European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Lord Fairfax of Cameron (Con)]

My Lords—

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I think we have now heard, especially if what has been said is true, that the House will be more in favour of the amendment than against. The balance of speakers now is possibly to allow one speech in favour of the amendment.

It is a bit of a shame as I wanted to follow the noble Lord, Lord Dobbs, because it is always such fun. The only disadvantage of him being in the House is that he is not writing another television play. Please go back to doing that. The uproar in the Commons which the noble Lord mentioned—I am afraid he cannot stand up again—can be in another play.

These are serious issues and I cannot agree more with what the previous speaker has just said. It is about allowing for the deal to be negotiated—the best deal for this country, we hope—and then for it to come to Parliament. This is not, as the noble Lord, Lord Howard, said, about creating a constitutional crisis; nor is it about asking the Commons to become a negotiator, as someone said. It is to ask the Commons and Parliament to decide whether the outcome of the negotiations is good enough for the country. That does not seem too much to ask.

As for the noble Lord, Lord Lamont, worrying that it will somehow affect the negotiating timetable if our negotiators have to come back to Parliament, that, of course, is exactly what is happening on the other side because the negotiator Monsieur Barnier has to go to his Parliament—the European Parliament—to get it through there. We could see that one side has to go to a Parliament to get the deal approved but not ours. I really do not see that the timetable is quite a problem.

We always feel very sorry for the Minister—and me—on these long days because we do not get any lunch. Today I gather he got absolutely none because he was on the radio at lunchtime. What did he say? He said that the amendment was about overturning what the people decided in June 2016. That is not what it is about. It is about asking the Government to put the results of their negotiations to Parliament. It is quite hard to see why the Government, or the noble Lord, Lord Howard, and the others, are so worried about it. What do they have to fear—that the deal will not be good enough?

We support the amendment, which is quite simple but has to be written quite complicatedly because we are trying to get it right. It is to put into law the undertaking that the Prime Minister gave that both Houses of Parliament would have a vote on the outcome of the withdrawal negotiations. There are five reasons for supporting it. First, as with Article 50—but this time without having to go to court—it is to ensure that the withdrawal agreement is put into statute by Parliament because a mere Motion, which is what we have been offered, has no force of law. In fact, I doubt that it is even, in the words of Article 50(1) of the treaty, in accordance with our “own constitutional arrangements”, which is what is required.

Secondly, the votes in Parliament must be meaningful. That means that they need to be effective, but also that there must be a real choice and that the outcome must be binding on the Government. Particularly for the House of Lords, it would be meaningless, if the Commons voted yes to the deal, if we were then asked to vote. If we wanted to vote no, we would know that it would not be binding and that the Government were going to ignore it—it would not matter what we did, so we might as well follow the Commons. Or, if it was binding on the Government, we would be in the difficult position outlined by my noble friend Lord Grocott. If, as an unelected House, we wanted to vote no, we would risk overturning the elected House. My judgment is that in those circumstances we would have to vote yes regardless of what we thought of the deal. That would be a meaningless vote.

Thirdly, the votes in both Houses must offer a reasonable choice. It would, I suggest, not be meaningful to vote either to exit on a deal if we think it is poor, or else to crash out on no deal—that is, on even worse terms: WTO terms, no safeguards for UK citizens abroad or, indeed, EU citizens here, a hard border in Ireland and no transition period. That is Hobson’s choice. It is true that last week David Davis suggested that there might be a third option—perhaps extending Article 50—but without it, if we simply have the deal on the table or a cliff edge and off, that is not a meaningful vote.

Fourthly, as has been said, the promised vote is currently only on a negotiated withdrawal deal. It gives no role to Parliament over a decision by the Government to walk away without a deal—again, with WTO terms, no safeguards for our UK citizens living in EU countries nor EU citizens here, a hard border in Ireland and no transition period. That cannot be something that the Government decide without Parliament.

Lastly, the promised vote says nothing about the consequences of a rejection of the withdrawal deal, or of the no deal that we heard about earlier. As we have heard, the amendment, in its different ways, answers all those shortcomings. It puts the vote into law. It removes a Lords’ veto that would otherwise make our vote meaningless. It extends the vote to a no-deal situation, and it signals what must happen should the deal be rejected or there is no deal; that is, the House of Commons must then decide the next step. I commend the amendment to the House.

