European Union (Withdrawal) Bill

Baroness Randerson Excerpts

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

[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.

[Viscount Hailsham (Con)]

My Lords, my intervention will be extremely brief. I was entirely persuaded by what the noble and learned Lord, Lord Hope, said. To allow the Westminster Parliament to interfere with the constitutional settlements already agreed without the consent of those constitutional Parliaments or Assemblies is a recipe for disaster. It will stir up nationalist opinion in a way that we would be very well advised to avoid.

The only other point I will make is that the mechanisms for making these changes are unamendable. The Scots Nats in the House of Commons would be active in arguing that it was profoundly wrong to have a regulation before the House—if it was ever before the House, and that is extremely questionable, as we know well— which they could not amend. I can think of few things more calculated to fracture consent and fragment the union.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

My Lords, I am grateful to the noble Lord. It certainly is my view that we want to get agreement—I have no doubt about that—but I shy away from his idea that one party should have a veto on things where there is no substantive reason why it should do so. I shall come to this, but if something relates to a devolved area, of course we will need the relevant consent of the devolved Administration. However, we are not seeking to add powers in this legislation that do not already exist to give bodies vetoes over Westminster legislation.

[Baroness Randerson]

It is my understanding that the concept behind the phrase “Westminster will not normally legislate without the consent of the devolved Administrations” depends on what you mean by “normally”. It was explained to me that it meant there was a recognition that very occasionally one would need emergency legislation, perhaps in a situation of terrorism, where it was impossible, possibly because the other body was in recess, to get agreement in a reasonable timescale—that sort of exceptional situation. That is how the meaning of “normally” was explained to me from a legal perspective. Is that accurate? Is that the Government’s understanding of what that word means? If so, would it be possible to reach an agreement with the devolved Administrations on that definition?

[Lord Bourne of Aberystwyth]

My Lords, the noble Baroness, with her normal quicksilver mind, has darted ahead to the bit of the speech that I have not yet got to, relating to where we are on Clauses 8 and 9. She makes a fair point and I intend to deal with it. I hope I have reassured noble Lords over the correction power, and I thank noble Lords who contributed to that part of the debate.

Amendments 130, 131, 132, 148, 149 and 159, tabled by the noble and learned Lord, Lord Hope, the noble Baroness, Lady Suttie, and the noble Lord, Lord Adonis, seek to extend such a restriction to the international obligations and withdrawal agreement powers. I have listened carefully to what has been said. To avoid any shadow of a doubt, I am very happy to sit down with the noble Lord on what he says about the points raised on international agreements to look at the point on international obligations; I think it related to Schedule 5 to the Scotland Act. I am happy to look at that point with officials. However, I think he must accept, as noble Lords would, that the overriding ability in relation to international agreements must rest with the UK Government as the member state and the body able to conclude international treaties. I do not think there can be any question about that. However, I am happy to look at the valid issue he has raised on that point.

The position on international obligations and the withdrawal agreement powers must necessarily be more nuanced because we do not yet know what changes may be required, as we are not yet sure what the precise shape of the withdrawal agreement will be. However, I can confirm that this power will not be used to unpick the devolution settlements, nor to undermine or amend the Belfast agreement. As I have indicated, we are adhered to both the devolution settlements that we have and to the Belfast agreement that was reached in April 1998 and must be protected in all its parts.

--- Later in debate ---

[Baroness Randerson]

I have spoken for a total of three minutes on this Bill. I think we have a right to be heard.

[Lord Wigley]

The point I wish to make, if I may, is that Amendment 104 is very significant for Wales because of the implications that it has for the ports of Holyhead, Fishguard and Pembroke Dock—an angle that has not yet been covered in this debate. These are vital trading links between Wales and the Republic of Ireland. Holyhead is the UK’s second-largest port. In excess of 400,000 trucks pass through it each year, and a hard maritime border between Wales and the Republic of Ireland will inevitably hit it hard.

I ask noble Lords to read the excellent article by Professor Richard Wyn Jones in the Irish Times on the specific issues facing Holyhead and his native Ynys Môn, or Anglesey. Almost 80% of the Irish-registered HGVs heading for the continent pass through these Welsh ports, the vast majority via Holyhead. There is simply no space in or around the port for the kind of infrastructure that will be required to process the number of lorries and trailers that currently pass through it. A hard border in Holyhead will yield only chaos, and the same problems apply to Pembroke Dock and Fishguard on a lesser level.

The inevitable consequence of physical constraints in and around the ports is that freight will need to find ways to bypass Holyhead and Wales, especially if there is a soft border between the British state and the European Union in Northern Ireland. Without trade arrangements that mirror the outcome of what we already have, Welsh ports will be in danger of becoming uncompetitive. In practice, the border for freight at the Welsh ports must be as frictionless as it will be between the north and south of Ireland. That is why I support the amendment.

