked with the wider debate we will have on Clause 11.

The Government are prepared to listen to what has been said. I have indicated that we are prepared to look again at these provisions. I thank the noble and learned Lord for bringing forward his amendment, but in the circumstances I urge him to withdraw it.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for her remarks. The use of the expression “sub-delegation” gives some insight into the thinking of the Government. As was pointed out, “delegation” is not an appropriate word to use where matters have already been devolved—by the statutes to which I referred earlier—to both Wales and Scotland. “Sub-delegation” is a very odd word to use. We are talking about a power within the devolved competencies for the devolved authorities to legislate, or confer a power to legislate, by whatever means they think appropriate. So I am encouraged by the fact that the Minister is prepared to look at this again. I think that she will agree with me that much of what we will be discussing in this little group of amendments is work in progress, as we try to work through the detail of the scheme that the Bill sets out. I am encouraged by her reply.

I also thank all those who have contributed to this brief debate. On the word “adjustment”, I refer to what the noble Baroness, Lady Hayter, was saying. The Minister will remember, from her early days in the law in Scotland, that the word “adjustment” is sometimes used to take things out as well as to put things in. It is a word that came naturally to me as a means of dealing with bits in the statute that require to be trimmed, perhaps by removal, as well as by refining the language. I am grateful to the noble Lords, Lord Thomas of Gresford and Lord Hennessy of Nympsfield, for their emphasis that we are dealing with matters of great significance and importance. When I said that these were just technical points, I did not mean to suggest otherwise; rather, I was suggesting that the main thrust of our argument will be reserved for when we come to look at the Government’s amendments.

Lastly, on the contribution of the noble Baroness, Lady Finlay of Llandaff, I join in her tribute to the efforts that the noble Lord, Lord Bourne, is making to discuss matters with us and to reach as much common ground as possible. I, too, have had useful meetings with him and I am grateful to him and to his team for the attention they have given to the points I have been raising. As I have said, this is work in progress; I am encouraged by what the Minister said and, in the light of that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, I want to add to what my noble friend just said by making reference to the politics of all this. The reality is that powers that came from Europe were seen as politically very neutral, in a party-political sense; but once those powers and restraints are placed with Westminster, raw party politics immediately become a key issue. The tension therefore increases. The Minister will be aware of this from her own experience. Whereas a power that was passed from or constrained by Europe is seen on a pan-European basis—where party politics could not possibly be applied in a local sense—when it becomes a decision by Westminster, party politics are inevitably written into it, whether in favour or against. I am sure the Minister will understand the point I am making from the Scottish experience; it certainly applies to my Welsh experience.

[Baroness Goldie]

My Lords, I thank the noble and learned Lord, Lord Hope, for tabling these amendments. They would have a significant effect because they seek to remove the restrictions on the ability of these powers to modify direct retained EU legislation and to confer functions that correspond to the making of what is termed EU tertiary legislation. I am grateful for the thoughtful and considered contributions that have emanated from a wide range of experience, not least of the devolved Administrations. As noble Lords have noted in their speeches, this issue is again closely tied to the final policy position on Clause 11.

These amendments concern the question of parity, as the noble Baroness, Lady Randerson, has just pointed out, between Ministers in the devolved Administrations and UK Ministers. They also address the matter of who should be responsible for fixing EU legislation in areas that intersect with areas of devolved competence which currently have uniform application across the UK. I apologise again for emphasising the point, but we need to consider how all of this will work in relation to the wider changes we have tabled in Clause 11. It is important to recognise that the answer we reach on that question in the subsequent debate will necessarily inform the answer to the questions posed in this one.

The Government have been clear that the powers are conferred on the devolved Administrations so as to ensure that we do not disrupt the common frameworks currently provided for by EU law in areas where a framework will need to be retained. That might be to protect our internal UK market, our common resources or any of the other criteria that we have agreed with the devolved Administrations and published in the Joint Ministerial Committee communiqué in October last year. These are laws that apply directly, exactly as written, across every part of the UK, and indeed at the moment across every part of every member state. As such, these are by their nature laws that the devolved institutions currently have no power to modify or to diverge from. As we consider where we shall and shall not need frameworks, it is clear that in many of these areas, competence will pass to the devolved Administrations on exit day.

However, I would suggest to noble Lords that before we get to that point, we have to ensure that these laws function properly. We owe that to our communities and businesses and to individuals—that there can be certainty as to the laws that will apply to all those groups on the day we leave the EU. Carving up the effect of these laws in different parts of the UK or expecting to have different laws to achieve the same effect for different parts of the UK might undermine that certainty. It is the Government’s view that where in the first instance these laws apply at the UK level, we should also consider the corrections to those laws at the UK level. But let there be no doubt that the devolved Administrations will be an integral part of this process. We shall consult them on any and every change to retained direct EU legislation in an otherwise devolved area made under the powers in this Bill. We shall need to reflect on this alongside the debate on Clause 11.

Whatever the outcome in relation to devolved competence more widely after exit day, at a minimum we must retain this limit in those areas where, working with the devolved Administrations, we have identified that we need to retain a framework. Otherwise, we put at risk some of the issues to which I have referred, such as the internal market, the management of our common resources and even our ability to strike the best possible trade deals.

I hope that this provides some reassurance to the noble and learned Lord, Lord Hope, that we are alive to the interaction of this policy with Clause 11. We are considering it in parallel as our discussions continue with the devolved Administrations. The end result must be that both Clauses 10 and 11 dovetail and that they are not in conflict. On that basis, I commit to continuing to keep the noble and learned Lord and this House up to speed on how our policy thinking is developing in these areas. In those circumstances, I would ask him to withdraw his amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, I beg to move that the House be now resumed.

[The Deputy Chairman of Committees (Viscount Ullswater) (Con)]

The Question is that the House be now resumed. As many as are of that opinion will say Content.

--- Later in debate ---

[Lord Wigley]

My Lords, as a party of one, I do not expect to be consulted on these matters—I realise that there are limitations. However, on Monday night we sat here until after 1 am, and I spoke after 1 am. Earlier we had a break of 20 minutes for food. Why on earth, when there is time available now, can we not carry on with the Bill, certainly if the implications are that we might go on until late again tonight?

[Baroness Goldie]

My Lords, I beg to move that the House do adjourn during pleasure until 6 pm.

House resumed.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Elystan-Morgan]

I support and agree with everything that has been said. After all, devolution is not a dainty little sympathy; it is a fundamental right accepted as part of the constitutional inheritance of all the people of the United Kingdom. On that basis, the words spoken are the very heart of truth and common sense.

[Baroness Goldie (Con)]

I thank noble Lords for their contributions to the debate. I also thank the noble and learned Lord, Lord Wallace of Tankerness, for speaking to the amendments tabled by the noble Lord, Lord Foulkes. I appreciate the intention behind the noble Lord’s Amendment 311 in seeking to apply a “sunset” to the Clause 11 arrangements. I recognise the aim to provide a clear guarantee that those areas in which frameworks are not needed will pass into devolved competence. In fact, the effect of Amendment 311 would no longer be required if we take the kind of approach adopted in the amendments to Clause 11 that we debated last week. The noble and learned Lord, Lord Wallace, was good enough to acknowledge that.

As we indicated on our amendments, we think it preferable that those areas where we know that frameworks are not required will never be subject to the constraint at all. I hope your Lordships will also be reassured by the proposal of a power to repeal the effects of Clause 11 to make clear that it is a temporary means to limit competence where we are considering the need for a framework, not an ongoing mechanism for altering that devolved competence. We have proposed an obligation to report to Parliament every three months on the progress we had made towards repealing the restrictions and implementing the new arrangements where needed. As has been acknowledged, this will increase the impetus behind the frameworks processes. Following last week’s debate on Clause 11 and the extent to which this interconnects and relates, I urge the noble and learned Lord not to press Amendment 311.

I will briefly address the amendment in the name of the noble Lord, Lord Wigley, which would enshrine in law a requirement for the Government to seek legislative consent Motions from the devolved legislatures. We have said, and I shall say again, that we want to make a positive case for legislative consent for this vital piece of legislation and to work closely with the devolved Administrations and legislatures to achieve that. We have put very considerable effort into securing agreement on the changes to Clause 11. I hope that the amendments we tabled for debate last week show the extent to which we have moved to address the concerns raised by the clause. I want to reassure the noble Lords, Lord Wigley and Lord Morgan, about that.

I regret that we have not yet been able to secure that agreement. It is important to remember that we have sought legislative consent for the Bill. The amendments that we have tabled and the ongoing dialogue are reflections of the Government’s sincere intention to secure that consent. I hope that, with good sense around the table, agreement can be reached. The noble Lord, Lord Morgan, said eloquently that we do not want to turn our backs of 19 years of devolution history. Having been part of that history in Scotland, I could not agree with the noble Lord more.

--- Later in debate ---

[Lord Campbell of Pittenweem (LD)]

What is the Government’s view of the proposed continuity legislation, from both Wales and Scotland?

[Baroness Goldie]

My understanding is that that legislation has been enacted by the devolved Administrations for what they perceive as a necessary protection of their positions. The Government hope that we can supersede that legislation by coming to good sense around the table and hammering this out—which I think is what all parts of the United Kingdom want.

[Lord Wallace of Tankerness]

My Lords, I thank all who have taken part in this short but important debate, and the noble Baroness, Lady Goldie, for responding. I think it fair to say that in all our debates that have touched on devolution, reference has been made to the importance of securing the agreement not just of Ministers but of the devolved legislatures in Scotland and Wales. One prays for the time when it will be the case also in Northern Ireland. That was reflected in the first report of the Scottish Affairs Select Committee of this Session, which recommended that,

“the UK and Scottish governments continue their efforts to secure agreement on those clauses of the Bill which affect devolved areas of responsibility”.

It is important that we reiterate the importance of that. The Minister has indicated that the Government are seized of that, but there is no harm in reinforcing it. She referred to the import of the Sewel convention into both the Wales Act 2017 and the Scotland Act 2016. As we know from the decision in the Miller case in the Supreme Court, the convention is just that: it is a convention and does not have the force of the law. It is important that we reiterate the need to get agreement.

On the proposed sunset clause to which I spoke on behalf of the noble Lord, Lord Foulkes, the Minister seemed to suggest that, once the new proposals come through, this might not be necessary. I tabled a very similar amendment last week, which I had thought of attaching to the amendment brought forward by the noble Lord, Lord Callanan. When I discussed it, I was assured that it was not necessary because, due to the way in which the Bill was set out, it would not have been superseded by pre-emption even if the noble Lord’s amendment had been accepted, so such a clause is still pertinent. It is important that some time limit be set, even for establishing the frameworks. The noble and learned Lord, Lord Mackay, made some interesting and constructive proposals as to how the frameworks might be achieved. While the return of many of the powers at the so-called intersects would be pretty imminent on exit day, a number would still have to be resolved. Therefore, I encourage some positive thinking with regard to a timeframe within which that might be done. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Newby (LD)]

My Lords, as a co-signatory to Amendments 334 and 343, I support them and the thrust of the debate. It can be summarised in a sentence from the noble Lord, Lord Hannay, who said that it was neither necessary nor desirable to have 29 March in the Bill, which was why that date was not in the Bill in the first case.

Noble Lords on different sides of the argument have suggested why there may be a need to be flexible at the end. Can the Minister help me to understand the draft agreement, published last week, which seems to admit of one of them? In Article 168—entry into force and application—a paragraph is printed in yellow, which means that the negotiators have agreed on the policy objective. So, the Government have agreed the following policy objective:

“This Agreement shall enter into force on 30 March 2019. In case, prior to that date, the depositary of this Agreement has not received the written notification of the completion of the necessary internal procedures by each Party, this Agreement may not enter into force”.


That seems to admit of two possibilities. One is that there is a slight delay until the depositary has received the necessary notification of all parties to the agreement, including the European Parliament as well as this one, having gone through those procedures. The other potential meaning—I cannot believe that it is the meaning but it is not clear—is that if by, say, 1 April the European Parliament has not notified its agreement to the agreement, the agreement would fall. I cannot believe that that is the meaning. I thought that the meaning must be that if the formalities of the parties of the agreement have not been completed, the agreement is in abeyance until they have been. It raises the interesting subsequent question as to how the two-year period in Article 50 is interpreted. Can the Minister attempt to explain that position and what the Government understand by the meaning of Article 168 to me?

The bigger point I seek to make is that there are a number of reasons why it may be in everybody’s interests to slightly change the date on which our exit is triggered. The way in which the Bill has been amended does not facilitate that process and it should therefore revert to its original drafting.

[Baroness Goldie]

My Lords, I first thank all noble Lords who have participated in an interesting and very spirited discussion. I know that the issue of exit day in the Bill is important to many in this House. That was certainly the case in the other place, where—as a number of your Lordships have mentioned—multiple alterations were made to the original drafting of the Bill. I hope noble Lords will indulge me in a bit of scene-setting.

Initially, the Bill gave full discretion to the Government on the setting of exit day for the purposes of the Bill, subject to no parliamentary scrutiny procedure. It was also technically possible for Ministers to set multiple exit days for different purposes. Indeed, the noble Lord, Lord Hannay, referred to that. For some parliamentarians, this mechanism was not acceptable because it gave rise to uncertainty as to whether the exit day appointed by the Bill would correspond to the day that the UK actually leaves the EU at the end of the Article 50 process, which had always been the Government’s intention. Therefore the Government brought forward amendments to set exit day in the Bill as 11 pm on 29 March 2019. That was to bring the Bill in line with the calculation of the estimated date and time of exit under Article 50.

However, as the Bill progressed through the other place, some Members highlighted that our first set of amendments did not fully represent a technical alignment with our legal options under international law. To align fully, we would have to provide a mechanism for exit day in the Bill to change, corresponding to the detail of Article 50.3 of the Treaty on European Union. Let me make clear to your Lordships that this is a mechanism that the UK does not have any intention of using. None the less, this anomaly had been highlighted, so a technical amendment to the Bill was tabled that allows the Government to change exit day as defined in the Bill, but only if the date at which the treaties cease to apply to the UK changes from its currently envisaged moment on 29 March 2019.

Any such regulation changing this date in the Act would be subject to the affirmative procedure. I stress that the Clause 14 power does not have access to the “made affirmative” procedure, so the normal timetabling process would apply to any regulations made to amend exit day. That is where we are now with the drafting of the Bill, and I suggest to your Lordships that there are a number of reasons why this position should not change.

First, this issue has clearly been scrutinised heavily in the other place. Indeed, it was possibly one of the most politically salient areas of the Bill, and certainly one of the most amended. Secondly, a sensible, mutually agreeable position was reached in the other place. It was not earmarked as an issue to come back to; it was a settled policy position and it commanded a comfortable majority. Finally, and most importantly, the Bill now matches the reality of the UK’s position under international law. This is the key point: exit day within the Bill should not be significant in and of itself, as it merely mirrors the actual moment at which we leave the EU under international law. Importantly, exit day is the clearly defined pivot on which this Bill turns. With the greatest respect to noble Lords, I therefore cannot support the amendments that seek to alter or undo the compromise reached in the other place.

Let me now try to analyse and comment on the specific amendments.

[Lord Hannay of Chiswick]

I am most grateful to the noble Baroness for giving way. She seems to have overlooked the fact that the Government will be perfectly capable of putting a date into the implementation Bill, which they have told the House will be brought forward before 29 March and which will be after the conclusion of the negotiations, and that will not present the same problems as doing it now. She also, if I may say so, has not dealt with the fact that it is frankly irrelevant whether, when the Government tabled the Bill, the non-mention of 29 March left it all to Ministers or left it all to Parliament. What is relevant is that the Government did not see the need to put 29 March in the Bill at all.

[Baroness Goldie]

Turning to the last point first, I have, for the sake of the noble Lord, tried to clarify where the Government were—as he rightly indicates—where they went, and why they went to that position. I cannot add to that: that is why we are in the position that we currently are. I will cover his other point about the connection with the implementation Bill, and I hope he will show me forbearance and let me deal with it.

I turn to Amendments 334 and 343, tabled by the noble Baroness, Lady Hayter, which seek largely to bring the Bill back to the state of its original drafting. However, as I have already set out, the Bill was not acceptable to the elected Chamber in that state. Instead, an acceptable compromise was reached that does two things: it simultaneously diminishes the power of Ministers in exercising delegated powers and increases the role of Parliament. It also introduced flexibility in varying the date, if required. It is not the case, as the noble Baroness suggested, that it is a straitjacket. That fear of rigidity and inflexibility was echoed by the noble Lord, Lord Hannay, in relation to the hypothetical extension of the Article 50 period. If that were to happen, exit day would then be linked to when the treaty ceased to apply, and the flexibility to vary the date is then expressly provided for in the Bill.

The noble Baroness, Lady Hayter, was worried that the insertion of a specific date in the Bill would somehow prejudice the Government’s ability in the negotiations. However, it is the very flexibility that is now in the Bill that enables the Government to respond sensibly and responsibly to whatever the negotiations may produce. That was also a fear on the part of my noble friend Lord Tugendhat and others, but the Government argue that, far from the flexibility prejudicing the negotiations, it facilitates and provides elasticity in the conduct of the negotiations. Given that, I regret that I am unable to support the noble Baroness and the Opposition Front Bench in attempting to overturn the existing provisions of the Bill. We believe that what emerged from the other place strikes the right balance.

I understand that there are concerns regarding the interplay between the implementation period and exit day. However, as I will reiterate shortly, this is not a Bill designed to legislate for the implementation period.

I move now to Amendment 345A, tabled by the noble Lord, Lord Adonis, which would remove part of Clause 14(4)(a). It always distresses me to disappoint the noble Lord, Lord Adonis, but not only am I not departing from my script—as he was speaking, I was busily adding to it. With his amendment, if the date at which the treaties cease to apply to the UK is different from the date we have put in the Bill, Ministers could amend the definition of exit day to any new date and not just the new date on which the treaties will cease to apply, as the Bill currently prescribes. The Government are conforming to international law, and we want to keep the Bill in line with that position. That is why we are unable to accept the noble Lord’s amendment.

Amendments 344 and 346, tabled by my noble friend Lord Hailsham, take a different approach, including seeking to insert a new clause which would make the exercise of powers under Clause 14(4) subject to a parliamentary resolution. Paragraph 10 of Schedule 7 already provides explicitly for a parliamentary vote on any changes to exit day. This was part of the compromise reached in the other place and is, I suggest, an appropriate level of scrutiny.