[Lord Fairfax of Cameron]

My Lords—

--- Later in debate ---

[Lord Callanan]

I am not going to dictate what Parliament might want to do with that Motion or any other. Members will be free to table amendments to the withdrawal agreement and implementation Bill.

[Baroness Hayter of Kentish Town]

Will the Minister answer the other question: will it be binding on the Government?

[Lord Callanan]

Of course it will be binding on the Government. If Parliament rejects the deal we have negotiated, of course it cannot be implemented.

--- Later in debate ---

[Lord Shinkwin (Con)]

My Lords, I shall keep my remarks very short. I believe that the noble Lord, Lord Newby, hinted at the elephant in the room, which is respect for the clear majority who have already spoken in a once-in-a-generation referendum. He referred to the result of the referendum as being sacrosanct. Yet this amendment sticks two fingers up at the majority who voted to leave in that once-in-a-generation referendum. It tells them that we as a Parliament may have passed a law giving them the final say, confident that they would vote to remain, but that they did not repay our confidence, they failed the exam, and now there needs to be what amounts to a resit. But the once-in-a-generation referendum was not an exam and the 17.4 million people who voted to leave did not fail it. If we pass this amendment it will be Parliament that fails to respect the people. We need to respect the majority vote in that once-in-a-generation referendum as sacrosanct. Any noble Lord who truly respects the people and the fact that they have already spoken should oppose this amendment.

[Baroness Hayter of Kentish Town]

My Lords, we have heard the case that, having seen the terms of our withdrawal, Parliament should have the option of deciding whether to put those terms to a referendum, with the choice between yes to the terms and yes to stay in; with no other question on the ballot paper, such as better terms; and with the decision to hold a referendum to be taken by both Houses of Parliament, which of course gives the Lords a veto. Having only two options on the table may not be the best suggestion for what is now being called a people’s vote, but let us put that to one side for a moment. I want to question the wisdom of asking the Commons to vote on an amendment to the Bill at this stage, which opens up the issue of whether we hold another referendum, given the implications of such a discussion right now for both our national debate and the negotiations with the EU.

On the former, what would it mean here at home? I see a divided country. The referendum may not have divided us, but it certainly provided evidence of that divide. London and Scotland feel quite a different nation from most of the UK on the Brexit question. Views are sharply divided—not helped by the Government, I am afraid. In June 2016, one might have expected a Prime Minister to reach out to the whole nation, including those hurt by the outcome, to bring the country back together. Sadly, instead, David Cameron walked away and the new Prime Minister, in her approach to the negotiations and the sorts of relationships we want to have with the EU after we leave, instead of trying to reflect the fact that nearly half the voters would have liked to stay in, took what I consider an overhasty decision to focus on a particular type of exit, which is really anathema to those on the losing side. Regrettably, she continues to listen only to those on the winning side—those who called for a referendum, who campaigned for us to come out, who won the vote and who now want the hardest of Brexits: a go-it-alone version, leaving behind the very successful trading relationship we have now. This House has voted against coming out of the customs union, but the Prime Minister is still failing to bring the country together and build a wider consensus. She is turning a deaf ear to business, which is crying out for a better sort of Brexit.

I therefore wonder what will happen to the national debate about the sort of Brexit we want if, quite unnecessarily at this moment, we insert into the Bill the potential of a new referendum, with all the division that that will cause. It is unnecessary because the amendment we passed one hour and 25 minutes ago does not close off the possibility, though nor does it trail it. It gives the option as a potential, as indeed the Labour Party conference agreed some time ago, as my noble friend Lord Adonis reminded us, but my concern is that moving the current discourse on to the issue of a second referendum, when the real question before Parliament is the sort of deal we should be seeking, will foster more division and distrust, and it will let the Government off the hook about their disastrous negotiating strategy and the formulation of that strategy.

The external consequences of the amendment have already been mentioned. It is possible that the introduction of a new element of uncertainty—that the deal might need to go to a referendum—could make the necessary compromises in the current negotiations with the EU harder to achieve.

We do not rule out any form of democratic engagement, but we are not persuaded by this call now. We are not sure what exact question the referendum would ask because, if it is only out on the terms negotiated or out with no deal, that would be meaningless; out on the current terms or staying in may also not be the full range of options. We are not persuaded that this is the debate that Parliament or the people want at this moment. In the words of my noble friend Lord Campbell-Savours, it is premature.

