Brexit: Negotiations

Baroness Ludford Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Callanan]

It would indeed be impressive if Keir Hardie had gone on the radio this morning. I am sorry, I was of course referring to Keir Starmer.

[Baroness Ludford (LD)]

Will the Government be advising citizens to stock up on dried, tinned and frozen food, jerry cans of fuel and their prescription medicines, given that it was reported at the weekend that Whitehall is planning for the port of Dover to collapse on day one of a crash-out no-deal Brexit, leading to a critical shortage of supplies? Will the Government share this planning with the public?

[Lord Callanan]

The claims that the noble Baroness refers to are completely false. A significant amount of work and decision-making has gone into our no-deal plans. We hope there will not be a no-deal situation but, as a responsible Government, we need to plan accordingly.

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Adonis]

The House may be aware by now that I am in favour of our staying in the European Union. I have great respect for the right reverend Prelate the Bishop of Leeds; it is great for bishops to spend a long time in the wilderness, but not for people doing trade and leading the economic life of the country. While the right reverend Prelate is in the wilderness, perhaps he can conduct our negotiations with whoever we are conducting them with in the wilderness on our behalf.

My reading of the amendment is that it has zero impact. I cannot see anything in the Bill that prevents our having any relationship with European agencies. Our issue with the Government is that they do not want relationships with many of them. I do not intervene, however, just to make the point that the amendment is useless. I am concerned by what is becoming a pattern in our debates on the Bill: thinking that changes with no substance whatever amount to great advances in our campaign to reverse Brexit. We should concentrate on things of real substance: the customs union, the single market and the referendum. Those are real changes.

As far as I can see, the Minister will not accept gestures of this kind because he does not accept anything from this House on principle, even from Bishops. Perhaps the Almighty can sway his mind in a way that we mere mortals cannot. He could accept the amendment but he will not. Even if we go to a vote, it is not worth wasting the time of the House on trivial matters of this kind; they may give us the impression of having some impact, but we are in fact having zero impact.

[Baroness Ludford (LD)]

My Lords, I disagree with the noble Lord, Lord Adonis. One of the most important matters is security. In Barcelona the other day, one of Britain’s most wanted fugitives—Jamie Acourt—was arrested in a joint operation between the Metropolitan Police and the Spanish police, possibly assisted by Europol. The NCA head of international operations said:

“Our ability to share information and work at speed with our international partners ensures there is no safe haven for fugitives. We will never stop pursuing these individuals”.


That is no doubt true, but Acourt will be returned under the European arrest warrant. If we do not stay part of the warrant and have to fall back on the long-winded extradition arrangements that predate it—without any participation in Europol to facilitate cross-border police operations—our security will be endangered. I hope the noble Lord, Lord Adonis, accepts that security is one of our most important interests. I hear what noble Lords said about the effect of the amendment but, politically, it is important that this House presses on the Government the importance of staying in agencies and institutions.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am delighted to speak in support of the key Amendment 93, to which my noble and learned friend Lord Goldsmith added his name and which was moved so biblically and effectively by the right reverend Prelate the Bishop of Leeds. Of course, at that time, I had not only a brilliant legal adviser on my right, but a theological one—my noble friend Lord Griffiths—who has now left the Chamber. I said, “I have to have a biblical quote”, but I am afraid he has a sense of humour and said, “The people who were wandering aimlessly in the pre-Brexit wilderness were soon squabbling among themselves, ignoring the advice of their leader”, and so on. But I will leave my noble friend’s helpful comments for another time.

I say this particularly in answer to the noble and learned Lord, Lord Brown, and my noble friend Lord Adonis. This is an important and meaningful amendment because it would restrict the pretty wide powers given to Ministers in the Bill. That is why we need to pass it. We have on a number of occasions, on this Bill and the Nuclear Safeguards Bill, expressed our surprise that nowhere in the referendum process—in the immediate aftermath, nor in this legislation or any other—did the Government ever spell out that the Article 50 process automatically triggered our exit from Euratom. I will not repeat the costs and dangers of that eventuality given earlier debates on it, particularly the input at that point of the noble Lord, Lord Teverson.

However, equally unremarked on and unmentioned by the Government, or by the Brexiteers during the campaign, was the similar removal of the UK from a swathe of agencies, many of which, as we have heard, we helped to construct and all of which have served this country well. Colleagues will already know, from medical researchers who have been in touch, patient groups, health professionals and the pharmaceutical industry, of the risks of being outside the European Medicines Agency, quite apart from the loss of jobs and specialisms that are now moving to Holland. But the same could be said about the European Food Safety Agency, often referred to, but not today, by my noble friend Lord Rooker; the environment agency, emphasised by the noble Baroness, Lady McIntosh, and my noble friend Lord Whitty; the railways and aviation agencies, often referred to by my noble friend Lord Berkeley; the European Chemicals Agency, which has been mentioned; and, of course, Eurojust, suggested by the noble Baroness, Lady Ludford, and Europol, mentioned by the noble Lord, Lord Cormack.

The commonality is that any mention of those agencies in this House and beyond has included a plea for us to remain members, associates or partners with whichever such agency is in the frame. Sometimes this means following the same rules—as the Government have now accepted for clinical trials—to assist in monitoring; for safety; for easy and rapid transport, as for medical isotopes; to facilitate trade and exchange; to enable skilled persons to undertake checks or repairs; or, as my noble friend Lord Haskel said, to guarantee safe products for users and consumers.

For some of the agencies it might mean paying money in, as the Prime Minister acknowledged. For some it might mean harmonising assurance, governance or penalties for rule-breaking. But for all it will mean a willingness to adapt and respond to requirements, usually simply to maintain our existing rules and practice. What is clear is that, given the wide powers in the Bill for Ministers, we must ensure that none of those powers is used to frustrate our continued involvement with such agencies, whether because, for example, we set different sanctions for breaches, raise fees or charges in a different way that makes it difficult to move along in their way of working, or apply variant rules or any other similar change. That is why it is critical to circumscribe the powers in the Bill so that they cannot be used to prevent us having necessary EU rules or ways of working that would frustrate our participation in any of these agencies. We do not want the powers to be used for that reason, hence the very simple amendment.

The noble Lord, Lord Hannay, had it right: the Bill should not be used to frustrate the intention, should that be the Government’s wish, to stay in these agencies for the good of the whole country. It is, as the right reverend Prelate the Bishop of Leeds said in his introduction, entirely in line with what the Prime Minister said in Mansion House and it would allow this country to continue such relationships where that continuation is in the national interest.

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[Lord Dykes]

My Lords, notwithstanding the very reasonable sentiments just expressed by the noble Viscount, Lord Hailsham, I think that I would be among others in paying tribute to the noble Lord, Lord Wigley, for the way in which he has taken the initiative on this subject. It is becoming increasingly complicated with the approach of the so-called exit day—whatever date that may be in legislation and so on—and, therefore, we need to think very carefully about this. Although this was a long time ago, I recall that the Maastricht treaty bestowed on citizens of each member state individual citizenship as EU citizens, too. It was a solemn and profound moment when that was announced many years ago in 1992, and it was made much of, mostly in the other member states but also in Britain as well. A lot of British citizens who were working abroad were delighted at the idea of being citizens of the European Union as well, which added to their obvious practical freedom of movement, although that was not essential to it.

