European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[The Earl of Kinnoull (CB)]

Noble Lords will be glad to hear that I will be brief. The European Union Select Committee and EU Justice Sub-Committee have been given estimates of the number of SIs concerned. Our estimate was 5,000; I was interested to hear the noble Baroness, Lady Young, say that it was only 1,000. My point is the same either way. In my language, the Bill essentially amounts to a gigantic pink ticket where we are asked to trust the Government. In the commercial world, one tries to trust and verify. You give out your trust, but you retain the ability to verify it, so that if something goes wrong you can sort it out later on.

This group of amendments tries to deal with three problems. The first is the mistakes, as the noble Baroness pointed out. The second is wrongnesses. We had a good example of these from the noble Lord, Lord Patel, earlier on. If we carried through a particular piece of EU legislation without thinking then a wrongness would be done. Third is the necessity for the scrutiny of Parliament; the verification process that follows on from the trust. As I look at the three sets of proposals on how to deal with these three problems, I have some sympathy for the noble Lord, Lord Lisvane, who said that there is not really time to do the consultation suggested by the noble Baroness, Lady Hamwee. I regret that, but there certainly is not time, whether it is 5,000 or 1,000. The ever-canny and thoughtful noble Baroness, Lady Neville-Rolfe, has come up with an ingenious way of trying to cater for that. Turning to the noble Viscount’s idea of a two-year life span, I am only concerned that if we are going to have to do 1,000 pieces of legislation then two years is probably not enough. The number I wrote down was five. However, that is a very useful way of doing it and my favourite route tonight would be the one he has taken.

All that being said, what is important in parliamentary terms is a mechanism for trusting and verifying. We will have failed if we do not get some kind of verification procedure in there. I look forward to the Minister’s comments.

[Baroness Smith of Basildon (Lab)]

When I speak at this time of night, I often recall the words of a friend who said to me shortly after I became a Member of the House of Lords, “You’re in the House of Lords now—you must be semi-retired”. As we are debating issues at almost half-past midnight, I do not feel semi-retired at all.

This is a very useful group of amendments for the Minister and the Government. As my noble friend Lady Young of Old Scone said, they are designed to be helpful, and I think their content makes that clear. It is only in your Lordships’ House that technical issues around SIs cause any excitement or great interest for noble Lords who have expertise in them. I hope that when the Minister responds she will accept these amendments or take them away and come back with something similar as a way forward on the Bill.

First, I wish to make some general comments. Issues around SIs and accuracy have been foremost in my mind since we first heard about the number of SIs that would flow from this Bill. Indeed, when I, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope, gave evidence to the Commons Select Committee and to our Constitution Committee, we specifically raised the issue of accuracy and the number of SIs we would have. The noble Baroness the Leader of the House can confirm that I discussed these issues with her. I welcome the fact that so far eight draft statutory instruments have been published on the Government’s website—perhaps the sample to which the Minister referred in his letter to my noble friend Lady Young. However, I am not sure what the purpose of a sample is other than to show how we can look at SIs and the issues that can be addressed in so doing. I think the noble Lord, Lord Lisvane, and the noble Baronesses, Lady Hamwee and Lady Neville-Rolfe, said that we need guidance on accuracy and getting SIs right. As my noble friend Lady Young said, we have one opportunity to get these measures right. They cannot be amended and making a mistake could have serious consequences. As more SIs appear on the website in draft, as I hope they will, I suggest to the Government that there should be a separate link and some kind of classification process as we want stakeholders and others with expertise and interest in this area to be able to identify them and find them instantly without first having to search through pages and pages to get to them.

On that basis, I welcome the agreement the Procedure Committee has reached with regard to the sifting and consideration of statutory instruments, as we have seen in this legislation. As in the House of Commons, we have 10 days in which to conduct a sifting process on the Bill and in which the committee will consider whether there should be an affirmative Motion, and then, in the normal way we conduct business in your Lordships’ House, we consider the merits of the order. We should be under no illusions: this is a huge task to be undertaken. Even the setting up of in effect a separate committee by having two sub-committees will not mean that all the work is undertaken that it is necessary to do. Given the scale of the work ahead, I welcome the suggestions we have had today on how we can draw on the experience and expertise of stakeholders, as the noble Baroness, Lady Hamwee, said, to deal with the issue of accuracy. It is not an issue of policy or change but of accuracy.