[Baroness Randerson]

My Lords, these amendments are designed to concentrate the Government’s mind and to get some answers. I share the concerns of the noble Lord, Lord Wigley, about Holyhead. The situation is very similar to that at Dover. When the Government try to close down the debate, I remind them that the areas expressing extreme concern to us about the lack of preparedness are the ones that have loyally voted Conservative over a long period, and they will be particularly worried that their concerns are not being heard with due seriousness in this Chamber.

The sort of Brexit that we get will of course have a major impact on our ports. They might have to change the way that they process goods twice: once possibly for the transition period and once for the end game, whatever that is.

--- Later in debate ---

[Lord Berkeley]

My Lords, this the last of my three amendments and it is to do with aviation. Aviation has so far come out better from the various statements from the Prime Minister and others because of the noise from the aviation industry, be it airlines, which were rightly frightened about being unable to fly one day after Brexit day unless some changes were made, or the manufacturing industry, which is reliant on a massive amount of approvals for all components. Some 2 million components manufactured in this country go into an Airbus. They are all approved centrally by the European agency. If we do not retain membership of this agency, those approvals will be null and void and we will not be able to carry on.

There are many other consumer interests as well. The airline sector benefits dramatically from being part of a European group of airlines. Leaving EADS and having to negotiate directly with goodness knows how many other member states for particular routes does not bear thinking about. The noise from the airlines has been great; I hope it continues and that Ministers take notice of it. Let us not forget the manufacturing industry. It is not just aircraft wings for Airbus, which I think are made in north Wales, but many other components. We need a thriving industry and we need to stay part of it. I hope that the Minister will be able to give us some comfort on that. I beg to move.

[Baroness Randerson]

My Lords, I first raised this issue in the autumn of 2016 and have done so repeatedly since then, even in a Private Member’s Bill on the Single European Sky. It is important because there is no fallback position for aviation; there are no WTO rules that we can rely on. If things do not go right, there is simply a blank in which planes will be grounded. Along with them will be the passengers and very high-value freight which goes by air.

I do not mention these concerns on my own initiative; they have been put to me by people in the aviation industry from across the world, because our whole economy stands on the shoulders of our air transport industry.

All along, the Government have expressed confidence that this will all work out fine on the night, but there has not been any official commitment either to remaining in EASA or the Single European Sky. Despite the commitment made by the Prime Minister last week there has been no official commitment, so these amendments give the opportunity to provide that. With the best of intentions, we could find ourselves at an impasse, and this is not just a little local difficulty between the UK and the EU; it is also very much about the US. We rely on the EU/US open skies agreement as a member of the EU, and we will cease to be a member of it when we cease to be a member of the EU. It cannot just slot into place later because airlines sell tickets a year in advance. Indeed, they are already selling tickets for a period of time when they cannot be absolutely sure that the planes are going to fly. There will be an awful lot of airline tickets on sale from next month for a year hence—some have already been sold, as I say.

There are already stories—for example, in the Financial Times last week—that early talks have not gone well. The Minister denied that and I am very pleased to hear those words, but in the past the United States has not been easy to make aviation agreements with. Opening up US aviation to both EU and UK flights has been a problem in the past. There are potential issues over the continuation of anti-trust exemptions, which allow airline alliances to set fares and share revenue. Any new deal has to allow for the pattern of ownership of our own major airlines, which have very big foreign shareholdings, especially IAG, of course. In the short term it is important that we remain in the open skies agreement during transition, or at least that we are treated as if we are within that agreement. In the longer term it is clearly best if this continues beyond transition.

Briefly on EASA, at any one time half the aircraft in the skies above Britain are not UK registered, so we need to remain the dominant influence over aviation security and safety in the EU and beyond. We have been a major force so the Prime Minister’s words, as I said earlier, were welcome last week. We need full, official government commitment here in legislation: not just to being associate members of the EASA or observers, but to being full members because there is consensus in the sector that it makes no sense to create a national regulator. It is essential that we remain fully integrated with EU rules and systems. The EU has brought huge benefits to passengers—lower fares, more destinations and greater passenger rights and compensation. We must remain part of that scheme. We must also maintain the environmental benefits it has brought.

[Lord Balfe (Con)]

My Lords, I shall make a brief intervention and ask a couple of questions. I realise that it is the Minister for DExEU replying to the debate rather than the Minister for Aviation and I declare my interest as vice-president of BALPA, the pilots’ union. There is a lot of concern and it is felt that it would be helpful if we could have a clear commitment to retain membership of the single sky agreement and the aviation safety agency. I ask the Minister, possibly through his colleague, to write to those of us who are taking part in this debate to tell us whether it is government policy to continue with this membership. If it is, what steps have they taken up to now and can they arrange some way of keeping those of us who are interested abreast of the issue, other than by intervening on Bills? I know that this issue moves ahead. We have had very good relations with the Minister. This is in no way a criticism but rather a request for dialogue to be opened, possibly in writing and possibly with the letters to be deposited in the Library for anyone else who is interested.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, I start by thanking the Chief Whip for ensuring that so many noble Lords are in their places to hear my contribution. At one point I was slightly anxious that I would be speaking to an empty Chamber, so it cheers me up to see so many noble Lords here at this time. I am not worried about my own side; it is noble Lords opposite whom I want to hear and understand the issues.

