European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Lord, as I seem to have done for the past 20 years. I refer to my current interests on the register.

In 1972, during Second Reading on the then European Communities Bill in the other place, Sir Geoffrey Rippon said:

“I believe that we shall walk tall into Europe on 1st January 1973. We shall take our rightful place in the counsels of Europe. We shall compete and we shall contribute”.—[Official Report, Commons, 13/7/72; col. 1984.]


In leaving the European Union, we shall undoubtedly diminish our standing and influence in the world. It was Europe that brought me into politics. I was born of a Danish mother and Scottish father. Denmark was occupied during the Second World War, severely restricting the freedoms and liberty my mother could enjoy while growing up with occupying troops and tanks on the streets of Copenhagen.

I fervently believe that bringing our trading relations closer together across Europe, as our membership of the European Union has facilitated, has made the prospect of future conflicts in Europe much less likely. With the collapse of the Berlin Wall—I was there in November 1989, a day I shall remember all my life—we have seen an influx of countries and peoples from the former Soviet bloc, strengthening our defence against a potential foe. That same year, 1973, when we joined the European Union, I left Harrogate Ladies’ College to embark on my legal studies at Edinburgh University. I had high hopes of following a career in the European Community as it then was, and I did. I undertook a “stage”—an internship—in the Commission. I worked for the Conservatives in the European Parliament. I practised European law and I then became a Member of the European Parliament.

My overwhelming feeling in debating this Bill is one of sadness at the fact that many of the opportunities that I had in my 20s and 30s will not be available to future generations—namely, the right to live, study and work in another EU country.

I will set out why, in my view, the Bill is defective. In transposing into UK law those instruments such as regulations and decisions—instruments other than EU directives—the Bill seeks to introduce a new category of retained direct EU law, whose status seems far from clear, as was put most eloquently by the noble and learned Lord, Lord Judge, and other noble Lords. The provisions of the Bill lack clarity and legal certainty, and if I was a law student today I would find it impossible to understand its provisions. They do not entirely reflect the well-established principles of direct effect and direct applicability, and the relationship between the supremacy of EU law and retained EU law is simply not clear.

The Bill is further flawed by the huge power given to the Executive to pass secondary legislation through so-called Henry VIII clauses. While there is agreement across Parliament that new procedures are needed to ensure proper scrutiny—to hold the Government to account—I query whether new committees are required or this is best dealt with by beefed-up versions of the existing committees on delegated legislation.

If there is one unique contribution I can bring to the debate today, it is this: I argue—and have long argued in the other place and here—that there should be the opportunity to amend the content of those draft statutory instruments which come before both Houses, not just to vote for or against them. This is especially relevant as the Explanatory Memorandum to the Bill states that these laws, once transposed, can then be further revised and amended by Parliament post Brexit. But this would be a new power: a power to amend not just the title but the actual content of each and every statutory instrument. Clauses 2 to 9 are therefore ripe for amendment. I have a word of caution for my noble friends Lord Astor and Lord Ridley, and fervent readers of the Daily Mail: those of us who wish to improve the Bill stand prepared to perform our statutory and parliamentary duty of making it better.

We are faced with inconvenient truths: the UK simply cannot replicate the free trade agreements with the 70-plus countries with which the EU has a formal trade agreement, including Commonwealth countries. Although there are countries such as Vietnam outside these arrangements, in effect the potential market is very small compared to the existing single market of 505 million consumers. It surprises me that the Government took the key tools in their negotiating pack off the table even before negotiations began—namely, our membership of the single market and customs union. Considering the remaining options available, applying to join the European Free Trade Association would seem the next best thing to membership of the EU; and leaving with no deal, on World Trade Organization most-favoured nation terms, the worst. Being in EFTA would minimise the potential economic damage, solve the question of the Irish border and maintain our sovereignty. Were we to be outside the single market and EFTA, a dispute resolution mechanism must be agreed in regard to cross-border issues involving British goods entering the EU post Brexit.

In terms of agriculture and the environment, I believe that the common agricultural policy has made the EU supply chain more sustainable and kept prices stable. Since the referendum and the collapse in the value of the pound, food prices have risen sharply. The higher environmental standards have turned Britain from the dirty man of Europe to the clean and green land that we are.

I am proud that our history, cultures and destinies are shared with our European partners. The question today is what exactly the nature of our deep and special relationship, going forward, will be and whether that will be in the best interests of this place, of our country, of the British people, of British business and, especially, of the younger generation.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Elystan-Morgan]

I am pleased to stand corrected and apologise.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendment 136, which is in my name alone. Clause 1 is the crux of the Bill. It calls for the repeal of the European Communities Act 1972 but is silent on the question of our membership of the European Economic Area and what the status of our membership of the EEA will be on leaving the European Union—or indeed what the status of instruments or amendments agreed under the European Economic Area will be, either as we leave at 11 pm on 29 March 2019 or in the future if we are in a position to negotiate remaining in the European Economic Area.

I will speak to a number of issues that flow from the comments of the noble Lord, Lord Wigley, about leaving the customs union. The Prime Minister has been quite clear about wishing to leave the single market and the customs union. However, at no stage has anyone in the Government explained to the great British public or indeed to Parliament what leaving the customs union will mean or what the consequences will be of negotiating a free trade area either with our existing European Union partners or with third countries. The first point to make is that we immediately become a third country at 11.01 pm on 29 March 2019.

I forgot to mention my interests as listed in the register. I am a non-practising Scottish advocate; I practised for a short time—for two and a half or three years—as a European lawyer in Brussels; and I was a Member of the European Parliament for 10 years and a Member of the other place for 18 years, so I will indeed be in receipt of a European pension.

I should like to consider the position of perishable goods. An example that is very much in the news at the moment is medical isotopes, but I am more familiar with the free movement of perishable foodstuffs from the time that I was a Member of the European Parliament, particularly between 1989, when I was elected, and 1992, when the United Kingdom joined the European Union single market. In leaving the customs union, we face the consequences of leaving the customs union. At Prime Minister’s Questions today, the Prime Minister repeated that we want to take back control of our own borders.

There is a conundrum here. I support enthusiastically what the Government and the Environment Secretary, Michael Gove, are trying to do—we are trying to increase the high standards of animal welfare that we already enjoy and to raise the standards of animal health, the safety of animal production and animal hygiene. However, particularly on the border between Northern Ireland the Republic of Ireland, there will have to be physical checks of animals and presumably of foodstuffs. I remember that as a newly elected MEP I got panic phone calls from companies in Essex, where I had been elected. People phoned or emailed and asked what I, as the local MEP, was going to do to move these goods along as they were time-barred. At the moment we seem to be going along on a wing and a prayer, hoping that everything will be all right on the night. I would like to hear from the Minister, when he responds on this group of amendments, what thought has been given to exactly what controls will be expected, particularly on the movement of perishable goods and the movement of animals, at borders such as the one between Northern Ireland and the Republic of Ireland.

I am also looking particularly at the fact that we are seeking to arrange new free trade agreements with countries such as Brazil and Argentina. It is no secret that they raise and rear their animals, and produce other products, to a standard that is considerably inferior to those in this country. I know that there is great concern in the Food Standards Agency about whether we will have time to put all the provisions in place governing how these imports will be considered.

--- Later in debate ---

[Lord Adonis (Lab)]

The noble Baroness is herself a distinguished lawyer, and she has raised one of the critical issues that we shall have to address in our debates: whether our membership of the European Economic Area automatically lapses by virtue of our leaving the European Union, or whether leaving it would require a separate Act on our part. As she said, she was a Member of the European Parliament for many years, and has practised law in Brussels, so will she give the Committee the benefit of her advice on whether she believes that our EEA membership will lapse automatically on leaving the EU or whether it would require a separate and explicit Act of Parliament, and therefore a vote in Parliament, to leave it?

[Baroness McIntosh of Pickering]

I am grateful to the noble Lord, but he places too great an emphasis on my legal abilities. I prefaced my remarks by saying that I am not an EU practising lawyer—although we do have a number of EU practising lawyers in this place. I would argue that no, our membership of the EEA will not explicitly lapse when we leave the European Union. This is a conundrum in which we find ourselves—or it could be the saving of us.

[Lord Newby (LD)]

My Lords, I speak in support of Amendment 6, one of the earlier amendments in the group. It would simply require that a report be laid before Parliament,

“outlining the effect of the United Kingdom’s withdrawal from the single market and customs union on the United Kingdom’s economy”.

This is a starter for 10 for the Minister, which he should be able to agree to—because such an analysis already exists. The EU Exit Analysis—Cross Whitehall Briefing explicitly does what the amendment requires. This analysis is not desperately long—only about 30 pages —but it would undoubtedly help Parliament if it were made more widely available. It is, of course, possible for Members of the other place or of your Lordships’ House to see the document, if they go through a rather demeaning procedure and go to a curtained room— curtained, I was told by the civil servant who was invigilating me, because the document is so secret that the light of day, far less outside scrutiny, cannot be brought to bear on it.

I wrote to the Minister asking whether it would be possible for the Government to make the document public on two grounds. First, the document already is public, because Laura Kuenssberg has got it and has tweeted about it. Secondly, the argument for keeping it secret advanced by the Government—namely that if it were public it would undermine our negotiating position—is clearly false; it is a factual economic analysis and one that has been widely replicated by other think tanks and economic forecasters. I am very grateful to the Minister for the reply he sent me on 20 February. However, I was rather disappointed that he repeated the point that it was impossible for the Government to make this public because of their obligation to ensure security of negotiation-sensitive material. Most assuredly, this document is not that. He also said that it could not be published because it did not represent the Government’s view and that publishing it would likely be misleading to the general public.

Let me remind the House what the general public would discover if they had the opportunity to read this document. It sets out three scenarios, one of which is too appalling, I am sure, for the faint-hearted to contemplate—including, possibly, the maiden aunts of the noble Lord, Lord Lisvane. It says that if we exited on WTO terms, in 15 years’ time the economy of the north-east would have fallen by 16% below that than would otherwise be the case. You do not need to be of a sensitive nature to be somewhat frightened by such a prospect. It shows that if we had the sort of deal that Canada is negotiating, the economy of the country as a whole would fall by almost 5% and in the north-east by 11%. It states that if we had the Norwegian model, which is the closest model that anybody has contemplated, we would still see a fall in GDP of 1.6% and of 3.5% in the north-east.

There are those in another place who say that this analysis is far too pessimistic and who have castigated civil servants for deliberately including unrealistic assumptions in it. There is one very narrow respect in which I agree with the suggestion that some of the assumptions are questionable: they are far too optimistic. The analysis assumes that the UK will, over this period, have entered free trade arrangements with the US, China, India, the TPP, the Gulf Cooperation Council, ASEAN, Australia and New Zealand. There is not a single soul who knows anything about trade negotiations who believes that that is possible. In that respect this analysis is too optimistic.

If this document were published, it would at least allow people to see the likely range of consequences and to discuss them. They would also discover that in a Canada-type arrangement, which is nearest to what the Government’s centre of gravity seems to be:

“There are over 550 individual restrictions on the services trade”.


That is a quote from the document, which means fewer jobs across the board in the services trade, not here, there and in odd little places, but across the entire board. So is it surprising that the Government do not want to publish this document? Will it be surprising if the Minister, when he replies to this debate, says that they do not intend to do so? I suspect that it will not, but I hope that he will follow the advice of his colleague in another place, the former deputy Prime Minister, Damian Green, who only two days ago said:

“If analysis is being produced then publish it”.


I agree: he should.

--- Later in debate ---

[Lord Lamont of Lerwick]

I would like to make a little more progress, as this is taking rather a long time. The rules of origin are one of the points for consideration. I know that a lot of British industry is worried about this but I noticed what Mr Azevedo, the Secretary-General of the World Trade Organization, said in a newspaper interview that he gave the other day. He pointed out that a large part of Britain’s trade, because we have a bigger percentage of trade with the rest of the world than some other European countries, already has to observe these requirements of documentation and rules of origin. He did not see that there would be a big problem in switching the rest of our trade to a similar regime.

I have also met representatives of some of the companies that run ports in this country, some of which operate on a WTO basis and some of which obviously operate on an EU basis. But when I talked to the management—I do not want to name them because they would not want to be too involved in political controversy—I was told that they did not see a huge difficulty in moving from one administrative system to another. Whether people agree with that or not, I put it to your Lordships that that is what the argument is all about: a trade-off between that and a free trade agreement with access to the market. It is not clear that the advantage is all one way.

[Baroness McIntosh of Pickering]

Does my noble friend not agree with me and the noble Lord, Lord Davies, on animal hygiene? Given the high levels that the Secretary of State has insisted our farmers will meet on leaving the European Union, how can we physically check the animals coming into this country when we leave if we have no customs controls at UK borders? It cannot be done by technology.

--- Later in debate ---

[Lord Callanan]

I responded to the noble Lord’s question about the legal advice and to the other points that have been raised. I will respond further in my forthcoming remarks.

[Baroness McIntosh of Pickering]

My noble friend has been most gracious in replying to one part of my question, but not the other part about the status of regulations. He has now accepted that we will remain in the EEA for the duration of the implementation period. The precise content of my amendment relates to regulations passed and decisions agreed by the EEA before the end of the implementation period. What will the status of those regulations be?

