Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019

Debate between Baroness Ludford and Lord Adonis

Monday 18th February 2019 Lords Chamber

[Lord Adonis]

The noble Lord is right, but I do not think that that day is far off; I think it will come soon. Let us be clear: we are not talking about a natural disaster. As a Minister, I often had to deal with those. When there are ash clouds and volcanoes erupt, you have to take very difficult and extreme decisions at short notice. Here we are talking about an act which the Government are inflicting on the country, with no external agency whatever. Not only that, but the Government could this afternoon terminate the situation we are faced with, in respect of these no-deal regulations, by the Prime Minister announcing that she is not proceeding with no deal and that she will, on behalf of the United Kingdom, submit a request to extend Article 50—or, as we now know she can do from the judgments of the European court, rescind it unilaterally. This will be a big matter for the public inquiry that the noble Lord, Lord McNally, is referring to. All the consequences of this no-deal situation are caused by the Government, and the remedy for them is entirely at the disposal of the Government. It is our absolute duty to point this out all the way through this process, so that at least some of us in the parliamentary system can point to the fact that we did our level best not to take the nation to the edge of the cliff where we are now at.

Coming back to this instrument, it is totally unacceptable that we are dealing with such an important set of regulations relating to the fundamental issue of data and data protection and there has been neither an impact assessment nor any public consultation.

[Baroness Ludford]

My Lords, I asked the Minister about the state of play on an adequacy decision. I am told that the Minister in the other place, Margot James, confirmed a few weeks ago not only that those discussions can start—at least formally—only after the UK leaves the EU, but that they would take two years; that was her estimate. So that multiplies the gravity of having no impact assessment; if we crash out without a deal, we will have a legal void for a long time.

[Lord Adonis]

The noble Baroness raises a very important question, to which the Minister should respond: how long will it take to consider this? Noble Lords who woke up to the “Today” programme this morning will have been astonished to find that Dr Liam Fox and the Foreign Secretary had written to the Japanese Prime Minister telling him to get a move on in signing a trade deal with Britain—as if we, because we are putting ourselves in a position of great jeopardy and undermining existing international agreements in five weeks, can now start instructing foreign Governments on the timescales in which they should conduct international negotiations. This is utterly humiliating to us as a country. It is a fundamental breach of the proper conduct of public affairs. What the noble Baroness said about it taking another two years even to get the basis of data adequacy agreements with the EU, because of our act of withdrawing from the European Union, simply underlines the point.

European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Adonis

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.

European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Adonis

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Adonis]

My Lords, we might not leave the European Union next year. We have not enacted the legislation to do so. At the moment there is no treaty. The 2011 Act would be repealed under the terms of the Bill. The two are clearly not consequential.

[Baroness Ludford]

Does the noble Lord agree that there is no relationship between exit day and the repeal of the European Communities Act? Clause 19 says that the repeal, inter alia, of the 2011 Act, is a provision of the Bill that will,

“come into force on such day as a Minister of the Crown may by regulations appoint”.

It has absolutely nothing to do with exit day or the ECA.

[Lord Adonis]

That is the precise point. The big question that the Minister would not answer—I do not think he wanted to give me the answer—is why the repeal of the 2011 Act is being accelerated ahead of Brexit day and the repeal of the European Communities Act 1972. The Minister has not given an answer, nor has he given the Committee any indication of when that repeal would take place. My understanding is that the Government would seek to repeal the 2011 Act as soon as they can after the enactment of the Bill, which will mean that its terms would not apply for the period between that repeal and Brexit day, but it is of course perfectly possible. Who knows what will happen in the next 52 weeks? As Harold Wilson famously said, a week is a long time in politics, so goodness knows what will happen in the next 52. The Act would not apply. It may well be that my noble and learned friend is right that there is not a substantial legal argument here, but that is precisely the issue the courts are there to determine. They will not have the opportunity to do so because the Act will have been repealed.

European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Adonis

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Baroness Ludford (LD)]

Does the noble Lord, Lord Adonis, share the surprise I feel that the Prime Minister should have said that we would not be part of the digital single market? I am at a loss to think what domestic regulatory flexibility she could be alluding to. After all, the very point of the Data Protection Act is ostensibly to implement European standards on cross-border transfers of data, which is crucial for the tech industry as well as many other industries. If we are not part of the digital single market, how are British consumers to continue to enjoy the absence—the abolition—of roaming mobile charges? The mobile operators are saying, “We hope we won’t have to put up roaming charges, but it rather depends if we are in the digital single market so that we can get access to European-level wholesale rates”. So first, a British policy not to be in the digital single market does not make any sense. Secondly, British consumers are going to take a hit when they go on the continent for business or holidays. Who is going to explain that to British consumers?

[Lord Adonis]

My Lords, I agree with everything the noble Baroness has said. When we were given the instruction by the British people two years ago to commence negotiations on leaving the European Union, I did not meet anybody who said that the reason they wanted to leave it was so that they could pay higher mobile phone charges and restart paying roaming charges for travelling on the continent. It is a complete absurdity.