We have now got to be very careful to make sure that the Government respond to the civilised and reasonable request for them to expand their minds a little bit into thinking about this matter, because it will be quite complicated. There is the question of the Irish Republic’s offer, which has already been mentioned by the noble Lord, Lord Wigley, and the special status that may emerge in Northern Ireland, not deliberately, according to the DUP, but accidentally. It is not much to their liking that a special status would be accorded to people there and they would remain individuals citizens of the EU. Is this a matter of collective bestowal of citizenship because of the Maastricht treaty in 1992, or is it now a matter of it being an individual proclivity if the right was there, given that there are exceptions to the idea that you have to be within only one member state to be a citizen and you can apply for citizenship from outside? It therefore may be that the very act of applying for citizenship and continuing to have the protection of the ECJ as individuals because of the bestowal of European citizenship would need to be included in this wide examination. It is a very complicated matter and should not be excluded from people’s mind and, mostly, the Government’s mind. They may be very unwilling to consider these matters, but they need to do so and we are grateful for this amendment and this debate.

[Baroness Ludford]

My Lords, I thank the noble Lord, Lord Wigley, for continuing to champion this important cause, which is dear to the hearts of these Benches. There are several invidious features of this matter. First, it creates a division among United Kingdom citizens. Not only do people in Northern Ireland have the right to acquire Irish citizenship and thus EU citizenship, but many other British citizens have the right to, or are already pursuing, dual citizenship in order to get the passport of another country. I believe that I have the right to an Irish passport because my mother and my grandmother were born in Dublin. That creates two sets of British citizens: those with the additional political expression and practical advantages of EU citizenship and those who are unable to continue to enjoy them.

Another feature of this matter is hypocrisy. Do the noble Lord, Lord Wigley, and the Minister agree that the following is deeply hypocritical of the leading voices in Legatum? It is reported that the co-founder, who is of New Zealand extraction, and the chief executive have managed to acquire Maltese passports. How they have done so, I have no idea. That will give them EU citizenship, including the right of free movement. As advocates of the hardest of hard Brexits, they have had the ear, we believe, of many leading members of the Government. They have been pushing hard for Brexit so as to deprive the rest of us of EU citizenship, but they have made sure that they are feathering their own nest by obtaining citizenship of another EU member state and thus EU citizenship and free movement.

[Lord Foulkes of Cumnock (Lab)]

Before the noble Baroness sits down, she is absolutely right, but is she aware that one of the DUP Peers who spoke at length in the debate last week has an Irish passport?

[Baroness Ludford]

I take the noble Lord’s word for it. I have no reason to doubt that. I have a feeling that there may be many people in similar positions who are saying one thing and doing another. I find that pretty reprehensible.

We strongly advocate that all UK citizens should continue to have the opportunity of EU citizenship. Many of us feel particularly for young people. Those of us who are getting long in the tooth have for 45 years had the advantage of the freedom to move to and work in another EU country. It is extremely sad that the young people of this country are going to be deprived of that opportunity.

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

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

[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.

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Burt of Solihull (LD)]

My Lords, I have no wish to detain the House unnecessarily, as we have already discussed this, but it is worth emphasising the importance of the European protection order that grants victims of violence protection against the perpetrator across the EU. Because we are leaving, this will no longer be available to UK citizens. The ability to share data on perpetrators, as well as a whole host of other measures aimed at tackling human trafficking and FGM, enforcing child maintenance orders and preventing the sexual exploitation of children is also at risk. It is disappointing, therefore, that violence against women and girls has not appeared in any of the Government’s Brexit-related policy papers.

It is in all our interests to ensure that the tremendous work and collaboration that we have enjoyed until now with our EU partners should not be lost. Vulnerable women and children must never be used as a bargaining chip in anyone’s negotiation— and of course, funding this work is hugely important. We stand to lose really important funding streams such as the Daphne fund, the rights, equality and citizenship fund and the European Social Fund, which supports a wide range of research and other services dedicated to tackling violence against women and girls in the UK.

We are not asking the Government to commit to anything specifically, just to report on how they intend to replace the lost EU funding that supports tackling the fight against violence against women and girls. Nobody wants to see the most vulnerable, most persecuted members of our society lose out as a result of our leaving the European Union. I look forward to hearing what words of comfort the Minister can supply to assure the House that under no circumstances will the Government allow that to happen.

[Baroness Ludford (LD)]

My Lords, I have just a few brief words to back up those who tabled the amendments. I was in the European Parliament when the European protection order directive was passed, a mere seven years ago, under co-decision with the European Parliament, when MEPs considered it a very important measure. I believe that the first European protection order in the UK was passed just over two years ago, so it has not had the chance fully to show its value, but it is about ensuring that a restraining order, for example, follows the victim wherever they move in the European Union—rather like a European arrest warrant follows the criminal, although I would not otherwise draw an analogy between the EPO and the EAW. These measures are hugely important.

Of course, the development of mutual recognition in both civil and criminal law in the EU has been a counterpart to the free movement of people, but we will not see an end to considerable free movement of people after Brexit. We have learned enough about the Government’s post-Brexit EU movement plans to know that a large volume of people will still be moving between the UK and member states of the European Union and the EEA, for all kinds of economic and social reasons—although the Government keep kicking the can down the road in terms of telling us exactly what their plans are. To say that we will be ending automatic free movement rights to live, work and study in another EU state is not a good argument that we do not need to continue with these cross-border mechanisms.

A good answer from the Government on how funding from EU programmes that support vulnerable women and girls and victims of domestic abuse will be replaced is extremely important, but so is how they intend to continue co-operation to replace those mechanisms, such as the European protection order and, I add, the victims’ directive, which has supported people and enabled them to enjoy a similar level of protection wherever they move around Europe. The need for those mechanisms, as well as the funding, will not go away. I hope that the Government will offer a substantive and substantial response on these matters.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank my noble friend Lady Kennedy for tabling the amendments. Yesterday, not only were female Members of this House having our photograph taken to commemorate 100 years of women being Peers—being able to be Members of your Lordships’ House—many of us also went to see the unveiling of the statue of Millicent Garrett Fawcett, at which the Prime Minister spoke eloquently about the rights of women and how important they are, and we commemorated and celebrated the work of Millicent Garrett Fawcett. Would it not be a tragedy, therefore, if an unintended consequence—I think it would be an unintended consequence—of Brexit were that somehow we reduced the protection available to women and girls from violence in any way? The points made by my noble friends and noble Baronesses on the Liberal Democrat Benches in support of the amendments are valid.

The Minister may recall that on Second Reading, my noble friend Lady Sherlock illustrated the complexities that could come for child protection and family law when we leave the EU. Her experience and understanding of that is reflected in the comments of my noble friend Lady Kennedy of The Shaws today. From experience, she can say how the European protection order, which guarantees mutual recognition of legislation across the whole of the EU, adds to the protection that we all wish to see for women and young girls. As the noble Baroness, Lady Ludford, said, we hope for a substantive response from the Minister on this issue today.

The ability to share data on perpetrators, as well as a host of other measures that tackle human trafficking, FGM, the enforcement of child maintenance orders—an issue raised by my noble friend Lady Sherlock previously—and the sexual exploitation of children could all be put at risk. I was reminded by my noble friend Lady Gale, who has a huge reputation on these issues, that the Minister referred in Committee to the Istanbul convention, which should offer much-needed protection. Can she tell us when it will be ratified?

Will there be a gap between exit day, when we lose the EPO, and when the new Act will be on the statute book? What cover will allow us to ensure that all aspects of what we have now under the EPO will be enshrined in our legal system?

Another issue raised by my noble friends is funding. Although the Government’s previous commitment of £100 million is needed to keep the sector going, it will not plug the gap left by the loss of EU funds. The loss of those funding streams threatens to push small, specialist providers, which receive a significant amount of their funding from the EU, into a position where they can no longer operate to ensure the protection that women and girls need.