There is a further issue. For the referendum to be accepted by the electorate, it would have to be supported more widely than just by those who favour a particular outcome; otherwise, it will be seen simply as a device to stop Brexit rather than a serious poll on the terms negotiated. At the moment, with just one exception—Nigel Farage—only one side is campaigning for a new referendum. Therefore, that is how I fear it will be seen.

We will abstain on the amendment. But more than that, I ask colleagues across the House to think twice before supporting a referendum now, given that that might further divide the country, rather than unite it; given that the option is always there anyway; and given that that would take the attention off the negotiations at this critical moment.

[Lord Adonis]

Why does my noble friend think that opinion will be less divided in October than it is today?

[Baroness Hayter of Kentish Town]

It may or may not be, but that will be an issue for then. The issue for now, surely, is the negotiations that are taking place and the maximum input and effect that we can have on them.

We need to use every bit of our persuasive powers to change the objectives that the Government seem to have set their red lines on. Not everyone will agree with me on that, but that is where the public debate should be at the moment. I have heard the arguments for a referendum. This is not the time to get the public debate back on to that rather than on the subject of the negotiations. I urge that we abstain on this amendment.

[Lord Callanan]

My Lords, I do not know if the noble Countess, Lady Mar, is in her place but I note that the Companion to the Standing Orders makes it clear that:

“Arguments fully deployed … in Committee of the whole House … should not be repeated at length on report”.


I therefore face a challenge today, as did my noble friend Lord Bridges during the passage of the European Union (Notification of Withdrawal) Bill, because we seem to have heard it all before. As he said then and I have said and the Prime Minister has said, our position remains unchanged from the time of the referendum that we will respect that result.

When voters walked into the polling booth on 23 June 2016, they were asked:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”.


This question was put to the public as a result of an Act of Parliament passed by both Houses. The question was not, “Should the United Kingdom negotiate to leave the EU and put the terms of that departure to a further referendum?”—a point that was well made in the excellent speeches of my noble friend Lord Faulks and the noble Lord, Lord Grocott, on the Labour Benches.

Some noble Lords—possibly the Liberal Democrats—may wish that that had been the case, but it was not. The public, in the largest democratic exercise ever conducted in the United Kingdom, voted on that simple question and that simple question alone—a point made well by my noble friend Lord Shinkwin. Both sides in the referendum campaign pledged to respect the result; once the outcome of the vote was clear, that meant to leave the European Union. The public voted to leave and they expect the Government to deliver on that, not try to judge what they may have wished the question was. This promise was repeated in last year’s general election in the manifestos of parties commanding more than 80% of the vote and to which more than half the noble Lords in this House are affiliated. It is on the basis of that commitment that we are here today: the Bill is a necessary component of delivering a successful Brexit. Fundamentally, it is about providing legal certainty, for businesses here and abroad, and for citizens in both the UK and EU—which was also a point well made by my noble friend Lord Faulks.

How would the amendment fit in with that purpose? Inserting a requirement for a second referendum would have exactly the opposite effect. This House will be all too aware that a second referendum would require a further Act of Parliament. What would that process look like? What would the question be? What conditions would be attached? Would there be provision for a further referendum if the Liberal Democrats still did not like the answer? How long would it take to get the referendum legislation through the House and what would happen to business, industry and citizens in the meantime?

Furthermore, while we in this House, and in the other place, debate these issues, businesses and individuals will suffer from the uncertainty that it will bring, when what they really want is a continuation of the certainty provided by our successes in the negotiations so far. There would be legal challenges, I am sure, and perhaps clamour for a third referendum, maybe even a fourth—points well made by the noble Lord, Lord Howarth, and my noble friend Lord Dobbs. If we commit to continually looking over our shoulder, to holding a second referendum, we cannot be a strong or reliable partner in the negotiations.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, in one way, it is difficult to imagine a more pertinent week for this amendment to arrive in this House. It is true that perhaps it would have been better if we had included it in the Article 50 Bill: if when, as we authorised the Government to fire the starting gun on our departure from the EU, we had laid down at that stage the requirement for the negotiating mandate which would have set out our future relationship with the EU and asked for it to be approved by Parliament.