Amendment 334A, tabled by the noble Lord, Lord Adonis, attempts to shift the setting of exit day into the statute enacted for the purpose of Clause 9(1) of this Bill. I understand the noble Lord’s amendment to mean that he wishes exit day to be set in the withdrawal agreement and implementation Bill—something to which the noble Lord, Lord Hannay, referred a moment or two ago. With respect, I think we are familiar with the sentiments of the noble Lord, Lord Adonis, when it comes to leaving the EU, and I appreciate that within this House he is not alone. However, with regards to Clause 14, the failure to set an exit day for the purposes of this Bill has no bearing on whether or not we leave the EU, but such a failure certainly affects the manner in which we leave. If we cannot set an exit day, many functions of the Bill which hinge upon it—such as the repeal of the European Communities Act and the snapshot of EU law—would simply not occur. That would render the Bill largely redundant, preventing us from providing a fully functioning statute book and creating a void leading to total legal uncertainty when we leave—but we shall still leave.

Amendment 335, tabled by the noble Lord, Lord Wigley, attempts to set exit day at the end of the implementation period. I can appreciate the argument made here, which has been mirrored by some of the contributions made today. However, it is not the role of this Bill to legislate for the implementation period; that is for the forthcoming withdrawal agreement and implementation Bill. To do so in this Bill would link its operation inextricably to the ongoing negotiations, which is not the intention of this Bill. This Bill is intended to stand part and is—I have used the phrase previously—a mechanism or device whereby we avoid the yawning chasm which would occur if a huge bundle of very important law disappeared into a black hole. We cannot allow that to happen.

I accept that Amendment 345, tabled by my noble friend Lady Wheatcroft, is well intentioned. However, I suggest that it is unnecessary. I believe that the intention behind this amendment is to ensure that exit day can be changed if Parliament resolves to instruct the Government to request an extension of the Article 50 process—this was the point to which the noble Lord, Lord Hannay, referred. But as I pointed out earlier, if the Government were to make such a request, and that request was granted, the power would be engaged by virtue of subsections (3) and (4) anyway, so it is covered. I also reiterate a point made in an earlier debate that, fundamentally, it is our belief that we should not extend the Article 50 period and that this Bill is not the vehicle to raise questions of whose role it is to act on the international plane.

I finish by quoting directly from the Constitution Committee’s report on the Bill, which I know we all hold in high regard. It said that, on exit day:

“The revised definition of ‘exit day’ in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between ‘exit day’ as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK”.


I realise that I may not have persuaded all of your Lordships of the Government’s position but I would at least hope that noble Lords will have some regard to the committee’s assessment of this issue. On that note, I hope the noble Baroness will agree not to press her amendment.

The noble Lord, Lord Newby, asked a pertinent question. He said that the Government have indicated in the draft agreement published recently that certain provisions apply, and he referred to a particular paragraph. I merely remind him that the Government have said before that nothing is agreed until everything is agreed, and the exit day power gives the Government the flexibility to reflect whatever is agreed in the final text of Article 168.

[Lord Newby]

I am grateful to the noble Baroness for that. I agree that nothing is agreed until everything is agreed, but that document states on the front of it that the Government have agreed the policy in it when it is marked as a yellow paragraph. Given that the Government have agreed that policy—there is no trick here—I want to work out what it means.

[Baroness Goldie]

It is a statement of very healthy and good intention. Nothing is agreed until everything is agreed, but it is certainly a signpost as to where we hope to go.

[Baroness Hayter of Kentish Town]

My Lords, one of the questions asked earlier was: what would happen if the European Parliament refused to give its consent? I have a note here from the European Parliament—it advises me that it is not legal advice and is not binding—which certainly says:

“if Parliament”—

that is, the European Parliament—

“refused to give its consent to a draft agreement negotiated by the European Commission, the Council would not be able to conclude the agreement with the withdrawing state”.

That is quite a serious thing to be reminded of.

Someone said earlier that there have been strong views across the Committee on this issue. As the noble Viscount, Lord Hailsham, said, it would be a grave mistake to put the date in statute. However, I disagree with him that the purpose of the amendment—certainly from our point of view—is to halt or up-end everything that is going on. Its purpose is to help the Government to get a better deal. The noble Duke, the Duke of Wellington, put it very pragmatically: he said that we may not be ready for this yet. He also said that we might not yet have got through what I call the “Withdrawal (No. 2) Bill”. However, we have not yet had the immigration Bill, the fishing Bill, the agricultural Bill, the customs Bill or the trade Bill—and there may be a VAT Bill as well. We may find ourselves in a position where we are not ready as a Parliament by the date written into the Bill. That is not a sensible way forward.

The noble Lord, Lord Wallace, said that we should not leave until a worthwhile arrangement has been agreed. This is all about giving us time to do that—and that is certainly what we have been looking to do.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Baroness Hayter of Kentish Town (Lab)]

My Lords, it may not be possible to answer my question today, but it is an important one. I would have put down an amendment at the end of Amendment 354 to use two additional words: “in English”. Once we leave the European Union, there will not be an English-speaking country that chooses English as its language. The Maltese have accepted Maltese as the language, the Irish chose Gaelic. It is only the United Kingdom for which English is the language.

In future, for all sorts of reasons, it will be interesting to know whether the Government will ask or, I hope, negotiate that English remains for the production of EU documents. For myriad reasons, not least business, we will need to know that. If the Minister cannot answer my question about negotiations now, it would be useful if she could report at some point in the future.

[Baroness Goldie (Con)]

My Lords, may I first of all, in English, thank all who have contributed to the debate? I know that to some it may seem anorak territory, but knowing where to find law and being able to access law are matters of fundamental importance. Before coming to the specifics of Amendment 354 in the name of the noble Baroness, Lady Bowles, it may be useful to provide some context for the debate.

Part 1 of Schedule 5 serves an important purpose, which was picked up by, among others, the House of Lords Constitution Committee and the Bingham centre. Specifically, it is a recognition of that vitally important factor of the law being publicly available and accessible after exit day. Part 1 therefore provides for a combination of duties on and powers for the Queen’s printer to help to ensure that this happens.

I will be clear about what the provisions involve. There are differences between how part 1 of Schedule 5 is sometimes described and what it actually does. It is designed to ensure that retained EU law is sufficiently accessible but it does not, for the avoidance of doubt, impose a duty on the Queen’s printer to identify or publish retained EU law itself, or any subset of it. Instead, it imposes a duty on the Queen’s printer to make arrangements for the publication of the types of EU instrument that may become retained direct EU legislation, being regulations, decisions and tertiary legislation. It also requires the publication of several key EU treaties and confers a power on the Queen’s printer to publish other related documents.

I recognise the important issue the noble Baroness seeks to highlight by her amendment. Directives are an important part of EU law at the moment, and may be relevant to retained EU law in some cases, but they are not covered by the duty to publish which I have just outlined. That duty is focused, as I explained, on instruments that may become retained direct EU legislation, which of course in terms of the Bill directives cannot.

[Viscount Hailsham]

People trading in the European Union need to know the status of the requirements that they have to adhere to when they are trading into the European Union. Directives can be relevant to that.

[Baroness Goldie]

I was about to come on to that point, as it was raised also by the noble Lord, Lord Pannick. Directives have been implemented in domestic law—they are already there—so they do not need retaining in and of themselves, which is a distinction that I am trying to make in terms of how the Bill is drafted, but they remain available for the purposes of interpreting retained EU law. They are available for that purpose no matter what the Queen’s printer may do.

That said, sub-paragraph (3) of paragraph 1 also allows, but does not require, the Queen’s printer to publish certain other documents and instruments. Since the noble Baroness tabled her amendment, work has progressed further, and I am happy to confirm that the National Archives, which exercises the functions of the Queen’s printer, intends to make pre-exit day directives available online. I hope that I have reassured the noble Baroness and ask that she withdraw her amendment.

[Baroness Bowles of Berkhamsted]

I thank noble Lords who have supported the amendment. If something is present in the National Archives, I wonder whether that means that it can then automatically be relied on in court without there being any necessity for certification or other requirements. If that was the case, it would fulfil the point that I was trying to make—there are other points that noble Lords have referenced. I did not want it to be that, in order in a court proceeding to reference a directive or draw the judge’s attention to it, one had to remember to go through the certification process, especially if there were a lot of them.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank all who have contributed to this debate; very important points have been raised. This subject may be academic and technical but the issues are important—and to me, they are actually very interesting. I say to the noble Lord, Lord Wallace of Saltaire, that I think there are a lot worse ways of spending a wet Wednesday morning than looking at these issues.

In responding to Amendment 355, I would like to take the opportunity to explain the Government’s approach, and explain why we do not consider it necessary or practical to require the making of secondary legislation. Taken together, paragraphs 1 and 2 mean that the Queen’s printer has a duty to publish all relevant instruments in respect of which it has not received a direction. The direction-making power, therefore, is already clearly limited in its scope. I acknowledge the concern, as articulated by the Delegated Powers and Regulatory Reform Committee, that the direction-making power in paragraph 2 is akin to allowing Ministers to change the law by proclamation. The noble Lord, Lord Lisvane, colourfully referred to that. However, the Government respectfully disagree with that characterisation. The power in paragraph 2 to exempt the Queen’s printer from the duty to publish in relation to certain instruments or parts of instruments is, I would submit, a targeted, common-sense provision to enable the Minister to narrow what is—as I hope I have explained in my previous remarks—the necessarily wide task of the Queen’s printer.

This power does not enable a Minister, by decree, to determine what is or is not retained EU law, nor is it designed to prevent some aspects of retained direct EU legislation being published. I would remind the House that any directions under paragraph 2 must be published. So there is no secrecy here; the process is transparent. I did note the concern of the noble Lord, Lord Pannick, that there was an absence of detail on the mode of publication. I have no specific information about that. I would imagine that it would follow existing practice. However, I shall certainly undertake to write to him about that aspect.

The National Archives is already looking at how the various directions to the Queen’s printer will be made available on legislation.gov.uk, to make access to them easier still.

Accordingly, the Government do not consider that this direction-making power can fairly be characterised as an alarming extension of executive power, or as setting an ominous precedent for the future. The law needs to be made publicly available—that is a given—and we need a proportionate way to achieve this. A targeted, carefully circumscribed power for a Minister to give directions in relation to a body is not unprecedented or harmful. I noted that the noble Lord, Lord Tyler, was deeply concerned about the operation of this provision, and the noble and learned Lord, Lord Judge, was, I think, predictably suspicious. So let me try to provide an illustration.

For example, under Section 92 of the Energy Act 2013, the Secretary of State may direct the Office for Nuclear Regulation as to the exercise of its functions, generally or specifically. In 2017, the Secretary of State did make such a direction as to the supply of information in relation to the nuclear safety of civilian nuclear installations. I say to the noble Lord, Lord Pannick, that that direction was published online, so it was readily visible and accessible. The alternative option put forward in the amendment of the noble Lord, Lord Lisvane, would be to require any such directions to be made in secondary legislation. Such an approach would in our view be unnecessary and potentially counterproductive. It would also impose an added burden to the volume of regulations which we can anticipate following from this legislation.

[Viscount Hailsham]

If it has to be done by regulation, it gives this House and the other place at least a theoretical possibility of saying that the Minister should not make the exception, because the regulation or directive is, in fact, retained EU law. The citizen must be in a position to have access to what is relevant retained EU law. If it is not done by regulation, there is no way of challenging the Minister’s decision on that point. Surely, is that not objectionable in principle?

[Baroness Goldie]

This is all about trying to ensure that the statute book does not become cluttered with material which is irrelevant, not competent under the Bill and not within the scope of retained EU law as we have defined it.

[Lord Beith (LD)]

We would all agree with the principle that the noble Baroness has just advanced—we shall adduce it when trying to remove some other bits from the Bill later today. However, she seems to be advancing the proposition that it is for a Minister to say that something is not part of the law, because of something that the Minister judges makes it invalid. The constitution has never given that role to Ministers. Courts decide what the law is if the matter is in doubt, not Ministers. To say to the people at the National Archives, whom I visited on one occasion—a small and diligent group huddled over computer screens which have replaced scissors and paste—“Do not print it”, is not an answer to a question of doubt about the law.

[Baroness Goldie]

If we can set to one side any concept of malevolence or malign intent on the part of the Government or a Minister, perhaps we can accept that this is a genuine attempt to provide simplicity. If a Minister in a department perceives that an instrument or one of the elements of EU retained law is no longer applicable and is not going to fit in with the new body of law, it is desirable that clarification can be provided in the swiftest possible way and that it should not make its way to the Queen’s printer. I appreciate that there are deeply felt views about this, and I am certain that we will come to this again on Report. I am merely trying to indicate to the Committee what the Government think is not just a sustainable position—

[Lord Tyler]

I am full of admiration for the way in which the noble Baroness appears to be trying to avoid the suggestion that it is executive expediency that is going to determine how this issue is going to be addressed. I think she knows that if she had used that phrase, people all over the House would have said: “We are not into that business”. Perhaps she could be a bit clearer about what considerations she thinks would be in the Minister’s mind to take this particular action.

[Baroness Goldie]

It is a little difficult to predict specific examples. Many of your Lordships have had experience of ministerial positions. I imagine that if an anomaly were brought to the attention of the Minister that something was not going to apply; it was no longer relevant; it did not fit in the new framework of what will be a body of UK law, the Minister would be reasonable in trying to ensure that that element, whatever it was, did not appear to make its way via the Queen’s printer on to what is perceived to be the body of law for the UK.

Some may argue that that is inherently flawed and a deeply suspect way for any Government to behave. In the extraordinary situation in which we find ourselves— I suggest that outside of wartime this situation is unprecedented—common sense has to be applied. There has to be a proportionate way of balancing legitimate interests in the constitution with the practical need to make sure that we do not create nonsense in the statute book.

[Baroness Bowles of Berkhamsted]

Surely this comes about when the Government are dealing with the so-called deficiencies and then coming out with the statutory instruments to make those right. Why can you not identify it at that stage and make it part of the regulation? That is the point at which the comparison with what does not work in EU law is made. Why cannot it be part of that regulation? Whether it is under Schedule 5 or something else as the empowerment does not really matter, if it is properly done.

--- Later in debate ---

[Baroness Goldie]

The noble Baroness is quite right: there may be an overlap of issues where there is the desire to legislate positively about something as well as taking into account something that is no longer relevant. What I am saying is that where there is a patent misfit because something no longer applies to UK law, I think it is sensible in those circumstances to let the Minister try to ensure that there is no confusion, in that it does not make its way into what is in public view as representative of the body of law.

[Baroness Kramer]

Surely there is nothing wrong with a Minister proposing that something is not relevant and appropriate, but to make the final decision on that with no capacity for challenge is completely out of order. That is not a responsibility that should be placed on any member of the Executive.

[Viscount Hailsham]

Before my noble friend responds to that, I wish to make a similar point. If a direction is published, that is after the event; whereas if it has to be done by regulation, that in effect gives everyone the right to say that the Minister has got it wrong. That would be prospective rather than retrospective. Does the regulation procedure not have that advantage? It gives people the right to say the Minister has got it wrong.

[Baroness Goldie]

Well, I have listened with interest to these contributions. We will certainly reflect on what has been said. I understand the desire of the Chamber to get some whiff or wind of what the Minister might be contemplating and I can certainly undertake to look at what the noble Baroness, Lady Kramer, and my noble friend Lord Hailsham have said. I was going to go on, if I may be permitted to do so, to try to cover the point about secondary legislation, if I can pause for breath to do that.

[Lord Pannick]

The Minister is being very patient. I would like to add to what the noble Viscount has said. A real disadvantage of what the Government are proposing—that is, there is publication with no opportunity for the matter to be debated before it is decided—is that there is a means of challenge, and that is in court. It would be most unsatisfactory if the procedure that the Government adopt is that Ministers make a decision and publish a direction, there is no opportunity for debate in either House and then anyone who is aggrieved takes the matter to court. Surely it would be far better for this to be done by statutory instrument, and then any concerns could be properly debated.

[Baroness Goldie]

I hear the noble Lord, and I shall certainly reflect on that observation, but if I may be permitted to advance what the Government consider to be the case in relation to the proposition that this be dealt with by secondary legislation it might enable the Committee to understand why the Government have adopted the view that we have. The alternative option to require that any such direction is to be made of secondary legislation would arguably be counter- productive. The task of identifying instruments that will not become retained EU law will be a continuous one, and our awareness of such instruments will grow over time. I understand and respect the motives behind the amendment. I have to suggest that it would seem rather paradoxical to require the Government to legislate repeatedly in order to avoid the publication of irrelevant EU legislation, but maybe I am being perverse in looking at it that way. The legislation required to ensure that our law operates effectively after exit day will be significant, and I respectfully suggest that we should try not to add to that task in this case. As I have said, though, many useful points have been raised on this complex question, and I shall reflect on all the contributions made. However, on the basis of what I have been able to say, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Newby]

The Minister started her speech by saying one of the principal reasons why the Government were opposing this amendment was that what it proposed was “impractical”. I have been listening very carefully, but I do not think she has explained why it is impractical. She has explained a number of other objections that the Government have, but surely it is not impractical. It is perfectly possible to do it. It is just that the Government do not want to do it, for other reasons.

[Baroness Goldie]

I disagree with the noble Lord. I was using “impractical”—if I did use it, and it is so long ago that I started my speech that I cannot remember what I said—in the context of what is reasonable and proportionate in all the circumstances.

I turn to Amendment 355ZZA—sounds a bit like a pop group—in the name of the noble Baroness, Lady Bowles. If I have understood the amendment correctly, the noble Baroness is concerned about regulations being used to diminish the evidential value of certain matters or documents. I agree that this is an important area which we want to get right. Part 2 of Schedule 5 ensures that the rules of evidence, currently in Section 3 of the 1972 Act, can be replaced and properly reflect the legal landscape post exit. The power in Part 2 of Schedule 5 enables a Minister to make provision about judicial notice and the admissibility of specified evidence of certain matters. For clarity, judicial notice covers matters which are to be treated as already within the knowledge of the court and so are not required to be “proved” in the usual way.