[Lord Callanan]

I understand that the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA. Our aim is to ensure continuity with international partners and the EU during the implementation phase and certainty for businesses and individuals. This approach will mean that we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states. Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people. As I have said to my noble friend, once the implementation period ends we will no longer participate in the EEA agreement. We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein. I hope I have made the Government’s position clear, and I hope as a result the noble Lord, Lord Wigley, will feel able to withdraw the amendment.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

18: After Clause 2, insert the following new Clause—
“Status of EU directives adopted, but not implemented, before exit day
(1) EU directives adopted by the EU before exit day remain binding, as if the United Kingdom had not left the EU.(2) In implementing any EU directive covered by subsection (1) after exit day, a Minister of the Crown may use any power set out in the European Communities Act 1972 as if that Act had not been repealed.(3) If, through implementing a directive under subsection (2), a situation arises which would be considered a deficiency had it arisen in retained EU law, a Minister of the Crown may use any of the powers set out in section 7 of this Act to remedy that situation as if that directive had been implemented before exit day.”

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak to Amendment 18 in my name before the Committee this afternoon. I refer especially to page 24 of the Explanatory Notes, which states, in paragraph 76 on Clause 2(1):

“This will include legislation that has been passed or made but is not yet in force”.


The reason for my introducing and speaking to this probing amendment—I recognise, as Ministers have said previously, that this is a facilitating Bill—arises from the debate at Second Reading, where it was identified that a number of directives are coming forward and commitments are being discussed and agreed in both the European Parliament and Council of Ministers that will be agreed but not transposed into British law before 29 March 2019. I am not sure whether my noble and learned friend the Advocate-General will reply to this amendment, but I hope that he will see it as a tidying-up exercise that is designed to be helpful.

The purpose of the amendment is to facilitate the transposing into UK law of directives that fall into this category which have been agreed by the relevant ministries in Brussels, and in co-decision between the European Parliament and the Council of Ministers, but have not yet been transposed into UK law. This follows on from the debate at Second Reading, where the issue was discussed in particular by the noble Lord, Lord Kakkar, several noble Lords on the Liberal Democrat Benches, myself and a number of others. For example, the drinking water directive will be completed and will likely be transposed into UK law before we leave on 29 March 2019. It forms part of the price review that Ofwat is conducting, which will also conclude in 2019.

However, a further series of environmental directives does not fall into this category, including the so-called mother directive—the EU water framework directive—the bathing water directive and the waste water directive. Given the current timetable for the revisions being discussed in Brussels by the European institutions, it is quite likely that the directives will be agreed in the very month that we leave the European Union.

The purpose of this amendment is simply to clarify whether that would leave the door open to the directives being transposed at a later date, thereby guaranteeing the environmental protections that water companies themselves might wish to adopt, and which the Government and indeed all of us as consumers would wish to see implemented. So my question to the Minister is simply: is it the Government’s wish to facilitate the transposing of directives that are left in this halfway house into UK law after 29 March 2019, and in those circumstances would they welcome this amendment?

[Lord Wigley (PC)]

I support the amendment of the noble Baroness, Lady McIntosh, which seeks to clarify the status of EU directives which will be “adopted, but not implemented” on the day we exit the EU. The Government have repeatedly stressed that the purpose of the Bill is to provide legal certainty. Whichever side of the Brexit debate we take, clearly, that is a worthy and necessary objective. That being so, I am truly baffled that in this instance the Bill totally fails to give that clarity. Everyone affected or potentially affected by EU legislation that has been adopted but not implemented needs to have absolute certainty as to where they stand.

Amendment 18, if passed, would allow Ministers to treat EU directives adopted before exit day to stand, for those purposes, as if the UK had not left the EU. I understand from a House of Commons briefing that no fewer than 23 directives have already been published with implementation deadlines which fall after 29 March 2019. Several of these would enhance the lives of UK citizens. For example, one is aimed at strengthening restrictions on firearms, which are currently permitted to move freely within the European single market. If the Bill stands unamended, can the Minister clarify whether firearms will be controlled when they cross the north-south border in Ireland, for example? Another such directive aims at limiting the exposure of employees to dangerous substances in the workplace, such as carcinogens and mutagens. I will not elaborate but clearly there is an arguable case for saying that such safeguards should be part of UK law. Even more so, there is a crying imperative that people know where they stand on such matters.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, it is fairly clear that this Bill already has enough to do in trying to deal with the situation of withdrawal, and it cannot be right that it should take account of any transition period or implementation period, whatever you like to call it, until we know a good deal more about it than I do at the moment. That ignorance is possibly shared to some extent by other noble Lords.

On this point, the true position is that once a directive has been adopted by the European Union with a period for implementation by a member state, the obligation on that member state is to bring it into law in its own domestic arrangements within the period stated. The directive therefore does not become part of the domestic law of that member state until its implementation before or by that date. This Bill is intended to deal with the state of the law on the day of our withdrawal and therefore strictly speaking such directives, however desirable they may be, are not really part of our domestic law any more than an Act which has been passed but not commenced is part of our domestic law. I have a fair amount of experience of that happening.

The situation is clear so far as what this Bill should do, but so far as what my noble friend Lord Deben wants, that is another matter. It is perfectly reasonable that the Government should have a policy on that if they want it.

[Baroness McIntosh of Pickering]

Is my noble and learned friend saying that the United Kingdom Government should absent themselves from all legislation and all the directives that are being discussed, whether it is the EU circular waste package or the water framework directive? I believe that the noble Lord, Lord Wigley, referred to 23 directives—I am most familiar with the environmental ones—which fall into the very narrow category where there is every expectation that the UK Government are prepared to sign up to the commitments. However, because the Prime Minister has set an arbitrary date for us to leave, we will not be in a position to implement them. Is it the case that even if we agree them in March 2019 and it is the wish of the Government to implement them, because of the arbitrary date, we will not be in a position to transpose them?

[Lord Mackay of Clashfern]

The problem about the arbitrary date is that it is rather an important one because it is when we will cease to be liable to obligations under EU law unless they are made part of our law by this Bill. The problem is that a directive which has been adopted but not yet put into effect, but with the obligation to put it into effect still running, could in some cases last for as long as two years. That would greatly alter the clarity of the Bill in the meantime. If the Government want to implement one of them there is absolutely no reason why they should not. They will have plenty of legislative power and so long as they can get parliamentary time they can do so. That is a matter of policy that my noble friend has referred to. It is a perfectly reasonable way of dealing with this sort of point.

--- Later in debate ---

[Lord Keen of Elie]

With respect, that is a slightly different point. First, the Government are committed to implementing in domestic law those directives which have a transition period that expires before the exit date. There are, however, circumstances in which a directive may have direct effect in a question between an individual and the state but has not been implemented in domestic law. That is subject to a determination by the Court of Justice of the European Union or, indeed, by our own courts. In circumstances where a directive has not been implemented by the end of the transition period and has direct effect as determined by the courts of justice, and that has been determined prior to the exit date, that will be brought into domestic law by way of Clause 4. That is the point of Clause 4 in that context.

Where a directive has been adopted before the exit date but has an implementation period which expires after the exit date, and has not been implemented in domestic law by the exit date, that will not form part of our domestic law and therefore it will not form part of EU retained law for the purposes of the Bill.

[Baroness McIntosh of Pickering]

Both my noble and learned friend the Minister and my noble and learned friend Lord Mackay have indicated that the Government could choose to implement directives falling into that category if they wished to do so. My question to the Government is: what is the legal basis for doing so? My understanding is that there is not a legal basis at the moment, which is why I tabled this amendment.

[Lord Keen of Elie]

There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside. The point is more central than that: directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after the exit date.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord, but we have ranged rather widely in the context of the present debate—or, to use my noble friend Lord Deben’s term, we have got a little bit fuzzy as regards the precise terms of the amendment. I hope that, in light of the explanations that I have sought to give, including the reference to regulations and the point raised by the noble Baroness, Lady Hayter, to which we will return in due course, the noble Baroness will see fit to withdraw her amendment.

[Baroness McIntosh of Pickering]

I am grateful to all those who have spoken in this debate. I had not realised that we were going to have such a full debate, but it shows the importance of the issue that has been raised in Amendment 18. With regard to fuzzy wording, I am sure that my noble and learned friend Lord Keen, like myself, remembers a key distinction. I was one of the first law students to do the compulsory six-month constitutional law course on EU law, in which we learned straight off that a regulation is directly applicable and does not require any other implementation, whereas a directive is given direct effect only through implementation.

I am grateful to the noble Lords, Lord Wigley and Lord Liddle, who managed to put more flesh on the bones and give much greater clarification to what I was hoping to say. I am a little concerned by the Minister recognising that there is no legal basis for what we are seeking to do here—and my noble and learned friend Lord Mackay of Clashfern as well. I suggest, mindful of the comments made by the noble Lord, Lord Pannick, that this amendment has established that a legal basis is required, and if this is not the wording that would give that legal basis, I would request that the Government come forward by Report with the legal basis in the form of an amendment on which the House could agree. On that basis, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this very amendment has been debated in the other House and was voted down by 18 votes. I think the Government were shocked by the public outcry at the amendment being lost.

EU law puts an obligation on the Government and devolved Administrations to “pay full regard” to the welfare requirements of animals when Ministers make decisions and implement policies. This means that Ministers have to think carefully about how their decisions might harm animals.

The British Government played a key role in making this law during our term of EU presidency. It has influenced more than 20 pieces of EU law, including the ban on conventional battery cages for chickens and the ban on cosmetics testing on animals. Certain lobby groups claim that protecting the animal sentience laws will be disastrous; for example, that farmers will not be able to control agricultural pests or to go out and shoot pigeons. This simply cannot be true. If it is not the case with the law as exists today, then nothing will change tomorrow if we retain it.

The Government’s stated intention in the White Paper was for the withdrawal Bill to bring all EU law into UK law and then only amend retained EU law in future legislation. I have raised this issue previously and find it rather offensive that the Government would make such a promise and then not honour it.

Ministers have admitted that these animal protections will be lost as the Bill is currently worded. I understand that it is unfortunate to have to make “single issue” amendments to the Bill, but unless and until we are able to fix the Bill properly to retain all EU law, I have little option but to propose this amendment.

As a compromise when the amendment was proposed in the other place, the Government said that a new Bill would be created to include protections relating to animal sentience—I am sure that they will claim today that my amendment is not needed because of that new Bill. However, the Government’s proposals are weaker than the EU law. They have changed the wording in the draft Bill and included a much broader list of exceptions. Ministers would have only to have “regard” rather than “full regard” for animal welfare, and there is a massive loophole whereby a Minister can make decisions harmful to animal welfare whenever there are other matters of public interest.

A legal opinion commissioned by Friends of the Earth concluded that the Government’s proposals make it far too easy for Ministers to ignore animals, and their decisions would be subject to legal challenge only where they were so irrational that no reasonable authority could have come to them. That is a rather broad exception. The Government’s proposals do a very good job of appearing to protect animal rights, while actually reducing them to near zero.

The House of Commons Environment, Food and Rural Affairs Select Committee looked at the Government’s draft animal sentience legislation and tore it to shreds. It basically said that it should be removed from the animal welfare Bill and kicked into the long grass. So it looks likely that, despite the Government’s best intentions, their draft legislation on animal sentience might never see the light of day, let alone reach the statute book. We need to keep this in the withdrawal Bill: it is essential that we retain the existing provisions of EU law. We cannot allow a gap in protections between Brexit day and the point at which the Government are able to provide a suitable animal protection Bill. Ministers have been telling various people that animal sentience is already protected in UK law and that we do not need my amendment. If so, why have the Government drafted their own proposal on the issue? The situation is very simple: this protection does not exist in UK law, it stems from EU law.

Without this amendment to retain Article 13, animals will lose these protections, there being only the vague hope that the Government might one day bring forward a Bill. Once it is retained, we can always go back to it and change it with a future Bill—I would be happy to work with the Government to improve these animal protections—but in the meantime my amendment will keep these animal protections once we leave the EU. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, it gives me great pleasure to follow the noble Baroness—I am sure we will have another opportunity to consider the contents of her amendment—and to speak to my own Amendment 212, which inserts a new clause. I hope that I am not responsible for the typo in subsection (3), which refers to, “the Untied Kingdom”. It is not in my interest or that of the country to untie all the arrangements that we have in the United Kingdom.

The purpose of this amendment is to consider,

“border arrangements relating to animal welfare”,

and broaden it out to other themes as well. I am delighted to see my noble friends the Minister for Exiting the European Union and the Minister with responsibility for agriculture in their place to hear these concerns. As of 11 pm on 29 March 2019 the UK becomes a third country and will be treated as such until the new relationship and other arrangements are in place. In her speech on Friday the Prime Minister set out five tests, one of which is that any agreement on our future relationship must protect people’s jobs and security. I wish to consider these remarks in the context, specifically, of the border between Northern Ireland and southern Ireland.

In our debates on Amendment 18 in Committee last week we were told, including by the Minister, that the Bill represents a snapshot. That snapshot would mean that there are no checks at borders between Northern Ireland and southern Ireland because of the common travel area. Indeed, the first scenario that exists today is that the Belfast agreement of 1998 setting up the common travel area means that there are currently no checks on the border between Northern Ireland and southern Ireland. The second scenario assumes that there will have to be a border if we have either a free trade area or, worse still, WTO rules, in which case there will be border checks. I reminded the Committee that that border is 300 miles long.