Since in her Mansion House speech the Prime Minister showed movement in many areas, which we have welcomed in earlier debates, on engagement in key areas of the single market and customs arrangements, I find it utterly mystifying that she should specifically have excluded the digital single market. This is one area in which Britain has done more than any other to forge its rules, which have been so advantageous to major British companies that would not exist if it were not for the development of the single market. Vodafone, one of the biggest and most successful companies in the country, would not exist as a serious international company if it were not for the success of successive British Governments in negotiating what has become the digital single market during the last 20 years.

I invite the Minister, with the new-found and emollient flexibility that he has been demonstrating, to say that he is prepared to take away and consider—I think that is the phrase he now uses—Britain’s continued engagement in the digital single market. Specifically, is it the view of the Government that we should start to reintroduce roaming charges for British mobile phone users from the end of March next year?

European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Adonis

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Adonis]

My Lords, I could not agree more with my noble friend, nor with all those other noble Lords who have responsibility for Northern Ireland, or have held it in the past, including the noble Lord, Lord Patten, my noble friends Lord Hain and Lady Kennedy, and the noble Lord, Lord Carlile, not least in his role as reviewer of terrorism legislation. Everyone who has been engaged in this sees the continuing value of the Northern Ireland agreement. It is a solemn undertaking on the part of the United Kingdom. It is an international treaty. Playing fast and loose with peace in Northern Ireland in the cause of Brexit is utterly reprehensible.

We are looking forward to the Minister’s reply. I know that he has a mountain of amendments to reply to, but I am afraid that is the fault of the people whose responsibility it is to group them, who seem to want to group almost everything in the Bill into one group. I hope that when he replies he will begin by saying from the Dispatch Box that the Government remain committed to the Good Friday agreement, that they wish to see the restoration of devolved government in Northern Ireland, and that the Government will use every endeavour to do that and to ensure, as the Prime Minister also said in solemn undertakings at the end of last year, that all of the commitments that the Government of the United Kingdom reach in respect of Brexit will fully honour the Good Friday agreement. I take the amendments that we will discuss later, which my noble friend Lord Hain and others have tabled, which would enshrine a commitment to abide by the Good Friday agreement in the text of the Bill, to be immensely important to our consideration of the Bill, particularly in the light of comments made in the last week.

My amendments focus on two particular areas where I seek the Minister’s guidance, because we have many long debates to come, and we need to establish a good evidence base as we do so. I take to heart the words of the Minister for Exiting the European Union, Mr Baker, when the House of Commons was considering the Bill—I was glad to see him at the Bar earlier—and he said:

“The Government have always been clear that the purpose of the European Union (Withdrawal) Bill is to ensure that the UK exits the EU with certainty, continuity and control”.—[Official Report, Commons, 14/11/17; col. 206.]


We can have certainty, continuity and control only if we know what will happen as a consequence of enacting the Bill.

Therefore, there are two areas that I particularly wish to probe the Minister on. The first is the extremely important issue raised by the noble Baroness, Lady McIntosh, about the status of the European Economic Area and our membership of it. There is a debate that will range far and wide across our consideration of this Bill and future Bills as to what is the right status for the United Kingdom if and when we leave the European Union: whether we should be in the EEA, or in the customs union but not the single market, or in the single market but not the customs union; whether we should have bespoke trade arrangements, or whether we should belong to a customs union but not the customs union. The Schleswig-Holstein question was positively simple in comparison with the options and complexity of the options on offer but for our role as legislators, it is crucial that we understand the consequences of decisions that we take in respect of the Bill when we enact it. In many crucial areas—having read, as many other noble Lords will have done, all the debates in the House of Commons on the Bill—it is still unclear what will be the legal position in key respects after the enactment of the Bill.

The issue raised by the noble Baroness, Lady McIntosh, is of acute concern in this respect. The question that I hope the Minister will address himself to is: what is the procedure under which the United Kingdom will leave the European Economic Area if and when we leave the European Union? The noble Lord, Lord Owen, who I am sorry to say is not in his place this afternoon, has written, with help from serious lawyers—including, I think, one or two in this House—a very long and learned paper on precisely this issue. It says that there are two very different views as to what the position is, partly because the EEA agreement is itself ambiguous about the nature of the relationship between the European Union and the European Economic Area.

The European Union is itself a contracting party to the EEA agreement and on one reading—I am now going into areas where, seeing so many lawyers around me, I am waiting for them to leap in at any moment, but the definitive view from the Government is going to be important here—it is therefore not possible for those states which leave the European Union to remain a party to the EEA agreement. On another reading of the treaty, Her Majesty the Queen is the signatory to the treaty independently of the United Kingdom’s membership of the European Union, and we would therefore continue to be members of the EEA when we leave the European Union. As a layman in these matters, this looks to me to be an issue of huge consequence. When and if we leave the European Union on 29 March next year, do we or do we not continue as a member of the EEA simply by virtue of leaving the European Union? If we do not leave the EEA, what is the procedure under which we do leave the EEA? Does it require a vote, does it require legislation, or are the Government proposing that it should be done by the royal prerogative? These are big issues and I hope the Minister can address himself to them, because they will have a significant bearing on amendments we raise later in Committee and on Report.

