European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

3: Clause 21, page 25, line 5, leave out “(including modifying this Act)”
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I beg to move Amendment 3 on behalf of myself and the noble Lord, Lord Tyler. I shall also speak to Amendments 4, 5 and 7. These amendments are all tabled for the same reason: because the Government seem to like deciding things for themselves, with no reference to Parliament. That is possibly why they want to shove us up to York, where our voice will not be heard as loudly as it is in Westminster—although they have missed a trick by not trying to send us to Coventry.

Amendment 5 is needed because when the Government signed the withdrawal agreement allowing the EU-UK joint committee to amend the agreement itself, they failed to allow for scrutiny of the joint committee. The Government have this power under the Bill which is, in the words of our EU committee, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

Clause 21 contains significant new powers to amend by statutory instrument the 2018 withdrawal Act, in what our DPRRC describes as

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act”.

It is not just unusual for the Government to have that power with only the most cursory of scrutiny to amend primary legislation; it is also unexplained.

Implementing the Northern Ireland protocol may well prove challenging, of course, but we have seen nothing to suggest that this would demand changes to the 2018 Act. Nor does the letter of 16 January from the Minister, the noble Lord, Lord Duncan, provide comfort when it states that the power could not be used to repeal the devolution settlement but be exercised only for the purposes of implementing the protocol and the Government’s policy on unfettered access. If that is the case, why is the power there to repeal? While the Minister says that the power would not be used to repeal any power in the 2018 Act, there is still no reason given as to why it is there, nor why Amendment 3 cannot be accepted, given that it would simply take out from the Bill the ability to amend the 2018 Act by statutory instrument, which the Minister says the Government will do not do anyway.

Amendment 4, in the name also of the noble Lord, Lord Beith, is needed because, as the DPRR Committee states, the Bill contains

“a … potent form of Henry VIII clause … creating a new legal regime that would otherwise require”,

an Act of Parliament. Furthermore, these Clause 21 powers have none of the restrictions which are found in respect of similar powers elsewhere in this Bill or in the 2018 Act. Amendment 4 would insert the same limitation on the Clause 21 regulation-making powers as exists elsewhere in this Bill and the other Act. After all, it would be pretty exceptional for Ministers to be able to create new criminal offences, including with two-year terms of imprisonment attached, to set up public bodies—just referred to by my noble friend Lord Hutton—or to levy taxes, yet the Government want the power the do that. The assurance in the letter of 16 January from the noble Lord, Lord Duncan, that this would be by affirmative procedure is of no comfort to this House, given that such a procedure is effectively never used to stop a Minister doing exactly what he or she wants.

Amendments 5 and 7 are in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, who rightly said at Second Reading that it would be a terrible precedent if we altered the devolution legislation other than by primary legislation. The amendments would simply prevent Ministers using Clause 21 and 22 powers to amend the statutes which embed the devolution settlements. As we know, there is a perfectly viable, acceptable way of amending the Welsh statutes without primary legislation where the National Assembly agrees with the change; that is, through Section 109 Order in Council. We have been given no reason why the Government have written themselves these powers, which I fear can mean only that they want to change the devolution settlements without the consent of the National Assembly and Welsh Government.

Given that, even now, the Government seem determined to push this Bill through without legislative consent from the Welsh Assembly, these powers are understandably fuelling suspicion. I therefore trust that the Minister will accept Amendments 5 and 7 and, by doing so, rule out any chance of the Government trying to amend the Government of Wales Act without the consent of the National Assembly.

The Minister knows full well that the Assembly is due to debate its legislative consent Motion tomorrow. It would be shame—in fact, it would be more than a shame; it would be a constitutional landmark and a bad one—if this consent Motion were to be withheld due to the powers in this Bill, which appear to threaten the Government of Wales Act. Amendments 5 and 7 are therefore of some consequence.

We have been given no satisfactory explanation for why Parliament should give Ministers powers to amend by order the withdrawal agreement, the 2018 Act or the devolution statutes. Frankly, unless and until we have such an explanation, this power must come out of the Bill. I beg to move.