The power in part 2 of the Schedule covers a limited and technical, though important, area, and subparagraphs (2) to (5) of paragraph 4 set out the scope and limits of that power. While I understand the noble Baroness’s concern, and share her desire to ensure that the effective administration of court proceedings continues after exit, I hope I have reassured her that the regulation-making power is designed to do exactly that. In addition, regulations made under this power are subject to the affirmative procedure, as provided for in paragraph 9 of Schedule 7, so there will be a debate and a vote in this House before any new rules are provided for. On that basis, I would ask the noble Baroness not to press her amendment.

[Lord Wallace of Saltaire]

My Lords, I query the comparison with war time. This is a very sensitive issue in the debate on leaving the European Union. After all, the leave campaign depicted the European Union as a continental—or German—tyranny, from which we would be escaping. Yesterday, Jacob Rees-Mogg talked about remainers as being like Japanese soldiers who had not yet realised that they had been defeated and liberated by the Americans. The Prime Minister’s Mansion House speech takes us in a very different direction. She talked about leaving, but recognising that our values and interests remain the same as those of the European Union; that we will remain closely associated with the Union. That is not something which one can compare with war time. It is a complicated disengagement process in which we are not entirely disengaging. It is not helpful to the public, or to the continuing debate, to make these comparisons.

[Baroness Goldie]

I hear the noble Lord. I did not in any way wish to draw a specific comparison between the two. I was simply describing the magnitude of constitutional challenge which is confronting the country. I had no wish to conflate the two situations in any way. The noble Lord is quite right that there are profound differences. If it caused concern, I apologise.

[Lord Lisvane]

My Lords, I am grateful to the Minister for her lengthy and very detailed reply. I am also grateful to noble Lords who have taken part in the debate and expressed supportive views. Particularly telling were the twin points made by the noble Lord, Lord Pannick. The first was about the availability of the corpus of legislation and clarity and certainty on that point. His subsequent point, made in an intervention, was about the risks of challenge in the courts. The Government would clearly wish to avoid that. The noble Viscount, Lord Hailsham, made the helpful point that an enhanced process would allow it to be judged whether Ministers had got it wrong and for that judgment to be made in time.

The Minister answered the issue very much in terms of administrative practicality—pragmatism, if you will. She quoted some precedents—we have traded precedents on successive days in Committee, and some have been good and some have been less so. But an army of embryo precedents—if such a concept can be allowed—is about to march towards your Lordships’ House from the other end of the building in the form of the Taxation (Cross-border Trade) Bill, which I referenced in moving the amendment. I think we need to be very cautious about rather distant precedents contained, for example, in the Energy Act.

As I say, the noble Baroness answered very much in terms of administrative convenience, practicality and so on. She talked about the volume of the regulations. I do not think that a sensible solution is beyond the wit of man and woman to devise in this case. Could there not be a cumulative list of ministerial decisions on items of legislation that have been identified as falling within this provision on the DExEU website, so that everybody knows what is coming, which could be wrapped up in one SI every month or every six weeks? That would seem to me to reduce the burden.

The Minister was very kind to be concerned about the burden on the Queen’s printer and the National Archives. However, I am sure that, given their experience and resources, that is a burden which they are well capable of carrying.

Powerful as the Minister’s reply was on these administrative matters, I do not think that the volume of legislation—or transactions, if you will—is enough to outweigh the issue of principle that lies behind this. I know the noble Baroness will forgive me for this image, but when she touched, fairly briefly, on the issue of principle, I seemed to hear the desperate scrabbling of fingers on a rather treacherous cliff edge. She was much more certain on the issues of administrative feasibility.

The Minister did make one prediction with which I completely agree: this is an issue which is bound to arise once again at Report. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, I thank my noble friend Lady McIntosh for her comments. In response, I will need to be fairly brief. Clause 13 gives effect to Schedule 5, which is a technical but important part of the Bill. Quite simply, Schedule 5 seeks both to ensure that our law is sufficiently accessible after exit day and to provide for rules of evidence replacing those currently in the European Communities Act. I acknowledge my noble friend’s intention to oppose that Schedule 5 stand part of the Bill and will try to persuade her otherwise.

Paragraph 1 of Schedule 5 requires the publication of relevant instruments defined in the schedule as those that may form part of retained direct EU legislation and the key treaties likely to be of most relevance to, or to give rise to directly effective rights et cetera forming part of, retained EU law under Clause 4. My noble friend will understand that, after a period of more than 45 years of membership of the EU, a huge body of law has developed. Without wanting to seem patronising, that is exactly why this Bill before us is so vitally important. We want to make sure that all the protections, rights and benefits that our citizens in the UK have enjoyed under that huge body of law will flow seamlessly on exit day into our UK domestic law.

On the specific question that my noble friend asked about whether there was any central archive, I am not aware of any specific central archive, but I shall certainly have officials look at that and I shall undertake to write to my noble friend.

[Lord Foulkes of Cumnock (Lab)]

Could the Minister also deal with the question of Scotland? As I understand it, the Queen’s printer applies only for England, Wales and Northern Ireland. There is a separate Queen’s printer for Scotland, under Section 92 of the Scotland Act 1998, who is responsible for Acts of Parliament for Scotland. Does not that create some problems in relation to the drafting of Schedule 5?

[Baroness Goldie]

I do not have a response to that specific point, but I shall certainly undertake to write to the noble Lord and provide more detail.

I revert to my noble friend Lady McIntosh, who I think sought a figure for the number of instruments or individual components of law. I am unable to provide that; I do not think that such a figure exists. Obviously, a lot of work has been done across departments to ascertain what is likely to affect the activities within departments and what is likely to become part of retained EU law post exit day. Again, I shall double-check that and, if there is any more information that I can give in that connection, I shall do so.

The remaining provisions of paragraph 1 provide for the power to publish other documents, such as decisions of the Court of Justice of the European Union or anything else that the Queen’s printer considers useful in relation to those things. It also ensures that, in accordance with the snapshot, anything repealed before exit day, or modified on or after exit day, does not have to be published. This is supported by the targeted and what I have already described as common-sense power in paragraph 2 to enable Ministers to narrow the task of the Queen’s printer by ensuring that instruments that are not retained EU law do not have to be published. We have had an interesting debate on that and I have given certain undertakings to look at the contributions from Members.

[Lord Foulkes of Cumnock]

I have another query. We are all talking about the Queen’s printer. As I have said, that is the Queen’s printer applying for England, Wales and Northern Ireland. Can the Minister tell us who the Queen’s printer is? As I understand it, the Queen’s printer has responsibility—and it is a good job that we have two Bishops here—for printing the Bible, I think in the King James version. I have just had a nod from a Bishop, which is very exciting. I think that the Queen’s printer may currently be Cambridge University Press, but I may be wrong on that. Everyone including the Minister is talking about the Queen’s printer, but hands up who knows who it is? There are not even hands up in the Box. I know that the Minister is the fount of all knowledge, so who is the Queen’s printer?

[Baroness Goldie]

I can always rely on the noble Lord to lighten the proceedings and introduce an element of light relief. I do not imagine that the Queen’s printer is some inky-fingered individual stabbing away in a dark basement. If the Queen’s printer is as busy as the noble Lord implies, the less we give them to do, the better. That is why I think that the direction to exclude things from the Queen’s printer would be very timely. I shall of course find out more information for the noble Lord.

[Lord Lisvane]

I wonder if I could, as they say, be helpful. I think that the Queen’s printer is the Keeper of the National Archives, who also holds the title “Queen’s Printer”.

[Baroness Goldie]

I am grateful to the noble Lord, Lord Lisvane. As the late FE Smith, said, I am no wiser but I am certainly better informed.

[Lord Adonis (Lab)]

I suggest that the noble Lord, Lord Lisvane, becomes the Queen’s printer, because he is far more knowledgeable about these matters than anyone else in the country.

[Baroness Goldie]

I do not wish in any way to diminish the talents of the Queen’s printer, whoever that person or group of persons is or wherever they dwell, but I think that the noble Lord belongs in this Chamber making the powerful and important contributions that he does.

[Lord Foulkes of Cumnock]

The noble Lord, Lord Lisvane, has been helpful to an extent by saying that the Queen’s printer is the Keeper of the National Archives. However, that raises the question: who is the Keeper of the National Archives?

[Lord Cormack]

His name is Mr Jeff James.

[Baroness Goldie]

Then I offer a heartfelt tribute to Mr Jeff James.

[Lord Lisvane]

If it assists the noble Lord, Lord Foulkes of Cumnock, he is also the Queen’s printer for Scotland.

[Lord Beith]

I recommend that the Minister and other Ministers pay a visit to Kew, which is a very nice place, and have a look at the small but diligent unit that tries to maintain an accurate record and account of what the law of this country is.

[Baroness Goldie]

My Lords, if we do not get through this debate, I will not be visiting anywhere. I must thank a group of your Lordships for their fascinating contributions, some of which have eliminated my need to write to anyone about anything. Still, I shall look at Hansard.

In the view of the Government, the mixture of defined duties and specific powers provided for in part 1 of Schedule 5 strikes the right balance. I say to my noble friend Lady McIntosh that it is comprehensive, flexible and accountable.

Part 2 of Schedule 5 ensures that after exit day questions about the meaning or effect of EU law can continue to be treated as questions of law and so can be determined by our courts when determining that such a question is necessary in order to interpret retained EU law. As I said earlier, it also contains a power, subject to the affirmative procedure, to make provision about judicial notice and the admissibility of evidence of certain matters.

I hope that my remarks have provided sufficient explanation of the rationale behind, and indeed the importance of, Clause 13 and Schedule 5 and why it is imperative that that clause and schedule stand part of the Bill.

[Baroness McIntosh of Pickering]

My Lords, this has been an entertaining and illuminating debate. I am grateful to those who have pressed the Minister for answers.

I do not quite understand why there is a discretion in sub-paragraphs (3) and (4) of paragraph 1 of Schedule 5 for the Queen’s printer not to publish the instruments in question, because it would be difficult to find out what they are if they are not published. I look forward to hearing from the Minister how many there were in the last year—if we ever get a final answer. Could she also respond on the issue of why there is no discretion under sub-paragraph (1) when there is a discretion under sub-paragraphs (3) and (4)?

The Minister has confirmed the scale of the exercise that we will all be involved in. It was not my intention that Schedule 5 should not be part of the Bill; it was purely my intention to explore the fact that there is no archive and we do not know how many instruments of this type there will be.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Baroness Goldie (Con)]

My Lords, I am grateful for the opportunity to respond to Amendment 6—tabled by the noble Earl, Lord Sandwich, and supported by the noble Lord, Lord Crisp—concerning the co-ordination of international aid and development policy once we have left the EU. This matter is important and I hope to respond with some adequacy to the points that have been made.

As noble Lords know, the Government have committed to meet all the financial obligations that we have to the European Development Fund and other EU development instruments up to December 2020, when both the implementation period and the current EU Multiannual Financial Framework will end. As a world-leading development donor, we will continue to honour our commitments to the world’s poorest and seek to shape how the EU spends those funds through all the means available to us after exit. Once we have left the EU, the EU will remain one of the largest development spenders and influencers in the world, as will the UK. Let me assure your Lordships that we want to retain a close partnership with the EU in the future. It is in the interests of both the UK and the EU that we work coherently together—a point rightly emphasised by the noble Lord, Lord Collins—in response to specific crises overseas and in helping the world’s most vulnerable people. Importantly, we share the concerns and values of the EU, and the commitment to the sustainable development goals, Paris climate change agenda and Addis Ababa agreement on financing for development. We share a commitment to the 0.7% contribution and to testing new and innovative approaches to financing the “billions to trillions” agenda.

The EU’s development priorities are closely aligned with the UK’s; indeed, they have been shaped to a considerable extent by the UK during our EU membership. For example, our approach to addressing the root causes of migration and meeting humanitarian needs from the outset in a way that prepares for longer-term crisis response are based on our common experiences and joint shaping of best practice in development programming. Where we hold these shared commitments and objectives, it is in our mutual interest to find ways to continue working together, on a case-by-case basis, to ensure that we can collectively draw on expertise and resources, achieve our global development objectives and deliver the best value for money. As the Prime Minister said in her Munich speech,

“if a UK contribution to EU development programmes and instruments can best deliver our mutual interests, we should both be open to that”.

In September last year, we published a future partnership paper setting out our desire for future co-operation with the EU on development that goes beyond existing third country arrangements and builds on our shared interests and values. As we enter a more forward-looking phase of negotiations with the EU, we look forward to discussing what this partnership will look like.

However, while we have clearly signalled to the EU our openness to a future partnership on development, that partnership will be contingent on the current discussions between the European Commission and member states on how the EU will finance international development after 2020. Put simply, the EDF will not exist in its current form after 2020, and nor will the other instruments that currently fund development programmes through the EU budget. The European Commission and member states are engaged in ongoing discussions about how the EU will fund its development priorities in the future, as referred to by the noble Lord, Lord Bruce. It is not at all clear currently whether the EU’s future development finance instruments will allow participation by non-member states. The current set of instruments—including ECHO and the EDF—are open to contributions from members of the EU only. We are encouraging the EU to design a more open and flexible enabling framework within which it can work with its partners to tackle global development challenges and build a secure, stable and prosperous world. We envisage that holding these development financing instruments open to third countries would enable the UK to work through the EU on a case-by-case basis where we judge our development impact would be amplified.

Finally, assuming that the EU designs a set of future development instruments that is open to non-member states to participate in, we would of course need to be satisfied with the terms of such participation. In particular, we would need to be assured of adequate governance arrangements to allow us to track and account for our spending and the results we deliver. We are also clear that the UK’s world-class development sector should be eligible to implement EU programmes to which the UK contributes. I say to the noble Earl, Lord Sandwich, that in this context, I think I can say that while the Government are in agreement with the spirit in which the amendment is offered—the spirit of a future partnership with the EU on development—we do not agree that it would be appropriate to legislate at the moment for a future partnership that as yet, we know so little about, or indeed that relies on EU instruments that will be obsolete by the end of the implementation period.

I said at the beginning that I wanted to try to provide a response of some adequacy because this is a very important issue. Very good ongoing work is taking place. I hope that this provides your Lordships’ House with the reassurance that the UK is closely engaging with the EU to shape that vital future relationship and, in those circumstances, that the noble Earl feels able to withdraw his amendment.

[The Earl of Sandwich]

I thank the Minister very much for her response. I am obviously not going to put the amendment to a vote—it is a sort of respite period between the other votes—but I maintain that it is an important subject linked to many other existing big issues. Aid is a mightier weapon than most people realise. I would like to see it get a higher status. I was a bit disappointed that no Bishops joined in the debate, but there we are.

Global priorities were rightly mentioned by the noble Lord, Lord Crisp, and some by the Minister. I am glad that she went forward to talk about what might happen in the European Union, because changes are afoot. We have to work alongside those when we reach the point of association. I know that the Government recognise that there are shared values. We are all still Europeans and we share similar commitments and objectives. With that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, it may help if I speak now and then allow other noble Lords to comment: that might help elucidate the situation. This is a very important issue and I am grateful to the noble Lord, Lord Patel, for providing me with the opportunity to make clear the Government’s position on the UK’s future clinical trials framework and to provide clarity on the introduction of the new EU clinical trials regulation.

As the noble Lord knows, the MHRA is working towards the implementation of the new clinical trials regulation. The new regulation, agreed in 2014, is a major step forward. It will enable a streamlined application process, a harmonised assessment procedure, a single portal for all EU clinical trials and simplified reporting procedures, including for multi-member state trials. The UK has been involved in developing the new regulation and this has been widely welcomed by the research sector, including medical research charities and industry.

I pay tribute to the perseverance and interest in this issue of the noble Lords, Lord Patel and Lord Kakkar, the noble and learned Lord, Lord Judge, my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Thornton. Points raised in Committee were helpful; they were very instructive and assisted the Government. Indeed, a most useful meeting was held yesterday, as the noble Lord, Lord Patel, mentioned, at which the noble Lords, Lord Patel and Lord Kakkar, the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Mackay were most constructive in their approach. I thank them for that, because it greatly assisted in reaching what I think is a resolution of this matter. This means that today I can provide noble Lords with the strongest possible reassurance on the UK’s commitment to implement the CTR. If the CTR comes into force during the implementation period, as it is currently expected to do in March 2020, it will apply to the UK. If this opportunity does not come to pass, the Government will seek to bring into UK law all relevant parts of the EU regulation that are within the UK’s control. I shall expand on that shortly.

The Government have been consistent that a key priority through the negotiations is to ensure that the UK remains one of the best places in the world for science and innovation. Noble Lords will be aware that the life sciences sector in the UK is world-leading. It generates turnover of more than £63.5 billion per annum and the UK ranks top in the major European economies for life sciences foreign direct investment. Importantly, there are more than 5,000 life sciences companies in the UK, with nearly 235,000 employees. The Government are determined to build on this success as we leave the EU. Of course, it is not just UK industry that benefits from a thriving life sciences sector. More importantly, UK patients benefit from having access to the most innovative and cost-effective treatment available. It is in the interest of patients and the life sciences industry across Europe for the UK and the EU to find a way to continue co-operation in the field of clinical trials, and for continued sharing of data and information, even if our precise relationship with the EU will, of necessity, change.

As the Prime Minister outlined in her Mansion House speech, the UK is keen to explore with the EU the terms on which the UK could remain part of EU agencies that are critical for medicines. For example, membership of the European Medicines Agency would mean investment in new innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster, as firms tend to prioritise larger markets when they start the lengthy process of seeking authorisations. It would also be good for the EU, because the UK regulator assesses more new medicines than any other member state.

It is only fair that I deal with the amendment of the noble Lord, Lord Patel. The amendment asks for the EU clinical trials regulation to be deemed operative immediately before exit day, in order that it forms part of retained EU law and is therefore part of the UK statute book after the UK’s withdrawal from the EU. While it is true that the new clinical trials regulation was adopted at EU level in 2014, article 99 of the regulation states that it will only apply six months after the Commission publishes a notice confirming that the relevant EU database is fully functional. This is not expected to happen until after exit day. It is this stated date of application that is relevant to whether the EU law is incorporated by Clause 3 of the withdrawal Bill, and that is why it is not captured by Clause 3. As I have said, today I can offer noble Lords the strongest possible assurance of this Government’s support on the following.