I was going to say that I will be very brief, but I will not do so because I need to apologise for not speaking at Second Reading. However, this is not the first Brexit Bill. The Sanctions and Anti-Money Laundering Bill, which has passed through this House and is now in its Commons Committee stage, was the first, and it was that Bill which prompted me to consider this amendment to the European Union (Withdrawal) Bill. What we have heard in previous groups is that we are potentially seeing, rather than enhanced parliamentary sovereignty, what appears to be the biggest Executive power grab since the days of Henry VIII. That is why so many noble Lords are very concerned about the powers suggested to deal with the difficulties that Brexit will bring about.

The sanctions Bill was very important because most of its powers related to the 1972 Act. It was important that we ensured that we had a domestic legal framework in place to meet very important international obligations, particularly as a member of the United Nations. We made a number of improvements to that Bill, which are being considered by the other place. The noble and learned Lord, Lord Judge, described the sanctions Bill as a “bonanza of regulations”. While acknowledging that some of this was justifiable—I acknowledge that even in this Bill the regulations are required—it places on us an important obligation to ensure that there are sufficient safeguards and adequate parliamentary scrutiny to make the delegated powers constitutionally acceptable.

That is why I have tabled this amendment to Clause 8, which gives Ministers extensive delegated powers to introduce regulations that they consider appropriate to prevent, remedy or mitigate any breach of the UK’s international obligations as a result of Brexit. But that power is not restricted to modifying retained EU law, as it would not require Ministers to demonstrate why any changes are necessary. This is the important element of my amendment: while we heard from the noble Viscount, Lord Hailsham, that his amendments deal directly with delegated powers, mine focuses on the need for increased transparency on treaties and international obligations that may require changing post Brexit. When using such powers, Ministers should proceed with the fullest parliamentary scrutiny. We must be able to do our job effectively, and with proper transparency on the Government’s part we can ensure that this can be done.

I hope the Minister will not offer up the suggestion that the requirements and measures I am proposing will somehow be a barrier to negotiations. Of course they will not. They are about helping us do our job of scrutinising. They do not affect the negotiations; they affect how we do our job in our House.

In his group of amendments, the noble Viscount, Lord Hailsham, mentioned the risks of some of these powers being used. I recall in the sanctions Bill my noble and learned friend Lord Falconer saying that we would have to be extremely careful because, whatever Ministers tell us now, in either the Commons or the Lords, ultimately the Executive always reach for the Act of Parliament and see what that Act of Parliament allows—what is on the face of the Bill. That is why this added element of transparency will ensure that, in the future, we can do the job of scrutiny well and properly. I beg to move.

[Baroness Randerson]

My Lords, Amendment 138 is in my name. I will concentrate simply on the international treaties and agreements that relate to transport as an illustration of the complexity of the situation that we face. We are party to many hundreds of agreements as members of the EU that we will have to renegotiate as part of leaving the EU. There are other agreements that we will have to join because we cannot rely on EU arrangements.

To illustrate the complexity of the situation, in the field of transport it is estimated that the UK will have to renegotiate and replace 65 international transport agreements following Brexit. The Government’s preparedness for this is perhaps rather doubtful—the signs are not good so far. I give as an illustration the last-minute appearance of the Haulage Permits and Trailer Registration Bill, which was not in the Queen’s Speech as an EU Bill, which was sprung on us at very short notice and which is being rushed through with great speed because the Government have discovered that, in future, we will have to rely on the 1968 Vienna convention to transport goods abroad and to take trailers abroad. We will have to rely also on the 1949 Geneva convention to get international driving permits.

We are going back a very long time in history, so it is not surprising that it took the Government a while to wake up to this situation. As a result of the rush in which we are having to deal with this issue—we signed the Vienna convention but never ratified it; we have to give a year’s notice of ratification and are running out of time to do that—we are faced with a Bill which is not so much skeletal as almost a ghost. It is so insubstantial that it fades in front of our eyes. There is perhaps a slight chill surrounding it as well, because the Government give no indication of what they want to do with powers which they admit they would rather not have to seek—and all of this is in preparation for the possibility of a no deal Brexit.

This is no way to make legislation. However well prepared the Government are, there will be dozens of agreements to reconsider. I have raised in this House many times the issue of the single European sky, which was mentioned earlier this evening. It is not just an EU issue; it is crucial to our arrangements with the US as well. Transport-related agreements are only one corner of the problem and are simply an illustration of the complexity that the Government face.