As the noble Baroness, Lady Neville-Rolfe, said, we have one opportunity to get this right. Given the nature of the consultation, it is a good idea to provide an explanatory document. That is extremely important. The principle of her amendments is sound. My only disagreement is that I do not think they go far enough in that she selects certain areas to be addressed. I am sure she understands the need to have the opportunity to debate all the SIs. I think the noble Lord, Lord Lisvane, made the point in a slightly different way but if there is a draft of all SIs and consultations on all of them, the formal consideration can be speeded up at that point rather than have problems arise later.

The amendment of my noble friend Lady Young is important. I raised it in the Procedure Committee as her amendment rightly goes beyond the Bill to address Brexit-related orders from other legislation. Our committees would be able to examine any secondary legislation, whether related to Brexit or not—most will be although that is difficult to define—but the sifting power currently applies only to the withdrawal Bill. Negative SIs relating to other legislation will not be included in that process. That point was made by our Constitution Committee in its report on the road haulage Bill.

The amendments in the name of the noble Baroness, Lady Hamwee, reflect the concern that has featured in other debates: for example, the issues around what is “appropriate” or “necessary”, and ministerial discretion. Therefore, given the avalanche of orders we may face, it will be helpful to consult on all SIs, not just leave it to the discretion of Ministers.

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[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

[Baroness Smith of Basildon]

Can the noble Baroness give us an example of where that might conflict with the negotiations? Some of us are struggling to understand the rationale behind that.

[Baroness Goldie]

Given the breadth of activity already referred to by both the noble Baronesses, Lady Young of Old Scone and Lady Hamwee—a huge breadth of activity involving a multiplicity of issues—it is inevitable that some of these matters will be caught up in the negotiations. I cannot be drawn on specific examples because we may be talking about generic issues. However, the Government are very anxious to avoid in any way hog-tying their freedom to conduct the negotiations with a degree of confidentiality and privacy.

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[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.

[Baroness Smith of Basildon]

I suggested listing the drafts for consultation.

[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[Baroness Smith of Basildon (Lab)]

My Lords, I confess that when I first came to your Lordships’ House I never imagined that I would be speaking at 12:15 am on the exciting subject of statutory instruments. That is partly because this House has always taken a greater interest in statutory instruments than the other place.

Looking at the amendments before us this evening, it seems to me that what we are all trying to do is grasp the problem mentioned by my noble friend Lord Adonis. He hit the nail on the head when he said that it is the volume and scale of the statutory instruments that will come before Parliament and how we can deal with them, understanding and recognising the Government’s commitment that EU law should be transposed into UK law while at the same time ensuring the accuracy of those statutory instruments—so many issues, so little time. It is finding the balance that meets the objectives of the legislation without creating serious problems that the lack of scrutiny will bring. The accuracy of these SIs and orders is vitally important.

We started this debate last week when the noble Baroness, Lady Goldie, responded about publishing the draft instruments. I have brought forward two issues time and again. First, we need the resources to do this job properly and, secondly, we need wider consultation on draft amendments prior to them being laid before your Lordships’ House or the other place. When we had the debate last week, the noble Baroness said that it was not possible, and I am still struggling to understand. I hope at some point that things will become clear because her point was that to publish all SIs in a draft form,

“could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues”,—[Official Report, 12/3/18; col. 1467.]

in negotiations. I struggle to understand how discussing a statutory instrument can possibly impact on negotiations, given the Government’s commitment to bringing all issues into UK law. That aside, the crucial issue is the volume.