In preparing for today I came across a rather useful piece which I found, I regret to say, on Twitter, and which I bring to the attention of the Committee. It is by Katy Hayward, whom I believe teaches and lectures at Queen’s University Belfast. She looks at the case of Britain being outside the single market and the customs union, either in a free trade agreement with the EU or under no deal, and it appears that agricultural products would have to be checked at the border. Assuming that animals are moving across the Irish border, I put to the Committee that this cannot be done by technology, either for this category or indeed for food, farming and agricultural products. Instead, there will have to be physical checks and inspections by veterinary surgeons and other enforcement officers. This will also be because we have very high standards of animal welfare, animal health and animal hygiene in this country—which I am immensely proud of—which mean that goods passing across the border will have to meet EU requirements going into Ireland and our requirements coming into the United Kingdom from Ireland.

I draw the Committee’s attention to what Article 5.1 of the draft protocol published by the European Commission last Wednesday, 28 April, says about agricultural trade:

“The provisions of Union law on sanitary and phytosanitary rules”—


please do not ask me what phytosanitary rules are because I have not had time to find out—

“listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland”.

For the other 27 European Union member states, food and other agricultural products coming into Ireland from the UK, whether from Northern Ireland or Great Britain, will be in free circulation within the remaining single market. The remaining 27 member states will demand reassurance on standards, not least because some may seek economic and competitive opportunities from the Irish authorities in these circumstances.

The purpose of the amendment is to seek reassurance from the Minister that the Food Standards Agency will have the staff and resources it needs to ensure that these cross-border arrangements, when in place, will be policed properly.

[Lord Hain (Lab)]

The noble Baroness is making a very compelling argument about the agricultural and livestock issues associated with the Irish border. I suggest to her that it is even more compelling if the Committee takes account of the fact that many of these farms actually straddle the border; in other words, livestock moves back and forth of its own volition all the time. It is absolutely vital that these phytosanitary issues are addressed but the Government seem to be in denial about them.

[Baroness McIntosh of Pickering]

I am grateful to the noble Lord for that point. He is much more familiar with Northern Ireland and these arrangements than I am, but I am very cognisant of this and I am sure that the powers that be are as well.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I too find the word “phytosanitary”—the Brussels term—a bit of a nuisance. “Biosecurity” is a term with which I am easier. One might wish to look at these issues with respect to the Irish border rather differently from the way in which one looks at the movement of persons and of goods. I will say nothing about the movement of goods and persons for now but will speak simply about the movement of beasts—and, indeed, carcasses. It seems to me that there is probably a remedy which consists in devolving standards of biosecurity—yes, to Stormont should it come back into operation—with the proviso that they may not go lower than EU standards and, of course, UK standards. This might give the desired level of protection for the movement of animals and of plants. Unfortunately, the movement of plants is in the hands of the wind and has caused great damage in Northern Ireland because of the fact that it cannot easily be controlled. There, I believe, would be the place to look.

Just on one other point, I say that the common travel area dates from the 1920s not from recent years.

[Baroness McIntosh of Pickering]

I am most grateful to the noble Baroness and I think she confirmed the need for physical checks. I have not considered plants or people in Amendment 212. There is a very real problem, which I have raised separately and privately, of the tripartite agreement between France, Britain and Ireland in relation to racing. That covers not just the racehorses but the stable lads and jockeys. But for today’s purposes I am restricting my remarks to animals and food products. The other reassurance I seek is that there will be sufficient vets. We might not have sufficient vets when these arrangements come into place next year, or other relevant inspectors at borders and UK ports by 11 pm on the magic date of 29 March 2019.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Wigley]

I am sure we shall come on to the position of Gibraltar in greater detail at another time. In many ways this parallels the issues that arise in the context of Northern Ireland. If a solution to Northern Ireland were enshrined which allowed the free movement of people and goods across the border, that might well solve the problem of Gibraltar as well. We need to bear in mind our responsibilities to Gibraltar and to get an amicable settlement which would be acceptable in the European context, and therefore acceptable to Spain as well as to the people of Gibraltar. I am grateful to the noble Lord, Lord Cormack, for raising this.

I want to use the principles underpinning the rights of citizens in the UK to say a brief word about citizenship in the broader context and about the rights afforded to us at present as citizens of the EU, as well as the status of these rights once we leave. These matters are highly germane to the amendments before us. Incidentally, there is an Opposition Day debate in the House of Commons this afternoon, initiated by my Plaid Cymru colleagues, on this precise topic.

By pursuing what may become a no-deal Brexit, the UK Government would, in effect, strip—at least potentially—our citizens of some of their rights. Our rights to travel, live and work across Europe will be curtailed. Our children’s rights—

[Baroness McIntosh of Pickering (Con)]

I am grateful to the noble Lord. Currently, a British lawyer, dentist or doctor can practise in any other European country. There is a reciprocal right for nationals of other EU countries to practise here. We are losing dentists and doctors because of the certification process which will be subject to negotiation on the basis of mutual recognition. Is this right, which could be curtailed, justiciable under his amendment?

[Lord Wigley]

Of course, this amendment provides a mechanism to create a redress for people who feel that they are losing these rights. It may not be the only mechanism available. There may be provisions under international law, which I shall mention before I close. It is not only our rights that are being curtailed but the rights of our children—the right to study in any of the other 27 countries across the EU may well be lost. It is questionable whether, in the context of these rights, we shall thereafter be able to call ourselves European in the full meaning of the word. I am a European. I am a Welsh European and no Government should be able to take away from me or from any citizen of these islands their right to their European identity, nor any of the practical rights they currently hold by virtue of that identity.

It is by virtue of their de facto European citizenship that the citizens of these islands currently have recourse to the European court. Stripping people of their citizenship against their will is illegal under international law. I have tabled another amendment which explores the retention of EU citizenship. I hope this will be debated at a later stage. Suffice it to say, at this stage we need these amendments to safeguard the position of people facing such a serious threat after Brexit. I am delighted to support the noble Lord, Lord Foulkes.

--- Later in debate ---

[Lord Keen of Elie]

With respect, no, my Lords, because we are not in a position to guarantee that which has been arrived at in terms of the joint report. For example, we cannot by ourselves guarantee the rights of UK citizens in Europe. To try to dissect the joint report and say, “We’ll take one piece out and leave another piece in”, is not a way forward in the context of an ongoing international-level negotiation. It is not the way in which this Government would proceed in that context.

[Baroness McIntosh of Pickering]

My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.

[Baroness Ludford]

My Lords—

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

81: Clause 7, page 5, line 46, leave out “, comes into force or only applies”

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to speak to Amendment 81, which for these purposes is joined with Amendments 95, 96, 100, 227C and 244. I see that the noble Lord, Lord Bassam, is not in his place. I would be interested to hear the content of the other amendments, but they seem to make very positive noises that there should be no increase in legislative burdens on individuals in businesses; that we should not exceed what is essential and not impose greater burdens; and that the Government should seek to make only technical changes and not to change policy materially.

I speak specifically to Amendment 81, which relates to deficiencies arising from withdrawal from the EU and considered in this group. The difficulty that I have with the wording as it stands in Clause 7(4) is partly because it contains a double negative and does not seem to be plain English, saying,

“retained EU law is not deficient merely because it does not contain any modification of EU law”—

and so it goes on. So partly the amendment is to express what is clearly meant, to seek greater clarity, but it also goes to the timing of the laws deemed to be deficient.

I think that it was my noble and learned friend Lord Mackay of Clashfern who said earlier that it was for Parliament to veto any statutory instrument put forward by government through the normal procedures of negative or affirmative resolution. Someone else in an earlier debate said that it should be the right of Parliament to be able to scrutinise amendments that fall under this clause—and, I would argue, particularly under Clause 7(4). So the question really to the Minister is to ask, if there is to be this scrutiny, at what stage this scrutiny would take place. My understanding is that the Minister is going to be able to act before Brexit to be able to prevent a deficiency from arising. My question is at what stage that would be and how Parliament will have the opportunity to scrutinise that. Also, if failure of retained EU law is a type of deficiency, and a failure means that the law does not operate effectively, we have already established that deficiency could cover a wider range of cases where it does not function appropriately or sensibly. Guidance as to who will actually decide what the deficiency is and when it will apply will be extremely helpful.

I mentioned at the outset that subsection (4) is not immediately clear. One turns to the Explanatory Notes and particularly paragraph 120, which says:

“Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient”.


I am not sure that this entirely clarifies the situation, nor does paragraph 116, relating to the earlier subsection (2). I want to probe the Minister to perhaps tease out what is the legislative deficiency, whether there is more than one stage at which it can apply, and who actually decides. If it is the Executive, at what stage can Parliament call them to account to scrutinise that? I hope that, in summing up on Amendment 81, the Minister can clarify, to create greater legal certainty, the legal basis for the functional restriction—where this is contained in a directive and therefore not retained or transposed into domestic law—to be described as a deficiency.

[Baroness Bowles of Berkhamsted]

My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.

--- Later in debate ---

[Lord Callanan]

No. As I have made clear throughout the Bill, our minds are not closed on many of these matters. I think I gave the noble Baroness an example. It is a difficult distinction to draw about what is making policy or what is a policy choice. As I said, the choice between two regulators can be said to be a policy choice, but it is certainly not our intention to use any of the power in the Bill to massively expand on different levels of policy. It is our intention to impose a snapshot on exit day and ensure that the law is compliant and tidy, as we have said.

[Baroness McIntosh of Pickering]

My Lords, I am most grateful to the Minister and to all who have contributed to this little group. While I am grateful to my noble friend for his reply, I am not sure that he addressed the question of timings, and I am slightly concerned about the scope for judicial reviews. I end with the comment that the wording I seek to delete refers to the earlier Amendment 18, on which we had a lengthier debate, and to which I will return on Report. However, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Warner (CB)]

My Lords, as a former pharmaceutical and life sciences Minister, I rise to support the modest amendment moved by the noble Lord, Lord Patel. I have done my time in the salt mines of trying to streamline the processes for undertaking clinical trials in this country. Despite what the noble Viscount, Lord Ridley, said, it was not just the 2004 directive that caused problems for clinical trials in this country; it was sometimes the sheer bureaucracy of securing agreement to undertaking them, which has contributed to the departure of clinical trials and sometimes investment by big pharma in this country. It is all very convenient at present in some quarters to lay the blame at the door of the EU, but there are historical facts that support a more balanced view of the 2004 clinical trials directive.

From my experience, I know how critical it is for securing a flourishing pharmaceutical and life sciences industry in the UK, and the investment and jobs that that brings. For a decade or so, we have struggled to maintain the level of clinical trials undertaken in this country, and the pharmaceutical industry’s investment in the UK has been dropping. A number of people have made that point time and again in this House in debates with the Government on this issue. The new EU clinical trials regulation will have an incredible impact on the system for conducting clinical trials across Europe with its new single data portal. That point has been made very clearly by the noble Lords, Lord Patel and Lord Kakkar. We have to be a part of this future development if we are to protect our position on clinical trials and life sciences inward investment. That is why it is so important to have an amendment of this kind in the Bill.

I do not think it is fair to say that the Prime Minister’s speech of a fortnight ago is sufficient guarantee that everything will be all right on the night. We have had a number of those speeches on a number of subjects, which tend to show that it will not necessarily be all right on the night. The show may go on but UK participation in the show may be sadly absent in some areas that are critical to this country, as this particular sector of industry is. That is why we have to look a little more carefully at what sort of guarantees we want and that the spirit and meaning of the noble Lord’s amendment is guaranteed in the future.

I do not think we can just rest on ministerial assurances. It has been a convention in this House—I have been in it for nearly 20 years—that we accept ministerial assurances. However, on Brexit, ministerial assurances, while well-intentioned, are not always good enough to ensure that British interests will be guaranteed after we have left the European Union. That is why we need more than simply ministerial assurances. I would like to hear the Minister’s explanations of what the Government’s policies are and what they will do. I for one want to see an amendment of this kind to the Bill before it leaves this House. This issue is too important for a major sector of our economy. It is one of life’s great ironies that we, who have been a moving force in improving clinical trials with proposals for such trials in the EU could, by one of the strange fates of history, be unable to benefit from those improvements if we are not very careful. I hope the Minister will give us an explanation, but it will need just a bit more than warm words to give us guarantees on this issue before the Bill leaves this House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am not an expert in clinical trials but there are remarkable similarities between the discussion on this Amendment 84, moved by the noble Lord, Lord Patel, and words expressed by the noble Lord, Lord Kakkar, at Second Reading on that group of directives and regulations that will have been adopted but not implemented at the time of Brexit. We had a full discussion, which I will not repeat at this time, but which was spoken to very eloquently by the noble Lords, Lord Wigley, Lord Judd, Lord Liddle, and, I think, the noble Baroness, Lady Young of Old Scone. The noble Lord, Lord Wigley, mentioned 23 directives identified by the House of Commons Library that fall potentially into this category. This is too important an area for us to risk being out of kilter, whether in clinical trials, the circular economy—as identified by the noble Baroness, Lady Young—or a number of environmental directives, to which I referred. This is too important an area—where Britain has been at the forefront of and party to all discussions at earlier stages—for us no longer to be aligned at the point of Brexit.