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[Lord Duncan of Springbank]

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

[Baroness Hayter of Kentish Town]

I thank the Minister, but he is struggling. I have three points to make.

First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.

As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.

The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.

I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Baroness Hayter of Kentish Town]

15: Clause 30, insert the following new Clause—
“Parliamentary oversight of progress in negotiations on the future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Parliamentary oversight of progress in negotiations on the future relationship (1) A Minister of the Crown must, within the period of 30 days beginning with the day on which this Act is passed, make a statement setting out Her Majesty’s Government’s objectives for the future relationship negotiations with the EU.(2) A Minister of the Crown must, before 15 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s future relationship negotiations with the EU.(3) A statement under subsection (2) must include—(a) a report of the negotiations carried out to date or since the last statement, and(b) a declaration of whether, in the Minister’s opinion, agreements on trade and security which are consistent with the contents of Parts II and III of the Political Declaration setting out the framework for the future relationship between the EU and the United Kingdom can be concluded and ratified before IP completion day. (4) The requirement to make statements under subsection (2) lapses if—(a) agreements on trade and security are concluded and ratified before IP completion day, or(b) a Minister of the Crown makes a statement to the effect that the United Kingdom will not conclude or ratify agreements on trade and security before IP completion day.(5) A statement under subsection (4)(b) must contain details of Her Majesty’s Government’s proposals for mitigating the absence of trade and security agreements with the EU.””Member’s explanatory statement
This amendment requires a Minister to make an initial statement setting out the Government’s objectives for the future relationship negotiations and then provide regular updates on the progress being made. If no future relationship can be negotiated before the end of the implementation period, the amendment would require a further statement to outline proposed mitigations.

[Baroness Hayter of Kentish Town]

My Lords, this is perhaps one of the most significant amendments before your Lordships’ House. It deals with a major constitutional issue—the accountability of the Executive to Parliament —and with matters of prime concern to our country’s future: that is, the trading, security, diplomatic and cultural links that we build with our close allies and close neighbours across the continent.

The trade talks in particular will have major implications for the regions and nations of our country, and for different sectors of our economy. Despite this, the Government seem to want to listen to no one. Business has been pleading with Ministers to involve the relevant businesses in the trade talks, with alarmed reactions over the weekend, as we have all seen, to the Chancellor’s statement that there will be no alignment on EU regulations going forward, diminishing any chance of frictionless trade.

We have heard from the food and drink industry about its fears, both for particular parts of the industry but also with wider implications of likely food price increases. Indeed, it even talks of the death knell of the concept of frictionless trade with the EU. Agriculture, the motor industry and manufacturing are all worried about jobs, investment and their competitiveness in their vital EU markets. Despite that, they feel excluded from the Government’s thinking. As the CBI says, businesses need to be brought into trade talks with both the EU and the US, and it calls on government to work with business

“closely, comprehensively and transparently throughout every stage of negotiations, from mandate setting through to implementation.”

It is right—as are consumers and farmers, whose futures are at stake.

Shutting Parliament out of the discussions on the objectives of, as well as the progress on, negotiating talks, means that it is almost impossible for MPs to represent and answer external concerns that are brought to them on a daily basis. It seems clear that that is exactly what Ministers want to shut out: any voices that conflict with their ideology or which bring them practical problems about the implementation of new rules and checks, and tariffs or indeed non-tariff barriers. No wonder that some think that this is about allowing for a final no-deal relationship at the end of December: a free-for-all, WTO basis for our trading, with immense risks to part of our industry and regions.

In the election, the future of UK plc was voted into the hands of the Government. However, in our system of democracy, that does not mean that the Government should not be accountable to Parliament and should not get its plans approved by Parliament, as all their other plans are, via debate, a vote on the Queen’s Speech, and votes on their Bills, which are enacted only with the agreement of Parliament. Here we are talking about something else: the preparations for a treaty which will affect our living, working, trading, policing, security and environmental relationship with those close friends and near neighbours—decisions which will, one way or another, affect every citizen now and in the future.