I hope that the Leader of the House will say something today about how the Procedure Committee has already looked at this. We are taking things slightly out of sync but it is helpful to the House. I am grateful to her for discussions that we have had in the Procedure Committee and through the usual channels about how we can best give effect to what is currently in the Bill. I hope that she will say something today about how that will be addressed when appropriate to do so. I am grateful to her for suggesting that. We are trying to look at the fine-tuning of that process and make sure that we get it right.

On the specific amendments, I thought that the noble Lord, Lord Lisvane, did a fine job of trying to bring order and I am grateful to him for that. It would be helpful if it were not the subjective decisions of Ministers alone. The involvement of Parliament would be greatly welcomed.

I am surprised that some noble Lords on the Liberal Democrat Benches invoked the Strathclyde report. If noble Lords recall, I take the view, as I think does the majority of this House, that when we declined to accept the tax credits amendment and suggested transitional measures to the Government, it was not a rejection of that SI but an opportunity for the Government to reconsider and think again, which the Government gratefully took and accepted. The Strathclyde report was then a response to that, but it also tried to clip the wings of your Lordships’ House in how we deal with SIs, so I am not sure that I would rely on the Strathclyde report as a good way forward.

I understand what noble Lords are seeking in Amendment 237A, and the noble Lord, Lord Lisvane, has tried to bring some order to that because of course we cannot send something back to the other place if it was not sent to us from the House of Commons. I would be interested in the Government’s response to that.

[Lord Sharkey]

Perhaps I can help on the point about whether the Commons can reconsider something that it has not actually considered. I hate to have to refer to the Strathclyde report again, given what has been said, but there is a suggestion in the report of exactly how that is taken account of. The two committees could easily agree a sequence for consideration so that it was already possible for the Commons to reconsider something. We simply have to introduce a slight delay to make that happen.

[Baroness Smith of Basildon]

I understand the point the noble Lord makes, but if we remember the reasons it was brought forward, this is not the process we have at present.

The other point about stating the reasons, as set out in Amendment 239B, for why an SI is urgent is very helpful in this regard. All of these amendments are trying to bring some order to the process which at the moment seems to be complicated and difficult and raises concerns about accuracy.

I hope that the noble Baroness can respond positively to these amendments. I will not go into further detail because that has been provided by the noble Lords who have spoken to these amendments, but this is a serious issue and I suspect that if we do not receive an appropriate response from the Minister, we will return to it as the Bill proceeds.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, before responding to these amendments in turn, I should like to take this opportunity to expand on the remarks I made at Second Reading. As I said then, I wanted to find a way to build any new sifting procedure into the existing scrutiny structures which this House has developed so successfully over the years. On 5 March, as the noble Baroness has said, the Procedure Committee agreed to my proposal to incorporate the same powers as those of the new Commons sifting committee into the terms of reference of the Secondary Legislation Scrutiny Committee as well as conferring the power to appoint sub-committees. This will allow the sub-committees to recommend within 10 sitting days that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure.

As the House will expect, the SLSC’s existing role in scrutinising the merits of all instruments will continue as before, with the sub-committees fulfilling this function alongside their new sifting role in relation to the SIs flowing from this Bill. The main committee will have responsibility for determining the allocation of policy areas between the two sub-committees as well as maintaining oversight of the scrutiny process in general terms. If it wishes to do so, this will allow it to meet as a whole to conduct its own inquiries into the overall management of secondary legislation, as it has done in the past. The 10-day period for allowing the sifting committee to make a recommendation was originally suggested by the Delegated Powers and Regulatory Reform Committee of this House and was endorsed by the Procedure Committee in the Commons. The Government are content to agree to this timeframe, and that is why the sub-committee will have the power to report directly to the House, to award it greater agility in conducting its sifting role without unrealistic constraints on the time to report.