If the clinical trials regulation comes into force during the implementation period, as it is currently expected to do in March 2020, it will apply to the UK. The withdrawal agreement and implementation Bill will give effect to the implementation period in domestic law and will allow regulations to continue to apply in the UK for this time-limited period. If this opportunity does not come to pass, we will give priority to taking the steps necessary to bring into UK law, without delay, all relevant parts of the EU regulation that are within the UK’s control, so that those planning clinical research can do so with certainty. The two key elements of the regulation that are outside the UK’s control, and therefore not covered by this guarantee or pledge, are, first, the use of a shared central IT portal and, secondly, participation in the single assessment model, both of which require a negotiated UK-EU agreement regarding UK involvement post-Brexit. We cannot pre-empt these negotiations and we do not wish to do anything that might disadvantage the negotiating position of the UK by giving any further guarantees at this time.

In short, the Government are committing to being as aligned with the new EU clinical trials regulation as we possibly can be, subject to the negotiatory aspects that I have mentioned. I was anxious to elucidate the position to assist the Chamber and contributors as to the Government’s position and I hope that the noble Lord can accept my reassurances.

--- Later in debate ---

[Lord Goldsmith (Lab)]

My Lords, in supporting this amendment also, I start by just noting one thing we have learned during the passage of the Bill so far: how very complicated the process of exit will be. That is important, because, as the noble Lord, Lord Deben, rightly reminded us, the purpose of the Bill is to enable us to leave, but with the same rights and obligations, and the same protections, the day after exit as the day before. The Prime Minister made that promise very clear. This amendment would help to make sure that this promise can be kept. If one looks at the way the Bill currently deals with rights that are being passed over, one can see the complication in the provisions as drafted.

I will not repeat the arguments that were raised in Committee, nor indeed repeat those that have been so well made by my noble friends Lady Jones and Lord Puttnam and by the noble Baroness, Lady Bakewell. However, one thing is clear: if there is a defect in what the Government are doing and if the provision will not pass across into our law the day after exit those things it should, the amendment simply says that this is a mechanism by which they can be brought in. I think the Government would want to welcome that, because it means they could achieve what they want to achieve in what is, as I said, a complicated area in which it may be difficult to be sure that everything has been done as it should. Of course, if it is unnecessary because all the rights have been passed across, in those circumstances there will be no need for the clause to operate. However, it will be there to achieve what is required.

I will make one other point, because it may look to some slightly paradoxical to use a ministerial power of regulation to achieve this when so much concern has already been expressed in this House, and will be on amendments to come, about the overuse of delegated powers. This differs from the other powers that concern has been expressed about. It is not a discretion of the Minister to use the power but an obligation to do so if certain conditions are met: if in fact—and it is an objective fact which can be verified or not—retained EU law does not give effect to,

“rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day”.

Therefore, it makes sense to do that.

The noble Lord, Lord Deben, made the sensible suggestion that if this amendment does not quite do it the right way, the Government can and should come back with an alternative method at Third Reading. However, that they should do something to make sure this gap is plugged seems a strong and correct argument, and for that reason I support the amendment.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Brown of Cambridge, in absentia for her Amendment 12 and to my noble friend Lord Deben for speaking to it on her behalf. I note that this amendment is very similar to an amendment tabled in Committee by the noble Lord, Lord Krebs, to which the noble Baroness was a signatory. As was the case with that amendment, Amendment 12 seeks to amend what EU law is retained through Clause 4.

As this House is aware, and has been said earlier within the debate, one part of EU law that the Bill does not convert into our domestic law is EU directives. The reason for this is clear. As EU directives as such are not a part of our domestic law now, it is the Government’s view that they should not be part of our domestic law after we leave the EU. Instead, the Bill, under Clause 2, is saving the domestic measures that implement the directives, so it is not necessary to convert the directives themselves. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease.

However, the Bill recognises one exception to this approach. Where, in a case decided or commenced before exit day, a domestic court or the European Court of Justice has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will retain the effect of that right, power, et cetera within UK law.

That seems to the Government to provide a clarity which it is important for this Bill to achieve, and it is why we believe that Clause 4 as currently worded strikes the right balance—ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty within our statute book about what will be retained in UK law at the point of exit.

I shall explain to my noble friend Lord Deben what we see as a difficulty. This certainty would be undermined by the amendment, placing both businesses and individuals in the difficult position where they are uncertain about whether the rights they rely on will change. It could also create practical difficulties for our courts following our exit. There could be new litigation about whether implementing legislation correctly or completely gave effect to a pre-exit directive, and whether Ministers had fulfilled the duty in the amendment’s proposed new subsection (3) to make implementing regulations. This could continue for years after our exit from the EU, effectively sustaining an ongoing, latent duty to implement aspects of EU legislation long after the UK had left the European Union.

I think it would be acknowledged that it would be strange for Ministers to be obligated to make regulations to comply with former international obligations which the UK is no longer bound by. Although Ministers might find that they were obliged to make regulations under the amendment, it would presumably still be open to Parliament to reject the instrument and either require it to be revoked or decline to approve it, depending on the procedure involved, yet the Minister would, under the terms of the amendment, remain under a legal obligation to make regulations. I think that this gets to the heart of the problem: how is that tension to be resolved?

Therefore, I say to my noble friend Lord Deben that, although I understand that the genuine intention behind the amendment is to give confidence and certainty, in practice I do not think that it would necessarily achieve this, and I respectfully suggest that the real consequence would be confusion.

Furthermore, the amendment specifically implies that the Government would have to undertake a thorough investigation, as soon as possible, of all the EU directives that have been domestically implemented over the course of this country’s 40-plus years of EU membership to ensure that they have correctly and completely implemented them all.

[Baroness Ludford]

I apologise for interrupting the Minister and thank her for allowing me to do so. Would it be so terrible if there were to be an audit of whether the UK had correctly implemented EU directives? The Government are marking their own homework if they say, “We’re not implementing the directives; we’re only going to freeze the domestic implementation”. However, if there is something wrong in the way that we have implemented a directive, then the Government are judge and jury of what will be retained.

At the risk of boring everybody—I will probably mention it again on Monday—I have cited before the directive on the European investigation order, which is about summoning evidence or maybe a witness to give a statement. It is the parallel to the European arrest warrant. The directive says that someone could challenge this in, say, a British court on the grounds of a breach of the Charter of Fundamental Rights. The Government have substituted for the charter the European Convention on Human Rights, which, as we know—we will be discussing it on Monday—is a bit narrower than the charter. Therefore, they have wrongly transposed the directive. Whether the European Commission is going to do anything about it, I do not know, but I remind myself that I want to find out. What happens if the Government have wrongly implemented the directive? What happens to people’s rights?

[Baroness Goldie]

Perhaps I can, with my next contribution, enlighten the noble Baroness about her concern. However, I point out that the Government’s observation about the practical obligation of reviewing 40-plus years of EU membership to ensure that they have correctly and completely implemented directives is merely part of the reason why we cannot accept the amendment.

Perhaps I may continue and shall try to address the noble Baroness’s point. Although the Government believe that successive Governments have always sought conscientiously to implement EU legislation in accordance with our obligations as a member state—that is where we are—such a review as required by the amendment could throw doubt on certain domestic implementation, again potentially creating confusion within well-accepted and relied-upon parts of our domestic law. That is the anticipated and foreseeable consequence of that part of the amendment. Given the wide scope of EU law that will be retained by Clause 4—not just directly effective provisions arising from EU directives—this would also present a huge practical and resource-intensive challenge to the Government. I suggest that the effect of such a duty as we leave the EU cannot be ignored.

The effect of the amendment would be to profoundly undermine the Government’s clear and coherent position on retained EU law. We have previously talked about how the Bill must take a snapshot at some point, otherwise there will be complete ambiguity, confusion and uncertainty as to what is being transferred, and I believe that that desire for clarity would be very seriously affected by the amendment. As such, I ask my noble friend Lord Deben to withdraw the amendment. I should add that I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if my noble friend wishes to test the opinion of the House, he should do so now.

[Lord Deben]

I am sorry to have heard what my noble friend—especially this particular noble friend—has said in reply. She may say that, mayn’t she? But nobody else thinks that. Everybody else who has looked at the circumstances says that we should retain the rights that we have now and that if we want to change them, we should do so in a proper parliamentary way afterwards. That is all we are saying. We can talk about a lack of confidence and people not quite knowing where they are, but I have to say to my noble friend that people do not know where they are at the moment because the amendment is not something that the Government are taking up.

My noble friend then mentioned the word “snapshot”. I am a little tired of that word. If you want a snapshot, that is what this amendment is. It is a snapshot of where we are now, and we are saying that we stay where we are until we—the sovereign Parliament of the United Kingdom—decide to change that. Instead of that, we have not a snapshot but a fuzzy picture that has bits in it. They are the bits that the Government have decided are suitable for us and not the bits, some of them in the background, that are important for us.

I say to my noble friend that there was a time when I would have taken her arguments rather more seriously. Then I got the message that some of the promises that the Government made about taking care of what they do on the environment once independent and outside the EU do not seem to be forthcoming. All those things we were told about something parallel to the Committee on Climate Change do not seem to be coming forward as we were told they would be. This is at least a way of making sure that the Government continue to do what they have had to do under European Union law, until such time as they ask Parliament to change it.

I want to address two other things that my noble friend said. Do not talk to me about resources. This whole Bill is going to cost the British taxpayer more than anything one can possibly imagine. That is why, every time I ask how much this costs, the Government do not answer. This is the only Bill I have ever seen in front of Parliament that is uncosted in every detail. I declare an interest as chairman of an organisation that represents people who give financial advice. We have just looked at the cost to the financial industry of changing everything because we are leaving the European Union. I am merely saying that the resource costs of this Bill are enormous. So please do not tell me that we cannot have an audit of what we are implementing, making sure that they are the right things, because of resources.

The last thing I want to say is this. My noble friend said that there were a number of things here that, for one reason or another, are not quite what she would like even if she were prepared to help us. She has said that she is not going to help us, so I might have to be more unhelpful myself in the future. I want to say one thing about this that is not about Parliament but about the world outside. Increasingly, people are becoming very cynical about what the Government have in mind for the protections of our human rights, our environment and the other things that we hold dearest. They are beginning to think that preparation is being made for arrangements with other countries that will make it difficult for us to protect all those things, from animal welfare to human rights, which we hold dear. My noble friend may think that that is an unfair approach, and I am not suggesting that it is a true one; I am merely saying it is a perception. When a perception like that becomes as universal as it now is, it is up to the Government to remove it.

One of the ways they could do that is to make sure that nothing that now protects us is removed, except by parliamentary activity. That is what we ask for here. Although I will not press this amendment, I say to the Government that there is a political issue here. As a Conservative, I want to say that this Government will undermine their position unless they make sure that all those who care about these issues do not think that the withdrawal Bill will undermine their rights and protections. This Government have to recognise the seriousness of the position on those issues.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Judd (Lab)]

My Lords, I strongly associate myself with what my noble friend just said, which is why my name is on his amendment.

I cannot say how glad I am to see this amendment from the noble Baroness, Lady Brown, and the noble Lord, Lord Deben, on the Marshalled List. It would be a sad day if, in our preoccupations, we were so absorbed with the constitutional and legal dimensions of the issues before us that, by default, we let go of our responsibilities as guardians of our natural and environmental inheritance and our responsibility for what we bequeath future generations. I am therefore fully behind the main amendment we are debating. My own amendment deals with a special aspect: biodiversity. Just this morning, the urgency of the situation was clearly brought home when we were reminded that the recent report on the state of the world’s birds shows that one in eight bird species is threatened with extinction. That includes puffins, snowy owls and turtle doves.

The role of the European Union has been important. The Joint Nature Conservation Committee put it clearly, as I explained in Committee. It said:

“The EU plays a crucial role in developing policy and legislation to protect the environment and meet its objective for sustainable development. The EU has specific targets for biodiversity conservation with legislative protection for key habitats and species … The EU and global biodiversity targets are partly delivered through a range of legislative measures, which place obligations on Member States to protect biodiversity and the natural environment. The EU and Member States have shared legal competence—shared responsibility—in forming and implementing legislation for the environment”.


As I said, the committee makes a third point about,

“the great importance of the directives on the conservation of wild birds and on the conservation of natural habitats and wild fauna and flora”.—[Official Report, 7/3/18; col. 1130.]

Can I just for a moment put some flesh on the issues before us? To give one important example, the balance between trees, pests and pathogens is fragile and vigilance is needed to monitor and correct imbalances where they occur before they reach an irreversible state. Invasive non-native species and pests can be at an advantage in new environments where trees have not evolved alongside them and developed the necessary biological defences or cultivated the necessary predatory species. Where this happens, the results can be devastating economically and ecologically. Trees are important in their own right and are the foundation of pieces of woodland, providing a scaffold for entire ecosystems. Beyond woods themselves, they are a vital connective habitat for numerous species to move through in response to other drivers of change, such as climate.

Through European Union membership as it stands, we already have free-flowing information sharing with our fellow member states in the area of biosecurity. These connections should surely be maintained and indeed strengthened, not least because human agency is often the cause of tree pests and pathogens moving to new areas. If we are to protect the UK from future threats—

[Baroness Goldie (Con)]

I thank the noble Lord. I think the House would welcome specific attention to the amendment in the context of his remarks.

[Lord Judd]

With great respect, I am, of course, speaking to my own amendment. If we are to protect the UK from future threats, such as emerald ash borer, then we need to maintain existing protective measures. The issues before us cannot be overemphasised and all I want is that we get an absolute assurance from the Minister that whatever happens in terms of the withdrawal Bill, we will have the same safeguards and certainty that is beginning to be generated by the international co-operation we have been achieving under the European Union.

--- Later in debate ---

[Baroness Goldie]

My Lords, I am grateful to the noble Lord, Lord Wallace of Saltaire, for bringing attention to this important issue in his Amendment 29 and I welcome the opportunity to set out the Government’s position in this vital area.

I begin by emphasising that the UK is unconditionally committed to European security. We want to continue working closely with our European partners to keep all—all—of our citizens safe. There is mutual benefit in such proximity of relationship; frankly, to think otherwise would be plain daft.

As the Prime Minister underlined in her Munich speech, this is not a time to inhibit our co-operation or jeopardise the security of our citizens. We want to find practical ways to continue working with the EU to protect our citizens and safeguard our shared values and interests. That speech, as the noble Lord, Lord Wallace, suggested, set out the new deep and special security partnership we want to develop with the EU, including our ambition to retain the co-operation we already enjoy with member states and to go further to meet new threats.

The Government are clear that we must do whatever is most practical and pragmatic to tackle real-world challenges. I must thank the noble Lord, Lord Kerr, who acknowledged the importance of what the Prime Minister was saying in her speech. As an example of our ambitions, the UK aims to continue to develop capabilities to meet future threats. On defence, that means agreeing a relationship between the UK and the European defence fund and the European Defence Agency.

It is important to observe that our security interests do not stop at the edge of our continent. As a permanent member of the United Nations Security Council, a leading contributor to NATO and the United States’ closest partner, we have never defined our approach to external security primarily through our membership of the EU. On leaving the EU, it is right that the UK will pursue an independent foreign policy, but the interests which we will seek to project will continue to be based on shared values.

Amendment 29 seeks to do something else: to ensure that the Government endeavour to secure future co-operation in the field of foreign and security policy. As I have set out, this is a top priority for the Government. The amendment also seeks to ensure that relevant EU law and regulations are integrated into UK legislation. I suggest to the noble Lord, Lord Wallace, that this is unnecessary in the face of the Bill’s explicit provisions. The Bill will incorporate EU regulations and decisions applying in relation to the UK, and any directly effective rights, obligations, powers, liabilities, remedies, restrictions and procedures arising under treaty articles at exit day. Our approach is one of maximum continuity. No further provision is needed to ensure that the Bill can fulfil this vital aim.

It is for those two reasons that this amendment, I would argue, is unnecessary. I therefore ask the noble Lord to withdraw it. I clarify that this is not a matter to which the Government propose to return at Third Reading.

[Lord Wallace of Saltaire]

My Lords, I regret that that is an extremely unsatisfactory answer. To say that shared values will continue to link us to the European Union after we pursue our independent foreign policy means nothing, more or less. Shared meetings and shared intelligence are what we need. We have close co-operation with France, which we have had since 1998—reinforced in 2010—and a defence treaty for collaboration; we have co-operated with the Netherlands and others; and we are currently in command of one of the military operations at Northwood, Operation Atalanta. All of that is going into thin air, but apparently we will continue to share values, and that will do. It will not do, and I suggest strongly to the Government that this issue will not go away. It will become more embarrassing as the months go by if the Government do not begin to clarify what they have in mind, particularly given that Ministers cannot agree among themselves what they want to do.

The noble Lord, Lord Kerr, is absolutely right that we need to make some proposals. We would gain enormously in terms of the trust of those with whom we are negotiating if we made some proposals. The Prime Minister’s Munich speech implied that we would be making some proposals. The noble Baroness, Lady Smith, was right, and I was wrong to suggest that there is a plan: no such plan exists.

When I was studying history, I used to think that the Conservative Party was about strong foreign policy and strong defence. However, on this fundamental issue, the Conservative Party appears to be about holding itself together, not about strong defence, which these days necessarily means working closely with others. We cannot afford to be an independent military power any longer. We are in a much darker international environment than we were in 2016 when the referendum was fought. We need our friends and partners, and we need to work closely with them.

This is an issue that will not go away. I do not intend to ask to divide the House at this late hour, but the resonance of this issue will grow rather than shrink. It will embarrass the Government and the Conservative Party more and more as we slide towards March 2019 without any clear idea. I regret that on this occasion, unlike when we discussed this issue in Committee, the Foreign Secretary has not been able to join us at the Bar. Never mind—I trust a report will go back to him. I did not recognise he was there at that time.

I will therefore withdraw the amendment, but the Government have to think a great deal more carefully about what they want in the area covered by the Treaty on European Union, rather than by the treaty on the implementation of the European Union. I disagree with the noble Baroness, Lady Goldie, when she suggests that the withdrawal Bill is only about the treaty and therefore does not cover that issue. Look at Article 49 of the Treaty on European Union and the various things which cover foreign policy and defence co-operation. If we are going to have close co-operation, including on intelligence and military deployment, there have to be formal structures and agreements. So I wish to withdraw this amendment, but we and others will have to return to this issue with increasing urgency if the half-promises made by the Prime Minister in her Munich speech turn out to be half-promises and nothing more.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Baroness Hayter of Kentish Town]

My Lords, we have heard from the noble and learned Lord, Lord Judge, an indication of where the Government have arrived on this issue and that there will in future be a document stating why this measure is needed and what necessitated it, according to the Minister.