So it is perfectly normal to say that, just because the treaty will not be a Bill, that is no reason not to have the equivalent of Second Reading and Committee before we arrive at the final Third Reading equivalent—that is, the final treaty, which will come to Parliament for approval only at the end via the CRaG. At that ratification stage, it is basically too late to say, “Well, actually no, not really—this bit doesn’t work”, “This affects our industry” or “That affects a particular region”. It will be too late then to make changes to the treaty.

So, without this amendment, which gives Parliament a say, Parliament will be shut out of these crucial talks, other than through the odd take-note debate or response to a Statement. That is not enough for your Lordships’ House, and it is certainly not enough for the elected House of Commons. We must ensure that the Commons has some real input throughout the process and, crucially—something that is allowed for in the amendment —if a December deal looks unlikely, the Commons must have some ability to make the Government explain their plans for that eventuality. That is what Amendment 15 would provide. I beg to move.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Hayter. I point out that the amendment on the Order Paper on Report is a considerably reduced text from the one that was discussed in Committee. That is to say, those of us who have put our name to it have listened to some of the Government’s objections—in particular, to their wish to avoid any appearance of a formal mandate—and we have gone for a much lighter procedure, which is now on the Order Paper. So attention has been paid to what was said from the government side.

However, the case for this amendment has been hugely strengthened since Committee last week by the interview that was given by the Chancellor of the Exchequer to the Financial Times last Thursday. In that interview, he made policy that had not hitherto been set out, without, as far as one can see, the agreement of Cabinet, certainly of the House of Commons, or of this House, or even knowledge of what he was about to say. So the case for setting down some process by which the Government need to come to both Houses and explain what they are doing at various stages in what will be an extremely complex negotiation has been greatly strengthened by that action by the Chancellor of the Exchequer.

The position he took on the question of no regulatory alignment is akin to the decisions that were taken by the previous Prime Minister when she went to the party conference in the autumn of 2016 and, in one breath, ruled out the single market, the customs union or any jurisdiction of the European Court of Justice. That did not end terribly well, and I rather doubt whether what the Chancellor of the Exchequer now said will end terribly well either. What he said sounded—and is, if you read the wording—extraordinarily categorical. He did not say that there will not be alignment on all matters—that we will not, as it were, remain in total alignment with European regulations—but that we will not be in alignment on anything.

He is effectively ruling out the possibility for example of the motor industry being put on a system of alignment. That would not be a ridiculous thing to happen, since it has been working to the same standards with its continental counterparts for something like 25 years. However, he has ruled all of that out, so the case for requiring that from now on the Government should at least tell and consult both Houses about what they are planning to do and how they are getting on seems to have been greatly strengthened in the interim by the Chancellor of the Exchequer.

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[Lord Callanan]

My Lords, Amendment 15 would introduce a new clause that would require the Government to publish their negotiation objectives and provide regular reports on the progress of negotiations. As a number of noble Lords observed, this is a different amendment from that which your Lordships considered in Committee, as it no longer contains any formal role for Parliament in approving objectives before negotiations begin. I personally am pleased that the Opposition have accepted that the negotiation of international trade agreements is rightly a function of the Executive. However, this amendment still seeks to impose statutory reporting requirements which, in our view, are simply unnecessary.

The noble Baroness set out what those requirements are, but for the benefit of the House, the amendment would require publication of the negotiation objectives and two-monthly reports on the progress of negotiations, beginning no later than 15 June. The interest in the objectives is somewhat surprising, as the Government’s vision for the future relationship with the EU is already set out in detail in the political declaration; and this is the answer to the point made by the noble Lord, Lord Liddle, in his intervention on my noble friend Lord Barwell. The House has already had ample time to consider this document. It was laid before each House on 19 October last year, and many committees of your Lordships’ House have already opined on it.