[Lord Ribeiro (Con)]

My Lords, I support the amendment because I think it is very important after all the points that have been made by previous speakers.

In my Second Reading speech, I referred to something slightly different: a loss of some £32 million to nuclear research, which would have gone to 25 university institutions, as a consequence of leaving Euratom and the Horizon 2020 project. The key benefits of the CTR are the improvement in collaboration, information sharing and decision-making between member states, as well as maintaining high safety standards for all participants in EU clinical trials. Withdrawing from these arrangements will have a negative effect on UK research and clinical trials.

The PM’s speech has been mentioned. It is worth reading because this is perhaps about holding her to account. She said:

“We will … explore … terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”.


There is an opportunity here to hold her to account because it sounds as if the decision that was made early on to withdraw from Euratom was rather hasty and the consequences of it are only now beginning to dawn. The amendment is essential to re-establishing the research collaboration that we need with the EU, which has benefited us greatly in the past.

--- Later in debate ---

[Baroness Goldie]

I am certainly interested in the point that the noble Baroness raises. I suspect that we have probably exhausted all possible aspects of this discussion, but I undertake to look at that point. As I said, I do not have technical information available, but I will certainly have that point clarified.

[Baroness McIntosh of Pickering]

We have established in this debate and in the earlier debates on Amendments 18 and 81 that precisely what the Government may wish to do, and what this amendment and Amendment 18 try to do, to which my noble and learned friend Lord Mackay has given a very elegant solution, are not permitted by the Bill. There is no legal basis. Will my noble friend come forward with a form of words to cover the 23 eventualities in the form of directives identified by the Library and other situations in the directive that apply to regulations, such as this, to give a legal basis to permit the Government to have the discretion where they choose to do so to implement the content of those directives and regulations at that time?

[Lord Judge (CB)]

If Clause 3(3) will not do the trick, will the Minister please take advice about whether we need to add EU regulation 536/2014 to the group of matters raised in Clause 2(2)?

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

It is to achieve clarity for the future that these amendments are crucial. I fail to understand why the framework we already have—of legislative consent—cannot simply be carried over and applied across the piece.

[Baroness McIntosh of Pickering (Con)]

My Lords, I support Amendment 130, to which I have added my name, and will satisfy the Committee’s curiosity as to why I have done so. I am a non-practising member of the Faculty of Advocates and have the lesser distinction than the noble and learned Lord of serving as a Bar apprentice with the firm of Simpson & Marwick as part of my training. I also made my maiden speech in the other place on the Scotland Bill as it was going through its various stages. I simply want to support everything that the noble and learned Lord, Lord Hope, has said in speaking to this amendment. This is of course a cause of great concern to the Scottish Parliament, which I understand debated this very issue with a number of practitioners, including a leading practitioner from the Law Society of Scotland, and a number of academics last Wednesday in its Finance and Constitution Committee.

I listened very carefully to what my noble friend the Minister said in seeking to satisfy the Committee this evening that we should desist from supporting this little group of amendments because the Government are coming forward with an amendment at Report. If that is the case, I urge my noble friend the Minister to share with the Committee this evening the full contents of that amendment. The noble and learned Lord, Lord Hope, has accurately identified the issues at stake, and anything that might jeopardise the fine balance achieved under the devolution agreement and the Scotland Act—I wish to speak only to Amendment 130 —would be regrettable.

[Lord Wigley]

My understanding is that the government amendment to Clause 11, which we will come to in due course and which was promised for Report stage, has in fact been tabled today and is public property. It is a nine-page amendment—I have seen a copy of it. Therefore, I think the Committee should have that information available to it.

[Baroness McIntosh of Pickering]

I am most grateful to the noble Lord. Perhaps it is my fault but I have not been able to access a copy of the amendment; as we conclude this debate, it would be very helpful to have the contents of it. For now, I support the amendment standing in the name of the noble and learned Lord, Lord Hope, and others. I hope that the Committee will persist with this little group of amendments.

[Baroness Randerson (LD)]

My Lords, this Bill gives UK Ministers powers to make statutory instruments that would include the power to amend the founding Acts of devolution without requiring the consent of the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament. These powers could be used in relation to policy areas, as noble Lords have said, that are the responsibility already of Welsh Ministers, Northern Ireland Ministers and Scottish Ministers. The assumption is that the UK Parliament would legislate to alter their powers. Obviously, there may be times when this is pragmatically acceptable, but what is not acceptable or reasonable is that, under the provision as drafted, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not required to give their consent.

I wish to speak simply and briefly, referring specifically to my experience as a Wales Office Minister, as a Member of the Welsh Assembly for 12 years, as a Minister in Wales and as a Minister for Northern Ireland in this House. It is safe to say that I have seen it from both ends of the telescope. It has been unthinkable from the start of devolution that UK Ministers would progress in these circumstances without the consent of the devolved Assemblies and Parliament. It has been an early-established principle of devolution that that did not happen. There has on occasion been sabre-rattling but it has not happened because that principle was established.

I am pleased to see the amendments of my noble friend Lady Suttie in relation to Northern Ireland because we are in danger of behaving as if the phase of devolution in Northern Ireland has passed. It is important that the Bill caters for the resumption of devolution in Northern Ireland.

I am pleased to hear from the Minister that the Government are planning changes. However, I know that he has too much respect for devolution to be happy with the situation in which he finds himself today. It is a muddle, a mess, and almost provocative. I certainly would not for one second lay this at the Minister’s door, but it is almost provocative to leave it to the last minute so that, effectively, the opportunity for government amendments in Committee has been lost. I am sad that we are in this situation because it is becoming increasingly negative, when we could go forward in a positive manner. I have tremendous respect for the Minister, his experience and his belief in devolution; I hope his replies will reassure us.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My Lords, I want to follow on from what the noble Lord said. I am not going to talk about Wales, but one of the arguments often put forward by Scottish nationalists is that we must not leave the European Union because we are so dependent on the single market that is the European Union. I think we should focus tonight on the single market that is the United Kingdom. I listened to the noble Lord and I take his point about the Barnett formula. He is absolutely right that it is extremely generous to Scotland and very unfair to Wales. In my opinion, resources should be distributed according to need and not on the basis of a formula that has been amended according to population. But if it is to be the case that the Welsh Assembly and the Scottish Parliament are to have a veto on these matters, what is the prospect of Wales being able to get a fairer share without that being vetoed by Scotland? It is a matter for the United Kingdom Government to decide for the United Kingdom as a whole, and for the single market that is the United Kingdom as a whole.

I have to say that I think the amendments from the noble and learned Lord, Lord Hope, are naive. We are faced with an Administration in Scotland who are absolutely determined to break up the United Kingdom —that is their purpose. We can have all the talks we want with the political Administration, until the crack of doom, but hey ho, we will find that they are saying something completely different from the civil servants. The civil servants will take exactly the kind of sensible, pragmatic, legalistic approach that the noble and learned Lord, Lord Hope, has. But the politicians have another agenda—an agenda which has been set back by the courage of the Prime Minister—which is to destroy the United Kingdom. As a unionist, I have an agenda to make sure that every part of the United Kingdom is treated fairly and that there is no veto for any part of it. We have four parliaments in the United Kingdom, but we have only one United Kingdom Parliament, and that is this.

When Lord Sewel produced his convention, it was greeted with great enthusiasm by the Scottish Parliament. If the noble and learned Lord looks at the record, he will find that this Parliament has legislated for the Scottish Parliament to a very considerable degree—mainly because, until recently, it sat for only one and a half days a week on legislation and so did not have enough time. Now we are in the absurd position where, when a perfectly sensible accommodation has been offered to them by the United Kingdom Parliament, the posturing of Ministers in the Scottish Government—which is about trying to create division and turn everything into a constitutional crisis—is against the interests of having a single market, which they say is essential to the Scottish economy in the case of Europe. Their position is that they do not want any of these powers to come to Wales, Scotland or the United Kingdom; they wish them to remain in Brussels. It is an utterly hypocritical stance. They would rather these matters were decided in Brussels, where even the Scottish Nationals elected as Members of Parliament down the Corridor would have no say. It is political gamesmanship and we would be foolish to accede to it.

We should proceed with the Bill, unamended, and ensure that the United Kingdom Government can work with the Parliaments of the various parts of the United Kingdom to preserve that single market—which, incidentally, is worth four times as much to the people of Scotland in income, jobs and everything else than the single market they purport to defend, which is that of the European Union.

This is a great deal of heat and waffle perpetrated by people who do not like the result of the referendum. They are terribly keen on referenda but find it difficult to accept the results. They argue that we have to have another referendum on independence and we have to have another referendum on Europe. I say to the noble Lord, who is normally very courteous, that to describe in such pejorative terms the 17.4 million people in the United Kingdom who voted to leave—400,000 of whom were Scottish nationalists—is following the course of his leader, who used disgraceful language to insult the 17.4 million people only this week.

I hope that the House will reject these amendments so we can get on with the task of making a success of the United Kingdom, which at last has the powers and authority to ensure that all parts of our country benefit from being able to determine our own affairs.

[Baroness McIntosh of Pickering]

My noble friend has given an interesting speech but it does not appear to bear any relation to the amendments before the House this evening. The amendments go to the heart of obtaining the consent of the Scottish people as expressed through the Scottish Parliament. He is a democrat, I am a democrat. Does he not agree that the amendments go to the heart of devolution and that that is what we are trying to maintain, particularly in the amendments that the noble and learned Lord, Lord Hope, introduced this evening?

[Lord Forsyth of Drumlean]

If the noble Baroness would like me to repeat my speech when she is listening, I will happily do so. However, I do not think the House would like me to. Perhaps she will read what I have said. She says that this goes to the heart of democracy: well, these are matters for the United Kingdom Parliament. There is no veto for any of the devolved Administrations. We have debated this endlessly. This amendment would give a veto; it would mean that the tail was wagging the dog; it would mean that the Scottish Parliament could prevent what was in the interests of the rest of the United Kingdom. That is not democracy.

The noble Baroness needs to address the words on the Order Paper—the words of the amendment—and listen to the arguments, instead of pursuing her ideological determination to reverse the decision of the British people.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I share the admiration of the noble Lord, Lord Deben, for the way in which the Minister summed up the previous debate. He was a rather brilliant performer of the work of the fire extinguisher. Foam was spread over all of us and calm ensued. It was a brilliant performance.

I am sorry that, this time, the Minister has to deal with pyrotechnics from a pyromaniac, in his colleague, the noble Lord, Lord Forsyth of Drumlean. It is rather a pity that the attacks of the noble Lord, Lord Forsyth, on the party now governing in Scotland are responded to only by a Welshman, the noble Lord, Lord Wigley. He responds very well, but, as a Scotsman who does not support the Scottish National Party, it seems to me rather an easy trick to score pyrotechnical victories against an opponent who is not in the room.

Trust is what this is all about. I can see nothing wrong with this amendment; I cannot see any reason why Ministers should not buy it now. If they cannot, a discussion needs to start. It does not help to insult the party in office in Edinburgh by implying motives. It may well have such motives, but they were not those it explained when it published a perfectly reasonable economic analysis at the end of last year which established clearly the damage that will accrue to Scotland from leaving the single market. The scale of the damage was almost exactly the same as what we have now seen in the Treasury analysis for the United Kingdom as a whole—eight, five, two: the same numbers pop up in both studies. The Scots are not being unreasonable or necessarily malicious when they say that they would prefer to remain in the single market. Of course, the market of the United Kingdom is more important to Scotland than the market of the rest of Europe, but that is not the point; they do not want to have to choose. That seems a perfectly reasonable position to adopt. It does not help establish trust to insult them.

[Baroness McIntosh of Pickering]

My Lords, I had no intention to speak, but having added my name to Amendment 124, I want entirely to endorse what was said by the noble and learned Lord, Lord Hope of Craighead, in introducing it. I want also to refute any allegation that I am an ideologue; I have always considered myself a pragmatist. It is unfair to impute a position to a party that is not represented in this House and cannot answer back to any of the allegations made previously.

I believe that this amendment goes to the heart of the consent and trust that has been debated here at great length. I declare a vested interest in that I am doing some work and I visited the offices that my noble friend Lord Forsyth opened: the Water Industry Commission for Scotland is doing some great work across the European Union, as indeed is Scottish Water, providing technical assistance. Obviously, one hopes that that work will continue after Brexit day. I do not see this amendment, spoken to by the noble and learned Lord, Lord Hope, or the amendment of the noble Baroness, Lady Suttie, as the tail wagging the dog: this is simply an effort to bring the Scottish, the Welsh and the Northern Irish people with the Government of the day.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Fox (LD)]

My Lords, the noble Lord, Lord Berkeley, is unable to attend, so I will move Amendment 227BB in his stead. This amendment represents something of a change of scene from what we have been discussing this evening, relating as it does to the future of the recreational boating sector following the UK’s departure from the EU. But this is an important sector for us. It is not just about the estimated 3.5 million people who take part in boating activity in the UK every year. It is also a thriving business sector, with the recreational boating and marine sectors being a success story in the UK. In 2015-16, the marine industry contributed about £1.3 billion to the UK economy, which adds up to around 33,000 full-time employees and more than 4,500 businesses. We should realise also that this is often in areas where alternative employment is not always available, so the sector is very important to the communities in which it exists.