As it turns out, that would have been good for the Government as well as for the country, as it would have forced the Prime Minister at that stage to fashion a mandate to find favour with Parliament: avoiding a further year of disputes, lobbying and, dare I say, manoeuvring within her Cabinet. Indeed, the Government’s dithering and internal party arguments have held up parliamentary work on, for example, the Trade Bill, with 12 wasted weeks’ delay on a crucial Commons vote—the equivalent of a 10th of the time allocated for the Article 50 negotiations. Such uncertainty has left the EU scratching its head as to what exactly the UK wants.

It must also drain the Prime Minister’s time and energy as she seeks to reconcile the irreconcilable within her party rather than putting the country’s interests first. The prime, perhaps the central, job of any Prime Minister is to defend and promote her country’s interests. That is what she should be doing, rather than acting as a nursery teacher controlling unruly youngsters.

That behaviour rolls on. On the one side, she is under huge pressure from within her Cabinet to abandon even consideration of a customs partnership, with, we read, senior Brexiteers “preparing for a showdown” at this week’s Brexit sub-committee. Incidentally, the showdown is in part led by Liam Fox who, in 2012, called for a new relationship with the EU based on,

“an economic partnership involving a customs union and a single market in goods and services”.

At the same time, David Davis was saying that his preference was to remain in the customs union. So their former selves were looking towards that, and your Lordships’ House, by its view on the customs union, has expressed a fear about a physical and regulatory break from our largest trading partner.

We also hear that from businesses, trade unions, environmentalists, those speaking about Northern Ireland and, possibly, from a majority in the House of Commons, where, in due course, there will have to be a crunch vote on the shape of the customs union relationship, in particular. The Prime Minister will not be able to postpone that indefinitely. As the saying goes, “You can run, but you can’t hide”. Part of the reason that that is happening now is because we did not have parliamentary approval for the negotiating mandate at the start of the process.

The amendment demands that the articulation of our future relationship—what the Government want to achieve from the negotiations—should be spelled out and put to Parliament. Perhaps the noble Lord, Lord Hamilton of Epsom, is right in what he says about what that will spell out and what the mandate would include, but why not have it endorsed by Parliament?

We support the amendment, which would ensure that that negotiating mandate, which would cover trade and our future relationship with the EU, is approved not just by what is a rather divided Cabinet at the moment, but by Parliament, which is where the decision should lie.

[Lord Callanan]

My Lords, I begin by making it clear that Parliament has a critical role in scrutinising the Government’s negotiating position. It is our responsibility as a Government to provide both Houses with ample opportunities for scrutinising both the approach we are taking to exiting the EU and any implementing legislation—and we are doing so.

The Secretary of State for Exiting the EU has provided an Oral Statement to the House after every negotiation round. He has provided evidence to the Select Committee on Exiting the EU five times, and has appeared before the Lords EU Committee four times. On 29 occasions to date, DExEU Ministers have given evidence to a wide range of committees, from Environmental Audit to Science and Technology. As my noble friend Lord Hamilton observed, the Prime Minister has laid out her intentions for the future economic and security relationship between the UK and the EU in several speeches, most recently in those made in Munich and in London’s Mansion House. Her intentions were also made clear in the seven future partnership papers, where the Government set out their negotiating objectives across a number of areas, including customs, science and innovation. Government Ministers have made a series of speeches laying out their intent for various aspects of the future relationship between the EU and the UK.

The scrutiny received during these parliamentary appearances, and in the multitude of reports from the committees of this House and the other place, have been of great value, and have done much to help inform the Government’s work so far. There has also been a wide range of engagement activity by government with key stakeholders across business, civil society and other interested groups. While there are some who think that Parliament should have a greater role in setting the terms of our negotiations, we simply cannot hold up the already tight negotiating timeline by providing for a further approval process prior to negotiations ending. It must be for the Government, not Parliament, to set our goals for the negotiations on the UK’s exit from the EU, and to conduct them.

As I said in my response to the first amendment that we considered today, the Government have been clear from the start that Parliament will get a vote on the final deal, when Parliament will have the final say on the withdrawal agreement and terms for our future relationship, as soon as possible after the negotiations have concluded. Only if Parliament supports that Motion will the Government bring forward the withdrawal agreement and implementation Bill to give the withdrawal agreement domestic legal effect. The Government will then introduce further legislation where it is needed to implement the terms of the future relationship in UK law, providing yet further opportunities for proper parliamentary scrutiny.