The agreement reached regarding the SLSC’s new role is, I believe, an example of the House coming together on a constructive basis to strengthen our important scrutiny role, and I am grateful to other members of the Procedure Committee, including the noble Baroness, Lady Smith, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope of Craighead, for their support in reaching this decision. I am also grateful to the chairman of the SLSC, my noble friend Lord Trefgarne, his clerk and advisers for their constructive engagement in the development of this proposal. I am pleased to confirm that the SLSC will receive additional resources both in terms of expert advice and additional members, including the ability to form two sub-committees, in order to fulfil its new sifting role. I know that noble Lords on all sides will want to ensure that the new arrangements are a success. The House will be invited to agree the proposed arrangement when the Procedure Committee presents its report. That is expected to be when the passage of this Bill is nearing completion, as of course the report may have to reflect any relevant changes to the Bill that are agreed by both Houses.

In the meantime, and as the Bill progresses, I am clear that both Houses must be treated equally regarding the proposed sifting arrangements under the Bill. In this respect, the Bill, as introduced to this House, only makes reference to the House of Commons in the relevant paragraphs of Schedule 7. The Government will therefore introduce amendments to incorporate equivalent references to the House of Lords where appropriate.

I hope I have explained to noble Lords the new proposed arrangement, so I will now turn to Amendment 237, tabled by the noble Lords, Lord Tyler and Lord Lisvane. Noble Lords will know that the sifting committees, as currently provided for in the Bill, cover only the main powers in the Bill, rather than any consequential and transitional provisions made under Clause 17 where the negative procedure is stipulated. Making such consequential provisions through SIs is already a standard approach in legislation—even in significant constitutional legislation, such as the Constitutional Reform and Governance Act 2010, the Scotland and Northern Ireland Acts and the Government of Wales Acts. We have already published a draft example of consequential provision that we will need to make under the Bill—the European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018—but we intend to publish further such examples before Report. I hope these will reassure noble Lords that the negative procedure is being used appropriately. In relation to the comments of the noble Baroness about draft SIs, we intend to publish them where possible and appropriate. As I have mentioned—I will mention a few more—we have already published some illustrative drafts and will continue to do so to support the debate in this House.

The proposed powers of the SLSC, as the Bill stands, will not allow it to make the sort of binding decision proposed by noble Lords. We believe that this is consistent with how this House’s committees conduct their scrutiny work in other areas. Ultimately, it is up to both Houses to decide whether a Government are using appropriately the delegated powers Parliament has given them when they come to consider an SI. It is right for this House to consider these instruments in the light of the expert advice of its committees, but we do not believe that it would be right for those committees to make binding decisions about the use of delegated powers independent of the whole House. The amendment, as proposed, would also see the Government bound by a decision of the sifting committee of one House, even when the other disagrees, and only the recommending House would be able to reject the recommendation. Currently, no mechanism for the resolution of such disagreement is provided in the amendment.

The noble Lord, Lord Lisvane, mentioned the Legislative and Regulatory Reform Act, the Public Bodies Act and the Localism Act. All of those Acts combine a sifting mechanism with the form of the super-affirmative procedure. We do not believe that the super-affirmative procedures are suitable for the instruments to come, particularly given that they can take up to six months, but as I hope I have set out, we have taken steps to create a sifting process in the Bill.

I understand noble Lords’ concerns that, as Ministers are not bound to accept the committee’s recommendations, they may choose to exercise discretion; however, if both sifting committees were to reach the same—well-considered, no doubt—and persuasive recommendation, I assure your Lordships that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would of course need to be carefully considered on its merits. On the occasions—hopefully, very rare—when the Government did not agree to a recommendation to use the affirmative procedure, we would expect to justify fully our reasons to the committee concerned.

Furthermore, when the House chooses to delegate a scrutiny role to its committees—as is the case in other important policy areas—it is important for it to have confidence in the committee’s expertise and judgment to make a persuasive recommendation for the House to consider. I fear that making the committee’s recommendation binding, then building in an explicit provision to allow the House to reject such a decision, as the amendment seeks to do, could undermine the well-established confidence that the House has in its committee structure.