The industry currently enjoys the benefits of free movement of people and the absence of customs borders between the UK and other EU countries. There are then, unsurprisingly, a number of issues arising from Brexit, causing significant uncertainty to both recreational boaters and the marine industry. I know that the Royal Yachting Association, the RYA, and British Marine have been in contact with DExEU and other government departments in relation to these issues. Briefly, and for the benefit of the House, I will set out the key issues.

The first is the ability of recreational craft to retain what is called Union goods status, which allows continuous free navigation around the waters of the EU. The second is the nature of the maritime border control regime between the UK and the EU after Brexit. The third is the ability of UK citizens who have RYA qualifications to travel freely to and from the EU for work that is often seasonal.

The Union goods issue requires a little explanation, so I will go into that detail, if noble Lords will excuse me. Vessels and all the equipment on them, such as computers and electronic gear, that enter the EU from non-EU countries are required to pay customs duties and VAT unless the owner can show that they are entitled to exemption. This is not the case if the equipment has Union goods status, which means that it is treated as duty paid. Pre Brexit, vessels moving between the UK and the rest of the EU are treated as Union goods, provided that VAT and customs duties were paid when the vessel first entered the EU. After Brexit, vessels moving between the EU and the UK, and vice versa, should qualify for a temporary relief from duty—but only if the vessel stays for fewer than 18 months in the country in question. So UK citizens who keep their boats in, say, Greece, would find that they would have to pay all the duties or move completely outside the EU before they could re-enter for another 18 months. The result of this is clearly not good for the Britons who have to keep moving their boats around to avoid paying up to 20% of the boat’s value in duties. It is also not good for countries such as Greece that are hosting this tourist trade. Additionally, when boats are moving in long-term passage within EU waters, there might also be customs duty when moving from one EU country to another EU country. It is not clear how that will unfold.

Noble Lords will appreciate that these issues may not necessarily be front of mind and addressed in the broader negotiations on customs and border controls. Accordingly, this amendment asks the Government to produce a report to Parliament in advance of 29 March 2019. This report would set out the rights and freedoms that recreational boaters currently enjoy and how they would be maintained after the UK’s withdrawal from the EU. It would provide a clear opportunity for the Government to offer much-needed certainty to the thousands of recreational boaters—and of course to the marine businesses as well.

Without that reassurance, there is potential for significant damage. Very briefly, that significant damage comes in terms of costs and the administrative burden faced by boaters and business, with associated significant damage to the resale market for boats. It also causes new maritime border controls, which could be disproportionate and compromise navigational safety—and, as I said before, RYA instructors could find it difficult to do seasonal work elsewhere.

The RYA and British Marine have been in touch, and I know that they are ready to negotiate. None the less, the importance of this sector to communities all around the country should not be overlooked when there is so much else going on. We have talked about the need to negotiate everything in such a short time, and this is just one more thing that the Government need to place on their list. Before the formal departure from the EU it is vital that the Government commit publicly to setting out how they will defend the interests of UK boaters and marine businesses. I will be interested to hear the Minister’s response to this amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, my name is not associated with this amendment but I am a regular attender of the London Boat Show at the invitation of British Marine. I have a specific question for the Minister to answer when he sums up. The record figures for the export of yachts and recreational craft this year were spectacular. But a source of concern to British Marine once Britain has left the European Union is the extent to which Britain will remain aligned with the legislation. I mention that because we transposed the recreational craft directive onto the statute book. The British Marine Federation was instrumental in making sure that that directive did not cause too much damage to our industry in terms of the standards with which it had to comply. Will the Minister assure the House that we will continue to align ourselves with future legislation to make sure that our main export market for recreational craft will still be there and that we will have some means of ensuring that the concerns of the British marine industry can be made known when future statutory instruments are being negotiated?

[Lord Tunnicliffe (Lab)]

My Lords, I declare my interest as a recreational boater and I thank the noble Lord, Lord Fox, for proposing the amendment of my noble friend Lord Berkeley. Everything that he said seemed entirely reasonable and I am sure that the whole House awaits the Minister’s concession on this point.

--- Later in debate ---

[Lord Marlesford (Con)]

My Lords, I raise this issue because the question of the Irish border has increasingly become a major obstacle to the whole issue of withdrawal. Despite a debate last week of some two hours, very little progress has been made.

For me, this whole debate has been immensely enlightening and indeed entertaining, if sometimes a little long. I have been rather disappointed in the Government’s rejection again and again of noble Lords’ suggestions. It reminded me of AP Herbert, who, after he had chaired a committee and was asked to make recommendations, made them, and they were rejected by the Government. He wrote a short letter to the Times saying that the Government,

“like an elderly hypochondriac, is always asking for a second opinion but never accepts it”.

At any rate, I will quickly set out the assumptions on which I think we agreed last week. The common travel area must be retained. There can be no physical border for the movement of people by land between Northern Ireland and the Republic of Ireland. There should be symmetry for persons travelling from Northern Ireland to the Republic and those travelling from the Republic to the north. The national security of the UK will be protected and enhanced against the growing threat from terrorism regardless of how the terrorists seek to enter the United Kingdom.

It was made very clear in the debate last week that to impede the free movement of people over the land border would intrude on the social life and indeed the community relations that have, thankfully, been building up since the Good Friday agreement. I have what I hope is a simple and practical suggestion by which these objectives could be achieved. I do not of course claim to be able to help on the parallel issue of trade and the movement of goods over the border.

Let me first describe briefly how I came to the conclusion that I shall put to your Lordships. Some months ago, my wife and I flew from London Heathrow to Dublin to visit friends. My wife is Italian and has an Italian passport. I have a UK passport. On arrival in Dublin Airport my passport was looked at and waved through. My wife’s passport was scanned and she was waved through. The whole process took seconds rather than minutes.

When we returned to Heathrow some days later, by the same airline—British Airways—all the passengers on the aircraft after disembarking were directed by a special route straight to baggage collection. There was no immigration procedure whatever. I should mention that there were a multitude of nationalities on board the aircraft, although of course I have no idea what passports they held—nor did anyone else have any idea. However, it appeared that there was absolutely no sort of border control. My proposal is therefore that this asymmetry be removed by making the border of the island of Britain the border for those travelling to or from the island of Ireland. The immigration procedures would be identical for both directions of travel.

To those who say that this removes or infringes the rights of passport-free movement I would reply that to be required to show that you hold a passport that entitles you to passport-free movement is no more an infringement of your rights than it would be if any of us claimed that to carry—and wear, as we are nowadays required to—our parliamentary passes is an infringement of our rights to be in the Palace of Westminster. Surely this simple measure of common sense, made necessary by the sad state of the world we now live in, must trump the memories and prejudices that were so justifiably generated by the many sad periods of the history of the relationship between the British and the Irish. I feel that we need some action and I hope that I am not going to hear from the Minister that it is all impossible, unless he has a better idea to suggest. I beg to move.

[Baroness McIntosh of Pickering]

My Lords, if I have understood correctly, my noble friend Lord Marlesford is calling for us to remain within the customs union, because the history is that passport controls were dispensed with when we entered the single European market in 1992. Is that understanding of what the amendment proposes correct?

[Lord Marlesford]

I am concerned purely with immigration and the movement of people across borders. I want to make the border of the island of Britain the border between Britain and the island of Ireland.

--- Later in debate ---

[Lord Beith]

My Lords, the amendments in this group all seek to address a long-standing problem with statutory instruments: that for the most part, they are incapable of amendment. That is not absolutely always so because, many years ago in the other place, I moved an amendment to a statutory instrument arising from the Census Act but few bits of primary legislation allow one to do that. This is not an occasion on which those of us who have long been concerned about that are trying to use this legislation to improve a long-standing defect. It is peculiarly relevant to what we are considering because major matters will be dealt with by way of statutory instrument—a theme throughout the debates in recent days—and they may well include things which ought to be susceptible to amendment, such as details about the creation of public bodies, their powers and remit. To take one example, and there will be others, there are the ways in which new bodies can be held to account when they are created to replace European bodies.

We would be left in a situation where it would be said in the House of Commons, “Take it or leave it—this is the only statutory instrument you’re going to get and we clearly need to address this issue, therefore you must accept it in this form”. I am afraid that in this House, it would be, “Take it or face unspecified constitutional consequences”. Either we agreed to the statutory instrument in its present form or did something we should really not be doing at all, according to members of the Executive. That is an absurd position to put this House in, when what would be at issue would be some fundamental defect in the way the statutory instrument sought to transpose existing European processes into the British domestic statute book. The Government have to address the plea that all these amendments raise: to have some way to do something which falls short of wanting to reject a statutory instrument but insists that if it is to go through, it must be amended in some way.

[Baroness McIntosh of Pickering]

My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.

My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:

“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.


In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.

While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.

Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.

I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.

[Lord Wigley]

My Lords, I am delighted to support Amendment 247 in the name of the noble Baroness, Lady McIntosh, to which my name is attached. This is a pragmatic amendment, intended to make the provisions of the Bill more workable. As such, it should be acceptable to noble Lords on both sides of the Brexit argument, and perhaps even to the Government. Given that so much legislation is moving over to being enacted by statutory instrument, the case for looking into the ways of making instruments amendable now becomes an urgent challenge and will become increasingly so as the Bill goes forward.

As the noble Baroness, Lady McIntosh, spelled out the detail of the amendment, including very helpfully the precedents, perhaps I could just give an example of where the power to amend SIs would be useful. Take, for example, Clause 7(6)(b), which enables Ministers to establish new public bodies to undertake functions now carried out by the EU. The provision of such a power by order would require the relevant SI to specify precise details for the workings of the new body, such as its objectives, duties, powers, members, resources and accountability. Parliament might be happy for such a new body to be established but might want to change some of those details, which it could not do under our current procedures and which could only be triggered by rejecting the SI in its entirety, thereby subjecting the process to potentially long delays—exactly what the Government want to try to avoid. Having a process to allow amendment would be swifter and provide more acceptable legislation.

These powers would be used in exceptional circumstances, and it is not proposed that they should cover other Brexit legislation—although a strong argument could be made along those lines. But given the ominously growing use of unamendable orders to force legislative change through Parliament, there is a case for undertaking a far more rigorous review of the statutory instrument system. Since this facility could save time, which may be of the essence in regard to Brexit legislation, I would have thought that Amendment 247 should appeal to both sides, to Brexiters and remainers alike. I commend it to the Committee.

--- Later in debate ---

[Baroness Goldie]

That would of course entirely depend on the circumstances of the instrument, the extent of the change being effected by the instrument and what was an appropriate response to the concerns being raised. I am certain that the Government would respond in a sensible manner if that situation were to arise.

I repeat that it is for primary legislation to set a policy direction and establish the framework in which government may operate. Secondary legislation has a different place in our legal framework. The Hansard Society, which many in the House will accept as an expert source in this area, has said that the power to amend SIs would be,

“essentially undermining the principle of delegation”.

If wider review of the legislative process is proposed—as a number of noble Lords would like—this Bill is not the place to do it. I note the recommendation of the Constitution Committee, in its report The Process of Constitutional Change, that substantial constitutional change should be clear when a Bill is introduced. This Bill is substantial in its repeal of the ECA, but that was clear even before the Bill was introduced and I do not think a change of this type would be appropriate for a Bill which has already completed its passage through the other place.

In the other place, my right honourable friend Dominic Grieve proposed a triage mechanism and both he and the Government accepted the sifting mechanism proposed by its Procedure Committee. This will increase the transparency surrounding secondary legislation, but will not change its nature. Secondary legislation can be scrutinised and debated and, indeed, can be of great importance. However, its purpose is to fill in the spaces where Parliament has set a course under primary legislation and empowered the Government to provide for the details in subordinate instruments. As has already been said, if Parliament is not content with an SI, it can be rejected and the Government can consider and return with another. To open statutory instruments to amendment would essentially be to create a new kind of legislation, without the scrutiny afforded to primary legislation but, at the same time, conferring on the new kind one of the essential qualities of primary legislation.

[Baroness McIntosh of Pickering]

If the Government are not minded to accept an amendment to statutory instruments under these circumstances, where there is a substantive policy change, would they be minded to bring back that proposal as an Act of Parliament, so that all the proper scrutiny procedures could be undertaken?

[Baroness Goldie]

I respond to my noble friend as I did to the noble Lord, Lord Beith. That hypothetical situation would depend entirely upon the practicalities of the situation confronting the Government if and when such a situation arose.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Griffiths of Burry Port]

I thank the noble Lord. I have long since learned that perfection is not my strongest suit. I remember once asking everybody in a congregation of mine if anybody was perfect and a man at the back put his hand up. I did not believe him, and he said, “No, it’s not me; I am speaking proxy for my wife’s first husband”.

[Baroness McIntosh of Pickering (Con)]

Perhaps I could help the noble Lord. In the circumstances my noble friend Lord Forsyth expresses, consent is given when the devolved legislature applies the directive and implements it there.

[Lord Griffiths of Burry Port]

I am very grateful to the noble Baroness. Because I am where I am, I am equally certain that the points being raised will be addressed later in this debate.