All that is being asked for is a report and information so that we can identify where the problems are and understand the Government’s response. I was disappointed to hear from my noble friend Lady Lister that she still has not had a response from the Minister to the issues that she raised. The whole point of the gap between Committee and Report is to ensure that the Minister has time to respond to questions from noble Lords. I hope that the Minister will say today why she did not respond at the time and what can be done to rectify that, because it is not satisfactory to raise issues in Committee and have to raise them again on Report because answers have not been received.

I am sure that the Government’s intentions in this are honourable, but we need to know in practice how these commitments will be met to ensure that we do not put women and young girls at risk of violence in a more difficult and precarious position than they are at present. I hope that the Minister will give a substantive response today on how the Government will address this.

[Baroness Goldie]

My Lords, in responding to this debate, I begin by reiterating how important the issues we have discussed in the debate are. We have had today a clear, and, I suggest, impressive reflection of that importance, and I thank the noble Baroness, Lady Kennedy, and other noble Lords for their contributions.

I start by addressing Amendment 37, about continued recognition of European protection orders made after we leave the EU. The European protection order regime, established by the EU directive of the same name, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and communicate with each other in the making of an order and in its recognition and enforcement. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime, we will no longer issue European protection orders to remaining member states, as it would be pointless to do so; and nor will the authorities in those member states issue them to the UK for the same reason.

In short, absent our continued participation in the European protection order regime or some proximate reciprocal agreement in its place, the regulations will be redundant—they do not work unilaterally. The amendment therefore pre-empts the outcome of the negotiations. I am happy to be clear, however, that if the ongoing negotiations produce an agreement to continue the UK’s access to the regime established under the directive, or something like it, appropriate steps in legislation will be brought forward to implement it at the time.

[Baroness Ludford]

I apologise for interrupting the Minister, but I think she said something like, “absent a proximate system”. She is being asked to say whether the Government will seek to find a solution to the present reciprocal mechanism. After all, we know that the Government will be seeking a UK-EU security treaty. When I moved an amendment on Monday about internal security, justice and home affairs, I was not very happy that there was no substantive response from the Government. Surely the Minister can tell us what the Government plan to try to secure.

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[Lord Cormack]

My Lords, speaking as a former chairman of the Northern Ireland Affairs Committee in another place, I think that we should all thank the noble Baroness, Lady Kennedy of The Shaws, for raising this issue. I hope that we will have a sensitive response from my noble friend the Minister. Knowing his track record, I am fairly confident that we will. But if ever we needed reminding how important it is that we handle these matters with sensitivity, we only have to say the words “Windrush generation” and remember the deeply shaming facts of the last few weeks. In an empty Chamber last night, we had a Statement on that, but although the Chamber was virtually empty, every single Member of your Lordships’ House who spoke said, effectively, the same thing.

We are dealing with the movement of people and, particularly, we are dealing with people who have for many years—in some cases, 30 or 40 years or more—had all the rights and privileges of the British citizen. As we know, there is real concern in the rest of the European Union among those who are sad about what happened with your Lordships’ verdict last year that we should give an unconditional guarantee from the word go. They are now apprehensive and, although I believe that it is entirely unnecessary for them to worry about the Windrush effect, nevertheless they are worried. So I hope that, when responding to this debate, which I trust will be brief, my noble friend will be able to give comfort not only to the noble Baroness, Lady Kennedy of The Shaws, but to Members in all parts of your Lordships’ House, in all parties and on the Cross Benches, who share her concern at these important matters.

[Baroness Ludford]

My Lords, from these Benches, very briefly, I just say that we share the concerns expressed in the amendments of the noble Baroness, Lady Kennedy. There are just two points that I would ask the Minister to respond on. First, what is the meaning of “routine” in the Northern Ireland position paper of last August? There was a pledge that:

“The development of our future immigration system will not impact on the ability to enter the UK from within the CTA free from routine border controls”.


A lot hangs on that adjective; can the Minister please elaborate on what that means and on what border controls will be allowable?

Secondly, the draft withdrawal agreement requires the UK to ensure that the CTA,

“can continue to operate without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members”.

How will it be ensured that the free movement rights of EU citizens that Ireland is obliged to secure will be respected post Brexit?

[Lord Rooker (Lab)]

My Lords, I do not think it should go unremarked in this short debate, where there is a Northern Ireland connection, that in neither House of this Parliament are there any representatives of the nationalist community and yet, in this House, we have members of the DUP who never, ever give a view. They claim to represent the majority in Northern Ireland—the leader today has threatened the Prime Minister, if she deviates, with deselection—but, at the same time, there is something wrong with the debate, because we are not fully representative. Why do we have these people in this House who never give a view, and yet their views are important? I just think it is worth putting this on the record.

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[Lord Kerr of Kinlochard (CB)]

Amendment 43 is in my name and those of the noble Baronesses, Lady Hayter and Lady Kramer, and the noble Lord, Lord Cormack. It would add to the prohibitions in Clause 8(3) a prohibition on increasing or imposing taxation by regulation. There are already similar prohibitions in Clauses 7 and 9 that you cannot impose or increase taxation by regulation made under these clauses.

Noble Lords might have noticed that my fox is ever so slightly shot by the admirable Amendment 47A from the noble Lord, Lord Callanan, which proposes the dropping of Clause 8. I welcome it and many of the government amendments in the group. It is clear that the noble Lord has been listening hard and I am very grateful for the changes he proposes. However, I want to say a word about Amendment 104, which is lurking in this thicket of government amendments and is also in my name and those of the noble Baronesses, Lady Hayter and Lady Kramer, and the noble Lord, Lord Cormack. It would insert the same prohibition against making new taxes or increasing taxes by regulation in paragraph 1(3) of Schedule 4. Schedule 4 is about fees and charges, not taxation. The idea of the amendment is to add a prohibition on eliding from fees and charges into taxes.

When I was young, irresponsible and committing multiple misdemeanours I was sentenced to five years in Her Majesty’s Treasury—a sort of borstal or juvenile detention centre. Now that I am old, irresponsible and committing multiple misdemeanours I have very few memories of the Treasury, but one that stands out clearly is of being in the Box behind the Chancellor of the Exchequer—I was a private secretary—at the time of the Budget speech. At the end of the Budget speech there is an interesting ritual that takes place in silence in the House of Commons, where the Chancellor of the Exchequer and the leader of the Opposition stand up and sit down three times. They are passing the Motions that permit the instant changes of taxes that might be pre-empted. The Chancellor can say something like, “So the price of petrol at the pumps will go up by 5p at 5 pm”. When you go home and look, by God, they did go up. It is an astonishing thing. That is because since 1913, I think, it has been clear that it is not possible to increase taxes or to create a new tax other than by legislation in the House of Commons. That is what happens in that ritual immediately after the Budget: they are passing new taxes for a limited period of three to five months maximum while the Finance Bill goes through the House. The Finance Bill contains these changes and in due course becomes law.

I worry about Schedule 4, which creates the power for Ministers to create public authorities and confer on them the power to impose or create taxes. It seems a fairly fundamental breach of the principle that only Parliament may create or change tax. I am reinforced in this view by the excellent reports from our Delegated Powers Committee, which takes serious exception to the powers in Schedule 4. It points out in its 12th report of this Session, published on 31 January, that the powers are “very wide” and notes that the delegated powers memorandum submitted by the Government spells out that they would enable,

“the creation of tax-like charges, which go beyond recovering the direct cost of the provision of a service … including to allow for potential cross-subsidisation or to cover the wider functions and running costs of a public body”.

The committee comments:

“A ‘tax-like charge’ means a tax. Although regulations under clauses 7 and 9 cannot impose or increase taxation, regulations under Schedule 4 may do so. Not only can Ministers tax, Ministers can confer powers on public authorities to tax. Indeed, they can do so in tertiary legislation that has no parliamentary scrutiny whatsoever”.


