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.

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[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.

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[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.