The amendment would also—unnecessarily, in my view—increase the sifting period from 10 to 15 days. As noble Lords have already said, we expect time to be in short supply as we prepare to exit the EU. As I have already stated, the changes to the SLSC’s powers, agreed to by the Procedure Committee, will seek to maximise the sub-committee’s ability to conduct its important scrutiny work within that 10-day period.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[Baroness Ludford (LD)]

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

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

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

[Baroness Smith of Basildon (Lab)]

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

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

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

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

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

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

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

[Baroness Goldie]

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

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

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

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[Lord Dykes (CB)]

I am very glad that the noble Lord, Lord Rooker, has made that point, because it is noticed and it is not said enough that there is a gap there which really makes the Chamber awkward from the point of view of these issues. I also support what my noble friend Lord Cormack said and thank the noble Baroness, Lady Kennedy of The Shaws, for raising these matters. It will be quite alarming if there is an erosion of the common travel area arrangements, which are historic since 1923, just because other things are happening in a geopolitical sense regarding new legislation for leaving the European Union. The psychological aspect is important too, because creating that common travel area so long ago, as a unique and special example of co-operation between countries, was a way for the British to make up to the Irish for what had happened in the past and, as the noble Baroness, Lady Kennedy, said, a way of promoting economic co-operation and activity. People came towards Britain, mostly, rather than the other way round, but increasingly, as the Irish economy developed in the post-war period, people also went to Ireland for work and travel.

The present situation is that there should literally be no erosion or changes; it should be exactly as it was. Yet, one hears these stories of what is happening—the wrong kind of attitude on the part of certain officials, and so on; I will not go into more detail than that. This arrangement is very important, because it is a miniature Schengen between just two countries and, partly for that reason of course, both countries decided not to join in the full Schengen arrangements, although there were also other reasons connected at the margin. It is a very precious aspect of the wider picture of there being no change at all to the Irish border arrangements, which is so important for both this legislation and the future of our relationship with the European Union. This of course means, effectively—yes, we have to say it—staying in the single market and customs union, and why not? In the meantime, this arrangement is crucial and I hope that the Government will reassure us tonight that there is a commitment to keeping the purity of the CTA and that there will be no erosion.

[Baroness Smith of Basildon]

My Lords, there is little I can add that is new to this debate. I am grateful to my noble friend Lady Kennedy of The Shaws for raising these issues and I hope the Minister will make use of his customary courtesy to the House. When he responded at Second Reading and in Committee on these issues, there was a sense that he understands the concerns that were raised then, and indeed the issues raised today. When he spoke on 14 March, he was clear that there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That was the first time that the Government had given that degree of clarity—I think my noble friend Lady Kennedy would recognise that—or sought to emphasise that. This is important, and the Minister will understand the great concerns being raised. We still have no clarity on the border issue. This House has already expressed a view on the customs union and I am sure that, as we debate Northern Ireland issues later on Report, we will deal with those further.

I hope that the Minister is able to address the concerns that have been raised about the common travel area and movement of people. He has a sense of deftness and understands these issues, so if he can address them today we would be grateful.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for introducing this topic and other noble Lords for their contributions. I had a very pleasant cup of tea with the noble Baroness yesterday and I was pleased to learn that she hails from the Kennedys of Fermanagh, which was an interesting discovery. But it was not just a pleasant cup of tea; it was more important than that. We touched on what I believe are some of the key elements that have motivated these amendments, and they are, at heart, necessary to confront. The noble Baroness, Lady Smith, somewhat surprisingly, reminded me that I was indeed apparently the first person to give clarity on this issue, but I am very happy to reinforce the clear statement that there can be no racial profiling at a border, whether it be routine, quixotic or even accidental. That cannot be the policy or the direction; there cannot be even a hint of that going on at the border. I am hopeful that those further words might again give some contentment in that regard.

If I may turn to the amendment itself, the December joint report, at paragraph 54, confirms that the UK and Ireland can continue, as now, to work together on the movement of people. Building on this, the relevant chapter of the Commission’s draft withdrawal treaty text is green, confirming the policy is agreed. The key thing here is that the common travel area with Ireland is protected after the UK has left the EU. It is important to emphasise that this agreement is not just what we would like to see happen but actually what we have agreed so far. As a number of noble Lords will have noticed thus far, getting agreement is not always as straightforward as we would like. The Government are committed to turning the relevant chapter of the withdrawal treaty into legally binding text, so we will be doing that. This means that in the future, as now, the UK will not operate routine immigration controls on journeys within the common travel area. There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain. As I said earlier, this includes any aspect of what those checks might look like or be interpreted to look like. That is not what will be happening.