The committee concludes:

“Taxation, including ‘tax-like charges’, should not be possible in fees and charges regulations made under Schedule 4. Fees and charges for services or functions should operate on no more than a full cost-recovery basis. Taxation should be a matter for Parliament, a principle enshrined in Article 4 of the Bill of Rights 1688”—


a powerful case, which persuades me.

The Delegated Powers Committee has reported again this week, in its 23rd report, having looked at the government amendments, which I have just welcomed. It remains of the view that,

“taxation, including ‘tax-like’ charges, should not be possible in regulations made under Schedule 4”,

and spells out three or four reasons for that, including the fact that it would offer,

“little consolation to be told that one is being taxed under Schedule 4 rather than under clause 7 or clause 9”.

The prohibitions are clear in the Bill in Clauses 7 and 9, although there was a prohibition that we would have added in Clause 8, had Clause 8 been there, by way of Amendment 43.

However, Amendment 104 seems to make a very valid point which I think the House should hear more about, so I look forward to hearing the Minister’s answer on it. Why do the Government feel it is right to confer on themselves and whatever public authority they wish the power to levy taxes or increase taxes, against what is usually thought to be a fairly fundamental principle of parliamentary control? I beg to move Amendment 43.

[Baroness Ludford]

My Lords, we on these Benches support the points made by the noble Lord, Lord Kerr, who is arguing for consistency throughout the Bill that taxation or “tax-like charges” should be imposed only by primary legislation. That is all I need to say at this stage.

[Lord Cormack]

As my name is on the amendment, I merely endorse what my friend the noble Lord, Lord Kerr, and the noble Baroness have said. We want consistency. We are glad that Clause 8 is to be taken out of the Bill, but the point that he made about Schedule 4 is very important indeed. I know we cannot vote on that amendment tonight but I hope that my noble friend Lady Goldie, who I am delighted to see will reply to this debate, will be able to give us an assurance that this matter has been taken on board.

--- Later in debate ---

[Baroness Goldie]

Or offer up a prayer, one or the other. My noble friend Lord Callanan says we are seeking to continue these international agreements, and I presume that is forming part of the negotiations.

I turn to Amendment 47 specifically because my noble friend Lady McIntosh deserves a response. Initially it was in a group of its own and my noble friend Lord Callanan was going to respond in detail, but I shall try to deal with the substance of the amendment. I must begin by repeating that the Government’s intention is to end our membership of the single market because remaining in it would fail the first test for the future economic partnership that the Prime Minister set out at Mansion House: it would fail in delivering control of our borders, law and money and would mean the UK accepting the four freedoms, including freedom of movement. That simply would not deliver the result of the referendum. As the Prime Minister set out in her Mansion House speech, the Government are instead seeking the broadest and deepest possible partnership, covering more sectors and co-operating more fully than any free trade agreement anywhere in the world today. Given those objectives, I cannot support the amendments that seek to keep the UK in the single market.

My noble friend seeks in particular to include any obligations or legal requirements arising from continued membership of the EEA or of EFTA, should agreement be reached on remaining part of the EEA or rejoining EFTA, in a definition of “international obligations” for the purposes of Clause 8. As I have said, the Government have tabled an amendment to remove Clause 8 from the Bill and, as has been made clear, we are not seeking to remain in the single market through the EEA agreement.

For clarification, the Government have no plans to rejoin EFTA because leaving the EU offers us an opportunity to forge a new role for ourselves in the world, to negotiate our own trade agreements and to be a positive and powerful force for free trade. It is also worth mentioning that membership of EFTA would not necessarily be a quick and easy solution, as some have argued; all the EFTA states would have to agree to us rejoining and, even if they welcomed us back, we would not have immediate or automatic access to their free trade agreements. Our entry into each one would need to be negotiated individually with the third countries involved. Similarly, if we were to seek longer-term participation in the EEA agreement, we would have to first join EFTA.

It is not proper for Governments to legislate contrary to their policy intention. We cannot bind future Parliaments and therefore do not need to purport to legislate to leave the door open. Future Governments can of course bring forward whatever legislation they choose to. In any event, joining the EEA or EFTA would give rise to new obligations and the implementation of such new requirements would not be possible under the Clause 8 power, which covers only existing obligations. I hope I have satisfied my noble friend as to why the Government cannot accept her amendment, and in the circumstances I ask her to withdraw it.

[Baroness Ludford]

I apologise if this is not quite the right moment to ask the Minister to clarify something; I do not know if she has finished on the EEA. In case she has, will she write with the answer to the question from the noble Lord, Lord Kerr: how can it be possible that we stay in the EEA in transition if the Government’s legal case is that the Article 50 notification covered both the EU and the EEA? When we leave the EU next March we must also leave the EEA, so it cannot be possible that we stay in the EEA during transition. It cannot be both; it is one or the other.

[Baroness Goldie]

We are seeking to remain part of the international treaties to which we are party, through negotiation. I will certainly undertake to write to the noble Lord, Lord Kerr, because I have no more information beyond what I have been given and I would be straying into very uncertain territory if I tried to be more specific.

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

And what a failure the charter has been in protecting human rights in Europe. On Poland’s interference with the judiciary, Hungary’s interference with higher education, the imprisonment of Catalonian independence leaders, the diminished freedom of the press in Slovakia and Bulgaria, the rise of extremist right-wing parties and the treatment of Roma and migrants, the charter is impotent. For these reasons, a vote for the amendments to keep the charter is tantamount to a vote of no confidence in the ability of our judges and this Parliament to make and interpret the law.

[Baroness Ludford (LD)]

The noble Baroness just gave a number of instances where she said the charter was of no use. That is for the very good reason that the charter applies only to EU institutions or member states’ implementation of EU law. If she is arguing that the charter should have gone further and deeper into national law that has nothing to do with EU law, that is a very debatable point, but it does not.

[Baroness Deech]

The noble Baroness makes a very good point as to why the retention of the charter would not be of any use once we have left Europe.

--- Later in debate ---

[Lord Shinkwin (Con)]

My Lords, I put on record my thanks to the noble Lord, Lord Howarth of Newport, with whose arguments on Amendment 15 I entirely agree, for his long-standing championing and reaffirming of disability rights both in this House and in the other place.

However, I have a question that I am struggling with and it relates to the brilliance of the noble Lord, Lord Pannick, of which we have just heard. I might be disheartened by the noble Lord’s arguments but his genius fills me with confidence that Parliament is well able to assert itself and to advance and protect rights after Brexit. Do we not believe in ourselves and in our proud history of championing rights? I believe that we have much to be proud of, and I personally have much to be grateful to our Parliament for, and your Lordships’ House in particular, due to the invaluable help it has given me and the charities I had the privilege of working with for almost 20 years spent in the voluntary sector.

I recall the crucial support that your Lordships’ House gave the Royal British Legion’s Honour the Covenant campaign when I was its head of public affairs. As a result, David Cameron, to his lasting credit, enshrined the principles of the Armed Forces covenant in law. I remember vividly the pivotal role that your Lordships’ House played in saving the crucial position of the chief coroner during the passage of the Public Bodies Bill, thereby securing long-overdue reforms to the coroners service to the great benefit of bereaved Armed Forces families and, indeed, bereaved families in general. However, I do not recall that those campaigns and changes to the law took place at the behest of the EU, the ECJ or the European Charter of Fundamental Rights. Indeed, the EU, as I recall, barely got a mention.