What the Government have brought forward at this late stage is too weak. If the purpose is, as the Government claim, simply to give breathing space to negotiate new UK frameworks, which is fair enough, where it is agreed by the devolved Administrations that these are necessary—that is an important part of it—then we should be sure that the devolved legislatures agree that these are indeed the policy areas where restrictions are needed. It does not seem to be very difficult to come to these conclusions. Indeed, there has been no attempt to engage with the proposals put forward by the Welsh Government in their policy paper Brexit and Devolution some nine months ago, arguing for a system which would address precisely this issue. Perhaps the Minister could explain this egregious omission.

Over the last week, I have come across an intriguing poem by Waldo Williams, one of the dominant Welsh writers of the last century. He asks a series of questions and gives succinct, almost gnomic answers to them. As I conclude my remarks, I cannot forbear from quoting one couplet in Welsh, in order to forestall an intervention by the noble Lord, Lord Forsyth—though he might surprise me yet again. I will quote it with a translation by the noble and right reverend Lord, Lord Williams of Oystermouth—I do not want to frighten the Hansard horses. Just listen:

“Beth yw trefnu teyrnas? Crefft

sydd eto’n cropian”.

That is:

“What is it to govern kingdoms? A skill

still crawling on all fours”.

We must urge the Government to stand up, to withdraw their amendments and to go back to the discussions with the devolved Administrations before returning with an approach which gives an appropriate role to the devolved legislatures to agree the areas—indeed, perhaps to go further and to put a list of frameworks into a schedule to the Bill—in which new restrictions on their legislative competence will operate. This may well turn out to be a test of whether the Government have the competence to lead us out of the mess they have so tidily put us in. I wish to move the amendments.

--- Later in debate ---

[Lord Hain]

I welcome what the noble and learned Lord has said. If it really is not possible to work up such a schedule before Report—for the reasons that he has explained, I do not see why it should be the case—might not the Government find another legislative opportunity to do so? We know that in the autumn we are likely to have to consider a withdrawal agreement implementation Bill. That might provide an opportunity, although it would be better to do it in this Bill.

The second objection that the Government might make is the need to account for unforeseen circumstances. Since Brexit appears to be a process where every stone turned over reveals yet another problem lurking beneath it, there is some validity to this argument. But if, exceptionally, a new area where a framework is required is identified even after the passage of this Bill with the proposed schedule, there is an easy solution that is wholly consistent with the approach to devolution adopted to date—namely, a power to amend the schedule by Order in Council with the express agreement of Parliament and those devolved legislatures affected. That could be included in the Bill as well.

In reality, if the Government resist this proposal, we would be right to suspect that they have an ulterior motive in wishing to press ahead with such a wide regulation-making power as that encapsulated in the current amendment, although I accept that it is about to be withdrawn. I commend to the Government the idea of putting in the Bill a list of areas agreed with the devolved Administrations—I stress, agreed—where the constraint on devolved competence will apply and ask them to consider bringing forward an amendment that does that at Report stage.

[Baroness McIntosh of Pickering]

My Lords, I applaud the spirit in which the Government have brought forward the amendments before the Committee this evening and the eloquence with which they were brought by my noble and learned friend Lord Keen. However, on balance I think that Amendment 318A, brought by my noble and learned friend Lord Mackay, has much to commend it.

There are a number of points I would like to raise in the hope that my noble and learned friend Lord Keen might reflect upon them before Report. As my noble and learned friend Lord Mackay of Clashfern explained, the regulation-making power in these amendments would appear to be intended to be used only where the United Kingdom Government consider that it would be necessary for the purpose of protecting the UK common market. My question therefore is: would it not be clearer if that was expressly stated in the Bill? The explanatory statement could also explain why the regulations are required for this purpose. Also, do the Government envisage the power in new Section 30A in the government amendment being used only once, or do they intend it to be used more than once? It would be helpful for the Committee to know.

Although it is stated that the regulation-making power is intended to be temporary and that Ministers are required to have regard to that fact, there is nothing presently in the Bill that expressly provides for the regulation-making power to be temporary. Would it not therefore be helpful if such a provision made that clear? I believe that that is covered in my noble and learned friend Lord Mackay’s Amendment 218A.

Does it not also make sense that the Bill be amended so that the regulations and restrictions set out therein take effect at the same time that the new Section 30A comes into force? While it is expressly stated that the regulations are subject to the affirmative consent of both Houses of Parliament, there is nothing in the amendments that expressly requires the consent, as expressed by so many noble Lords this evening, of the Scottish Parliament. This contrasts with the accepted way of making amendments to the legislative competence of the Scottish Parliament through an Order in Council under Section 30 of the Scotland Act 1998. I respectfully ask my noble and learned friend Lord Keen that the Bill be amended to require Ministers to explain the need for regulations under new Section 30A.

On the question of consent, I was trying to help the noble Lord, Lord Griffiths, earlier by stating, as the noble Lord, Lord Hain, set out, that Ministers from devolved Assemblies currently sit next to the Ministers at meetings of the Council of Ministers and advisers. I also suggest that consent is currently expressly given by the devolved Assemblies and by their Ministers when the EU directives are agreed and then implemented by the devolved Assemblies. The point I was trying to make is that it is consent at both levels that is being removed.

[Lord Hain]

Sometimes devolved Ministers are there on their own.

[Baroness McIntosh of Pickering]

I accept that and I stand corrected.

[Lord McConnell of Glenscorrodale]

I absolutely endorse the description by the noble Baroness of the way consent works in that situation: whether or not devolved Ministers lead the delegation, sit on the delegation or are consulted in advance of the delegation to the Council of Ministers, it is the case that the responsibility for implementing the directives agreed transfers directly to them, not through the UK Government, and they then implement those directives. The noble Baroness is right when she says that that means that the consent is given, but it also reinforces the argument that that responsibility lies there and not through the UK Government any more—that is the result of the devolution settlement.

[Baroness McIntosh of Pickering]

That is the point I am trying to make. It may be helpful if I conclude by asking the Minister a question: he talked about all retained legislation being primary legislation—if the Committee were to agree that, would it not resolve many of the difficulties we have been discussing?

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, although we have left Clause 11, this amendment is closely related to the topics we discussed in the two previous groups. It seeks, first, to require a Minister of the Crown to lay before each House of Parliament proposals for replacing the European frameworks with UK frameworks, and it lists the particular items which are thought to be the subject matter of the frameworks that are needed. More importantly, proposed subsection (3) in the amendment seeks to provide that:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


So the issue of consent, perhaps more narrowly focused than in the previous discussion, is raised by this amendment as well.

The amendment was drafted some considerable time ago, when what was on offer in Clause 11 referred to the creation of these measures by Order in Council and made no mention of either consent or consultation. What we had before us, until it was withdrawn, was an amendment which reformed the machinery that Clause 11 is to provide by referring to the need to lay a draft of a statutory instrument containing the regulations under the section after consultation with the Scottish and Welsh Ministers. That is certainly a step forward, but what is sought by the amendment is one step further, which is the need for consultation.

In the discussion on Amendment 305, moved by the noble Lord, Lord Tyler, the noble and learned Lord, Lord Mackay of Clashfern, made the point that the safest way to deal with UK-wide frameworks is by primary legislation. I find it quite hard to understand how a UK-wide framework can be created by using the Section 30 power in the Scotland Act or the Section 109 power in the Government of Wales Act. Those are powers that are designed for dealing with the devolved Administrations separately, whereas the UK-wide framework of course involves the entirety of the United Kingdom, and I entirely agree with the noble and learned Lord that primary legislation would seem to be the proper way to go about it. Of course, if we are presented with primary legislation, the Sewel convention will apply and my point about consent will be satisfied simply by the machinery that has been used to create these frameworks.

We are of course dealing with something that is work in progress and we do not know quite what further discussions are going on in darkened rooms up and down the country where these matters are being debated. However, if by any chance the decision is that that has to be done by statutory instrument—I take it that this is not by Section 30 powers or Section 109 powers but by a UK statutory instrument—then the issue of consent is again raised, because the Sewel convention does not apply. I would like an assurance from the Minister that the principle behind Sewel will apply whichever mechanism is created. Of course, as I said a moment ago, the primary legislation will bring Sewel with it, but it would seem very odd if, by resorting to delegated legislation, the Government can bypass the Sewel convention. I do not believe that that is really what the Government want to do. I hope they will be prepared to say that they will be looking for consent as the mechanism which would precede the framing of any delegated legislation if it is decided to go down that road. But I stress that I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that the proper way to create a UK-wide framework, which is what my amendment is talking about, is by primary legislation, in which case the issue of consent does not arise. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am a cosignatory to Amendment 314 and I associate myself with the eloquent comments made by the noble and learned Lord, Lord Hope, in moving it, and, in turn, the comments made by the noble and learned Lord, Lord Mackay. In the debate at the conclusion of business last Wednesday, a number of us put this specific point to the Minister, the noble and learned Lord, Lord Keen, which could have ended the concern that certainly I still have that we should proceed, for the reasons given, by primary legislation and that it would be inappropriate to proceed by delegated legislation.

I would also like to raise the timing of the framework agreements. In summing up the debate on Wednesday, the noble and learned Lord, Lord Keen, said:

“It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market”.—[Official Report, 21/3/18; col. 403.]


It has been very firmly expressed by the Law Society of Scotland and others that there should be a timeframe for how long this arrangement will last. I pray in aid farm policy, which I understand is one of the 24 areas that have yet to be agreed, and point out that 85% of Scottish land currently has “less favoured area” status and attracts specific European grants accordingly. I also understand that Wales receives 10% of the farm funds. There is a concern that once we come back to having only a UK single market, both Scotland and Wales will receive less in farm support. My understanding is that Scotland would like to see a framework created and the powers devolved immediately, whereas the Government wish to take control to create the framework and then devolve it subsequently. So there are very real issues in specific policy areas over the timing and content of these framework agreements.

That brings me to this question of consent that keeps coming up. The noble and learned Lord, Lord Keen, said:

“Can we just remove that dichotomy of consultation or consent?”.—[Official Report, 21/3/18; col. 404.]


The problem we face is that the devolved Administrations clearly feel that currently they have consent at three levels. One is through the Sewel convention. The second is that when EU policy is agreed at the level of the Council of Ministers normally it is the Farming Minister who attends, accompanied by the Ministers of the devolved Administrations. The third level is when the devolved Administrations, in their own devolved legislation, implement the directives in the form they think most suitable.

We are very grateful to the noble and learned Lord, Lord Mackay, for setting this out so clearly. It appears so straightforward that our starting point is that in future the UK Parliament legislates for all matters relating to the single market of the United Kingdom. As the noble and learned Lord, Lord Mackay, said on Wednesday, it would be best for this to be implemented by agreement wherever possible. We seem to be edging towards that. In response to the earlier debate, the noble Baroness responded that there is not yet agreement but we are getting close to one.

When we take our oath and are introduced here, we swear allegiance and we are told that we have a voice. My concern regarding this amendment and Amendment 318, which was debated earlier, is that the voice of the devolved legislatures will simply not be heard in that interim between the framework agreements being agreed and subsequently devolved. That is why I support this little amendment and would like to hear more about why we could not proceed along the lines that the noble and learned Lord, Lord Hope, has set out in Amendment 314.

--- Later in debate ---

I hope that I have given noble Lords some sense that, as we go forward with our approach to common frameworks, it is our endeavour to do so not just on the basis of a dismissive, quick flash of legislation as we move it towards the other place. That is not our intention at all; again in reference to the third subsection of the new clause proposed by the noble and learned Lord, Lord Hope, this will be fully consulted on, as per the established procedures, which we will take forward. I suspect that I should make reference to the useful intervention of the noble and learned Lord, Lord Mackay. I know that last week the noble and learned Lord, Lord Keen, heard what was said and will reflect on it. I hope that has given coverage to all the key issues we have raised.

[Baroness McIntosh of Pickering]

Can my noble friend confirm that it is the Government’s intention that this should happen by primary legislation?

[Lord Duncan of Springbank]

Yes, that is the intention. We will move forward with this through primary legislation in each of the common framework areas. On that basis, I hope that the noble and learned Lord, Lord Hope, will feel able to withdraw his amendment.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

Debate on whether Schedule 5 should be agreed.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful for this opportunity to probe the contents of Schedule 5 and debate whether it should be agreed. We have been told throughout the Committee proceedings that this is a technical Bill making arrangements to transpose existing EU law instruments such as regulations, decisions and Court of Justice case law which already exist on exit day into UK law. The two debates we have had today demonstrate the point that I would like to make: we have never embarked on an exercise of this scale and I do not think the Government are aware as yet what the scale of the exercise is.

I begin with one quick question. Paragraph 1(1) of Schedule 5 says that the Queen’s printer “must” make arrangements for the publication of each relevant instrument and so on. Yet under sub-paragraphs (3) and (4) of paragraph 1 we are told that the Queen’s printer “may” make arrangements. I wonder why there is a difference there. Under sub-paragraphs (3) and (4), who will exercise that discretion? For the purposes of this Bill, what are the instruments, how many are they and where are they?