To touch on some of the elements raised, I think it is important again—and I will commit to writing to the noble Baroness—to set out the elements of the withdrawal agreement treaty and how they protect the common travel area. I will place a copy of that letter in the Library of the House so that all can read it and see exactly what we are stating.

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[Baroness Vere of Norbiton (Con)]

My Lords, in moving this Motion, may I suggest that proceedings on Report should begin again not earlier than 7.10 pm?

[Baroness Smith of Basildon]

I am slightly puzzled as to why the House would seek to rise at 6.36 pm for a break. The normal time for a dinner break would be around 7.30 pm. I appreciate that we have made swifter progress than anticipated, but it is inappropriate for the House to adjourn at this point. We should continue with the business before us. I am grateful to the usual channels for giving us a dinner break today; that is helpful. However, the normal time of after 7.30 pm would be more appropriate.

[Lord Taylor of Holbeach (Con)]

There is a proposition before the House that we adjourn debate on Report. I took the trouble of having a word with the Opposition Chief Whip in order to ascertain when it would be suitable to have a dinner break, and we felt at that stage that this was the right time. I now realise that circumstances have changed. We had agreed to a sort of dinner break—a gap in proceedings—because previously we found that the evenings were too long. I was asked by both the Opposition Chief Whip and the Liberal Democrat Chief Whip to consider having a break in the evenings, because they thought that proceedings would go better if that were the case. That is not the situation. The proposition before the House is that we should have a dinner break—that we should adjourn the House on Report at this stage—and I feel that we should at least put that to the House.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Chief Whip. It is a very wise and sensible move to have a dinner break during long proceedings—but I am not very hungry yet, and I suspect that other noble Lords might have had a late lunch as well. I appreciate that there is a Motion on the table and I am grateful for his suggestion of a dinner break. I assume that the next group of amendments would take us to around 7.30 pm, which would be a more appropriate time for a break. If he insists on putting this proposition to the House, I would ask noble Lords not to support the Government.

[Lord Newby]

My Lords, I support what the noble Baroness, Lady Smith, just said. It is 6.40 pm. It would be unprecedented to break for dinner at this time. I do not suggest that there is anything other than concern for your Lordships’ stomachs in the mind of the Government Chief Whip, but I ask him to reconsider whether he wishes to put this matter to a vote.

European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

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

[Baroness Smith of Basildon (Lab)]

My Lords, I rise to support Amendment 70. There is not really much left to say as noble Lords have addressed so many of the points. I do not wish to delay the House, and I would like to hear what the Leader of the House has to say.

Having served in both Houses, the difference in how statutory instruments are treated is very familiar to us, as mentioned by my noble friend Lord Davies. I always said in the House of Commons that when a statutory instrument committee came along and you were asked to take part, you would ask, “Why me, and how long will it take?” In this House, we have had more speakers on this debate than we had on the previous one on the EEA. That shows the level of interest and excitement generated by statutory instruments in your Lordships’ House. Someone may have said, “So many SIs and so little time”.

As we progress on the road to Brexit, as the noble Lord, Lord Bilimoria, said, this House and the other place will clearly have to address a huge number of SIs. The concern is that we have to get this right. The consequences of making mistakes against the Government’s intention of ensuring that EU law can be transposed into UK law are very serious. Those SIs have to be accurate and they have to be properly considered.

In Committee, the noble Baroness confirmed that the Government intend to publish draft SIs “where possible and appropriate”. If you look at the website, there are a few drafts—not many, but a few. There are illustrative examples, and I am grateful for those. They are helpful, but there is no way of knowing whether those examples are representative of the statutory instruments that are to come, particularly given the drive to reduce the overall number by packaging up multiple issues in one statutory instrument. I have raised this issue with the Government over some time. I gave evidence on it to the Select Committee in the other place and I gave evidence to our Constitution Committee, and it is really important that we have those draft SIs for, if nothing else, the appearance of accuracy, so that we know we are getting it right.