As a child, my condition meant that I was for ever breaking my legs. I lost count of how many times I had to learn to walk again. You would think that you would remember something so basic, but you do not—not after months in bed with your leg in traction and not when you are afraid to put one foot in front of the other for fear of a fracture. You forget how to walk. I fear that we too have forgotten how to walk, and we need urgently to remember. We need to remember how to walk tall.

We need to reflect the simple fact that the people have spoken and they have chosen, by a clear majority, to leave the EU and to take back control of our laws. The UK is their country, not ours; the UK Parliament is theirs, not ours. We may have been their masters once; we are not now. We are their servants. They are the masters, and they have spoken in a once-in-a-generation referendum.

We do not need this charter. We in this great British Parliament set the benchmark for human rights. That was not done by the EU and certainly not by the ECJ, whose judgments, as we have already heard, are informed by the centrifugal force of everything that emanates from the rejected EU political project of ever closer union.

I conclude by agreeing with the noble Baroness, Lady Deech, that a vote in support of Amendment 15 would be a vote of no confidence in Parliament and in your Lordships’ House. It would be a vote of disdain for the clear majority of the British people, who voted to leave the EU. I urge noble Lords not to support the amendment.

[Baroness Ludford]

My Lords, I must have explained myself poorly in my intervention on the noble Baroness, Lady Deech, or else the noble Lord, Lord Faulks, has misunderstood me. I think I said that the charter did apply when national law implemented EU law, not just when it is EU institutions, and this Bill is meant to freeze EU law. I do not think there has been a response to the point made by the noble Lord, Lord Pannick: why, uniquely, should the charter be the only element that is left out? As one commentator, Professor Steve Peers, has said, taking the charter out of the case law is like trying to take the egg out of the omelette.

The charter is the key to the rest of retained EU law and its exclusion runs counter to the claim of continuity and certainty that this Bill is meant to deliver. The Explanatory Notes to the Bill say that:

“As a general rule, the same rules and laws will apply on the day after exit as on the day before”,


and that one of the four main functions of the Bill is that it,

“converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU”.

It will then be for Parliament, and where appropriate the devolved legislatures, to make any future changes. Why should the charter be different from the rest of EU law which is retained under this Bill?

It is perfectly possible to retain the charter and deal with any redundant sections after exit, just like for every other part of retained EU law. If the charter genuinely adds nothing useful, then that can be sorted out in the same way as for other EU law provisions. The arguments can take place later. Yet the only exception to the Government’s general approach is Clause 5(4), which provides that the charter will no longer apply in UK domestic law after exit day. As the noble Lord, Lord Pannick, has said in Committee and now, that position is simply unsustainable.

The Government’s rationale that it is not necessary to retain the charter because the rights it contains can all be found elsewhere in domestic law, and consequently that there will be no loss of rights, is disagreed with in advice from Jason Coppel QC for the Equalities and Human Rights Commission. He highlights that there will be gaps in protection—for instance, in relation to children’s rights, data protection and non-discrimination.

Various articles of the charter have been referred to in the debate so far. Article 1, providing that “Human dignity is inviolable”, was objected to, but it has been used by the European Court of Justice to help protect LGBT asylum seekers from inappropriate psychological tests and in cases concerning the extradition of individuals to countries where they would face unacceptable detention conditions. That is not some airy-fairy right that we should not care about.

Mention has been made of Article 8:

“the right to the protection of personal data”.

I find it a bit rich that this was relied upon until the Secretary of State pulled out of what was originally the David Watson case, in his successful challenge to DRIPA. Article 8 will not be fully and clearly replicated after withdrawal, even with the retention of the general data protection regulation.

--- Later in debate ---

[Lord Low of Dalston (CB)]

My Lords, I think that we are probably reaching the end of the debate.

[Baroness Ludford]

I am just concluding my remarks. I want simply to support what was said by the noble Baroness, Lady Lister, about the importance of the Northern Ireland issue. You cannot have differing rights on each side of the border. The European Commission has said that the Good Friday agreement requires equivalent standards of protection of rights on both sides of the border. I simply remind noble Lords that Jacob Rees-Mogg has opined that EU sanctions for breach of the withdrawal agreement would go against the EU’s own charter of fundamental rights. The irony and hypocrisy of that statement require no elaboration from me.

[Lord Trevethin and Oaksey (CB)]

My Lords—

--- Later in debate ---

Moved by

[Baroness Ludford]

30: After Clause 6, insert the following new Clause—
“Internal security, justice and police co-operation and counter-terrorism
The Secretary of State must ensure that before exit day all necessary action has been taken to continue the United Kingdom’s participation in EU measures to promote internal security, justice and police co-operation and counter-terrorism to the extent that—(a) the United Kingdom has opted in to those measures,(b) they will be incorporated into UK law as retained EU law, and(c) they will not remove or diminish any rights of the individual in the criminal justice process.”

[Baroness Ludford]

I find myself in a similar position, in moving this amendment on behalf of myself, my noble friend Lord Paddick and the noble Lord, Lord Judd, to my noble friend Lord Wallace in moving his amendment on foreign and defence policy and external security. This is about internal security, where, in theory, we are rather further forward in designing the wiring diagrams that the noble Lord, Lord Kerr, talked about.

In her speech at the Munich Security Conference, the Prime Minister said a fair amount about these issues of extradition, Europol and data access and exchange. But there are a few little problems on the way. I very much look forward to hearing from the Minister some concrete answers about how a UK-EU security treaty will be taken forward and how it will address some of the problems identified so far. One concerns extradition. The Minister will be aware that in article 168 of the draft withdrawal agreement there is a facility allowing that the EU,

“in respect of any of its Member States which have raised reasons related to its fundamental structures, may declare that, during the transition period, that Member State will not surrender its nationals pursuant to”,

the European arrest warrant framework decision, and then the UK could declare similarly that it will not surrender its nationals.

I have to say that when Ministers from the Ministry of Justice and DExEU came to the EU Justice Sub-Committee four weeks ago, they did not appear to know what this article meant. It meant that some countries would not be able to extradite or surrender their nationals to the UK because they would have to change their constitutions. The one we all know about is Germany, which changed its constitution to be able to extradite its nationals to a fellow EU state under the European arrest warrant, but that did not apply to non-EU states. One reason why the surrender agreement with Norway is still not in force 17 years after negotiations began is that I understand there are 88 pages of declarations and notifications surrounding it, a lot of which will be to do with non-extradition of nationals. That would be a very serious omission from an extradition agreement.

Do the Government know which member states have already indicated that, for constitutional reasons, they would refuse to extradite their nationals to us or would find it impossible or politically difficult to change their constitutions, which in some cases might mean a referendum—perhaps no Governments like referenda—either during the transition or as part of the future relationship? What is the extent of that problem? If we are not going to be able to rely on the European arrest warrant, what is the situation in terms of falling back on bilateral agreements or the 1957 Council of Europe convention? How many member states have maintained in their national law the provisions for extradition outside the European arrest warrant and would they be willing to bring things back in just for us?

On Europol, are we looking at something like the Denmark model? Denmark has an opt out from all justice and home affairs measures, even though it is an EU member state and has no option to opt in on a case-by-case basis, so it is a third country for the purposes of Europol, with no decision-making powers and no access to the Europol database. Do the Government seriously expect to do better than Denmark on participation in Europol?

On enforcement and dispute resolution, is it conceivable that it would not be a requirement of a future UK-EU extradition arrangement for the UK to take account of CJEU case law and charter rights post Brexit? For instance, what is the Government’s analysis of the Irish court’s refusal to extradite to the UK and make a reference to the CJEU because of concerns about lower protections here post Brexit? These difficulties are not just going to arise after next March: they are arising already because of fears that our safeguards and protections are not high enough. I am sure that the Government are extremely grateful that they are being pushed to take these matters into account by this Chamber as well as by the European Council guidelines. Three months ago, the European Commission made a presentation of the main issues affecting police and judicial co-operation with the UK after Brexit. Two very pertinent factors were, first:

“Respect for fundamental rights, essentially equivalent data protection standards”,


and, secondly:

“Strength of enforcement & dispute settlement mechanisms”.


