Brexit: Legislating for the Withdrawal Agreement

Baroness Hayter of Kentish Town Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for repeating the Statement. Perhaps I may use this opportunity to clarify one exchange that I had with his colleague, the noble Baroness, Lady Goldie, on 20 July. We had anticipated this White Paper last week. As I am sure the Minister will recall, he said on 12 July at col. 996 that the White Paper would be published “next week”, which of course would have been last week. However, his boss, the Secretary of State, used the rather more familiar word and said that it would be published “shortly”, which is why it was able to slip over to this week.

We welcome the White Paper, which is always the best way of understanding and scrutinising a Bill. We congratulate the Government, clearly with me in their mind, on producing the document in time for me to pack it with my bucket and spade as I head off for my holidays, for it is what I will spend the time reading.

I am also glad that we will have the Bill. As the Minister will recall, in the original Bill introduced into this House, the whole of the implementation and withdrawal would have happened under Clause 9 by secondary legislation. We called for it to be under primary legislation and we are delighted that that change was made.

However, I am curious, and concerned, as to why there was no mention of Northern Ireland in the Statement. I understand that it may not be in the White Paper, because it is not yet agreed, but for there to be no mention of it when it is of such importance to us, to our partners and to Parliament was a little curious.

The other curiosity will concern those historians about whom the noble Lord, Lord Hennessy, spoke yesterday. Those historians may evince some surprise as to how much of the very recently passed European Union (Withdrawal) Act will now need to be repealed, starting at the beginning of that Act with Clause 1. As paragraph 56 of the White Paper makes clear,

“EU law will continue to have effect in the UK in the same way as now”,

during the implementation period; that is, until the end of December 2020.

One might ask how that can be, given that Section 5(1) of the EU withdrawal Act, which received Royal Assent just 28 days ago, removes the supremacy of EU law after exit day and that Section 1 repeals the European Communities Act 1972 on exit day. Of course, it is only that Act that gives legal authority for such direct effect of EU law. The answer, given in paragraph 60 of the White Paper, is that the implementation Bill will amend Section 1 of the withdrawal Act by saving the ECA, as has just been covered in the Statement.

Much the same will happen with the European Court of Justice. Clause 6(1)—sorry, but the Minister and I became a bit anoraky on the Bill and we understand all the section numbers—of the EU withdrawal Act just passed, removes the role of the ECJ on exit day, but Article 126 of the draft withdrawal agreement says that during transition, so from December 2020 the ECJ,

“shall have jurisdiction as provided for in the treaties”.

Paragraph 80 of this White Paper preserves its full role until December 2020. As my noble and learned friend Lord Goldsmith asked when we were scrutinising what is now Section 6, why do this, given we are going to have to repeal it very shortly?

A last example is Clause 5(4) of the withdrawal Act just passed, which extinguishes the Charter of Fundamental Rights on exit day, whereas Article 122, paragraph 1(a), of the draft agreement makes it clear that during the transition—that is, until December 2020—the whole chapter shall apply apart from those articles that enable us to be represented in the European Parliament. So another part of the new Act bites the dust.

Unless there is a withdrawal agreement to implement, this proposed legislation will not even be redundant, because it will not even be introduced. It will be introduced only once the agreement has been through Parliament, but then a whole range of rights, obligations and issues will be left without any legal foundation. As the Minister knows full well, a “no deal” would be a disaster for the UK in myriad ways. Can he confirm that, if there were to be no deal, there would be no agreement on citizens’ rights, no agreement on the financial settlement, no transitional arrangements and no arrangements in Northern Ireland, including any to ensure there is no hard border?

I turn to a point that we raised at some point last night—we were here until near midnight, and I am afraid I cannot remember exactly when it was—about the financial settlement. The Secretary of State spent the weekend emphasising that the UK would not pay anything without an agreement on the future framework. Yet the Chancellor of the Exchequer, who is of course in the same Government, has previous dismissed this possibility:

“That is just not a credible scenario; that is not the kind of country we are. Frankly, it would not make us a credible partner for future international agreements”.


Needless to say, I agree with the Chancellor of the Exchequer, but it would be useful to know whether the Minister does too.

Has that financial agreement really been agreed? It is about past commitments, not about buying future access to trade. It is because we were full members, signed up to various programmes as members, and our undertaking, as I have understood it from the Prime Minister, is that we will pay that regardless, not dependent on whether the future framework is agreed. Is that correct, as Mrs May said, or are we back to it being conditional?

A final word on the timetable: despite the claim, repeated frequently by the Minister, usually with a straight face, that everything will be agreed by October, even the framework for future relations, there are rather a lot of people, I have to say, in Brussels as well as here, who do not quite share his optimism. If, as seems perhaps more likely, the agreement is reached in November or December, perhaps he can explain how the Government can ensure that there is proper scrutiny and accountability to Parliament in what will be a very tight timetable. Given that I think that that is possible—I look towards the noble Lord the Chief Whip at this point—will it be possible to have a proper debate on this White Paper, so that when we get the Bill, which might be on a very tight timetable, we will have done a lot of the heavy lifting in advance?

Finally, I wish the Minister a very happy holidays. I have not always agreed with everything he has said, but he has brought commitment, hard work and real effort to persuade us of the right of his case, and I hope that he can get rid of that cough, enjoy a very good rest and come back, ready for the fray, well suntanned, well rested and up for perhaps a long Session after the summer.