As I said, the noble Baroness made helpful comments on this about publishing draft SIs. However, I have to say that I am not convinced that “where possible and appropriate” is good enough. Can she go one step further and guarantee that SIs will always be published in draft form prior to being introduced into either House, unless of course they are made under urgent procedure? That is another discussion and there would obviously have to be very good reasons why they were urgent. Having those draft SIs is absolutely essential—not for delaying but for giving them proper consideration. It is much harder to rectify mistakes at later opportunities than if we deal with them straightaway.

The noble Baroness argued previously that the Committee stage amendments of the noble Lord, Lord Lisvane, were unnecessary, and she said then that if both committees were to reach the same recommendation,

“the Government’s expectation is that such recommendations are likely to be accepted”.—[Official Report, 19/3/18; col. 154.]

I understand that that is the intention, but “expectation” and “likely to be accepted” are a bit woolly for legislation. I do not think that is adequate. We hope that would be the case but, as the noble Baroness told us at the time, there would be a problem if the two committees disagreed or if the Government decided not to accept the proposed upgrade to the affirmative procedure. It is a limited upgrade; I would not get too excited about the affirmative procedure being too intrusive. We recognise that it is a step in the right direction. The noble Baroness told the House that she hoped the latter scenario—that the Government would not accept a proposed upgrade from one House—would be very rare. Again, it is very speculative. How rare does she think that occurrence will be? Could she outline the steps she would expect Ministers to take in the event of it becoming a reality?

All of us want to see EU law on the UK statute book as accurately and as quickly as possible, but to do that we must have confidence in the process and procedures that we have in place. We cannot do it on a wing and a prayer. If we do not get this right, there will be serious consequences, which will be far harder to rectify or amend later. I hope the Minister can give some reassurances on that issue in the course of her comments.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. The Government take parliamentary scrutiny of the powers afforded them very seriously, which is why, from the outset, I have made clear our view that both Houses should be treated equally when it comes to the sifting process proposed by the Commons Procedure Committee. The Government have already accepted amendments, although they only included a committee in the other place, and the government amendments that we have just discussed would extend that process to your Lordships’ House. We have listened carefully to the views of the House and numerous committees on ways in which to improve this Bill. Among other amendments, we have removed the Clause 8 power altogether and sunset the consequential power and the power to make new fees or charges. The correcting power has been prohibited from creating public authorities or amending the devolution statutes, and we have provided that regulations should be amendable only in the same way as primary legislation.

Having heard the views of the House in Committee, I am pleased to confirm that the Government have tabled amendments that we will debate shortly to extend the sifting committee’s remit to instruments made under the power contained in Clause 17(1). I hope that noble Lords will see this as further evidence of the Government’s willingness to listen to the case put by this House and, in particular, by the DPRRC. I believe that we have made clear our commitment to ensuring that this House can rigorously scrutinise the secondary legislation that will flow from this Bill.

The government amendments allow the changes to the SLSC’s order of reference, agreed by the Procedure Committee, to be put into practice following Royal Assent. I am sure that noble Lords on all sides will want to consider the committee’s report in good time. As I have said before, the agreement reached regarding the SLSC taking on the new and vital role as the sifting committee demonstrates the constructive collaboration of the House. I remain grateful to other members of the Procedure Committee and the SLSC for their support in this decision.

A number of noble Lords have made it clear that they would like further reassurance that the recommendations of the sifting committees will be taken seriously by the Government. I am happy to repeat what I said in Committee—that if both sifting committees were to make the same well considered and no doubt persuasive recommendation that an SI should move from the negative to the affirmative procedure, I assure the House that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would, of course, need to be carefully considered on its merits. The noble Baroness, Lady Smith, tempted me to speculate on how often the Government would disagree with a recommendation coming from both committees. Clearly, I cannot usefully do that, but I can say that the Government are not placing shackles on their ability to make a recommendation to upgrade the procedure if they so wish. It is right that this is the case, but I repeat my view—I expect that to be a rare occurrence. I can confirm that on the very rare occurrence, one hopes, when that happened, and the Government did not agree with a recommendation to use the affirmative procedure, we would fully expect to publicly set out our reasons to the committee concerned.