Those similar factors were stressed in the European Council guidelines of 23 March.

Norway, Switzerland and Iceland must not only make contributions to the EU budget to participate in Schengen laws and policies but also accept the supremacy of the CJEU over their national courts in Schengen matters. How do the Government intend to maintain access to one of the most important databases, the Schengen Information System—at the moment, we have access for the policing side though not for immigration—if they neither contribute to the budget nor accept the supremacy of the CJEU? There is no precedent for a non-EU, non-Schengen country having access to the SIS. Do the Government believe that they can, none the less, manage to gain such access? In her Munich speech, the Prime Minister said that,

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

However, in the very next sentence, she said that,

“a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.

That rather seemed to undermine respecting the remit of the ECJ. So which is it? Are we going to respect the remit of the ECJ or insist on our own sovereign legal order? I assume it cannot be both.

On the exchange of data, the Government have not, to my knowledge, confirmed that they will seek an adequacy decision from the Commission under the GDPR. They talked in the partnership paper last August about,

“building on the existing adequacy model”,

as if we could do better, and then the Prime Minister referred in the Munich speech to a “bespoke arrangement”—a term we have become quite familiar with. Would the Government not find it helpful to accept the retention of the Charter of Fundamental Rights, which we have tried to assist in today, when they try to demonstrate that they are upholding high data protection standards?

One of the issues, to which we have referred several times in this Chamber, is that our data processing for national security purposes will come under the spotlight in a way that does not happen while we are an EU member state, because national security is outside the competence of the EU. However, once we are outside the purview of the EU, our Investigatory Powers Act and other provisions—including quite possibly our co-operation with the United States on intelligence data matters—will be scrutinised as to whether they sufficiently safeguard privacy. The noble Lord, Lord Callanan, who is sitting next to the Minister who will reply, will know as much as I do from our experience from 2013 how difficult those issues can be. The Court of Justice struck down the safe harbour agreement because of worries about data transfers and data access by security agencies in the United States.

I hope I have given the noble Baroness the Minister a few small questions—or rather the noble Lord; I am sorry, it is difficult to keep up—which deserve quite meaty answers. There was no beef in the response on security and defence policy, but the Prime Minister herself has been much more explicit about the possible arrangements on internal security. I draw attention to the wording of the amendment, which includes showing how the measures,

“will not remove or diminish any rights of the individual in the criminal justice process”.

We participate in some procedural rights—not as many as some of us would like—but we need to uphold the rights of defendants and victims in the criminal justice process as well as to enable the police to catch criminals. I therefore look forward to learning from the Minister some quite explicit and specific details about how the UK-EU security treaty is advancing. I beg to move.

[Lord Judd]

My Lords, in warmly supporting this amendment, I will make only two points. First, crime is now global and international; trafficking, drugs and terrorism know no frontiers. When I was serving on the Home Affairs Committee and we looked into these matters, I was impressed by the way in which one person after another who had front-line operational responsibility said how important the European dimension was to them, how any diminution in the effectiveness of co-operation with Europe would not be in the interests of the protection of the British people, and that we needed our colleagues in Europe. When asked, “But what about those elements of Europe which might not be as well equipped professionally and in other ways to undertake the tasks as we regard ourselves as being?”, the answer was, on the whole, very firm. They said, “We had better help them to become as effective and not walk away from them because we shall need them”. This amendment is therefore very important and I commend it to the Minister.

--- Later in debate ---

[Lord Callanan]

It is certainly our intention but, as I have said, these are bilateral relationships and the discussions are continuing. That is one part of the withdrawal agreement that was not quite finalised and so, literally, discussions are continuing on it.

The noble Baroness, Lady Ludford, also asked me about databases and the use of EU data on UK databases and vice versa. This is also a matter for negotiations. Our aim is to ensure that we and our EU partners continue to share and use personal data where there are clear benefits to public safety, subject of course to the appropriate safeguards.

For all of those reasons, and given the Government’s clear intentions to continue and strengthen our close collaboration on security, law enforcement and criminal justice after we leave, and given that the new clauses exceed the purpose of this Bill, I invite the noble Baroness to withdraw her amendment. For the sake of clarity, I should say that the Government will not reflect further on this amendment and so, if the noble Baroness wishes, she should take the opportunity to test the opinion of the House this evening.

[Baroness Ludford]

I am quite cross, really. With all respect to the Minister, that is a disrespectful response. Twenty-one months after the referendum, there was not even as much detail in the Minister’s reply as there was in the Prime Minister’s Munich speech. For instance, the Minister said that a new treaty will require respect for legal sovereignty. As I mentioned to him, the Prime Minister said:

“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.

What does that mean? The Minister has enlightened me not a jot on that, nor on the follow-up phrase about,

“our unique status as a third country with our own sovereign legal order”,

which was the only one he talked about.

It is farcical that the Prime Minister can make a speech containing more detail than the Minister is prepared to give in response to an amendment in this House. We are being treated as of no account whatever. The way in which Ministers are responding on this is disrespectful. It is obvious that there are major challenges in getting a UK-EU security treaty. Many commentators are writing about it, with various opinions and insights, but the Government are not among them, at least when it comes to telling us in Parliament. Even though we are the unelected House—I am not aware that they are telling the elected House in any more detail either—it seems poor that this is what we have become and have been reduced to when we seek knowledge about how Parliament will take back control of our future relationship with the EU post Brexit.

We will have to reflect on another way in which to take this issue forward. I hope the Minister will understand that his reply was not worth the paper it was written on. That said, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I am a signatory to the amendment and would like to speak to it. The Government’s paper of last August on future customs arrangements proposed two customs schemes as the alternative to being in the customs union, one based on technology, described as “innovative”, the other with the UK acting as an agent for the EU for EU-bound goods, described as “unprecedented” and “challenging”. Those are words that, if in Jim Hacker’s vocabulary, would have attracted congratulations from Sir Humphrey for the Minister’s bravery.

The issues for manufacturing industries such as cars and aerospace have been covered by the noble Lords, Lord Kerr and Lord Patten. They are to do with supply chains, border checks and rules of origin. That all sounds like very dry stuff but it boils down to costs, delays and red tape affecting investment decisions and jobs. Staying in the customs union is an economic and industrial issue. The Freight Transport Association estimates that an even an extra two minutes checking every truck during peak hours could result in queues of almost 30 miles at border points.

The chief executive officer of Airbus, Tom Enders, has summed up the problems for his company. I say to the noble Lord, Lord Lamont, that Tom Enders sees leaving the customs union, not staying in it, as very damaging. He points out that during production parts of his company’s wings move between the UK and the EU multiple times before final assembly. This is typical for all our UK-assembled products and why the lack of clarity around the customs union and trade is hugely worrying. We think that across our operations and supply chains Brexit will affect 672 sites. Hard borders and regulatory divergence risk blocking trade, creating supply-chain logjams and causing our business to grind to a halt. This is not some esoteric question. Of course, being in the customs union does not solve all the problems; for example, it would be great to have participation in regulatory convergence as well. However, staying in the customs union is a necessary part of preserving the simplicity and streamlined nature of the manufacturing industry. The noble Lord, Lord Lamont, is right that remain is the gold standard, but let us at least go for silver.

