Brexit: Legislating for the Withdrawal Agreement

Baroness Ludford Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, before I comment on the Statement, I note the Prime Minister’s Written Statement on a machinery-of-government change, which was published but surprisingly not covered in the Statement. It says that the Prime Minister will lead on the negotiations with the EU, with Mr Raab demoted to being her deputy and with the Cabinet Office Europe Unit having,

“overall responsibility for the preparation and conduct of the negotiations”.

That does not seem to be much of a vote of confidence in DExEU, which, with its Secretary of State, and I am afraid to say the Minister here, has been somewhat sidelined. Perhaps the Minister can comment on that.

I welcome this White Paper, although its publication on the last day of term is perhaps somewhat disrespectful to Parliament, as I said in Questions earlier. There is a sense of unreality threaded through it. The Statement says that the Government are,

“committed to delivering a smooth and orderly Brexit”—

this while Ministers continue to sabre rattle about no deal, which makes the assertion later in the Statement about being “a reliable negotiating partner” somewhat difficult to believe. I am afraid that even the Minister could not keep a straight face when he repeated that part of the Statement.

There is a clear assertion that the financial settlement is already agreed, so why does the Secretary of State for Exiting the European Union continue to question the Government’s commitment to honouring this bill? We chop and change. We hear one thing from a Statement in Parliament and then we hear quite other things from Ministers in the media, which is completely unacceptable.

On citizens’ rights, some of us noted that the Statement says that EU citizens in the UK and UK nationals in the EU will be allowed,

“to live their lives broadly as they do now”.

That is quite a loaded word, “broadly”. What does it mean? What rights that they have now does it rule out?

Will the withdrawal and implementation Bill incorporate the full text of the withdrawal agreement and the framework on the future relationship? It would be useful to know. Before Parliament comes to the Bill, there will be a Motion, after the negotiations are concluded, on whether Parliament approves the deal—I look at the Chief Whip at this point, as the noble Baroness did. Are the Government planning a decent gap between the tabling of the Motion for approval of the deal and the debates in Parliament? Also, how many days are they scheduling for debate on that Motion? We went round the houses on whether the Motion should be amendable. Are the Government committed to allowing it to be amendable?

The White Paper repeats the commitment,

“to providing Parliament with appropriate analysis prior to the vote”,

on the approval Motion so that Parliament can make an informed decision. Will there be independent input into the analysis?

The application of EU law will continue at least until December 2020. The Statement rather glosses over the implications for the EU withdrawal Act, some of which were picked up by the noble Baroness, Lady Hayter. We have to look at the White Paper to attempt to understand the full interaction with the EU withdrawal Act. Paragraphs 63 to 67 will bear much detailed scrutiny. Paragraph 73 proposes the extension of the correcting power until December 2022. Could the Minister bring out the full implications of that? Paragraph 75 says that the new Bill will have provision to “defer, revoke or amend” the SIs that will have been passed under the withdrawal Act. That sounds like Henry VIII powers squared. How shall we deal with it all? It sounds incredibly complicated.

In last night’s debate, I talked about how the Government were disingenuous, bordering on dishonest, about some items—and that is certainly true about the reference to the European Court of Justice in this Statement. We have the usual assertion, which the Minister did not quite repeat last night, that the direct jurisdiction of the ECJ ends when we leave. But that is not true, is it? The White Paper also says:

“EU mechanisms for supervision and enforcement will continue to apply to the UK”.


Does that include Commission infringement proceedings? It certainly includes the supervision and jurisdiction of the European Court of Justice—which, of course, will have been deprived of its UK judge. Do the Government think we are stupid, and do not understand the full implications of what will happen during the transition period, and even afterwards? The jurisdiction of the ECJ is not ending even if we leave next March, and it would behove the Government to be a little more candid about the reality of the situation.

[Lord Callanan]

I thank both noble Baronesses for their comments, and I shall take each of their questions in turn. I thank the noble Baroness, Lady Hayter, for her kind wishes for the holiday. Let me extend the same wishes to her: I hope she enjoys reading the White Paper alongside her bucket and spade on the beach. I take her point about timing, but we thought it was important to get the White Paper out before the Recess to give Members of Parliament in another place and here the chance to look at it carefully before we come back in September.

Northern Ireland is not in the White Paper because those provisions are not agreed yet. We did not want to leave the White Paper until everything was agreed; we wanted to give Parliament the opportunity to scrutinise the provisions now. Obviously, those provisions are not agreed, and we will come back to the House when we have an agreement.

As for the implementation period, the EU withdrawal Act will repeal the European Communities Act 1972 on 29 March. We will, however, have to ensure that the UK can continue to apply EU law during the implementation period. This will be achieved by way of transitional provision in which the EU withdrawal Act will amend the Act so that those elements of the ECA strictly necessary for the operation of the time-limited implementation period are preserved for its duration; I hope that is clear.

On no deal, yes, obviously if there is no withdrawal Act, all the issues agreed under the withdrawal Act will cease to apply. We will need to look at those matters again, but preserving the rights of EU citizens would be a top priority in such circumstances. As for timing, yes, we are still targeting an agreement in October, and the EU also agrees with us in targeting that. I repeat the obvious point that if we do not have an agreement in October, parliamentary time to implement the necessary legislation will, of course, start to get extremely tight.

With regard to a debate on the White Paper, happily the Chief Whip has been sitting here and he tells me that he thinks that a very positive suggestion. Provided that other business is dispensed with in an appropriate way, he will endeavour to find the time for that debate. I hope that summarises his view correctly.

Moving on to the noble Baroness, Lady Ludford, the Prime Minister is of course leading the negotiations. On something of such crucial importance to the United Kingdom, I think it would be expected that she would lead on behalf of the country but she will be ably supported by the Secretary of State, who will back her up in all the critical areas. On citizens’ rights, let me repeat the answer that I gave to the noble Baroness, Lady Hayter: of course we want to see citizens’ rights preserved and we expect to see them broadly or essentially preserved. I would be happy to write to her with all the details but it is a hugely complicated area. We published the details in December. I am sure that days on debate for the Motion will be agreed by the usual channels.

With regard to the ECJ, as set out in the draft withdrawal agreement the Court of Justice will have an ongoing role on citizens’ rights but this role will be temporary and narrowly defined. Our courts can ask the CJEU for a legal view on the interpretation of the citizens’ rights parts of the withdrawal agreement if they need answers to questions before they can decide on a case. It will be for the courts to decide whether they need that legal view on interpretation.

[Baroness Ludford]

Before the Minister sits down, what then does paragraph 78 mean? It says that,

“during the implementation period, the existing EU mechanisms for supervision and enforcement will continue to apply to the UK” .

That means the ECJ.

[Lord Callanan]

I will write to the noble Baroness but I am conscious that Back-Bench Members want to have some time for questions as well.