The Government’s changes, which I welcome, do not go as far as Amendment 34 and the others in the group, but they insert an element of both written explanation and scrutiny of the use of these powers. I still doubt the need for these powers. Since the Bill was introduced in the Commons—not even when it came here—I have been asking for examples of where such new offences might need to be created. Finally, after numerous times of asking, the Government this week were able to provide just one example; that is all. It related to the marketing of medicine where it is an offence to produce false or misleading information in applications for approvals. After six months, that was the only example they gave of where such a new criminal offence, imprisonable for up to two years, might be needed, so I am still not entirely persuaded. However, given the new procedure that will come up later in the Bill, it should include the written statement as part of the Explanatory Memorandum and say that such powers will be available only in relation to our exit from the EU anyway. If the Minister could confirm that they are also subject to the timings of sunset clauses, we would see the Government’s amendments as a great improvement.

Finally, these will be orders that the House could not simply debate or put down a regret Motion about. However, if necessary, there is a backstop so that if we were not persuaded by the written statement, we would still be able to ensure that the orders did not go ahead. I hope that will never happen. I hope that they will not be used that much; clearly, there is no plethora of examples where the Government feel the need for them. Given where the extra scrutiny has now been inserted, given that there is a sunset on these powers—I think I am right in saying that—and given that they will be used only for the purpose of exiting the EU, we would certainly be content with the noble and learned Lord, Lord Judge, withdrawing his amendment.

[Baroness Goldie (Con)]

My Lords, it is important that we have returned to this issue after our debate in Committee, during which many noble Lords raised concerns about the creation of criminal offences through secondary legislation. I am grateful to the noble and learned Lord, Lord Judge, for Amendments 34, 44, 54 and 97, which seek to prevent the key powers in the Bill from creating criminal offences. I think we are all in agreement that the power to create criminal offences, above all things, is not to be taken lightly. These decisions can have huge impacts on people’s lives. Therefore they are decisions that the Government take very seriously. Parliament is absolutely right to give full scrutiny to proposals of this kind.

The Government listened very carefully to the debate we had in Committee and respect and understand the concerns raised. I pay tribute to the noble and learned Lord, Lord Judge, for his constructive approach to this matter. The Government believe that serious omissions or weaknesses to law enforcement could arise if the Bill did not include a capacity to create criminal offences in certain circumstances. It is therefore the Government’s view that the ability of the key powers to create criminal offences must remain in the Bill, for reasons I shall endeavour to explain. I realise that the noble and learned Lord and the noble Baroness, Lady Hayter, are very conversant with these issues, but perhaps other noble Lords would welcome a slight expansion of the Government’s approach to this.

Before I endeavour to expand on these reasons, I take this opportunity to highlight the amendment tabled by the Government—to which the noble and learned Lord referred and of which I am sure noble Lords are all aware—requiring a statement to be made alongside all instruments made under the main powers that seek to create a criminal offence. The statement will be made in writing by a Minister before the instrument is laid and then usually published in the Explanatory Memorandum to inform the deliberations of committees and the House. I am happy to talk with the noble Baroness further about the form in which the statement will be made to the House. One option might be to deposit the statement in the House.

The statement will explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. This is in line with the approach taken in the Sanctions and Anti-Money Laundering Bill, and it will increase the level of transparency, ensuring that where the Government seek to create a criminal offence the Minister’s reasoning is clear and justified to Parliament. Of course, if either this House or the other place feels that these reasons are not good enough, I expect MPs and certainly noble Lords to vote against the instrument—I remind noble Lords that all statutory instruments made under the main powers in the Bill creating criminal offences must be affirmative. If noble Lords did not wish to take that dramatic option but wanted to express their dissatisfaction with the proposal, I hope they would avail themselves of other options to express this such as regret Motions, inviting the Minister to give evidence before the sifting sub-committee of the Secondary Legislation Scrutiny Committee, or asking for the Minister to justify himself or herself before a committee of this House or of the other place, such as the Exiting the European Union Committee or other relevant departmental Select Committee.

I understand the amendment will be discussed in detail once we reach the debate on Schedule 7. I shall be happy to go into further detail then. However, I will say that the Government have tabled the amendment to increase the scrutiny of the main powers, rather than to reduce their scope or remove the power completely because of its important function. The Bill does, of course, limit the ability to create criminal offences with the sunsets on both the correcting power, which is sunset at two years after exit day by Clause 7(8), and on Clause 9, which is sunset at exit day as set out in Clause 9(4). I stress to noble Lords that these are the only powers—other than Clause 8; I hope the House accepts the Government’s amendment to remove that clause—that could create a criminal offence.

Upon exiting the EU, existing criminal offences that relate to the EU may require amending to ensure that previous criminal conduct remains criminal—for example to correct deficient references to the EU, EU bodies or EU legislation. If these are left unaddressed, the protections provided by having an offence in place will fall away. The reality of this would be a green light for criminal behaviour to go unpunished, leaving businesses and individuals unprotected from what was previously deemed so unacceptable that it was made criminal.

The noble Baroness, Lady Hayter, asked about examples. Some examples were given in Committee but there may be further examples that she is not aware of—if she is, I ask her to indulge me—where it might be appropriate, depending on negotiation outcomes with the EU, to amend existing offences or to create new ones. Certain financial services firms that are regulated at an EU level may need to be brought into the UK regulatory regime. HM Treasury is therefore considering amending the offence of misleading a regulator to include trade repositories misleading the FCA and third-country central counterparties misleading the Bank of England, if their regulation is transferred from the European Securities and Markets Authority. Without this, these important City operators, unlike other firms already supervised in the UK and within our regulatory perimeter, would not be subject to a criminal penalty when misleading the regulators which ensure their good conduct and the stability of our financial system. I cannot believe that any noble Lords would want this.

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[Baroness Smith of Basildon (Lab)]

My Lords, I thank my noble friend Lady Kennedy for tabling the amendments. Yesterday, not only were female Members of this House having our photograph taken to commemorate 100 years of women being Peers—being able to be Members of your Lordships’ House—many of us also went to see the unveiling of the statue of Millicent Garrett Fawcett, at which the Prime Minister spoke eloquently about the rights of women and how important they are, and we commemorated and celebrated the work of Millicent Garrett Fawcett. Would it not be a tragedy, therefore, if an unintended consequence—I think it would be an unintended consequence—of Brexit were that somehow we reduced the protection available to women and girls from violence in any way? The points made by my noble friends and noble Baronesses on the Liberal Democrat Benches in support of the amendments are valid.

The Minister may recall that on Second Reading, my noble friend Lady Sherlock illustrated the complexities that could come for child protection and family law when we leave the EU. Her experience and understanding of that is reflected in the comments of my noble friend Lady Kennedy of The Shaws today. From experience, she can say how the European protection order, which guarantees mutual recognition of legislation across the whole of the EU, adds to the protection that we all wish to see for women and young girls. As the noble Baroness, Lady Ludford, said, we hope for a substantive response from the Minister on this issue today.

The ability to share data on perpetrators, as well as a host of other measures that tackle human trafficking, FGM, the enforcement of child maintenance orders—an issue raised by my noble friend Lady Sherlock previously—and the sexual exploitation of children could all be put at risk. I was reminded by my noble friend Lady Gale, who has a huge reputation on these issues, that the Minister referred in Committee to the Istanbul convention, which should offer much-needed protection. Can she tell us when it will be ratified?

Will there be a gap between exit day, when we lose the EPO, and when the new Act will be on the statute book? What cover will allow us to ensure that all aspects of what we have now under the EPO will be enshrined in our legal system?

Another issue raised by my noble friends is funding. Although the Government’s previous commitment of £100 million is needed to keep the sector going, it will not plug the gap left by the loss of EU funds. The loss of those funding streams threatens to push small, specialist providers, which receive a significant amount of their funding from the EU, into a position where they can no longer operate to ensure the protection that women and girls need.

All that is being asked for is a report and information so that we can identify where the problems are and understand the Government’s response. I was disappointed to hear from my noble friend Lady Lister that she still has not had a response from the Minister to the issues that she raised. The whole point of the gap between Committee and Report is to ensure that the Minister has time to respond to questions from noble Lords. I hope that the Minister will say today why she did not respond at the time and what can be done to rectify that, because it is not satisfactory to raise issues in Committee and have to raise them again on Report because answers have not been received.

I am sure that the Government’s intentions in this are honourable, but we need to know in practice how these commitments will be met to ensure that we do not put women and young girls at risk of violence in a more difficult and precarious position than they are at present. I hope that the Minister will give a substantive response today on how the Government will address this.

[Baroness Goldie]

My Lords, in responding to this debate, I begin by reiterating how important the issues we have discussed in the debate are. We have had today a clear, and, I suggest, impressive reflection of that importance, and I thank the noble Baroness, Lady Kennedy, and other noble Lords for their contributions.

I start by addressing Amendment 37, about continued recognition of European protection orders made after we leave the EU. The European protection order regime, established by the EU directive of the same name, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and communicate with each other in the making of an order and in its recognition and enforcement. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime, we will no longer issue European protection orders to remaining member states, as it would be pointless to do so; and nor will the authorities in those member states issue them to the UK for the same reason.

In short, absent our continued participation in the European protection order regime or some proximate reciprocal agreement in its place, the regulations will be redundant—they do not work unilaterally. The amendment therefore pre-empts the outcome of the negotiations. I am happy to be clear, however, that if the ongoing negotiations produce an agreement to continue the UK’s access to the regime established under the directive, or something like it, appropriate steps in legislation will be brought forward to implement it at the time.

[Baroness Ludford]

I apologise for interrupting the Minister, but I think she said something like, “absent a proximate system”. She is being asked to say whether the Government will seek to find a solution to the present reciprocal mechanism. After all, we know that the Government will be seeking a UK-EU security treaty. When I moved an amendment on Monday about internal security, justice and home affairs, I was not very happy that there was no substantive response from the Government. Surely the Minister can tell us what the Government plan to try to secure.

[Baroness Goldie]

I hear the noble Baroness, and I was just about to expand on what the problem is. I know that it is frustrating for noble Lords, but at the heart of what she and others want to achieve are the negotiations. In response to the noble Baroness, Lady Smith, I was going to say that a number of the important issues she raises are directly related to our ability, having left the EU, to continue with reciprocal regimes if that is what we can negotiate. That is what we would obviously very much like to do. I have to disappoint noble Lords who are looking for more specific comment at this time because I simply cannot provide that.

The protections to which I was referring and the access to the regime established under the directive, or something like it, and my reference to appropriate steps and legislation being brought forward to implement these at that time, is what we can—and I very much hope we can—negotiate. That will comprise the protections for protected persons. We will, of course, consider all that at that point. But this Bill cannot pre-empt our negotiations on these matters. I hope the noble Baroness, Lady Kennedy, will empathise with that position, and understand the difficulty confronting the Government in relation to the Bill and will feel able to withdraw her amendment.

Regarding Amendments 67 and 69, also in the name of the noble Baroness, Lady Kennedy, the Government are taking forward a range of work to tackle violence against women and girls. If noble Lords will permit me, I will set out the Government’s position on current and future international co-operation on these issues. In response to the noble Baroness, Lady Lister, I feel that I have been chastised. I apologise because I can say that I read Hansard and endeavour to ensure that outstanding points are addressed. Why that did not happen in consequence of our Committee stage in relation to these matters, I do not know, but I certainly undertake to investigate and can only apologise for the noble Baroness’s request being met with silence.

I reassure noble Lords that ending violence against women and girls, and protecting and supporting victims, remains a key priority for the Government, and our cross-government Ending Violence Against Women and Girls strategy, as many noble Lords will know, is underpinned by increased funding of £100 million through to 2020. We have put in place a range of measures to tackle the issue, including: the criminalisation of forced marriage; two new stalking laws; and a new offence of domestic abuse covering controlling and coercive behaviour. We are very pleased with that progress; it is good progress to have made, but we know there is more to do. We do not dispute that. That is why we continue to build on this work, driving forward our Ending Violence Against Women and Girls agenda to further address these injustices. We have launched a public consultation to support our commitment to publish a landmark draft domestic abuse Bill, and we are supporting the introduction of a new civil stalking protection Bill to protect victims at the earliest possible stage.

This House will also be aware that we already have clear mechanisms for reporting on our progress, and we are already required to lay annual reports in Parliament on this issue in the context of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence—the Istanbul convention. The coalition Government signed that convention in 2012 and this Government have made absolutely clear our commitment to ratifying it. Many will be aware that the convention sets forth obligations on parties to take a co-ordinated, coherent and cross-border approach, and highlights the need for more effective international and regional co-operation.

This Government supported the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 which again places a duty on the Government to provide annual reports to Parliament on progress towards ratification. The first of such reports was published on 1 November 2017, and sets out the steps which the Government and the UK’s devolved Administrations—they have an important role to play in all this—have taken to tackle violence against women and girls since signing the convention, and the remaining steps required as we progress toward ratification.

In addition, once the UK has ratified the convention, we will be required to provide updates to the Council of Europe on compliance. This will not only further stimulate international co-operation but enable international benchmarking in tackling all forms of violence against women and girls. That is very important. It may sound just like dull text, but the ability to measure ourselves against what others are doing is very valuable and can undoubtedly be a catalyst to make improvements or do better if we identify areas where we are not doing as well.

I hope that I have reassured the noble Baroness, Lady Kennedy, on this Government’s commitment to tackling violence against women and girls in all its forms, and that we are already bound by clear existing legislative requirements to update the House on our work in this area. In these circumstances, I hope that she will feel able to withdraw her amendment.

[Baroness Kennedy of The Shaws]

As always, the noble Baroness speaks very warm words, and I am sure the intentions are honourable. But I am concerned, as are others in this House, that this is one of those issues that will be of second order. This is always what happens to women’s issues, such as violence against women and the experience of women. It goes far down the agenda when it comes to the reality of something like trade and other serious matters. This is serious too, so it is regrettable that we are getting only warm words.

I know that the Prime Minister and the Home Secretary have been great speakers on the subject of dealing with violence against women, so it is particularly disappointing that amendments being addressed to matters which they have made their own special concerns are being dealt with so dismissively. It is not taking the issue seriously enough, and it is serious. I had hoped that there would at least have been a promise to come back and put before the House something soon after leaving Europe to say how it was going, and what was happening on this front. That is a disappointment, I must say. I would have thought that it would have been possible before the end of this year, and before we get to the actual crunch time, that the Minister would call a meeting of interested parties to consider where we are now, and what the way forward is looking like, so that we could have a clearer sense of that. The women in this country might feel very disappointed if this is not dealt with in a negotiated outcome.

I will not press the amendments just now, and I do not intend tabling them again before the House, but I want to say forcefully that I hope and expect to hear word from the Minister before the end of the year indicating that there will be a meeting for us to gather together those who are concerned about these issues, to consider what is being presented as the way forward and to see whether that is adequate.

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On the main part of the group, the decision to put the international side into future legislation, either the No. 2 Bill or a separate Bill, if anything were to happen, is the right way of doing it. I look forward to the answers to the questions posed by the noble Lord, Lord Kerr.

[Baroness Goldie]

My Lords, I thank all noble Lords who have contributed to this debate as well as those who have worked very constructively with the Government behind the scenes to reach the position we are in today. This is an important group of amendments and, if noble Lords will excuse the football metaphor, I can say that this is an amendment grouping of two halves. In the first half we have Clause 8, where I believe the Government and the opposition’s thinking are aligned, and in the second half we have Schedule 4, where there remains some disagreement.

I will begin with Clause 8, perhaps specifically in response to the points raised by the noble Lords, Lord Kerr and Lord Beith. The Clause 8 power was originally included in the Bill to ensure that the UK’s withdrawal from the EU did not affect its reputation as a nation which honours its promises and respects its international obligations. The power also includes the ability to prevent breaches of international obligations outside retained EU law and to meet any existing obligations requiring an imposition or increase of taxation. This element of the power, in particular, has been the subject of much debate in both Houses, as Amendment 43, tabled by the noble Lord, Lord Kerr, demonstrates.

We were concerned that this power might be necessary to ensure that the UK could continue to comply with all its existing international obligations. As the Bill has progressed through Parliament, the Government have continued to plan for multiple scenarios and it has become clear that there are better and more effective ways to ensure that the Government’s international obligations continue to be met than through the use of Clause 8. Therefore, in line with our policy to take delegated powers only where there is a clear and present need for them, the Government have tabled amendments to remove Clause 8 and the corresponding power for devolved authorities in Schedule 2, Part 2. I am grateful to noble Lords who have indicated that the Government’s proposition has found favour.

Any measures still required to remedy or prevent breaches of our international obligations will be made in other primary legislation—perhaps that reassures the noble Lord, Lord Beith—or under other delegated powers where that is permissible. I think we have now managed to reassure noble Lords that the Government are very sensitive to the points which have been raised in debate in Committee and on Report. As a consequence, the Government do not now think that there is a need for an entirely separate clause in this Bill, hence our amendment to remove Clause 8. Given that, I hope that the noble Lord, Lord Kerr, will be happy to withdraw his amendments in light of the Government’s proposed offer. I hope that this offer demonstrates that the Government are willing to act on the constructive discussions that take place in this House. We try to consider all amendments carefully as long as they do not undermine the primary purpose of the Bill and, where we can, we act upon them where appropriate.

I turn briefly to my noble friend Lady McIntosh of Pickering’s Amendment 47. It has rather interposed itself into this group so I am doing a bit of shuffling of notes here. I might begin with a point raised by the noble Baroness, Lady Smith: my understanding is that once the implementation period ends, the EEA agreement will no longer apply to the UK. I also understand that in triggering Article 127 our legal position remains unchanged. Article 127 does not need to be triggered for the agreement to cease to have effect. I hope that clarifies the points that my noble friend sought clarification on.

[Lord Kerr of Kinlochard]

I agree with the reading by the Minister and the noble Baroness, Lady Hayter, of whether one has continuing membership of the EEA after one has left the EU: one does not. However, I am struck by what the Minister has just said about the moment when one leaves. I am not sure that it is at the end of the transition period. I think it may be at the moment when we leave the EU—in other words, in March next year, not 21 months later. I am not quite sure why the lawyers in the EEA, EFTA and the EU should accept that once we have left the EU we still remain in the EEA.