With a number of other noble Lords, I was fortunate to have a meeting with my noble and learned friend Lord Keen, where I asked where these instruments could be found. I hope the Minister will be able to confirm that. It is rather surprising to learn that there is no central depository for such instruments in this country at this time. We are referred to websites to see what the range of instruments is. The first website is that of the Queen’s printer—the National Archives—and we see a blank screen. We have first to search through all the legislation; we have to have the title of the legislation, the year in which it was agreed and its number. We also have to know the type of the legislation and go through various categories. The only specific reference to EU legislation that I could see in the short research that I did was in respect of UK statutory instruments.

The second website to which we are referred is EUR-Lex, which is a widely used European legal search engine and the EU’s legal database. There again, you are faced with a screen in which you need to type in the document number, the year it was adopted, the type of instrument—regulation, directive, decision, European court case—and the body which issued it. That is what you have to enter before you can do any further search.

On the scale of the exercise, it is very clear from the Explanatory Notes that we do not know how many instruments there are—our preceding debates today have magnified that. We are told in the Explanatory Notes that, while there is no single figure for how much EU law already forms part of domestic law and how much will therefore be converted by this Bill, according to EUR-Lex, the EU’s legal database, there are currently more than 12,000 regulations which it defines as directly effective EU laws and more than 6,000 EU directives which will have been transposed and enforced across the EU. Additional research from the House of Commons Library indicates that in addition to that—I assume that it is in addition—around 7,900 statutory instruments have been made in the UK which have been implemented as EU legislation. There are a further 1,302 primary UK Acts of Parliament between 1980 and 2009, excluding those which have later been repealed, with 186 Acts in addition exhibiting a degree of EU influence, which means that they are UK law emanating from EU law.

If I was back in practice, as the noble Lord, Lord Pannick, and a number of other noble and noble and learned Lords are, and I wished to advise a client for the purposes of this Bill which instrument or decision is to be transposed, my understanding is that we simply would not know. Tomorrow, it will be only one year until we formally leave the European Union. I am sure that my noble friend the Minister will agree that this is a massive exercise. I want to put two simple questions to her. First, are we right to conclude that there is no centrally depository or archive for such instruments at this stage in this country, but that the information is held in the archives in Brussels? Secondly, can the Government put a figure on the number of decisions and other such instruments to be transposed for the purposes of this Bill into UK law as part of this exercise?

--- Later in debate ---

[Baroness Goldie]

My Lords, if we do not get through this debate, I will not be visiting anywhere. I must thank a group of your Lordships for their fascinating contributions, some of which have eliminated my need to write to anyone about anything. Still, I shall look at Hansard.

In the view of the Government, the mixture of defined duties and specific powers provided for in part 1 of Schedule 5 strikes the right balance. I say to my noble friend Lady McIntosh that it is comprehensive, flexible and accountable.

Part 2 of Schedule 5 ensures that after exit day questions about the meaning or effect of EU law can continue to be treated as questions of law and so can be determined by our courts when determining that such a question is necessary in order to interpret retained EU law. As I said earlier, it also contains a power, subject to the affirmative procedure, to make provision about judicial notice and the admissibility of evidence of certain matters.

I hope that my remarks have provided sufficient explanation of the rationale behind, and indeed the importance of, Clause 13 and Schedule 5 and why it is imperative that that clause and schedule stand part of the Bill.

[Baroness McIntosh of Pickering]

My Lords, this has been an entertaining and illuminating debate. I am grateful to those who have pressed the Minister for answers.

I do not quite understand why there is a discretion in sub-paragraphs (3) and (4) of paragraph 1 of Schedule 5 for the Queen’s printer not to publish the instruments in question, because it would be difficult to find out what they are if they are not published. I look forward to hearing from the Minister how many there were in the last year—if we ever get a final answer. Could she also respond on the issue of why there is no discretion under sub-paragraph (1) when there is a discretion under sub-paragraphs (3) and (4)?

The Minister has confirmed the scale of the exercise that we will all be involved in. It was not my intention that Schedule 5 should not be part of the Bill; it was purely my intention to explore the fact that there is no archive and we do not know how many instruments of this type there will be.

Schedule 5 agreed.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Kerr of Kinlochard]

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.


It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

[Baroness McIntosh of Pickering (Con)]

My Lords, it might be helpful if I, as a half-Dane, set out the position of Greenland. The noble Lord, Lord Wigley, raised the interesting point of what the status of UK citizens will be when we leave the European Union but continue to benefit in some places from it. Greenland is an autonomous Danish dependent territory, with only limited self-government and its own Parliament. It withdrew from the European Union but nevertheless is now associated with it under the Overseas Associated Decision and is eligible to benefit from funding from the EU’s general budget through the EU-Greenland partnership. That begs the question of whether the Government are minded to apply for such associated status so that citizens from parts of the UK can benefit in the future.

[Viscount Waverley (CB)]

My Lords, I apologise for not being here at the start. I will say very briefly that one aspect has not come under consideration: namely, UK citizens who have their prime residence on the continent. If a UK citizen has restricted access to the country in which they have their residence and the situation arises where the spouse is not allowed to enter the UK—of which I have first-hand knowledge, as my colleague the Minister is aware—that could mean separation for many people and it will further complicate this whole arena.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

Moved by

[Baroness McIntosh of Pickering]

8: After Clause 2, insert the following new Clause—
“Status of EU directives adopted, but not implemented, before exit day
(1) Unless already part of retained EU law under any other provision of this Act, all EU directives adopted but not implemented before exit day, including those listed in subsection (4), remain binding in domestic law, as if the United Kingdom had not left the EU.(2) In implementing any EU directive under subsection (1) after exit day, a Minister of the Crown may use any power set out in the European Communities Act 1972 as if that Act had not been repealed.(3) If, through implementing a directive under subsection (2), a situation arises which would be considered a deficiency had it arisen in retained EU law, a Minister of the Crown may use any of the powers set out in section 7 of this Act to remedy that situation as if that directive had been implemented before exit day.(4) EU directives adopted, but not implemented, before exit day, include—(a) Recognition of Professional Qualifications Directive (2017/2397);(b) Fraud (criminal law) Directive (2017/1371);(c) Accessibility of websites and mobile applications Directive (2017/2102);(d) Legal aid (suspects, accused persons and those under European Arrest Warrant proceedings) Directive (2016/1919);(e) Rail safety Directive (2016/798);(f) Rail interoperability Directive (2016/797);(g) Safeguards for child suspects in criminal proceedings Directive (2016/800);(h) Trade marks Directive (2015/2436);(i) Financial instruments Directive (2014/65);(j) Cost-effective emission reductions and low-carbon investments Directive (2018/410);(k) Environmental assessments (genetically modified organisms) Directive (2018/350);(l) Maritime workers Directive (2018/131);(m) VAT Directive (2017/2455);(n) Health and safety (exposure to carcinogens or mutagens at work) Directive (2017/2398);(o) Passenger ships (safety and standards) Directive (2017/2108);(p) Passenger ships (passenger registration) Directive (2017/2109);(q) Passenger ships (inspections) Directive (2017/2110);(r) Hazardous substances (electronic equipment) Directive (2017/2102);(s) Tax dispute (resolution mechanisms) Directive (2017/1852);(t) Hybrid mismatches (third countries) Directive (2017/952);(u) Weapons (control and acquisition) Directive (2017/853);(v) Shareholder engagement Directive (2017/828);(w) Maritime workers (International Labour Organisation) Directive (2017/159);(x) Tax Avoidance Directive (2016/1164);(y) Mayotte (status) Directive (2013/64).”

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 8, which stands in my name and those of the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, and Amendment 32, which is consequential to this amendment, I wish to press the Minister, my noble and learned friend Lord Keen, who replied to the debate last time. My starting point is that, despite urging my noble and learned friend and following his response to the debate that we had in Committee and subsequently in the cross-party meeting held between Committee and Report, we have seen no movement on this. Since Committee I have revised the amendment to include a list of those 23 directives that we know from a House of Commons briefing paper will fall into one particular category: directives adopted but not implemented before exit day. For clarity, I have attached that list.

However, it is important to point out that this list is not comprehensive. There are a number of other directives of which I am aware, such as the environmental directives relating to water. As has been brought to my attention by the City of London Corporation just today, there are further examples such as the second payment services directive 2015/2366, which will be implemented before exit day, but the regulatory technical standards underpinning its operation will not.

A second category of directives falls within the remit of this amendment, which are broadly packages of directives such as, for example, those referred to in Committee by the noble Baroness, Lady Young of Old Scone, to whom I am very grateful. This has been brought to our attention in a briefing from the Law Society of England. It is particularly concerned that there is no legal basis or mechanism as yet for Ministers to bring any measures into UK domestic law that are part of a package of EU legislation into which the UK will have had input as an EU member state and to which we agree. It is its recommendation that Ministers should be given powers to bring certain types of EU legislation into domestic law if it forms part of a package as this will reduce the impact on businesses and help them to prepare better.

There is then a third category that I believe falls into Amendment 9, which we will consider after this little group. Within that category there are regulations that fall to come into effect after exit day, but the main regulation will have been adopted before that. Again, the City of London gives the example of the prospectus EU regulation 2017/1129. The regulation itself, which is directly applicable, will have been in force since 20 July 2017, but the majority of the regulation will not apply until 21 July 2019, which will mean we will no longer be in regulatory alignment with the European Union after that date.

To sum up the little debate we had on this in Committee, my noble and learned friend Lord Keen, who I am delighted to see in his place, was rather brutal and frank. He said that there might be directives that have been adopted that have not been subject to implementation by the exit date because the transition period extended beyond the exit date. He went on to say:

“There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside”.


The central point is that,

“directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after”,—[Official Report, 28/2/18; col. 689.]

that date.

My purpose in bringing forward the amendment is simply to request that my noble and learned friend brings forward a legal basis today. When we had our meeting, for which we are extremely grateful, he said that it would be open to the Government at a future date to decide that a directive that fell into this category—adopted but not implemented—could be transposed by primary legislation and become part of retained EU law in that way. The question I put to my noble and learned friend is simple. This is very odd. Either it would lead to at least 23 pieces of primary legislation— 23 separate Bills—or one Bill giving individual effect to all the separate pieces of legislation, not just the 23, but the others to which I have referred, in which case it would extend Henry VIII powers beyond those we have already identified. My further question to the Minister would therefore be: what precedent is there for this, and where would the parliamentary scrutiny fall?

In speaking to these amendments, I hope for further clarification, and a commitment and an undertaking from my noble and learned friend to give legal certainty about these two categories of legislation where directives have been adopted but not implemented before exit day.

--- Later in debate ---

I cannot hold out false hope that we will reflect further on this issue between now and Third Reading, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

[Baroness McIntosh of Pickering]

That is a very tempting offer. I thank the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, for their contributions. I am sure that my noble and learned friend meant no disrespect to the House and those of us who have spoken to and supported this amendment by being late and, perhaps because of his lateness, being unable to address many of the arguments that were put. I am disappointed in particular that he did not respond to my question whether he intends to have 23 or more Bills if the directives are to be transposed into EU law, as he undertook to do at a private meeting—obviously it was a private meeting; it was not a matter of record—that we had in the Chamber.

To my noble and learned friend’s point that the UK has opted out of two of the directives, as he has said on two occasions, it is quite within the wit of the Government to opt in at a later date, so that is not a compelling argument. I welcome his placing on the record that the category of regulations that we are considering may fall in the transition period. It is my clear understanding—and, I think, the understanding of the House—that the European Union has agreed to a transition period. The Government perpetuate the myth that we are going to embark on an implementation period. It would be helpful to the House to be given clarification at some point as to what the different understandings of a transition period and an implementation period may be. It is my firm intention not to let this matter go, because it does fall within the scope of later groups of amendments, including those to be considered, as my noble and learned friend said, under Clause 7. I also understand that he has given a very clear commitment to the proposer of Amendment 9. Against that background, I thank those who supported this amendment and spoke to it and at this stage I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[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.

[Baroness McIntosh of Pickering (Con)]

My Lords, it seems appropriate for me to speak to Amendment 47, in my name and that of the noble Baroness, Lady Smith of Newnham, for the simple reason that government Amendment 47A seeks to remove Clause 8 from the Bill and the purpose of Amendment 47 is to amend Clause 8 by adding the words as printed on the Marshalled List.

I tabled this amendment for Report because, in my view, my noble friend the Minister’s response in Committee lacked clarity. Since then, of course, we have had a vote on an amendment requesting that the Government negotiate a customs arrangement, which was agreed in this House by a substantial majority. Of course, when that amendment goes to the other place it could be rejected, so I would just like to raise a number of issues on Report which will be helpful at Third Reading or in any future altercation between here and the other place if the amendment seeking a customs union does not find favour there.

On 21 February, my noble friend Lord Callanan explained that, in his view,

“the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA”,

and that this approach would mean that,

“we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states”.

The lack of clarity came, I believe, when the Minister went on to say:

“Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people … We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein”.—[Official Report, 21/2/18; col. 180.]

--- Later in debate ---

[Lord Berkeley (Lab)]

Can the noble Baroness confirm that seed potatoes are part of the problem? If they are sown on both sides of the Irish border, they will not be able to be taken across unless they are subject to specific checks.

