European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

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

[Lord Callanan]

That is what has been agreed in the implementation period that we have agreed with the EU so far—but it will be the subject of legislation that we will be able to consider.

[Baroness Hayter of Kentish Town (Lab)]

Will the Minister therefore explain why our amendment to allow the ECJ to continue until the end of the transition—the implementation period—was not accepted by the Government?

[Lord Callanan]

Because there will be separate legislation to consider the implications of the implementation period as part of the withdrawal agreement and implementation Bill that we have already announced. We are trying to confine the purposes of this Bill to the originally announced process. I realise that lots of noble Lords want to use this legislation as a way to both influence the legislation and in some cases to prevent the process of Brexit. But we are trying to put forward revisions to the statute that will ensure that European regulations will continue to have effect in British law after the end of the period.

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[Baroness Hayter of Kentish Town]

My Lords, I would also like to say a word about giving this Bill a Third Reading, in the absence of a legislative consent Motion from one of the two functioning devolved legislatures, as we heard, obviously. We know that this House regrets that absence.

There is no doubt that we are partly in this position because of the failure of the Government to start their Brexit process by engaging with the devolved authorities. Indeed, there was some six months when the JMC did not even meet, even after the outcry over the initial Clause 11, which had been tabled without consultation, much less agreement with the interested parties.

It was, like much of the Government’s Brexit handling, the result of no pre-referendum consideration of the impact of any withdrawal and indeed, even after June 2016, inadequate attention to this vital area of returning EU regulation. Of course, it was the result—maybe all of us are slightly to blame for this—of not fully appreciating how devolution has fundamentally affected decision-making across the UK. As in the example given by the noble Lord, Lord Kerr, some of this is continuing. Papers are still being produced without the consultation that I would by now have hoped was becoming regular. As I have said, I think, to the Minister, I hope that when this Bill is over, the Government will review the status and the functioning of the currently very ineffective Joint Ministerial Committee.

For now there is, as the Scottish as well as the Welsh Government recognise, a need to look at how to protect an internal UK market even as we pull out of the EU equivalents. Indeed—in a way it is quite funny—the Scottish Government have been the most vociferous about staying in the EU single market, so it is slightly odd that they seem to want to turn their back on an all-UK version of that.

The deal now in Clauses 13 to 15 seeks a way forward, allowing most of the non-reserved powers to be, rightly, with the devolved authorities, while on a temporary basis holding back some of those which may be needed either for trade agreements or for our own internal single market. Consumers and businesses will want to know that they can buy or sell across internal UK borders without safety, product or other regulations being different, such that they lead to border checks or inadequate standards or controls. The example of alcohol pricing across the border is not the same. If you are buying alcohol in Scotland, you know you are in Scotland and it may be cheaper or more expensive. But if you are buying a chicken when you are in Durham, you want to know whether it was chlorine washed when it was produced in Scotland. As a consumer, those products will cross the borders. So there are undoubtedly areas that we will want to sort out, for the consumers, as well as for businesses trading across the UK.

The Bill for now allows for decisions on these temporarily frozen areas to be taken by consensus, but where one devolved Administration disagrees, as we have just heard from the noble and learned Lord, Lord Mackay, their rationale—and indeed the UK Government’s response to their reasoning for withholding that consent—would come to this Parliament. It would not come back to the UK Government, but to this Parliament for consideration and final decision.

As my noble friend said, until very late in the process, the Scottish Minister had been part of these negotiations and appeared content with their direction of travel and outcome. It was at the very last moment that the Scottish First Minister took another view and demanded a veto—effectively a veto over what both Wales and England might do in some of these areas. This is understandable from an independence party that retains doubts about the role of the UK Parliament over any of its affairs.

We on this side of the House support the union. While absolutely defending and championing devolution —who could not, as an old friend of the late and much-lamented Donald Dewar, and indeed the then Labour Government who implemented devolution?— we do not see it as either separatism or proto-independence.

While acknowledging that the SNP does not share our commitment to devolution—and indeed still campaigns for something different—we nevertheless hope, as others have said, that the UK, Welsh and Scottish Governments will convene cross-party talks to broker an agreed way forward, since we regret that the Scottish Government failed to negotiate something to which their Parliament could consent. We live in hope that it might still be possible. There is still time.