[Lord Cormack]

Write a letter.

[Baroness Goldie]

Or offer up a prayer, one or the other. My noble friend Lord Callanan says we are seeking to continue these international agreements, and I presume that is forming part of the negotiations.

I turn to Amendment 47 specifically because my noble friend Lady McIntosh deserves a response. Initially it was in a group of its own and my noble friend Lord Callanan was going to respond in detail, but I shall try to deal with the substance of the amendment. I must begin by repeating that the Government’s intention is to end our membership of the single market because remaining in it would fail the first test for the future economic partnership that the Prime Minister set out at Mansion House: it would fail in delivering control of our borders, law and money and would mean the UK accepting the four freedoms, including freedom of movement. That simply would not deliver the result of the referendum. As the Prime Minister set out in her Mansion House speech, the Government are instead seeking the broadest and deepest possible partnership, covering more sectors and co-operating more fully than any free trade agreement anywhere in the world today. Given those objectives, I cannot support the amendments that seek to keep the UK in the single market.

My noble friend seeks in particular to include any obligations or legal requirements arising from continued membership of the EEA or of EFTA, should agreement be reached on remaining part of the EEA or rejoining EFTA, in a definition of “international obligations” for the purposes of Clause 8. As I have said, the Government have tabled an amendment to remove Clause 8 from the Bill and, as has been made clear, we are not seeking to remain in the single market through the EEA agreement.

For clarification, the Government have no plans to rejoin EFTA because leaving the EU offers us an opportunity to forge a new role for ourselves in the world, to negotiate our own trade agreements and to be a positive and powerful force for free trade. It is also worth mentioning that membership of EFTA would not necessarily be a quick and easy solution, as some have argued; all the EFTA states would have to agree to us rejoining and, even if they welcomed us back, we would not have immediate or automatic access to their free trade agreements. Our entry into each one would need to be negotiated individually with the third countries involved. Similarly, if we were to seek longer-term participation in the EEA agreement, we would have to first join EFTA.

It is not proper for Governments to legislate contrary to their policy intention. We cannot bind future Parliaments and therefore do not need to purport to legislate to leave the door open. Future Governments can of course bring forward whatever legislation they choose to. In any event, joining the EEA or EFTA would give rise to new obligations and the implementation of such new requirements would not be possible under the Clause 8 power, which covers only existing obligations. I hope I have satisfied my noble friend as to why the Government cannot accept her amendment, and in the circumstances I ask her to withdraw it.

[Baroness Ludford]

I apologise if this is not quite the right moment to ask the Minister to clarify something; I do not know if she has finished on the EEA. In case she has, will she write with the answer to the question from the noble Lord, Lord Kerr: how can it be possible that we stay in the EEA in transition if the Government’s legal case is that the Article 50 notification covered both the EU and the EEA? When we leave the EU next March we must also leave the EEA, so it cannot be possible that we stay in the EEA during transition. It cannot be both; it is one or the other.

[Baroness Goldie]

We are seeking to remain part of the international treaties to which we are party, through negotiation. I will certainly undertake to write to the noble Lord, Lord Kerr, because I have no more information beyond what I have been given and I would be straying into very uncertain territory if I tried to be more specific.

[Baroness McIntosh of Pickering]

Would my noble friend comment on one more point? The clarification that I was seeking relates to the Hansard column where my noble friend Lord Callanan clearly said exactly what my noble friend has just said: it is the Government’s intention that we remain in the EEA until the end of the transitional period, and it is then the Government’s intention to negotiate new arrangements with the three member countries of the EEA. I seek clarification today on something that was not in Hansard: at what point will those negotiations either commence or be concluded? The whole of Clause 8 relates to maintaining our international obligations. I would like to know what our obligations to the EEA will be after December 2021.

[Baroness Goldie]

I am reluctant to disappoint my noble friend, but that is all germane to the negotiations and I have no more information I can add at this point. I want to make progress with the rest of the amendments in this group, which cover a range of aspects on the important issues of imposing or increasing taxation. With regard to the second half of the group, I note that the position of the Government and that of the noble Lords who proposed them are much closer to each other than they were, and I hope that we may have reached a point at which we could agree to disagree.

In responding to Amendment 73, tabled by the noble Lords, Lord Hannay and Lord Cormack, and the noble Baronesses, Lady Kramer and Lady Hayter, I wish first to point to the Government’s amendments that we shall consider later on Report. I shall not pre-empt that debate, but I wish to make clear that the Government and noble Lords are not so very far apart. The Government have heard the concerns raised in Parliament and recognise the significance of the question of how Parliament approves fees and charges on the public. Indeed, this has been a question of great historic importance in the development of this institution and of the relationship between this House and the other place.

The Government agree that delegated powers, particularly in this sensitive area, should be subject to close scrutiny by Parliament. The Bill as introduced provided that any statutory instruments made under the powers in Schedule 4 which established a new fee or charge regime, or which sub-delegated this power, had to be subject to the affirmative procedure. In other cases, Ministers held discretion to choose between the affirmative and negative procedures as appropriate. I understand, however, that noble Lords considered that was not a satisfactory position, so the Government have reflected further.

The balance we have sought to ensure is that there is a level of scrutiny of the exercise of the powers in this Bill which satisfies the needs of Parliament without unduly expending limited parliamentary time on a great morass of minor instruments better suited to the negative procedure. We are therefore proposing amendments that require all SIs under Schedule 4 to be subject to the affirmative procedure unless they are adjusting fees or charges to account for inflation. This will ensure that where the Government wish to lower a charge, restructure a fee from daily to hourly, or increase a fee to reflect a change in how it is provided, that must be debated and voted upon by both Houses. Despite this, the Government believe that allowing inflation-related adjustments to be subject to the negative procedure is proportionate. Such a measure reflects no change in policy, or in how a service is provided, but simply reflects developments outside this place and changes in what we have termed “the value of money”. Even this, if appropriate, could be brought before your Lordships’ House for a debate and a vote. I hope noble Lords will accept this as addressing their concerns and will not press these amendments.

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[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.

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[Baroness Goldie]

That was a general observation, not a specific comment; I referred to the general process of negotiations as they have been taking place.

I am grateful to the noble Lord, Lord Whitty, for raising this important issue, because it provides me with the opportunity to reassure the House about issues of transport connectivity and safety. The noble Lord has helpfully brought this before the Chamber and I shall try to provide some reassurance.

The Government are considering carefully all the potential implications arising from our exit, and that, of course, includes implications for the UK’s transport connectivity and for our future relationship with the European Union agencies. The noble Lord, Lord Whitty, rightly referred to the significant numbers of people and groups of people who rely on that connectivity. He referred to importers, exporters and tourists, and he was absolutely correct. We are committed to getting the best possible deal that we can. We are focused on securing the right arrangements for the future so that our transport industry can continue to thrive and so that passengers can have opportunities, choice and attractive prices. I say to the noble Lord, Lord Whitty, that, in particular, we want to secure continued connectivity for transport operators and users and we want to maintain the safety of international transport operations. These are obviously extremely important objectives.

We are absolutely committed to maintaining high standards of safety—another very important objective. The Bill is part of that because it allows the Government to be clear that we are committed to ensuring that exit will not jeopardise a harmonised safety system that benefits both the UK and EU networks and maintains high safety standards. We strongly believe that it is in the interests of both the UK and the EU to ensure continued productive co-operation on safety and standards in the future, regardless of the outcome of negotiations. We want to ensure a smooth and orderly transition to new arrangements, while maintaining and developing the current levels of transport connectivity between the UK and the EU.

The Government fully recognise the central role that transport will play in supporting our new trading relationships as we leave the EU—in short, transport will be essential. That is why we are committed to avoiding disrupting trade or imposing additional regulatory burdens on industry in the UK or the EU.

Specifically on the UK’s continued participation in the European Aviation Safety Agency, the European Maritime Safety Agency and the European Union Agency for Railways as a third country, I know—I accept that it is frustrating—that I will disappoint some noble Lords when I reiterate our position that participation in these agencies is a matter for the negotiations. Our participation in European Union agencies is of course something that the Bill cannot legislate for.

However, I will try to provide some comfort because, as the noble Lord, Lord Whitty, acknowledged, the Prime Minister in her Mansion House speech in March clearly confirmed the Government’s ambition to seek continued participation in the EASA system. There are provisions in EU legislation which allow non-EU countries to participate in the EASA system, as Switzerland, Norway and Iceland currently do. The Prime Minister acknowledged that an appropriate financial contribution will be necessary, and that there will be a role for the Court of Justice of the European Union. We also value information-sharing with other countries through the EMSA and the EUAR.

After our exit from the EU, we will ensure that UK agencies and operators have the tools they need to manage UK services as effectively in the future as they do now. For instance—this is probably of particular interest to the noble Lord, Lord Berkeley—Britain’s railways are among the safest in the EU, and railway safety standards will continue to be safeguarded by an independent safety regulator, the Office of Rail and Road. In fact, it is historic UK practice that the European safety framework largely reflects. We should bear that in mind. For decades we have worked closely with our European partners to develop a regime in transport safety and standards that reflects UK practice.

I make it clear—and in doing so, I hope that I may offer some comfort to the noble Lord, Lord Tunnicliffe—that, whether or not we remain part of the EU, executive agencies and EU safety regulations will be incorporated into domestic law by the European Union (Withdrawal) Bill. Importantly, this means that on exit the same safety rules will continue to apply.

Again, I thank the noble Lord, Lord Whitty, for his informed interest in this important area. I hope that I have satisfied him that we understand the importance of maintaining the continuity and safety of our vital transport links.

[Lord Berkeley]

Could the Minister just explain something on the question of railway safety? The present system is that the European Union Agency for Railways can give approval for the manufacturing and bringing into operation of rolling stock in any member state, including our own. Will that continue, or will we have a separate agency and then have to get separate approval to operate in France and elsewhere? If that happens, we will go back 20 years in interoperability.

[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.

[Lord Whitty]

My Lords, the noble Baroness was doing quite well until her last sentence. I take a limited amount of comfort from what she says are the Government’s desired outcomes. I am sure that we all subscribe to those outcomes on safety and co-operation and so forth. However, these entities have provided the basis on which European railways, European maritime contacts and European air contacts have operated with increasing closeness over the last few decades. The situation is similar with roads. At least yesterday, with regard to haulage, the noble Baroness, Lady Sugg, provided a necessary but not complete basis for activity to replace the European Community licence system. In these areas, the industries feel uncomfortable that they do not know what is happening and do not know how to plan ahead. That has been underlined to us from time to time and Ministers must have had the same kinds of approaches. Therefore, it would have been helpful if the Minister had given us a promise—in writing, if necessary—that the objectives would be spelled out in a little more detail.

We are in an asymmetrical position. We know what the EU has said. In its guidelines for the negotiations, it has said that not from December 2020 but from March next year we will no longer be a member of those agencies and will be invited only at its request for particular reasons. That is the EU’s negotiating position. We are not clear what the Government’s negotiating position is in relation to these or any other agencies. The Prime Minister has, admittedly, said slightly more about aviation but, even there, she referred at one point to continued participation and at another point to associate membership, which have rather different connotations.

Therefore, despite the noble Baroness’s efforts and some of the reassurances that she has given us, which I appreciate, I am no clearer about which way we are going. If I am not clear, I suspect that those who run our airlines, railways, maritime services—the ferries in particular—and roads are not clear either. On transport depends the rest of our industry and our society. If those industries are not clear, that bodes ill for how we respond economically to the shock of Brexit.

I will beg leave to withdraw the amendment with some regret—I had hoped for better from the Minister—but the issue remains, and I certainly advise Ministers to address that issue with the industries as rapidly as possible.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Lord Goldsmith (Lab)]

My Lords, I start by thanking my noble friend Lord Rooker for reminding us of the work of Lord Renton. Those of us who were privileged to serve in this House with Lord Renton, and others who served in the other House with him, will well recall what my noble friend said about his work. We would do well to remember it and so I thank my noble friend for reminding us.

As for the amendment moved by the noble and learned Lord, Lord Judge, it would be very difficult, if not impossible, not to feel the force of the logic that he so powerfully expressed. As the noble Lord, Lord Lisvane, said, it is not a very strong response to say that there are protections in the way in which statutory instruments will be presented to this House and the other House. I add to that the fact that there are other protections this House has said are necessary, at least in relation to certain changes, for example those which might affect elements that require—as this House has said—special protection when it comes to the use of the delegated powers this Bill is intended to provide.

Having said all that, there remains a strong logic in what the noble and learned Lord, Lord Judge, has said, and I think we all hope that is carefully considered by the Government, for both this Bill and future Bills. It is fair to say—like the noble and learned Lord, Lord Judge—that at least this Bill has some restrictions on the way these powers may be used, and I commend his requirement—his request—that when Ministers give reasons for the use of these powers, we understand just what they have in mind. This House and the other place should look carefully at that. That said, we will wait to see what the noble and learned Lord will do with his amendment.

What is being said about Amendment 53 is to be welcomed. That should not be overlooked. The noble Lord, Lord Callanan, has added his name to this amendment. It is one of the few occasions—I think the only occasion—when one gets five names on an amendment: when a Minister sees the error of his ways and adds his name to the amendment. That remark may be churlish of me—the noble Baroness, Lady Goldie, is nodding vigorously—but the important point is that we welcome the Government’s acceptance of that amendment. That was the most egregious part of the Henry VIII clause: that it should be possible to use it to amend even this very Bill, which your Lordships have spent so many hours and days debating. It is, therefore, good to see that go.

I ask the Minister—I think it may be the noble Baroness—to confirm one thing. Amendment 53 omits the words “including modifying this Act”, which currently appear in the clause. My belief is that those words were there because without them it would not be possible to use the power to amend the very Act in which the power appears. I believe that is stated in parliamentary counsel’s guidelines on clauses such as this.

I very much hope the noble Baroness will confirm that when she responds to the amendment. I know that attempts were made through the usual channels to make sure that whoever responded to the debate had notice of that question. I hope, therefore, that she has been adequately briefed on it. I think, however, that your Lordships will want confirmation that that is the purpose of this amendment. It was certainly the purpose when it was tabled: that it should take away this most egregious possibility of being able to use the power to amend the very Act itself. I will give the noble Baroness time to get clarity on that, but I can assure her that attempts were made through the usual channels to ensure that she was not taken by surprise by it. I do not know quite what happened.

In any event, we would certainly want Amendment 53, when we get to it shortly, formally moved by the noble Lord, Lord Lisvane, and I look forward to supporting it then. In the meantime, I wait to see how the noble and learned Lord deals with his amendment.

[Baroness Goldie (Con)]

My Lords, let me start on a positive note. My noble friend Lord Callanan was indeed pleased to add his signature to Amendment 53, tabled by the noble Lord, Lord Lisvane, which will remove the ability under Clause 9 to amend the Act itself. I note that this amendment is supported not just by the noble Lords in whose names it lies but by the Delegated Powers and Regulatory Reform Committee of this House. It was one of that committee’s recommendations for the Bill and, given that the Government are happy to support this amendment, we are pleased to be in such illustrious and learned company. It is a heady experience, I have to say.

I am sure that noble Lords will welcome this amendment to a part of the Bill that has continued to cause concern to many throughout its passage. It is important to explain why the Government included such a measure at the time of introduction—this may partly address the point raised by the noble and learned Lord, Lord Goldsmith. When the Bill was first drafted, this provision was not an attempt to hold open a back door to circumventing or undoing any of the protections or constraints in the Bill. Rather, it was seen as a necessary step to provide the flexibility to respond to developments in negotiations. Indeed, the fact that aspects of the Bill may need to be amended, depending on the outcome of these negotiations, still remains. Our acceptance of this amendment does not reflect a change in that regard. Rather, the decision to introduce in due course a withdrawal agreement and implementation Bill, which will give effect to the implementation period, the citizens’ rights agreement and the financial settlement, among other provisions of the withdrawal agreement, provides another door through which the Government may make all the changes required.

Without a strong justification for retaining Clause 9’s ability to amend the EU withdrawal Bill once it becomes an Act, the Government are indeed content to remove that ability. As with our amendment to remove Clause 8, I hope this shows the Government’s commitment to working with Parliament and I reassure the noble and learned Lord, Lord Judge—

[Lord Kerr of Kinlochard]

Before the Minister moves on, can she clarify what the answer is to the question asked from the Opposition Front Bench? On the face of it, if the words “including modifying this Act” are removed, it leaves simply this sentence:

“Regulations under this section may make any provision that could be made by an Act of Parliament”.


Do you make a substantive change by withdrawing those words? It is not clear to me that you do.

[Baroness Goldie]

I listened with interest to that point, but I am not sure that I entirely agree with that construction of the change to Clause 9(2). Amendment 53 means that we will not be able to amend the Bill when it is an Act. It therefore restricts the scope of the power, which seems to have met with the satisfaction of those who have put their names to it. As I have said, that is a positive and, I hope, a helpful reassurance from the Government.

[Lord Goldsmith]

Can we just agree that, as far as the noble Baroness and the Government Front Bench are concerned, it is the belief of the Government that removing the words as proposed in the amendment to which the noble Lord, Lord Callanan, has put his name, would preclude the power in this clause being used to amend the Bill once it becomes an Act?

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

[Lord Judge]

My Lords, we have made some progress. If the use of this extraordinary power—extraordinary in the sense of the power rather than extraordinary in the sense of the number of times it is used—will be limited to dealing with technical amendments, which will be explained by highlighting the legislation under consideration, we have made some progress and I shall not test the opinion of the House today.

However, Henry VIII clauses are unacceptable save in the most special circumstances. Although I shall not divide the House today, I shall watch as each new Bill comes before us, in connection not only with Brexit, to make sure that the Minister looking at the first draft of the Bill asks why it contains a Henry VIII clause, why it is needed and what it is for so that we do not suddenly find a whole cluster of Henry VIII clauses bursting through at the seams such that we are unable to control them. We have made some progress. It is not enough for the long term, but for tonight we have done very well. I beg leave to withdraw the amendment.