As for the argument that being in a customs union would constrain our freedom to conclude third-party trade deals, the ones that we have by virtue of EU membership are far more valuable. Our food, animal welfare and environmental standards could be compromised by third-party agreements. Many potential partners will want immigration concessions, which has proved difficult. As has been noted by the noble Lord, Lord Lawson, you do not need a trade agreement to export, hence Germany exports four times as much to China as we do. That country has not been inhibited so why have we? That is something that we can do inside the customs union. As reported yesterday, China’s top diplomat in Brussels, its head of mission to the EU, has said that a UK deal with the EU is a precondition for trade talks with China. The Chinese need us to have a decent arrangement with the EU before they want to talk about it. If there is not a Brexit deal, they say, there will not be things to talk about. They need to know exactly how we are going to operate with the EU. I add that no member of the Commonwealth has wanted us to leave the EU, so praying that in aid is totally inappropriate.

Not only did people not vote in 2016 to leave the customs union—that was not on the ballot paper—they did not vote to lose their jobs, either. We should protect those jobs by pressing for Britain to stay in a customs union.

[Baroness Hayter of Kentish Town (Lab)]

My Lords—

--- Later in debate ---

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Brown of Cambridge, in absentia for her Amendment 12 and to my noble friend Lord Deben for speaking to it on her behalf. I note that this amendment is very similar to an amendment tabled in Committee by the noble Lord, Lord Krebs, to which the noble Baroness was a signatory. As was the case with that amendment, Amendment 12 seeks to amend what EU law is retained through Clause 4.

As this House is aware, and has been said earlier within the debate, one part of EU law that the Bill does not convert into our domestic law is EU directives. The reason for this is clear. As EU directives as such are not a part of our domestic law now, it is the Government’s view that they should not be part of our domestic law after we leave the EU. Instead, the Bill, under Clause 2, is saving the domestic measures that implement the directives, so it is not necessary to convert the directives themselves. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease.

However, the Bill recognises one exception to this approach. Where, in a case decided or commenced before exit day, a domestic court or the European Court of Justice has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will retain the effect of that right, power, et cetera within UK law.

That seems to the Government to provide a clarity which it is important for this Bill to achieve, and it is why we believe that Clause 4 as currently worded strikes the right balance—ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty within our statute book about what will be retained in UK law at the point of exit.

I shall explain to my noble friend Lord Deben what we see as a difficulty. This certainty would be undermined by the amendment, placing both businesses and individuals in the difficult position where they are uncertain about whether the rights they rely on will change. It could also create practical difficulties for our courts following our exit. There could be new litigation about whether implementing legislation correctly or completely gave effect to a pre-exit directive, and whether Ministers had fulfilled the duty in the amendment’s proposed new subsection (3) to make implementing regulations. This could continue for years after our exit from the EU, effectively sustaining an ongoing, latent duty to implement aspects of EU legislation long after the UK had left the European Union.

I think it would be acknowledged that it would be strange for Ministers to be obligated to make regulations to comply with former international obligations which the UK is no longer bound by. Although Ministers might find that they were obliged to make regulations under the amendment, it would presumably still be open to Parliament to reject the instrument and either require it to be revoked or decline to approve it, depending on the procedure involved, yet the Minister would, under the terms of the amendment, remain under a legal obligation to make regulations. I think that this gets to the heart of the problem: how is that tension to be resolved?

Therefore, I say to my noble friend Lord Deben that, although I understand that the genuine intention behind the amendment is to give confidence and certainty, in practice I do not think that it would necessarily achieve this, and I respectfully suggest that the real consequence would be confusion.

Furthermore, the amendment specifically implies that the Government would have to undertake a thorough investigation, as soon as possible, of all the EU directives that have been domestically implemented over the course of this country’s 40-plus years of EU membership to ensure that they have correctly and completely implemented them all.

[Baroness Ludford]

I apologise for interrupting the Minister and thank her for allowing me to do so. Would it be so terrible if there were to be an audit of whether the UK had correctly implemented EU directives? The Government are marking their own homework if they say, “We’re not implementing the directives; we’re only going to freeze the domestic implementation”. However, if there is something wrong in the way that we have implemented a directive, then the Government are judge and jury of what will be retained.

At the risk of boring everybody—I will probably mention it again on Monday—I have cited before the directive on the European investigation order, which is about summoning evidence or maybe a witness to give a statement. It is the parallel to the European arrest warrant. The directive says that someone could challenge this in, say, a British court on the grounds of a breach of the Charter of Fundamental Rights. The Government have substituted for the charter the European Convention on Human Rights, which, as we know—we will be discussing it on Monday—is a bit narrower than the charter. Therefore, they have wrongly transposed the directive. Whether the European Commission is going to do anything about it, I do not know, but I remind myself that I want to find out. What happens if the Government have wrongly implemented the directive? What happens to people’s rights?

Brexit: Immigration

Baroness Ludford Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

As we have said, we are confident that we can get a deal. At every stage so far the doomsayers have said we would not reach agreement and we have. We have agreed all the details of an implementation period. Clearly that needs to be subject to final agreement and, like any responsible Government, we are carefully assessing our contingency options if there is not a deal. However, we are confident that there will be a deal.

[Baroness Ludford (LD)]

My Lords, is not the truth that the Government are trying to hoodwink the British people by not revealing their post-Brexit immigration plans this year? What surely will happen because of the sectoral demands for labour is that the volume of people coming from the EU will be similar to now, but we and EU citizens will have lost our free movement rights. It is a lose-lose scenario, and there will be a great deal more red tape for employers.

[Lord Callanan]

More water is being spilt at the Dispatch Box. Where is the noble and learned Lord, Lord Keen, when we need him? I have forgotten the question now. We are confident that we will be able to put in place a new system. The referendum was about taking back control of immigration and when we deliver the results that the British people voted for it will be a win-win situation.

Brexit: British Citizens

Baroness Ludford Excerpts

Thursday 29th March 2018 Lords Chamber

Asked by

[Baroness Ludford]

To ask Her Majesty’s Government, in the light of their intention for the United Kingdom to leave the European Union on 29 March 2019, whether, and on what basis, British citizens can be confident that they will have reached agreement by that date on a future relationship with the European Union.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, Article 50 states that the withdrawal agreement must take account of the framework for our future relationship and the terms of withdrawal. We have been working intensively to agree an implementation period, codify the joint report into legal text and reach agreement on the entire withdrawal agreement by October. The deal reached last week provides greater certainty to businesses and citizens. We are confident that we can reach a deal that is in the best interests of both parties.

[Baroness Ludford (LD)]

My Lords, I am delighted to be the first of four Liberal Democrats asking Questions on this important day. Does the Government’s plan for “Brexit means Brexit” not turn out to mean “Brexit in name only” and that, in the words of Jacob Rees-Mogg, the UK will be a “vassal state”? Can the Government therefore explain, one year before they are set to make us Brexit, what the point is of going through with their version of Brexit and why they will not agree to let the people decide, on the facts, whether it is worth it?

[Lord Callanan]

It is interesting to hear the Liberal Democrats quoting Jacob Rees-Mogg. The point is to implement the results of the referendum. The Liberals will probably want to forget about this but the people have already had a say on the issue, both in the referendum and in the subsequent general election, neither of which went very well for the Liberal Democrats.

Brexit: European Council and Commission

Baroness Ludford Excerpts

Tuesday 27th March 2018 Lords Chamber

[Lord Callanan]

It will be a matter for the negotiations, but we hope to achieve an agreement at least as good as the existing trade agreement with South Korea, yes.