Debates in this place and the work of the committees of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have used Parliament’s input to shape our approach to negotiations so far. Indeed, I conclude by quoting some wise words from our own House’s EU Committee’s fourth report of 2016-17, titled Brexit: Parliamentary Scrutiny:

“Parliament should not seek to micromanage the negotiations. The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome”.

My noble friend Lord Boswell will no doubt not let me ignore the fact that the report goes on to call for the avoidance of “accountability after the fact”, but I hope that the House will agree that the right response is not to go to the extremes of micromanagement by Parliament. I hope, therefore, that the noble Lord feels able to withdraw his amendment tonight.

--- Later in debate ---

I finish by saying that Amendment 62 is not trying to do anything outrageous. It is setting a very simple signpost. It comes into effect only if the House of Commons—not the House of Lords—declines to approve and then it says quite clearly what happens. It asks for the status quo and an extension of time so that something else can be worked out. I think Amendment 62 is very reasonable. I would even hope that the Government might think about accepting it because it offers us a way forward. I hope that we will feel able to take it.

[Baroness Hayter of Kentish Town]

My Lords, the case has been made that should Parliament fail to approve the Government’s withdrawal deal, the Government should pause the Article 50 process and go back to the negotiating table. That might appear to be a sensible, common-sense—in the words of the noble Lord, Lord Cormack—possibly even essential proposal. Indeed, it was one of the arguments we used when we urged the Government to remove the fixed date for exit in the Bill—we will return to that next week but I am sure they are aware of that—to give the flexibility they may need in exactly those circumstances.

However, I fear that the particular route of Amendment 62 runs counter to the whole thrust of what we have just agreed in Amendment 49. Should the Government’s deal be voted down, the consequences of that failure to negotiate a satisfactory outcome and to win the support of Parliament for it would indeed be extremely serious. Amendment 49 says that in those circumstances it should be the Commons rather than the Government which starts to take charge. The Commons may well decide to take the route suggested in Amendment 62 with a quick letter to the EU asking it to consider an extension. It might consider as an alternative that it wants a referendum. It might decide that it wants to withdraw the Article 50 trigger altogether rather than just extend it, as set out in the later Amendment 57 from the noble Lord, Lord Wigley.

However, today is not the time to speculate which of those would be the right outcome for the House of Commons in those circumstances. We cannot know now and we certainly should not try to second-guess the correct option if there is not a majority in the Commons for the deal that has been negotiated.

It would be a shame if in any way the amendment appears to put the initiative back into the hands of Ministers, rather than the Commons. Amendment 49 said it was for the Commons, not the Executive, to take the next step should we find ourselves in that position. On that basis, we will be abstaining on Amendment 62—assuming that it is dealt with tonight, rather than early in the morning. Our reason is that it is tangential or even superfluous—rather than objectionable—and could be seen to conflict with what we have just agreed at 5 pm today in Amendment 49. It narrows, rather than widens, the options the Commons would have should the final deal be voted down.

[Lord Reid of Cardowan]

I welcome the constructive nature of my noble friend’s criticism, if you follow me. I am not sure that the two are incompatible. I am not sure that the House of Commons can actually, in international relations, speak for a sovereign state the way that a Government have to speak for a sovereign state. I take it from what my noble friend said that she is not ruling out the idea but objects to the imperative nature of it and the apparent conflicts with what was passed earlier. In that case, I hope that she and the Government will engage in seeing how we could reconcile those apparent differences.

--- Later in debate ---

[Lord Wigley]

My Lords, the first objective of the proposed new clause is to test whether the Article 50 notice is revocable. If so, its second objective is to suggest that in certain circumstances the Government might avail themselves of that option. Clearly, that could be an issue if we find ourselves with a no deal Brexit or a breakdown in negotiations at the very last moment. We touched on aspects of this in an earlier debate.

There have been no rulings on the revocability of Article 50. It is widely assumed that the interpretation of the treaty could ultimately be a matter for the Court of Justice of the European Union, although I noted the qualifications outlined earlier by the noble Lord, Lord Kerr, in that context. The parties to the Gina Miller case assumed that notice of withdrawal is irrevocable. However, a preponderance of academic opinion maintains that it is revocable. One attempt to refer to the CJEU for a ruling was dropped—the Dublin case—on the basis of costs, as I understand it. Another—the Edinburgh case—is in the process of being appealed.