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Moved by

[Baroness Goldie]

53A: Clause 9, page 7, line 13, after “taxation” insert “or fees”

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Moved by

[Baroness Goldie]

54A: Clause 9, page 7, line 15, after “offence,” insert—
“( ) establish a public authority,”

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[Baroness Sherlock (Lab)]

My Lords, this has been an important short debate. I congratulate my noble friend Lady Massey of Darwen on the way she introduced it and on her ongoing battle to protect the rights of our children, and I expect to hear much more from her on that many times in the future.

As we have heard today, at EU level a number of key legislative mechanisms work in conjunction with each other to ensure that children’s rights are protected when EU law and policy is being developed, applied and interpreted: the ECHR, the EU charter and, crucially, the UN Convention on the Rights of the Child. As we have heard, the key issue is that measures enacted at EU level, whether or not they directly target children, are interpreted and applied by member states in a manner that is consistent with international children’s rights standards. It is the loss of that that so many people inside and outside Parliament are concerned about. The inadequacy of domestic legislation in doing that job has been articulated so well by my noble friends Lady Massey and Lady Lister, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Storey, and the noble Baroness, Lady Meacher. The case is compelling.

This amendment would go some way to try to rectify that by ensuring that Ministers cannot make regulations under the relevant section of the Bill without reference to the parts of the UNCRC ratified by the UK. The Government would therefore have to commit to Parliament that they would give due consideration to Part 1 of the convention before using powers transferred from the EU, and, crucially, they would have to set out an audit of how children’s rights will continue to be protected in the UK after exit day. The importance of an audit and an impact assessment—a point made by the noble Earl, Lord Dundee—cannot be understated. Or do I mean overstated?

We all share the same goal: that we should create and maintain a society in which all children are valued, safe and able to flourish. The right reverend Prelate the Bishop of Leeds made that point clearly: children are people and are our future as well as our present. But as a society we have learned slowly that the risks to children’s safety are not always obvious, nor is it always obvious which are the actions that can pay positive dividends in helping them to flourish. If we do not intentionally look at the implications of generic actions for children, there will be unintended consequences. My noble friend Lady Massey gave some good and powerful examples of that, and the noble Baroness, Lady Meacher, gave a good case of how international law has to be used to defend those rights. It is crucial that we retain appropriate mechanisms for ensuring that due regard is paid to children’s rights when policy and law are being developed.

The Minister will have heard the concerns expressed from around the House and that the Government’s previous reassurances have not served to reassure Members or key people outside. I have two simple questions for the Minister. Does she understand why people are so concerned about what will happen to the status of children’s rights in the UK after Brexit? If so, what will the Government do to ensure that, as the Bill brings EU legislation into domestic law and transfers powers from the EU to Westminster, fundamental rights for children are not weakened in the process, either deliberately or accidentally? I look forward to her reply.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Massey, for raising the important issue of children’s rights through this amendment. I know that both the noble Baronesses, Lady Massey and Lady Meacher, met the Children’s Minister recently to discuss these matters. I fully accept that the intention behind this amendment is clearly an honourable one. However, it would in effect add no further value to preserving current safeguards on children’s rights within the Bill. This is because the amendment implies that the EU offers additional duties or functions to safeguard children’s rights above or beyond those that exist in the UK. That concern may stem from the Government’s proposal to not retain the Charter of Fundamental Rights, subject now to further consideration when this Bill returns to the other place. However, if the charter no longer applies once we exit the EU, this would not impact on the UK’s ability to protect and safeguard children’s rights, as I shall endeavour to explain.

The amendment also states that there are some children’s rights which are not currently protected under domestic law but are under EU law. Again, however, we do not accept their construction. The noble Baroness, Lady Sherlock, raised the important point about what these rights are and what will happen to them on exit. Children’s rights are, and will remain, protected in England primarily through the Children Act 1989, the Adoption and Children Act 2002, and the Children Act 2004.

[Baroness Butler-Sloss]

As one of those who was involved in the drafting of the Children Act, my recollection is that it is entirely devoted to the welfare of children and their best interests. I cannot remember a single word about rights. Parents have rights and responsibilities, but not children.

[Baroness Goldie]

I defer to the noble and learned Baroness’s prowess in this area—I would not seek to usurp it for one moment. I am merely giving that Act as an example of part of the framework that currently exists in statute to protect children. If parents indeed have responsibilities under that Act, presumably that confers benefit on the children. Additionally—and I was interested that noble Lords did not refer to this—the European Convention on Human Rights as a whole offers protection of children’s rights, and this is implemented by the Human Rights Act 1998. Children are not excluded from these provisions.

I also want to make clear to the House that the overall package of children’s rights protections set out in domestic legislation can be challenged in the usual ways in the event of a breach of a specific provision of domestic legislation. This will continue to be the case following our withdrawal from the EU.

A number of contributors raised the interesting question of sanctions against breaches. I have no specific information on that but I will undertake to investigate and, if I can procure any information, I will certainly write to those who raised that specific aspect.

As has been stated during previous debate on this—and I thank those who have provided helpful contributions—the Government take very seriously the need to ensure that proper checks and balances are in place so that we continue to safeguard and promote children’s rights. The intention behind this amendment is clearly to create additional safeguards. However, I suggest that sufficient measures already exist which will not be affected by our withdrawal from the EU.

It is important to recognise that all state parties undergo rigorous periodic reporting rounds on the UNCRC, to which a number of contributors referred, consisting of intense scrutiny and challenge. The last reporting round concluded in 2016, with the United Nation’s concluding observations published in July of that year. In response, the Government reiterated their commitment through a Written Ministerial Statement in October 2016. In January 2022, the Government will submit their next UK periodic report for the United Nations Convention on the Rights of the Child to the UN. This report will primarily address the UN recommendations that came from the last reporting round, which, as I say, concluded in 2016. In addition, next year the Government will be submitting a mid-term report to the UN Human Rights Council on the 227 United Nations recommendations, many of which relate to children’s rights. This report is a voluntary commitment of the UK, aimed at keeping all UN recommendations under review in advance of the next universal periodic review’s dialogue, expected in 2021.

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[Baroness Goldie]

My Lords, let me say that the Bill does not in any way alter the Government’s long-standing commitment to proper consultation, a concern articulated by the noble Baronesses, Lady Young of Old Scone and Lady Jones of Whitchurch.

Amendment 64 would effectively place a statutory requirement to consult, for a period of three months, on all legislation which will affect EU-derived domestic legislation, whether from the Bill or elsewhere. This would effectively reduce the time available to prepare the regulation by three months. I suggest that that could be profoundly undesirable. As we have previously detailed in this House, departments are keen to engage with stakeholders on current matters and on the progress of the negotiations, and will continue to do so where this is possible and where it does not negatively impact on the negotiations in any way. To be fair, I think that the noble Baroness, Lady Young, did acknowledge that.

The consultation process requires resources and time from government and stakeholders. To be frank, we want to focus the energies of those inside and outside government on the most important measures, rather than having them occluded by the sheer volume of consultations on minor matters that could arise under these amendments. I appreciate the concerns that we have heard throughout this debate, but I hope the House will accept at the least that a great many instruments will be technical and minor and designed to ensure continuity. A specific legal requirement to consult, as the amendment envisages, could affect our negotiations with the EU by forcing our legislative plans to pre-empt those discussions. It also risks consulting on a legislative proposal that does not accurately take account of ongoing negotiations.

The noble Baroness’s amendment focuses on the legislation we have made in the UK to implement our EU obligations and the changes that might be made to that legislation in the period immediately after our exit from the EU. This is a point I know many are concerned by and I know that some noble Lords have not yet been completely satisfied by the Government’s commitments on the protections that will apply to that legislation. The noble Baroness, Lady Young, referred to the government amendments: the amendments to Schedules 7 and 8 will ensure that the exercise of the powers under the Bill are transparent to Parliament and to the wider world. Indeed, our provision in Schedule 8 will also go further than the 2021 deadline in the noble Baroness’s amendment and will require, for all time, Ministers making amendments by powers in other Bills to explain any changes they make to regulations made under Section 2(2) of the ECA and set out the good reasons for them. These statements will have to be laid before Parliament and will have to explain the impact of the amendments and any relevant law, including EU law.

It is clear from this that there will be no evading transparency when future Governments divert or update the legislation they will inherit from our EU obligations. I say to the noble Baroness, Lady Jones of Whitchurch, that I think that that is a formula for very robust parliamentary scrutiny. I hope the noble Baroness understands why the Government cannot accept this amendment.

[Lord Judd]

My Lords, the noble Baroness has referred to the fact that many matters will be minor and technical. This is exactly the point. What may seem minor and technical to administrators and government may be very big issues indeed for some of those who will be affected, particularly in the environmental sphere, and whose co-operation in making a success of whatever is being done is vital.

I also ask the Minister: is it not true that the whole point about so many environmental issues is that they cannot be resolved within the context of the UK alone, but have an international dimension? Fisheries is a very good example. It is for that reason, which plays right into the community here, that we have to be very careful about referring to things as “minor” or “technical”. Sometimes they are life-and-death matters to people who really are on the front line.

[Baroness Goldie]

The noble Lord makes a perfectly valid point, with which I have some sympathy, but I am endeavouring to deal with the points raised by the noble Baroness, Lady Young of Old Scone, in the context of her amendment. I am pointing out that it is not that there will not be consultation or robust parliamentary scrutiny. There will be an opportunity for parliamentarians in both Houses to identify the very sorts of concerns to which the noble Lord has referred.

I have set out the Government’s position. I hope the noble Baroness understands why the Government are unable to accept this amendment, and I urge her to withdraw it. I confirm that the Government do not propose to reflect further on this issue between now and Third Reading, so if she wishes to test the opinion of the House, it would be appropriate to do that now.

[Baroness Young of Old Scone]

I thank the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Judd, who have had the stamina to stay this late to speak to this amendment. The Minister’s response was disappointing. The undertaking that departments will engage with stakeholders where possible does not give me a lot of confidence. I understand that consultation takes up time and resources and that it needs to be focused on the important rather than the minor. But, as the noble Lord, Lord Judd, has just said, many technical and minor amendments can have major impacts.

I am not convinced that the statements and the transparency promised by the government amendments to the later schedules will fit the bill because, if I understand correctly, they are very much about statements made at the time when the statutory instrument is laid, by which time it is too late to make further amendments. It really is into the nuclear option situation, where only an annulment can then happen.

I had hoped that the Minister would use this opportunity to reassure the House generally and the wider audience about the real commitment the Government have to trying to make sure that we get all these statutory instruments right first time. I only hope that the debates we have had on this proposition and the continuing discussions we have with government departments will reveal that that intention does exist, even if it has not been laid out in the parliamentary domain tonight. In view of the time, I beg leave to withdraw the amendment.

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[Baroness Goldie]

My Lords, let me make clear that the rights of EU citizens living in the UK are extremely important. I will address my remarks to the context of the amendment. Some broader questions outwith the amendment were asked; I do not propose to deal with them.

The amendment would do little to protect the rights of EU citizens lawfully resident here in the United Kingdom, and is actually less than what we have already agreed with the European Union.

We are in negotiation, we want a deal and we are straining every sinew to work towards a deal. There is now manifestation of progress on that front, because, following the March European Council, the EU and the UK have agreed to protect a broad range of rights that EU citizens and their family members who are resident in the UK on exit day currently enjoy, but also to extend that protection to those who arrive until the end of the implementation period. This agreement, which was published in draft on 19 March, provides them with certainty about their future rights and allows them to carry on with their lives much as they do now.

The Government have already committed that the withdrawal agreement and implementation Bill will directly implement the withdrawal agreement—including the agreement on citizens’ rights—in UK law by primary legislation. To implement the citizens’ rights agreement, we are introducing a new settled status scheme in UK law for EU citizens and their family members covered by the agreement. We plan to open the application process on a voluntary basis in late 2018, so that people can get their new status at their earliest convenience. This does not require regulations to be made under this power, as the necessary provision can be made through Immigration Rules made under the Immigration Act 1971.

The UK settled status scheme will fulfil the part of our agreement with the EU under which member states can require people to apply to obtain a status conferring the rights of residence, as provided for by the withdrawal agreement, and be issued with a residence document conferring that right.

These individuals will have until June 2021 to make an application to obtain their new UK status. During this time, they will enjoy the rights to live and work freely in the UK as conferred by the withdrawal agreement. After that period, if no successful application has been made, no status will be held and they will not enjoy those rights. However, we have agreed with the EU that where there are reasonable grounds for missing the deadline, they will be allowed to submit an application within a reasonable further period. Any application that is made, but not decided, before the end of June 2021 will still be within scope of the withdrawal agreement protections.

As the House will be aware, we have now agreed with the EU a time-limited implementation period. The purpose of this is to avoid a cliff edge and give people, business and public services in the UK and across the EU the time they need to put in place the new arrangements that will be required to adjust to our future partnership.

It will take time to implement a new immigration framework, and the Government have been clear that there should be only one set of changes in the relationship between the UK and the EU, so it makes sense that the framework during this time-limited implementation period should be the existing structure of EU rules and regulations. During this implementation period, individuals will still be fully covered by the EU acquis. EU citizens and their family members will be able to come to the UK to live and work as they do now, but those who wish to stay here for longer than three months will be required to register. That registration will enable them to evidence their right to reside in the UK during the implementation period.

The noble Baroness, Lady Smith, specifically raised the point about Turkish citizens. I understand that DExEU is leading cross-government work to assess international agreements we have with Turkey, which may be affected by EU exit. I cannot be more specific about that at this point, but the matter is within consideration.

The proposed new clause, therefore, would do nothing to further or protect EU citizens’ interests. It would interfere with our ability to implement the withdrawal agreement and do nothing to improve on the Government’s policy that all EU citizens and their family members, resident in the UK before the end of the implementation period, will be protected under the terms of the citizens’ rights part of the withdrawal agreement.

I hope that I have been clear in setting out how this amendment would actually do little to protect the rights of EU citizens lawfully resident here in the United Kingdom. For that reason, I ask the noble Baroness to withdraw it. I have to say that the Government do not propose to reflect further on this issue between now and Third Reading, so if she wishes to test the opinion of the House it would be appropriate to do so now.

[Baroness Smith of Newnham]

I am grateful to the Minister for giving us a fairly thorough answer, but I find it a little difficult to accept some of what she has just said. As a Liberal Democrat, I am supposed to be somebody with an optimistic turn of mind, so I should possibly hope that there will be an agreement—there will be a deal and it will be so wonderful that we can all live with it. There will be an implementation period, which maybe we would call a transition period, the rights of EU citizens resident here and UK citizens elsewhere in Europe will all be guaranteed, and life will be wonderful. But I am afraid that I was brought up to be a little bit cynical, and I am slightly concerned that what the Minister has said does not quite ring true. She has talked about a whole set of rights being guaranteed through the withdrawal agreement, but we have no guarantee that there will be a withdrawal agreement.

On several occasions this evening we have talked about the possibility of there not being a deal. If there were no deal, the discussion being put forward in the draft withdrawal agreement would lapse. In that event, the rights of the 3.6 million citizens would appear to vanish. On previous days at Report and, in particular, in Committee, we were told repeatedly that the Bill was to ensure legal certainty on the day we leave the European Union—not after some implementation period. I remain deeply concerned about the rights of EU citizens.

If it were not seven minutes to midnight, I would test the opinion of the House but, in the absence of any trigger from the Labour Chief Whip or, to my left, my own Chief Whip, it would be prudent not to do so. I understand that I cannot bring the amendment back at Third Reading, but we might expect an immigration Bill at some point, and many of these issues will be brought back again in that legislation. I am not satisfied that what the Government suggest really will guarantee the rights of EU citizens. With that, I beg leave to withdraw the amendment.

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[Baroness Sherlock]

My Lords, EU family law provisions are tried and tested. There is a broad consensus that they work well, and with the advent of the Brussels II recast—as it is known in the trade—they will become more effective still. At earlier stages of the Bill, I set out in some detail the challenges for international family law post Brexit, so I will not rehearse those again. However, as the noble Baroness, Lady Burt, has said, this amendment is focused on what happens to child maintenance when we leave the EU.

Child maintenance matters because parents can separate or divorce but they do not cease being responsible for their children. Children have a right to support from both parents, even if one lives abroad. Maintenance plays a key role in lifting single-parent families out of poverty. Receipt of child support is also positively associated with single parents taking up work and with children maintaining contact with a non-resident parent.

This may be private law, but the need for it to work well and be enforceable is a matter of public policy importance. Even the UNCRC mandates, at Article 27, contracting states to take all appropriate measures to secure the recovery of child maintenance and, when a parent lives abroad, to promote accession to international agreements. So there are compelling reasons for Parliament to want to be assured that we will have a well-functioning system to enable the assessment and enforcement of child maintenance owed by a parent living in one of the EU 27. The Minister told the House that, during the implementation or transition period, the current reciprocal rules, including the key EU family law instruments and Hague conventions, will continue to apply as now. Beyond that, we do not yet know what the landscape will look like.

Ministers have signalled that they would like to continue to participate in the Lugano convention, but that is nothing like a substitute for the maintenance regulation, as that part of the EU family law provisions are known. The 2007 Hague convention would go some way towards assisting with the recognition and enforcement of maintenance obligations, but it too falls well short of the maintenance regulation. It has no general system of jurisdictional rules, and you cannot enforce spousal maintenance orders via the central authorities unless they are linked to enforcement of a child maintenance order. We are left hoping that the Government will be successful in negotiating a reciprocal deal that will serve our people well. Given the significant number of international divorces, these issues cannot be ignored.

Ministers are confident that comparable reciprocal arrangements can be achieved to replace the EU family law provisions. This amendment would simply require Ministers to tell us how. If Ministers do not smile on this amendment, perhaps they could tell the House how and when the Government will update us on progress. I look forward to the Minister’s reply.

[Baroness Goldie]

I thank the noble Baroness, Lady Burt, for raising the important issue of child maintenance, which we recognise is of particular importance to many families across the UK. As the Government outlined in their position paper published in August last year, we are seeking a comprehensive future agreement with the EU on civil judicial co-operation that is based on the substance of the current EU regulations, including the maintenance regulation. I stress again that the precise nature of this relationship will be a matter for negotiation.