As to the two-monthly reporting requirements, beginning no later than 15 June, this could mean a maximum of four reports before 31 December this year. I remind the House that the Prime Minister has already committed that

“Parliament will be kept fully informed of the progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]

I agree with the point made by the noble Lord, Lord Howarth, that the setting out of reporting requirements in statute, as proposed by this amendment, would be a mistake. The Government will of course, as always, support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations, in line with the PM’s commitment. As my noble friend Lord Bridges pointed out, both Houses will have all the usual tools of scrutiny at their disposal.

I listened with interest to the numbers quoted by my noble friend Lord Bridges; he somewhat pre-empted me. I hope he will forgive me, but my numbers are slightly different from his. I pointed out in Committee that Ministers have spent over 760 hours to date addressing these issues in the House. I personally have spent over 230 hours—sometimes it feels a little longer—answering questions and responding to debates in your Lordships’ House. Officials tell me that I am one overnight sitting away from clocking 250 hours by 31 January, which I hope will make me eligible for a medal. Over its lifetime, DExEU has made over 100 individual Written Statements to each House and responded to 23 Select Committee reports, two of them just yesterday. By my calculation, that is an average of one publication every 10 days, not one every two months, and all without any statutory reporting requirements. That, of course, is without counting the various position papers and other publications also made by the department.

I have no doubt that the situation would be the same in the House of Commons. The Speaker heard very clearly the Prime Minister’s commitment to provide information. He has the powers at his disposal to ensure that Parliament can hold the Government to their commitments. Select Committees will continue to question Ministers. They also have the right to request papers. Opposition day debates and the Backbench Business Committee will continue to provide many opportunities for both Houses to consider all these issues.

I remind the House, as I did in Committee, of the risks in creating fixed points to report before knowing anything of the negotiating schedule. At worst, this could mean that Ministers would be required to provide public commentary at a critical point where confidentiality is paramount, thus potentially undermining the UK’s negotiating position. Alternatively, the reporting deadline might fall when there is nothing to say, since progress would already have been reported by other means, in line with the Prime Minister’s commitment. I pointed out in Committee that I saw this just two weeks ago, where a reporting date set in advance by the Benn Act resulted in a grand attendance of three Members—me and the noble Baronesses, Lady Hayter and Lady Ludford —speaking in that particular debate, which we had to hold by virtue of the Benn Act that you were all so enthusiastic to pass.

These reports are at the mercy of events and they can very often end up being completely worthless, failing to assist Parliament in holding the Government to account. The long-standing mechanisms of both Houses to hold the Government to account will work well because they are flexible and can respond to events, unlike statutorily set out reporting requirements. This House is rightly keen to ensure that it will be kept up-to-date on negotiations, but legislating for it in this way is a very blunt and inflexible approach. During our exit negotiations, Parliament has demonstrated clearly that, where a majority feels that it is receiving unsatisfactory information or is concerned by the direction of travel, it has the tools and the will to secure this information. Nothing has changed on that front as we look to the future negotiations. This Parliament already has a lot of power and this amendment adds nothing to it. I therefore hope that the noble Baroness will feel able to withdraw it.

[Baroness Hayter of Kentish Town]

I am quite surprised by the Minister’s response. I thought he really enjoyed discussions with just the noble Baroness, Lady Ludford, and me late at night, that his 230 hours here were just the foothills and he was looking forward to more.

We have had an interesting discussion, including my noble friends Lord Howarth and Lord Liddle, and the noble Lords, Lord Wallace, Lord Bowness and Lord Barwell. I apologise, I did not mean to include the noble Lord, Lord Barwell, in that, because the interesting thing is that in addition to those noble Lords we have our experienced negotiators. The noble Lord, Lord Hannay, has probably put more than 230 hours into negotiating. The noble Lord, Lord Bridges, before he took off—he is back three rows from where he was—negotiated on this, and obviously the noble Lord, Lord Barwell, did too. The lessons that they have pulled from this are different. Of course, two of them were part of the Executive, so it is no wonder that they do not want this extra parliamentary scrutiny.