There is considerable opinion that an Article 50 notice could be revoked. Professor Closa has raised a number of formal and substantive objections to the assumption of Article 50’s irrevocability; the most compelling one draws on a comparative assessment of international law and practice under which a withdrawing state is bestowed a cooling-off period, allowing it to change its decision. Furthermore, Donald Tusk, President of the European Council, has asserted in his political capacity that on conclusion of the Article 50 negotiation process, the status quo could be maintained, meaning that if the UK was not happy with the agreed terms of Brexit, it could opt to continue to be a member of the EU.

The interpretation of Article 50, if one were needed, would be a matter of EU, not UK, law. The EU treaty is silent on the matter of revocability, but under Article 267 of the TFEU, there could be a role for the CJEU in determining whether an Article 50(2) notice can be withdrawn if a member state that has served notice of an intention to withdraw changes its mind. There is a general principle of international law, set out in Article 68 of the Vienna Convention on the Law of Treaties, that a notification of intention to withdraw from a treaty,

“may be revoked at any time before it takes effect”.

This provision does not override any specific arrangements in a treaty, but are questions about the decision to trigger Article 50 under national constitutional arrangements relevant to the CJEU? If a court of last instance has some uncertainty as to the correct interpretation of EU law, it must refer a question on the interpretation of EU law or the EU treaties to the CJEU, but not, I stress, if the national court decides that something is clear “beyond reasonable doubt”. This is known as the “acte clair doctrine” and has been established in the case law of the CJEU. The courts have not ruled on revocability. I therefore contend that the amendment is both valid and necessary and I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, for the reasons I have given before, the amendment restricts what we did on Amendment 49 so I have some queries about its wording. However, on the question of revocability, if we came to a point in Parliament where we were looking at the next steps, should the deal not be accepted, it would be important for Parliament to know as far as the Government do the advice on this.

There are examples of legal advice given to the Government being disclosed to Parliament where it has been relevant to an Act before it. Clearly, the Government will have got legal advice on the question posed by the noble Lord, Lord Wigley; can the Minister indicate whether that could be shared with Parliament?

[Lord Callanan]

My Lords, I understand the intention of the noble Lord, Lord Wigley. He is concerned, as are many other noble Lords, with the consequences of failing to reach an agreement with the EU or the equally unpropitious scenario of Parliament rejecting the terms of a deal that has been reached. The noble Lord’s amendment goes even further than that tabled by the noble Viscount, Lord Hailsham, in that it dictates, rather than leaves open, what should happen next in the event that the UK and the EU do not reach an agreement on the terms of our withdrawal; or if Parliament does not approve the terms of the withdrawal agreement, our notification under Article 50 should be revoked.

As I have explained already today, it is not constitutionally acceptable for Parliament to dictate the conduct of diplomacy in that way. Moreover, we are confident that we will reach a positive deal with the EU which Parliament will support. This is indisputably in the mutual interests of both the UK and the EU. Parliament will have a clear choice: to accept the deal we have negotiated or move forward without a deal. Ultimately, if Parliament chooses to reject the deal then we will leave the EU with no deal in March 2019.

The Government have always been clear what the outcome of failing to reach a withdrawal agreement would be. We are leaving the EU and will leave with a deal or without one. It is not a scenario that anybody relishes, least of all me, but it is also not one that should come as a surprise. The UK voted to leave the EU, Parliament voted to trigger the notification of withdrawal Act and the Government are honour bound to deliver on that instruction. We have been clear throughout that as a matter of firm policy we will not seek to revoke our notice under Article 50.

I therefore hope that the noble Lord will withdraw his amendment. I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord—

[Baroness Hayter of Kentish Town]

Do I take it from that that the Minister is not going to answer my question?

[Lord Callanan]

You can take it from that, yes.

I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House he should do so now.

--- Later in debate ---

[Lord Liddle (Lab)]

My Lords, I rise briefly to support my noble friend and the noble Lord, Lord Bilimoria, on their remarks. We know that the Government do not have a policy on this issue. We can read in the Financial Times that there will be a great debate tomorrow. The Minister smiles, but he knows perfectly well that it is true that the Government have not resolved the question of what customs model they will go for. This is an extraordinary situation. It is now 22 months since the Brexit vote and yet the Government have not got a policy on the fundamental point of how we will make Brexit work. It is a failure of massive proportions on the Government’s part. I want to hear an apology to business from the Minister for the fact that the Government’s political divisions have basically led to a situation in which business is facing a serious cliff edge. They call themselves the “party of business”. What serious claim have the Benches opposite to be the party of business, given the way they have behaved since the EU referendum?