However, I assure the House that the Government are committed to working with our EU partners to agree the most effective rules in this area which reflect our close existing relationship on this important issue. This approach will provide confidence and certainty to families and individuals, ensuring they can continue to enforce cross-border maintenance orders efficiently and effectively in the future. As both noble Baronesses, Lady Burt and Lady Sherlock, rightly said, these orders are hugely important to the families involved.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

Moved by

[Baroness Goldie]

69C: Schedule 7, page 42, line 35, at end insert—
“(9A) See paragraph 3A for restrictions on the choice of procedure under sub-paragraph (9).”

[Baroness Goldie (Con)]

My Lords, I am pleased to move this group of amendments as the final piece—to use the analogy of the noble Lord, Lord Griffiths—of the devolution jigsaw puzzle in this Bill. The amendments in this group all relate, in different ways, to the scrutiny that the devolved legislatures will apply to the delegated powers for devolved Ministers in Schedules 2 and 4 to the Bill.

It is right that in conferring powers on devolved Ministers, the Bill should also provide for how they will be scrutinised. It would be irresponsible not to do that. We cannot confer powers and then make no provision for legislative scrutiny whatever. However, the Government recognise that the scrutiny of powers is ultimately a question for the legislature undertaking that scrutiny and the Administration being scrutinised. That is why the Bill consciously preserves the competence of the devolved legislatures, under the respective devolution statutes, to amend those parts of the Bill that make provision for scrutiny of devolved delegated powers. It is why we have sought the views of the legislatures and the devolved Administrations on the appropriate scrutiny arrangements, and these amendments reflect that engagement.

Amendments 69D, 72ZC, 78C and 115A allow for the “made affirmative” urgent scrutiny procedure to be used by devolved Ministers making regulations under their Schedule 2 powers. This was not included in the Bill as originally drafted because it is not a standard procedure in Edinburgh, Cardiff and Belfast. However, we have confirmed with the devolved institutions that this procedure is acceptable and that it should be available to devolved Ministers for the same reasons of urgency as it will be available to UK Ministers. These amendments will achieve that.

Amendments 69C, 70C and 77E provide for the “sifting committee” procedure to apply for negative procedure instruments laid by Welsh Ministers under their Schedule 2 powers. The National Assembly for Wales and the Welsh Government have both confirmed that this procedure should apply to the Welsh Ministers. These amendments would therefore apply the same procedure as currently applies in the Bill to UK Ministers.

Noble Lords will appreciate that there are very specific arrangements for committees in the Northern Ireland Assembly and this relates to the structures of power-sharing within the Northern Ireland devolution settlement. In that context it would not be appropriate for this procedure to apply, so we have not included it in the Bill. The Scottish Government have informed us that they and the Scottish Parliament wish to apply some form of sifting arrangement to the Schedule 2 power. However, their intention is to undertake this by means of their own legislation. As I have said, the Bill preserves the competence of the Scottish Parliament to legislate on this matter.

[Lord Wallace of Tankerness (LD)]

My Lords, I want to clarify what the Minister has just said. When she said that the Scottish Government and the Scottish Parliament wish to do it by their own legislation, is that their Continuity Bill, which is currently before the Supreme Court? If it is, what happens if the Supreme Court strikes it down, or maybe some other piece of legislation they bring forward?

[Baroness Goldie]

That is a reference to this Bill preserving the competence of the Scottish Parliament to legislate on that matter. I understand that it would have to make legislation within the competence of the Parliament. As the noble and learned Lord will be aware, the UK Government question the competence of the continuity legislation. That, therefore, as far as I am aware, is a completely separate issue and not what I was referring to.

Amendments 83KA, 83P, 83LA, 83MA and 112B require the Scottish Ministers to make the same explanatory statements when exercising the powers, under this Bill or when amending regulations made under Section 2(2) of the European Communities Act, that UK Ministers must make when exercising their powers. I will not stray into greater detail on each of these statements, as we have debated them at length already. I will, for the sake of clarity, remind noble Lords that this obligation to explain comprises seven elements. The first is a “good reasons” statement; the second is an equalities statement; the third is a statement explaining the purpose and effect on retained EU law of the instrument; the fourth is a statement of urgency when using the made affirmative procedure; the fifth is a “good reasons” statement when using any delegated powers to amend ECA Section 2(2) regulations; the sixth is, where appropriate, a statement of the “good reasons” for creating a criminal offence, and of the sentence attached; and the final one is, where appropriate, a statement to explain why sub-delegation of the power is appropriate. As is the case where a UK Minister sub-delegates the powers, there will also be a duty on the authority to which the power is delegated to then lay before the Scottish Parliament an annual report on the exercise of the sub-delegated power, if exercised that year.

Finally, Amendment 83AC makes a straightforward provision to clarify that the duties on UK Ministers to make explanatory statements when exercising powers under the Bill will apply when exercising the Schedule 2 powers jointly with a devolved Minister. A purpose of joint exercise will allow greater scrutiny by requiring instruments to be considered by this Parliament and the relevant devolved legislature. It would not, therefore, be correct for Parliament to receive less information in relation to the instrument than it would have received if the UK Minister had been acting alone, and this amendment clarifies that this will not be the case. The duty will not extend to devolved Ministers, but the statements, as with the instrument, will be the joint product of both Administrations. The statements, in being made available to Parliament, will also therefore be available to the devolved legislatures, and the relevant devolved Administration can choose whether to lay this alongside the joint instrument.

I hope that noble Lords will recognise these amendments for what they are: they are positively the product of our continued and sincere engagement with the devolved institutions. I also hope that your Lordships will welcome the steps this takes to respond to calls in this House and in other places for greater scrutiny of delegated powers. I beg to move.

Amendment 69C agreed.

Moved by

[Baroness Goldie]

69D: Schedule 7, page 43, line 1, leave out “paragraph 4” and insert “paragraphs 4 to 4C”

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Moved by

[Baroness Goldie]

83C: Schedule 7, page 52, line 20, at end insert—
“(2A) Before the instrument or draft is laid, the relevant Minister must make a statement as to why, in the Minister’s opinion—(a) there are good reasons for the instrument or draft, and(b) the provision made by the instrument or draft is a reasonable course of action.”

[Baroness Goldie]

My Lords, the statutory instruments to come under this Bill are the means to a unique end—correcting our statute book and properly incorporating an entire new body of law into our domestic legal order. I hope that the group of amendments I now have the pleasure of introducing is a demonstration of the Government’s commitment to transparency before Parliament. This transparency will enable Parliament to subject the Executive to the scrutiny that is only right and proper when we bring before your Lordships proposals for delegated legislation. A key part of this transparency offer is the array of statements which we are committing in statute will accompany each of the SIs and be published alongside them in their explanatory memoranda.

Before addressing each of the amendments in this group in turn, I wish to put on record the answer to some questions which noble Lords have raised regarding the provision at sub-paragraph (6) of paragraph 22 of Schedule 7. This provision does not circumvent the obligation to make any of the statements in paragraph 22. Rather it is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for their failure, in addition to providing the original statement.

Amendment 83D in the name of the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Judge, in common with Amendment 11, accepted two weeks ago by the House, introduces a distinction into the Bill which the Government cannot accept. This is a Bill to make, in common parlance, largely technical changes; substantial policy will be brought forward elsewhere. However, the distinction between technical changes and policy decisions is not one that could ever be defined in statute. Even the most technical of changes could constitute a policy decision, including as to whether to make the change at all. Nor, even if the noble Lords were to accept that point, can any clear line be drawn between technical policy, minor policy or substantial policy changes.

This amendment would require each Minister making an SI to make a declaration which depends entirely on where one is sitting—the prism through which one would see the amendment. For example, to the fishing community in Lerwick, the rules on the make and size of nets are certainly a matter of policy in which it takes an interest, while packaged retail investment product customer information requirements are most certainly a technical matter. I hazard that the asset manager in Kensington might feel a little differently. This amendment risks saying that either everything is technical, or nothing is technical. I hope all sides of the House will agree that neither of these positions is true. This is a Bill to make largely technical changes: that is our policy choice. As I am afraid that the two cannot be cleft asunder, I must ask the noble Baroness and noble and learned Lord not to press their amendment.

Government Amendment 83C and its consequentials 83H and 83J ensure that, where a Minister makes regulations under Clauses 7(1), 9 or 17(1), a statement must be made as to why there are good reasons for the instrument, and the provision made is a reasonable course of action. This is in line with the Constitution Committee’s recommendation in its ninth report and is, I trust, further evidence of the Government’s willingness to give due consideration to all amendments which do not undermine the fundamental operation of the Bill. I hope noble Lords will indulge me as I once again quote the Constitution Committee in support of the proposal. Such an amendment, it said, would:

“require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially”.

The committee continued:

“In this way, the Government can secure the flexible delegated powers it requires, while Parliament will have a proper explanation and justification of their use that it can scrutinise”.


Of course, I cannot put forward these amendments without making reference to the “appropriate versus necessary” debate, which these government amendments were clearly a response to. This House came to a decision on that question which the Government are disappointed with. Nevertheless, I would still commend these amendments to the House in an effort to increase transparency by some considerable measure.

Government Amendment 83F is in a similar vein, and would require Ministers to make a statement as to the purpose of an SI before it is laid. The Government have reflected carefully on the concerns raised within this House that the intention behind a modification to retained EU law might not always be clear. Such concerns were particularly focused on how modified retained EU law may be interpreted in light of Clause 5(3), and whether a modification to retained EU law is to be subject to the principle of supremacy of EU law. These concerns have also been raised in relation to Clause 6(6) and whether an item of retained EU law which is modified after exit day is still to be interpreted in accordance with retained case law.

As was discussed in Committee, we expect in many, if not most, cases that it will be evident from the modification and the context whether the modification is intended, for example, to continue to benefit from the principle of supremacy, and whether modified retained EU law is intended to be interpreted by reference to retained case law. There is no getting away from the point that, ultimately, where such issues arise, they would need to be resolved by the courts on a case-by-case basis.

However, to ensure that there is the maximum clarity and transparency as the SIs are scrutinised and made, we have tabled Amendment 83F, which requires a Minister to make an explanatory statement about the purpose of the instrument, alongside the other explanations required in the same paragraph, including about the relevant pre-exit law and the effect of the instrument, if any, on retained EU law. The Government believe that this approach strikes the right balance by requiring Ministers to provide transparency on this point to Parliament and the courts without risking adversely fettering the discretion of our courts in terms of how SIs and modifications to retained EU law are interpreted. I hope, therefore, that this amendment can be supported across this House.

Noble Lords will all no doubt be aware of Amendment 83G, tabled by the Government, which would require a Minister to make a statement when exercising the powers to create a criminal offence. The statement will need to explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. The statement will be made in writing by a Minister before the instrument is laid and will then be published, usually in the Explanatory Memorandum, to inform the deliberations of the committees and the House.

We previously touched on this amendment during debate on Clause 7, when we said that we would discuss what form this statement would take. This is still ongoing, although we will update the House as and when any decision is made on the matter. This amendment comes following the recognition of growing concerns in the House regarding the use of the powers to create a criminal offence. The Government’s plans for creating an offence will now be even more transparent to Parliament, and our reasoning will have to be clear and justified. This will ensure that the committees will have all the relevant information necessary at their disposal to make sound decisions when considering these important instruments. I hope, and am sure, that the House will welcome this.

I thank your Lordships for bearing with me. These are important issues and we thought it important that the House should understand the reasoning behind the Government’s approach to these matters. The Government’s amendments here provide for a material increase in the transparency of the exercise of the powers in the Bill. No one should underestimate how seriously these obligations are being taken by Ministers and officials. They have been designed specifically to address the concerns expressed in Parliament, and the Government intend to meet our end of the bargain in enabling effective scrutiny of the legislation we propose. I beg to move.

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[Lord Goldsmith]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith. The Government have moved on this, and that is to be recognised and appreciated, but they could have moved further, as the noble Lord, Lord Beith, has made very clear. It is slightly paradoxical that, as he says, the Government’s concern not to appear to be making policy changes prevents them adopting an amendment which makes it clear that what the instrument is to do is not to make a policy change. Be that as it may, although I find it hard to believe that the Government and their advisers could not have come up with a form of words that indicated the technical nature of the change being made while not falling into the trap of appearing to make policy changes, we would not prevent that amendment being agreed.

I want to underline three points which I invite the Minister to comment on. First, the way that these Ministers’ statements are described makes it clear that it is the statement of the Minister that is required. She spoke on at least one occasion about the Government’s view that something should be done, and no doubt the Minister would not do something if it were not the Government’s view. However, it is an important and critical part of the statement obligations that the Minister in question should apply his or her mind to the issue. That is the point that the noble and learned Lord, Lord Wallace of Tankerness, rightly made in the earlier debate. Therefore, I would be grateful for her confirmation that it will be understood that, where Ministers are to make such a statement, they have a personal responsibility to be satisfied. That is the whole point of including those words—so that the House or another place has the confidence and assurance that the Minister has focused on the issue and determined that the conditions are satisfied.

The second point I want to underline is that acceptance of these amendments does not in any way undermine the importance of the amendments that the House has already agreed in relation to the “appropriate” and “necessary” distinction. That requirement will remain, and the fact that the Minister’s statement may be expressed in different terms does not undermine it in any way. It will still be necessary—to use that word—for the necessity condition to be satisfied. I would be grateful for the noble Baroness’s confirmation of that.

My third point is that I, like the noble Lord, Lord Beith, am intrigued by the reference to the Government still considering the wording to be used for the creation of criminal offences. We look forward to seeing what they say. It sounds like it will be coming back at Third Reading, and on that I would welcome the Minister’s confirmation. In any event, in doing that, and as the Government consider their words, the House might expect the Minister’s statement to explain not just that there are good reasons for creating the offence but why there are good reasons for creating it in this way. Of course, as the noble Lord, Lord Beith, has said, there is no reason not to create criminal offences by primary legislation; our concern has been creating them by delegated legislation. The House will need to be satisfied that that is an appropriate thing to do in a given case. I look forward to hearing the response to those points.

[Baroness Goldie]

I now look forward to giving that response. I thank the noble and learned Lord for his comments. On his first point, which is fairly legitimate, he will be acutely aware that Ministers have not just a personal but a political responsibility. They are, in the office of being a Minister, responsible for having made the statement. That, I think, imputes to the Minister both a political and a personal responsibility. Governments of all colours act in good faith and the Ministers involved act in good faith. I think this House will be satisfied that Ministers of whatever political hue acting under these powers will genuinely have a personal focus on what is being discussed—I think “focus” was the word used by the noble and learned Lord.

The statement must both make the original statement and give an explanation of the delay in having brought the statement forward. I have tried to make that clear in my remarks: this is not an alternative responsibility but a complementary responsibility; the two things will apply. A Minister cannot shoal off one of them and offer the other. Both responsibilities will apply.

The final point was that, when creating an offence, the noble and learned Lord thought it was appropriate to justify not just why the offence was being created but why it was being created in this way. Again, that is ex facie. Part of the impact of the responsibilities of the Minister under the Bill, if so amended, is that they can expect to be questioned closely. Indeed, given the now very robust scrutiny procedures that are in place, Ministers will expect to be questioned closely not only as to why they are creating the offence, but why they are doing so in this way. That is implicit in the structure within which Ministers are now being asked to operate. I hope that to some extent answers the noble and learned Lord’s points.

[Lord Beith]

Before the noble Baroness sits down, I assume that she is going to answer the questions I put to her, not least about Third Reading but also about the importance of Ministers recognising that the inclusion of policy choices is something we would prefer not to see in delegated legislation.

[Baroness Goldie]

I am sorry. I did not have a detailed note about the point raised by the noble Lord, so may I undertake to write to him?

[Lord Beith]

I am sorry to press the noble Baroness, who is normally so helpful, but she has not clarified what she said about the Government reconsidering the wording in relation to criminal offences. It seems to me that, if the Government are reconsidering the wording, then we have to come back to that at Third Reading.

[Baroness Goldie]

We are not reconsidering. We are simply considering the appropriate text. The general point has been made clear by the Government: that they will not want to retract what is already their policy position. They will simply undertake to inform the House when a form of words has been adjusted.

[Lord Newby]

Is the Minister saying that the Government have no intention to come back on this issue at Third Reading?

[Baroness Goldie]

Indeed. That is the case.

Amendment 83C agreed.

European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

Moved by

[Baroness Goldie]

3: Clause 8, page 6, line 20, after “legislation” insert “so far as it is”

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[Baroness Goldie (Con)]

My Lords, I shall not detain the House but shall be as swift as possible, because these amendments are straightforward and essentially technical. Amendments 3 and 6 ensure that there is consistency in the wording between the subsections of the Government’s status clauses. They do not change the operation of the relevant sections which the new clause signposts but ensure that the House and future readers of the Bill do not infer any difference of intention from a minor difference of language.

Amendments 4 and 5 add in missing cross-references. The amendments do not affect the substance of the clause, that retained direct principal EU legislation and retained EU law by virtue of Section 5 is to be amendable like primary legislation, and retained direct minor EU legislation is to be amendable like subordinate legislation.

Amendments 10 and 11 to Schedule 3 would insert new provisions to update the numbering of cross-references contained within the Government of Wales Act 2006 in consequence of provisions of the Bill that the House considered and approved on Report. This would mean adding a reference to a new provision and removing a redundant reference to a provision that is repealed.

Amendments 12 and 13 would, as we indicated on Report, adjust the wording of paragraph 37 of Schedule 7 to the Bill, which provides for the combination of instruments containing regulations subject to different scrutiny procedures in Parliament and also in the devolved legislatures. They would not change the policy that those provisions deliver but would ensure greater clarity as to the legal effect of the provisions.

I hope that noble Lords will recognise the importance of ensuring that we have a robust piece of legislation and support these amendments.

[Lord Wigley (PC)]

Before the noble Baroness sits down, were the changes in relation to the Welsh devolution settlement discussed with the Government of Wales?

[Baroness Goldie]

I have no specific information about that. The amendments are intended to help the Welsh Assembly and, indeed, assist any Government in the Welsh Assembly by ensuring that we avoid confusion and greatly improve clarity. I hope that the noble Lord will accept the good faith of the Government in trying to do everything possible to assist the devolved settlement in Wales. With that clarification, I beg to move Amendments 3, 4, 5 and 6.

[The Countess of Mar]

The noble Baroness can move only Amendment 3 at this stage.

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Moved by

[Baroness Goldie]

4: Clause 8, page 6, line 22, after “5(2)” insert “or (4)(a)”