[Baroness Ludford (LD)]

My Lords, is not the truth that, despite barbs often directed at Brussels, EU institutions have proved far more transparent, accessible and accountable—and, I might add, more honest—than Ministers and departments in Whitehall? There is no way that we would have this annotated withdrawal agreement if it had been left to the UK Government. Does not the Brexit process show how much our democracy and governance need modernising?

European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Cormack]

My Lords, we are extremely fortunate to have in this House the noble Lord, Lord Hannay, who has such intimate knowledge going back over 30 years and more, and my noble friend Lord Luce—I must call him that as we sat together in the other place—who was such a distinguished Governor of Gibraltar and who still maintains his interest as Chancellor of its new university.

I do not want to be at all critical of the noble and learned Baroness, Lady Butler-Sloss, who made a very generous speech, but we have to be careful about the epistle that we who are reckoned to be friends of Gibraltar all received. It was, effectively, a written sigh of relief that at least the UK Government had stepped up to the mark and said that that they were committing themselves to Gibraltar. That commitment is clearly crucial and it is equally very welcome, but it does not solve the problem about which the noble Lord, Lord Hannay, and my noble friend Lord Luce have spoken so eloquently. As the noble Baroness, Lady Northover, said, it is in effect a Northern Ireland situation in miniature, because this is the other border between UK territory and the European Union. People have talked about 350 years, but it is not 350 years, as it is since the treaty of Utrecht in 1713, just over 300 years ago, that we have had this commitment to and legal possession of Gibraltar, which has been continually—or perhaps I should say intermittently—challenged by successive Governments of Spain.

In his speech a few minutes ago, my noble friend Lord Luce made graphically plain what is at stake for the people of Gibraltar. Obviously, I hope that when he replies my noble friend the Minister will reiterate the agreements referred to in the letter we all received, but I hope he will go further and indicate that the UK Government will not sign up to any final agreement that leaves unprotected the people of Gibraltar: nothing is agreed until everything is agreed—the mantra that is repeated again and again. A country should be judged by how it treats its weakest citizens, and by how it treats those parts of its territory which are wholly dependent upon it. The people of Gibraltar are wholly dependent upon the Government of the United Kingdom. There must be no agreement with our European friends and partners—I hope and pray that there will be an agreement—that puts Gibraltar in a precarious, indeed dangerous, position after the end of the transition period.

We talk fairly glibly about the transition period. Of course it is necessary, and we all welcome the progress that was signalled last week and about which we will hear a little more when the Statement is made to your Lordships’ House later this evening; but we are not there yet, and we are a long way from being there over Northern Ireland and Gibraltar. Let us, of course, support the withdrawal of the amendment tonight. I am very glad that there have been no votes in Committee during the long hours we have been debating this Bill, but we may well have to consider another amendment on Report, unless we are utterly confident that there is no question at any time of a sell-out over Gibraltar.

[Baroness Ludford (LD)]

My Lords, the debate this afternoon has amply demonstrated why in today’s Statement the Prime Minister refers to the particular challenges that Brexit poses for Gibraltar. Staying in the single market would mitigate some of those challenges, particularly the economic ones, but there would still be the risk of political problems from Brexit itself.

There has been much talk from Brexiteers about global Britain and even Empire 2.0, which is pretty gruesome, but the damage to Ireland and Gibraltar—I fully agree with the noble Lord, Lord Cormack, and others who have drawn an analogy there—from Brexit belies the claim that Brexit is not focused on a rather little-England perspective and instead has a broad and internationalist one. It would be a terrible betrayal of Gibraltar as well as Ireland if the Government do not have those territories in the forefront of their mind.

The Government of Gibraltar told the House of Lords European Committee that Brexit presented,

“few opportunities worthy of mention”,

and that losing access to the single market in services would be a “severe blow” to Gibraltar’s economy—reflecting the fact that it has been a fundamental tool in Gibraltar’s economic development. It is therefore no wonder that, as others have said, 96% of Gibraltarians voted remain.

The point has been strongly made that Gibraltar depends on the free movement of workers. I was very interested to hear that the noble Lord, Lord Luce, is chancellor of the University of Gibraltar, because it gave evidence to the EU Select Committee inquiry and said how valuable the free movement of staff and students across the border with Spain is to it. It also said that the social welfare system is significantly dependent on the income tax paid by cross-border workers in Gibraltar—and a related point is that Gibraltarians will potentially lose access to healthcare facilities in Spain. So there are so many areas of damage to Gibraltar and the residents of the Gibraltar.

Tourism is another element in its economy that would be profoundly harmed by any border problems. The European arrest warrant was described by the Government of Gibraltar as,

“a blessed relief because it took the sovereignty dispute out of the equation of extradition”.

As it involves mutual recognition between judges, it does not depend on Government-to-Government agreement.

The Government of Gibraltar are particularly worried about the possibility of no deal and a cliff-edge scenario. I believe that the Brexiteers have been cavalier in envisaging this possibility. I have to reproach the Minister in this respect, because he mentioned it again last week to the committee—as did his colleague in the other place Robin Walker. Reviving the “no deal” prospect is breathtaking in its irresponsibility to a territory such as Gibraltar. The Government of Gibraltar suggested that it could result in their frontier being severely disrupted or even closed, which would be “potentially disastrous”. It might mean the UK Government having to step in to support Gibraltar’s economy, as they did in the Franco era. I wonder whether British voters have been told about such a possibility, given that they know, or at least have been told, that Britain’s economy is set to deteriorate if we leave the single market—the Prime Minister has said that—and their incomes might well be squeezed. So there could be quite interesting political problems for a Government defending subsidies to Gibraltar.

Lastly, as has been pointed out, Brexit means that Gibraltar will depend on the good will of Spain. It will no longer have EU law there. That law has not been perfect and there are still some issues, but Gibraltar has looked, with justice, to the EU to arbitrate and defend it in disputes with Spain. But it will not have that protection if we Brexit, and the onus will be on the UK to take action. So, like other noble Lords, I think this is a very important issue and I look forward to the Minister telling us exactly how the Government are going to look after Gibraltar, in the same way that there is huge feeling in this House about the maintenance of no internal border in Ireland. I think that the Government have a lot of explaining to do.

[Lord Collins of Highbury (Lab)]

My Lords, we have had an excellent debate. I appreciate the comments from the noble Lord, Lord Luce. He has initiated debates in this Chamber about Gibraltar, separate from Brexit, and although I did not speak at Second Reading of this Bill I have spoken in a number of those debates. The noble Lord, Lord Hannay, is absolutely right about the process, and the history lesson that has been given is quite important for understanding the way forward. I did not act as governor-general in Gibraltar like the noble Lord, Lord Luce, but I was a union official there representing workers in a period when the border was closed. In fact there were 6,000 Moroccan workers operating in Gibraltar. They were housed in the old naval dockyard barracks in conditions that we would not find particularly acceptable, but it certainly gave them gainful employment in a way that helped their families in Morocco.

In Spain’s accession process we were able to reach a practical accommodation that served the economic interests of Gibraltar and the people who lived around it, particularly in the Andalusia region of Spain. I have to declare an interest or two here: my husband is Spanish and from Andalusia. The fact is that the people of Andalusia know very well that Madrid does not have them very high up on its agenda either, so these are really important issues to understand. The reason why 96% of the people voted in favour of remaining in the EU is that they know full well that the political and economic conditions that prevailed with membership of the EU are vital to their continuation as a viable society.

The Opposition support the amendment and understand the need for it. Several noble Lords have spoken today, particularly the noble Lord, Lord Hannay, who posed very specific questions. We believe that at the end of the day the question that will determine the survival of Gibraltar will be the UK Government’s efforts to ensure that it is able to continue to have a relationship with the rest of the EU. That is the question that we want answered but we know full well that we are not going to get one today.