[Baroness McIntosh of Pickering]

The noble Lord has the advantage over me. I was not thinking so much of potato seeds but the fact that the Secretary of State has said that we are to have higher standards of animal hygiene, animal health and animal welfare, which I welcome. That follows on from the little debate we have just had. There will have to be physical checks. There cannot be checks managed by technology, in which case potatoes and their seeds could effectively fall within that category. So the noble Lord has actually made and developed that point very neatly for me.

In the context of Amendment 47, I urge the Minister to maintain Clause 8 in the Bill and to keep an open mind as regards potential membership of the European Economic Area or applying to join the European Free Trade Association.

[Lord Beith]

My Lords, notwithstanding the noble Baroness’s arguments, I want to address this group from a different standpoint: that of government Amendment 47A, which is to leave out Clause 8. It may be because I have a suspicious mind, but, while the removal of Clause 8 would be quite welcome to the Constitution Committee, which had considerable concerns about its breadth, I am worried that in removing it the Government have satisfied themselves that there is nothing they could do under Clause 8 that they could not do under Clause 17 and its broad powers. What is more, there are things which the Government can do under Clause 17 which they are prohibited from doing under Clause 8. When we come to Clause 17, we will perhaps have to look more carefully at it than has been done so far.

It would be helpful if the Minister could set out the Government’s argument for deleting Clause 8. I am quite sympathetic to that, even though I understand the standpoint from which the noble Baroness, Lady McIntosh, was arguing. But were we able to get the Government to move seriously in the direction of having a customs union-EEA, as our vote last week showed that the House wants to do, I am quite confident that ways could be found to do that with or without Clause 8. I would be only too glad to assist if that happens—but I am concerned about the reliance on Clause 17, which may lie behind the removal of Clause 8.

--- Later in debate ---

[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.

[Baroness McIntosh of Pickering]

Would my noble friend comment on one more point? The clarification that I was seeking relates to the Hansard column where my noble friend Lord Callanan clearly said exactly what my noble friend has just said: it is the Government’s intention that we remain in the EEA until the end of the transitional period, and it is then the Government’s intention to negotiate new arrangements with the three member countries of the EEA. I seek clarification today on something that was not in Hansard: at what point will those negotiations either commence or be concluded? The whole of Clause 8 relates to maintaining our international obligations. I would like to know what our obligations to the EEA will be after December 2021.

[Baroness Goldie]

I am reluctant to disappoint my noble friend, but that is all germane to the negotiations and I have no more information I can add at this point. I want to make progress with the rest of the amendments in this group, which cover a range of aspects on the important issues of imposing or increasing taxation. With regard to the second half of the group, I note that the position of the Government and that of the noble Lords who proposed them are much closer to each other than they were, and I hope that we may have reached a point at which we could agree to disagree.

In responding to Amendment 73, tabled by the noble Lords, Lord Hannay and Lord Cormack, and the noble Baronesses, Lady Kramer and Lady Hayter, I wish first to point to the Government’s amendments that we shall consider later on Report. I shall not pre-empt that debate, but I wish to make clear that the Government and noble Lords are not so very far apart. The Government have heard the concerns raised in Parliament and recognise the significance of the question of how Parliament approves fees and charges on the public. Indeed, this has been a question of great historic importance in the development of this institution and of the relationship between this House and the other place.

The Government agree that delegated powers, particularly in this sensitive area, should be subject to close scrutiny by Parliament. The Bill as introduced provided that any statutory instruments made under the powers in Schedule 4 which established a new fee or charge regime, or which sub-delegated this power, had to be subject to the affirmative procedure. In other cases, Ministers held discretion to choose between the affirmative and negative procedures as appropriate. I understand, however, that noble Lords considered that was not a satisfactory position, so the Government have reflected further.

The balance we have sought to ensure is that there is a level of scrutiny of the exercise of the powers in this Bill which satisfies the needs of Parliament without unduly expending limited parliamentary time on a great morass of minor instruments better suited to the negative procedure. We are therefore proposing amendments that require all SIs under Schedule 4 to be subject to the affirmative procedure unless they are adjusting fees or charges to account for inflation. This will ensure that where the Government wish to lower a charge, restructure a fee from daily to hourly, or increase a fee to reflect a change in how it is provided, that must be debated and voted upon by both Houses. Despite this, the Government believe that allowing inflation-related adjustments to be subject to the negative procedure is proportionate. Such a measure reflects no change in policy, or in how a service is provided, but simply reflects developments outside this place and changes in what we have termed “the value of money”. Even this, if appropriate, could be brought before your Lordships’ House for a debate and a vote. I hope noble Lords will accept this as addressing their concerns and will not press these amendments.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

[Lord Alli (Lab)]

My Lords, following consultation with the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady McIntosh of Pickering, I have decided that it would be better not to debate this amendment and to decouple Amendments 110A and 112BC for a fuller debate later in the proceedings. To pick up a theme of the right reverend Prelate, I hope not to be in the wilderness for too long. I shall certainly value my waiting time, and it would be nice if that waiting time ended some time before dinner, but I shall understand if it does not. On that basis, I thank the right reverend Prelate for his courtesy and do not intend to press the amendment.

[Baroness McIntosh of Pickering (Con)]

It is a great pleasure to support and echo the eloquent words of the right reverend Prelate the Bishop of Leeds. In doing so, I commend the generosity of the noble Lord, Lord Alli, in so graciously agreeing not to press an amendment that would find a place later in this Bill, while also recognising that we have had the opportunity to debate the matter that he wishes to discuss in that amendment at three different stages, and I do not believe that he was present at any of those stages. So we are very grateful to him.

I declare my interest in that I advise on environmental matters, as declared on the register, and am also delighted to sit on the Rural Affairs Group of the Church of England General Synod. I particularly believe that the European Environment Agency would benefit from Amendment 93. Many noble Lords will be aware of my particular interest in Denmark, since I am half-Danish. I have had the opportunity to visit some British members of the European Environment Agency while in Copenhagen last year. To follow through on the thoughts and arguments developed by the right reverend Prelate, I argue that the European Environment Agency provides essential research on which the European Commission and other institutions depend and on which environmental protections for British citizens currently flow.

I want to put some questions to the Minister who is responding to this debate. First, I presume that the British Government wish to continue to benefit from the research undertaken by the European Environment Agency, as was indicated by the Prime Minister in the words quoted by the right reverend Prelate the Lord Bishop of Leeds. Will the Minister confirm that that is the case and what financial arrangements will be made to cover the work of the agency? Many environmental protections have been debated in this House during the passage of the Bill.

Secondly, and more importantly, there is a matter which was impressed on me in the meeting I had in Copenhagen in August with British officials working for the European Environment Agency. This is not the first time I have raised this; I had a number of conversations about it with the Minister’s predecessor, my noble friend Lord Bridges. However, over a year has passed and I have had no reassurance whatever in this regard. Many of these officials are British; many are married to Danes, Swedes or people of other nationalities. Many of them are experts and not on permanent contracts. I met one who was a very clever scientist who has a big question mark hanging over her future. Her young family wish to attend school and, subsequently, university. The House will recall an amendment that deprived EU citizens living in this country of the right to vote in our original referendum.

There is an urgent need for clarity because President Juncker has committed that British officials working for European institutions—I presume this is both permanent officials and those on expert contracts—will be able to apply for Belgian nationality from 30 March next year. If that is the case, British officials working for European Union institutions in Brussels will have preferential status, compared to those working for other agencies such as the ones mentioned by the right reverend Prelate and to the ones I met who were working in the European Environment Agency. It is now a matter of urgency that we reassure those excellent British officials working for such agencies that they will have at least the same status as those working for EU institutions in Brussels.

To sum up, what will be the Government’s future relationship with agencies such as the European Environment Agency? What will be the extent of our financial commitment, and when will we know what that is? What will be the status of those working for the European Environment Agency, the European Medicines Agency, and all such agencies? When will they know what their future will be?

[The Lord Speaker (Lord Fowler)]

My Lords, when the noble Lord, Lord Alli, said that he did not wish to press his amendment I should have asked the House—and I ask it now—whether it is your Lordships’ pleasure that Amendment 93ZA be withdrawn.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

My Lords, I am sceptical about the EEA option. I am not sure that the EFTA EEA partners particularly want us—some of them tend to say that they do not—and I am not sure that the consultative arrangements that they find sufficient, or reasonably satisfactory, would be found satisfactory by this country.

I have always thought that the sort of consultative arrangements that we could secure would be best devised here and put forward in the proposal for the framework of the future relationship. I have always thought it very strange that the Government always insist on playing away—that it is for the other side to put forward the drafts. I do not know why we have not put forward our own prescription. I think we still should—but I begin to despair that we ever will.

I am very impressed by the argument of the noble Lord, Lord Mandelson. We have not yet done anything on services, and we really must do something. I am not sure that the EEA is right—but, as the noble Lord, Lord Mandelson, said, if we applied to join the EEA, it would be a different EEA that would emerge. It is not, therefore, a knock-down argument that the template that suits Liechtenstein would be imposed on the United Kingdom. I think we could do better. So, although it is not for me the ideal way to go, I would much rather that Britain put forward a British proposal optimised for the British relationship with the European Union that we will have left. If we are not going to do that, this is the next best thing. So, despite my doubts about the EEA option, I will vote for the amendment in the name of the noble Lord, Lord Alli, if he chooses to test the opinion of the House—and I hope that others will, too.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to my noble friend, who supported my amendment both in Committee and on Report. I am very taken by what the noble Lord, Lord Robertson, said. This is not just a Labour tactic. I believe that there has been genuine cross-party consensus on choosing a few very precise issues. I will not rehearse the arguments again—they are there for your Lordships to see—but the noble Lord, Lord Alli, paid me the compliment of saying that he has used those arguments in crafting the amendment before us this evening.

We have had this discussion at Second Reading, in Committee and on Report. I believe that the time to bring this back is during the scrutiny of the trade Bill. The reason I say this is not that my arguments in favour of remaining within the EEA are any weaker, but if we send too many amendments back to the other place, where I served for 18 years, we will dilute its focus. I am putting all my confidence in the fact that there will be a majority in the elected House for our remaining in a customs arrangement or a customs union.

As I have argued previously—I have not had a definitive answer—lawyers are split on whether or not we need to formally leave the EEA and trigger an application to leave. I argue that without such a formal application to leave, the UK will remain a member of the EEA. I have worked closely over years with the food manufacturing industry and I continue to work closely with the farmers in North Yorkshire. I accept that the point on services has to be addressed. I understand that negotiations are going on to which we are not privy, and that is the difficulty in all the discussions on this amendment.

On the basis that I believe there will be a further opportunity to discuss this, and because I gave a commitment that I would wait until that time to discuss the EEA in a different context, and on my genuine understanding that we will remain members of the EEA, I urge the noble Lord not to put this amendment to the vote this evening but to keep it up our sleeve for a different occasion.

European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

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

Instead, great play is made in the document of it being the role of Parliament, including Select Committees, to hold the Executive to account—a point echoed by the noble Baroness, Lady Byford. But of course that is what we have now, and it would be without any of the additional benefits of oversight from Europe. It is that additional oversight we are now seeking to replace in UK law.

[Baroness McIntosh of Pickering (Con)]

I will not support the amendment at this stage; I will probably support it or something similar at the stage when the Bill—the primary legislation—reaches us. However, to help the noble Baroness’s argument and to address the excellent points made by my noble friend Lady Byford, should she not address the fact that we are seeking that the European regulations have the force of law after we have left, and how that goes to the heart of the amendment to which she is speaking? She is not addressing those points as forcefully as she might.

[Baroness Jones of Whitchurch]

I thought that I had addressed that. If after Brexit day we are to have the same powers and enforcement as we had prior to it, we need to have a green watchdog with those enhanced powers that Europe has given us in the past—as we heard from the noble Lords, Lord Rooker and Lord Smith, and other noble Lords. That is the need. If we do not replace that in some way with an independent body that can achieve that, we will have no way of enforcing the regulations to which the noble Baroness referred.

The key thing in our amendment is that we have an independent body with the powers to ensure compliance by public bodies with environmental law. There will be a governance gap, a power gap, if that does not occur. I say to all those people—including, again, the noble Baroness, Lady Byford—who say that the consultation is the right way to deal with this, that the idea that a consultation will deliver a new watchdog with some teeth when it is not included in the consultation is magical thinking. We all know that the reality is that the opposite is the case with government consultations and, inevitably, further compromises tend to occur before legislation is finalised. I do not think that to hold that out as a hope and an offer is going to give us much reassurance.

Finally—and this is also a really important point—Michael Gove has already acknowledged that there will be a governance time gap. This consultation proposes a Bill in the next Queen’s Speech. That would not be enacted until, say, the end of next year at the earliest. A lot can go wrong before then. As we have discussed before, a rather large number of Defra Bills have been promised and are already in the queue for enactment. Timescales are already slipping. Even with the most optimistic projections, the current plans mean a time lag where environmental protections will not be—as promised in the Bill—the same as we had before exit day.

Our amendment addresses that gap. It addresses those omissions and requires that the legislation would be produced within six months of the date on which this Act is passed and therefore fill that gap. This is the only way to maintain both the spirit and the substance of continuity with EU rights which the Bill promised and the only way to protect the environment for future generations. I hope that noble Lords will see fit to support it.