Amendments 70 and 77 in the name of the noble Lords, Lord Lisvane, Lord Norton and Lord Sharkey, and the noble Baroness, Lady Smith of Basildon, propose an alternative sifting process. There are two significant differences between the process proposed in Amendment 70 and that proposed by the Commons Procedure Committee, the consequences of which would put at risk our ability to achieve this Bill’s fundamental aim: a functional statute book on exit day and, indeed, for this House to exercise timely and effective scrutiny. The first would make the sifting committee’s determinations binding on the Government unless the House decided to disagree with its committee. The second is that the amendment would build into the sifting committee process a mechanism for the House as a whole to make a binding determination, irrespective of the decision of the committee to which it has delegated the responsibility for making recommendations. Such determinations raise several serious problems. The first is the potential for disagreement between the Houses, and I note that Amendment 71 involves the same problem, to which I shall come in a moment.

The second risk, which is potentially more serious in practical terms, is the delays which this process could create. Given that this House and the other place do not often sit on Fridays, 10 sitting days is already likely to stretch across three weeks. The addition of an extra five-day period, during which each House could overrule its own sifting committee, potentially extends this process into a fourth week. Of course, if any of this were to occur around either House’s normal recesses, the period would be longer still. Then, after that, any negative instrument would still have a praying period of 40 days during which, as now, a debate could be sought. In addition, any affirmative instrument would be subject to the usual scrutiny procedures and laid before Parliament until it could be accommodated in the parliamentary schedule.

--- Later in debate ---

[Lord Sharkey]

In fact I was thinking of government Amendment 83N—I am sorry that I did not make that clear—which deals with Amendment 72. I was about to ask a question. Amendment 83N says that in the case of a failure of a Minister to give the reasons that he or she should give for urgency, the Minister must write explaining why he has failed to do that. The only thing missing at this point is some indication of when he might write to do that. I ask the Leader of the House to try to help the House by indicating when a Minister should write to indicate his sorrow and apology for not doing what the amendment asked him to do. With that, I beg to move.

[Baroness Smith of Basildon]

My Lords, the amendment is self-explanatory. If urgent regulations have to be laid, having an explanation and clarity from the Minister as to why it is urgent is always helpful. It is fairly simple and straightforward. I hope the noble Baroness will say that she is prepared to accept the amendment.

[Baroness Evans of Bowes Park]

I thank noble Lords for this very brief debate. As I indicated in Committee, the Government have reflected on this point further and decided to table their own amendments to achieve the same aims as the noble Lord’s amendments. The Government have always said that we expect Ministers to use the Bill’s urgent procedure rarely. This might be where, for example, corrections to the statute book are required very close to exit day and where the impact of not making these corrections would be significant.

The Government have always been committed to ensuring an appropriate level of scrutiny is afforded to the Bill’s provisions. I remind noble Lords that the made affirmative procedure still requires debates and potentially votes in both Houses. We have always wanted to be transparent about how this unusual process will work and it is for that reason that we have clarified the time period in which a made affirmative SI must be debated. In response to the persuasive case made by noble Lords in Committee, where the Government choose to use the urgent procedure we are happy to commit in statute to supplementing any declaration of urgency with a commitment to making a statement explaining why this was considered to be appropriate. In response to the question asked by the noble Lord, Lord Sharkey, Ministers will write as soon as is practicable. This is in addition to the obligation to make a statement.

While the Government cannot accept the noble Lord’s amendment for technical reasons, I hope noble Lords will be content to accept those tabled by the Government in its place and that the noble Lord, Lord Sharkey, will feel able to withdraw his amendment accordingly.