[Lord Forsyth of Drumlean]

Could the noble Baroness, Lady Hayter, therefore explain why the Labour members of the Scottish Parliament voted in the way they did, to support not giving legislative consent and to support having a Bill, which the Presiding Officer had said was ultra vires?

[Baroness Hayter of Kentish Town]

My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.

There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.

I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,

“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,


while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.

[Lord Keen of Elie]

My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.

I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.

I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.

The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.

I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances, I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.

In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.

I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.

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[Lord Cavendish of Furness (Con)]

My Lords—

[Baroness Hayter of Kentish Town]

My Lords, I think the view of the House is that we should conclude.

On Second Reading, I referred to a mixture of “Hope, Judge and Pannick” as the tasks that faced us. I think my words were prescient, and it is delightful to see all three here who have been through the long nights with us. At the end of Second Reading, I asked the Minister,

“to defend the right—no, the duty—of this House to advise him and the Commons on the detail of the Bill”.—[Official Report, 31/1/18; col. 1692.]

Never was that defence more needed than when two of our national papers, as we have heard, can have thought to threaten to chop off our heads for carrying out our statutory, lawful duty to send back to the Commons those parts of the Bill we find deficient to meet the purpose of the proposed Act. We have even heard prominent Brexiteers in the Commons accuse the Lords of being “drunk with their own prejudices” or “traitors in ermine”. Even today the noble Lord, Lord Framlingham, talked of “dark days” and of us doing “irreparable damage”. I do not think we have been ordering the massacre of the firstborn. Indeed, as we heard from the Minister, we have had 800 amendments, 200 of which went back to the Commons, only 15 of which were because the Government were defeated in the voting Lobbies. This is hardly a constitutional crisis or anything like it.

Like the noble Lord, Lord Newby, I add very warm thanks to the Bill team, though I have to tell them that their work is not yet quite done. I also thank the team of Ministers. The noble Lord, Lord Duncan, is not in his place, but his poor back led to some interesting dancing at the Dispatch Box. I thank the noble and learned Lord, Lord Keen, whose legal exchanges with my noble and learned friend Lord Goldsmith left me not understanding the language they were speaking at times, let alone the content. The noble Baroness, Lady Goldie, put up a sterling defence of what we thought of as the indefensible, with charm, humour and great tolerance.

And what can I say about the noble Lord, Lord Callanan, other than that I share with him the pain at losing a vote, even if it happened to me only once? The noble Lord, Lord Newby, and I did wonder whether we should thank him for making our task easier, but that would be unfair. He has taught us a lesson in sheer commitment to the Brexit cause, whatever is thrown at him, though I do wonder whether he shares the views of his friend, Daniel Hannan, that “leaving the EU is not quite going to plan”. I think not. His confidence that it is great for the north-east remains, and for that consistency and persistence—some would say in the face of all evidence—we can only admire him and wish him some well-deserved rest after the rigours of the Bill.

My own personal thanks are to my colleagues. My noble and learned friend Lord Goldsmith of course took on all the tricky amendments—except one. My noble friend Lord Griffiths handled devolution; my noble friends Lord Murphy, Lord Collins and Lord Hunt and my noble friends Lady Jones, Lady Wheeler, Lady Thornton and Lady Sherlock all merit high mentions in dispatches. My noble friend Lord McAvoy marshalled the troops and my noble friend Lord Tunnicliffe marshalled our preparations. My noble friend Lady Smith of Basildon opened the Second Reading, in the presence of Mrs May, setting out the shortcomings of the Bill and our objectives for change. Of course, I thank our staff back-up team, who do all the hard work—in case noble Lords thought it was down to me—especially Dan Stevens, whose amendment-writing, briefing and negotiating skills have caused the Government such grief.

We send this much-amended Bill back to the Commons, though with little expectation that they will deal speedily with it, as the Government have first to resolve deep divisions within their own Cabinet, particularly over the very first amendment passed by your Lordships’ House, on the customs union. So while we take a breather, we hope they will see some sense and accept our changes as improvements to the previously flawed Bill. It is only the first Bill. We still have Bills on trade, customs, agriculture, fishing, immigration and withdrawal and implementation, so we will see noble Lords back here on many occasions. For the moment, I shall say just one thing: this is not about whether we leave the European Union but about how we leave. That we must do properly, in the national interest, and that is what I believe this House has set out to do.