The second issue concerning withdrawal from the European Union, which is what the half of the Bill that we are substantially debating at the moment is about, is whether it is necessary to withdraw from the entirety of the European Communities Act 1972, or whether it is in fact legally possible—or what would be the consequences of deciding—to withdraw from some parts but not from others. This is an issue of such importance because of the customs arrangements enshrined in Part 2, Section 5 of the 1972 Act, which sets out all the arrangements under which the United Kingdom agrees to abide by customs rules set by the European Union. That is, as I read it, a large part but not the entirety of our membership of the customs union.

The question that was raised in the House of Commons but not properly debated, and that looks to me to be of significance to our debates going forward, is about not disapplying the customs clauses of the 1972 Act— Part 2, Section 5, and the appropriate schedules. If they remained in force and we repealed the rest of the Act but not those—by virtue of that fact, subject of course to an agreement with the European Union itself, we would remain in the customs union. Again, in terms of the legal means by which we might secure the objective which many noble Lords wish to see, continuing membership of the customs union and single market, that is a point of great significance.

Finally, in terms of the objectives we are seeking to achieve, in her Lancaster House speech, the second of the two significant speeches she has given on government policy in respect of Brexit, the Prime Minister, addressing our European partners, said:

“The decision to leave the EU represents no desire to become more distant to you, our friends and neighbours … We do not want to turn the clock back to the days when Europe was less peaceful, less secure and less able to trade freely”.


In my view it is impossible to see how we can have a Europe which maintains peace unless we start with peace within our own borders, which must mean peace guaranteed in Northern Ireland, hence the centrality of the Good Friday agreement to our consideration of the Bill. When it comes to,

“less able to trade freely”,

I take that to mean not entering into any trade arrangements which are less advantageous for this country and involve any more border controls than currently apply. I look forward to the Minister explaining to the Committee how leaving the customs union and the single market can make it easier for us to trade than the extremely advantageous arrangement we currently have as a member of the European Union.

[Baroness Ludford (LD)]

My Lords, I cannot match the dazzling intellectual exposition of the noble Lord, Lord Adonis, but I completely endorse his remarks on the Good Friday agreement. We need to stay in the single market and the customs union and to preserve the integrated economy and the peace and political enjoyment of the Good Friday agreement is one of the best arguments for doing so. I shall speak to Amendment 203 in my name and those of the noble Lord, Lord Adonis, and my noble friend Lady Smith of Newnham, who sadly feels that there is not time for her to speak. I shall also speak more generally on this group and second the remarks of noble friends who have spoken on it.

Amendment 203 requires a specific parliamentary vote on whether to leave the EEA. This would perhaps both remove any legal doubt about whether the Article 50 notification made that decision—I will slightly sidestep that issue—and be an explicit political decision in itself. Therefore I advocate the merits of Amendment 203.

We are in the dark about the future. The Cabinet is meeting again tomorrow at Chequers and we are all very hopeful that some white smoke will emerge from that meeting. As many noble Lords have said this afternoon, the implications of leaving the single market and the customs union are serious. Indeed, it has been described by my former noble friend Lord Carlile of Berriew as a “suicide note”—hence the need to have a specific vote on whether to leave the EEA, which would be a safeguard, at least against sudden death.

We learn from the Financial Times, in advance of having anything explained to us in the open by the Government, that the buzzword for the trade relationship that the Government will be aiming for is “managed divergence”. Apparently:

“Under this approach, economic activity between the UK and the EU would be divided into three baskets: complete alignment, where the UK would follow EU rules”—


presumably to at least encompass the famous paragraph 49 of the phase 1 agreement—

“‘managed mutual recognition’, where both would agree to common objectives but each would choose its own rules; and a third basket where the UK can abandon EU regulations and do whatever it wants”.

That sounds incredibly complicated for citizens and business, as against the simplicity of full membership of the single market and the customs union. This commentator says:

“The beauty of this approach is that it unites the cabinet”.


This is possibly because it has three variations. However, it does not have one single theme.

Of course, we have heard all variants, not least this past week. We had the speech from the Foreign Secretary and the letter from the European Research Group—I am not sure that it does a lot of research but it writes a lot of letters. It wants “full regulatory autonomy”. I hope that I will not embarrass the Minister if I quote him when he was in the European Parliament. He said in 2012:

“Surely one of the best ways for the EU to speed up growth is to scrap the employment and social affairs directorate in the Commission, repatriate its responsibilities to national governments, then we could scrap the working time directive, the agency workers’ directive, the pregnant workers’ directive, and all of the other barriers to actually employing people if we really want to create jobs in Europe”.


We will discuss on other days the maintenance of employment and other rights, but it is illustrative of the problem that we have that there is such an array of opinion within the Government. The advantage of having a parliamentary vote in the context of the implementation of the withdrawal agreement would be that it would allow Parliament to have the backstop of saying, “Actually, we want to stay in the EEA”.