I also say to my own side that I fully support the amendment we passed on the customs union. I was greatly cheered up by it. It is a breach in this wall of stupidity that the Government have erected, but it is not a complete solution to the business problems that people have talked about. It does not solve entirely the problem of customs checks because of rules of origin and issues with agricultural produce and all the rest. It certainly does not solve the Northern Irish border problem on its own. It does not address the fundamental economic point that it completely neglects services—the dynamic part of our economy where our exports are growing, where we have a strong surplus and which is our economic future. This is a terrible, woeful neglect on the part of the Government of the key, dynamic, entrepreneurial sectors of the British economy. How can they claim to be the party of business?

[Baroness Hayter of Kentish Town]

My Lords, the issue raised by the amendment is key to how we depart the EU. Indeed, the urgency of sorting out the logistics, costs and procedures of being outside our current trading arrangements has already been made clear. It should not need repeating that 44% of our goods exports go to the EU, with more than 50% of imports coming from the EU, making the mutual case for continued tariff-free trade unanswerable.

As the CBI says, should the current arrangements—a simple single form for our exporters—change to,

“a 12-page form for each batch of goods”,

where,

“Every consignment will also need a VAT registration and certificates of origin, declaring how much of each product has been made where”,

costs will rise disproportionally. Indeed, one major retailer foresees,

“a five- to ten-fold increase in border documentation”,

should Britain leave the customs union, with a possible extra 200,000 UK businesses having to make customs declarations for the first time.

As we have said, the high degree of integration between UK and EU supply chains means that any new friction—bound to be slow and costly—would force businesses to adapt the way they do business, including over choice of supplier and extra storage space for just-in-time models and such issues. We have already heard of the food and drink industry: 90% of imports and exports of food and non-alcoholic drink are with the EU or those countries with whom the EU has trade arrangements. For manufacturing, according to the EEF, agreeing a preferential set of rules of origin with the EU will be crucial given the complexity of the supply chain and the origin of component parts.

We know all that; we have heard about it in this House before and have heard it again this evening. What I did not know until last week—maybe the Minister can correct what is being said—is that not one single Minister from his department has been down to the Port of Dover to see the problems that will arise there. Lorries coming from outside the customs union are currently subject to about 45 minutes of checks and the same would happen if we were outside the customs union. We understand that neither he nor any of his colleagues has been down there to witness that. Perhaps he could put us right.

The concentration on solving the issues highlighted by the agreement are real ones which we support. Clearly, as I think those behind me know, we might have a little difficulty with some of the words in this amendment but the issues raised by it, which the Government must solve, are ones to which we clearly would add our support.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, as has just been said, the price of the Government’s failure to accept the advice of this House and its EU Committee to offer a unilateral guarantee to the 5 million affected citizens is being paid by those citizens in anxiety, distress and distrust. As a result of taking the bargaining chip approach mentioned by several noble Lords, rather than a simple, light-touch, declaratory procedure, there are mounting concerns about the process, not least in the light of the Windrush scandal. There may be tens of thousands or hundreds of thousands of people in that group, but there are 3.5 million EU and EEA citizens here and 1.5 million UK citizens in the EU 27, so altogether that is 5 million people. What assurances can the Government give about the staffing and capacity of the relevant section of the Home Office that will deal with the settled status application process and about the testing plans? Those of us affected by the TSB fiasco are very conscious of the need for good testing and communication plans for customers.

My noble friend mentioned what is apparently the current plan, which means that people will not be able to apply online from Apple devices, such as iPhones, only from Android devices. Apparently Home Office officials told MEPs last week that people could borrow their friends’ Android devices to complete the process. That seems a little bizarre. Will an offline process be available for people without digital skills or access to computers? What are the plans for communications, appeal and redress? We know that the draft withdrawal agreement requires independent oversight of the process, but can the Government give us more of an idea of the practicalities and of how they plan to make sure that vulnerable people are not excluded? A report last week from the Migration Observatory expressed concern about people potentially being excluded. The Government have been ruled to be acting illegally in trying to deport rough sleepers, who are not necessarily in breach of EU free movement law. Is everybody to be included? Have the Government set a cost? Today’s letter from the representative of the European Parliament, Guy Verhofstadt, to the incoming Home Secretary, Sajid Javid, says that the European Parliament expects there to be a cost-free process for applicants and raises other systems issues. He also raises the crucial issue of the need for full rights under the new EU data protection law—the GDPR—to apply, not the Government’s planned exemption. Without these rights, if something goes wrong, people will not be able to find out and get their data corrected. That is a cause that these Benches have championed, and we look forward to others coming on board with that demand.

Can the Government clear up something that has been bothering me? What exactly are they saying about comprehensive sickness insurance? We have had evidence, and this has been said by Ministers in public, that there will be no need to demonstrate the holding of comprehensive sickness insurance as part of the application process for settled status, but the draft withdrawal agreement seems to imply that there will still be a requirement to hold it. So is there a difference between having to hold comprehensive sickness insurance and having to demonstrate it as an evidential requirement? Could the Government clarify exactly what will happen to people who in the past were told they needed CSI? What happens in the application process?

Could the Government clarify the omission from the draft withdrawal agreement of free-movement rights among the EU 27 for Brits who are settled in one of the member states? There is huge concern, particularly among people whose job requires them to move around. I see the noble Lord, Lord Callanan, in his place. He and I have depended in the past, as Members of the European Parliament, on the skills of freelance interpreters and translators. Not only do they move around between Brussels and Strasbourg but they might work for other international organisations or businesses, so they live in one member state but travel all over the EU. They need the right to work across borders within the EU 27. What exactly accounts for the gap in the withdrawal agreement?

We do not know what will happen about post-Brexit immigration but it looks as though it will be very similar to EU free movement, except with a lot more red tape, bureaucracy and cost, and less freedom. That is not a terribly good bargain. We are suffering a lot in the process of the Government’s Brexit demands on citizens, and I ask for some answers.

[Baroness Hayter of Kentish Town]

My Lords, I would have hoped that the noble Baronesses, Lady Ludford and Lady D’Souza, and my noble friends Lady Smith and Lord Judd would not have needed to table this amendment. It should have been self-evident that those living here who arrived with the reasonable expectation of their right to remain on the same terms would have had that guaranteed by the Government.

Sadly, though, it has proved essential that the movers table the amendment since EU residents retain a level of anxiety born not just of the referendum result but of the Government’s subsequent actions. First, at the time of the Article 50 Bill, the Government refused to guarantee their existing rights and chose instead to use them as bargaining chips, as we have heard, using their majority in the Commons to overturn your Lordships’ amendment. Secondly, more than a year later, there is still no cast-iron guarantee, despite Ministers promising early agreement on this. Indeed, the Government have failed to implement what the Prime Minister said in December would be on offer to EU citizens, and we therefore need to put it into law. That is a priority for the Bill. We cannot wait until December to give these people certainty. They have decisions to make—on schooling, jobs and homes, and perhaps on marriages and children—and need to know where they stand.

Thirdly, in Committee, the noble and learned Lord, Lord Keen, who is not in his place now, insisted that,

“you can only have the domestic law once you have the international treaty, because it is from the international treaty rights and obligations that you allow the domestic rights and obligations to be brought into our domestic law”.—[Official Report, 7/3/18; cols. 1078-79.]

I do not know if he was deliberately misunderstanding what we were asking but, in effect, he was saying that the withdrawal agreement must come first and that without it the Government would refuse to guarantee existing residents their existing rights. That is not necessary in the treaty. It may be a decision by the Government but it is certainly not the case in law. We are not asking that the Government wait until we hear from the EU 27 how they will react to our citizens living there. We are asking the Government to affirm now something it is in the UK Parliament’s gift to decide: what rights we will give to EU citizens currently living here legally.

Lastly, we need this because of the disastrous mishandling, which has just been mentioned, of another group of people also living here quite lawfully: the Windrush generation. Given their overwhelming right to be here, the length of time of their residency and the contribution they have made to the economy, is it any wonder that more recent—albeit equally legal—residents, EU citizens, question whether vague promises of concern will harden into legal guarantees?

The amendment is necessary, morally right and legally justified, so I hope that, even at this late hour, the Government will accept it.