European Union (Withdrawal) Bill

Baroness Smith of Basildon Excerpts

Monday 18th June 2018 Lords Chamber

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

My Lords, the issue of continued participation in a customs union with the EU was debated at length in our House. It has now been debated twice in the House of Commons. Most recently, the other place chose to reject those amendments put forward by the noble Lord, Lord Kerr. Instead, it chose to accept an amendment tabled in lieu by my right honourable friend Sir Oliver Letwin, to which this House is now invited to agree.

My right honourable and learned friend the Solicitor-General set out why the Government were unable to support Lords Amendments 1 and 2 and I do not intend to repeat those arguments at length. I will simply reiterate that the UK, in its entirety, is leaving the customs union. We will seek a new customs arrangement with the EU that allows us to trade goods and services as frictionlessly as possible with the EU, frees us to strike trade deals around the world, and avoids any return to a hard border between Northern Ireland and Ireland.

The amendment sent to us from the other place ensures that Parliament is informed, through a Statement before both Houses provided by 31 October 2018, of the steps we have taken to seek to negotiate an agreement for the United Kingdom to participate in a customs arrangement with the EU. The Government believe that this alternative to the amendment tabled by the noble Lord, Lord Kerr, provides the right balance between ensuring Parliament is informed of the steps the Government are taking to secure a future customs relationship, and ensuring that we follow through on the objective of delivering the referendum result by leaving the EU and, therefore, also leaving the customs union.

I therefore hope noble Lords will be content to accept the amendments from the House of Commons this afternoon. I beg to move.

[Baroness Smith of Basildon (Lab)]

My Lords, this is the first of the Motions before us today. In addressing it, I will briefly reflect on the role that your Lordships’ House played in consideration of this Bill, and, for the avoidance of any doubt, our approach to today’s business.

Despite attracting perhaps a little more excitement, this is the same procedure that we have for every legislative Bill that comes before your Lordships’ House. I have said before that the process of Brexit cannot be left to those who have no doubt. It is only through consideration and challenge that we get better, if not the best, outcomes for any legislation. This Bill came to us deeply flawed and divisive. Together as a House, we approached it thoughtfully and diligently. We have had some long days and some long nights in Committee and on Report. We are grateful to those Government Ministers across departments who have been willing to engage on some of the less controversial but equally important issues.

Of around 200 amendments passed, 15 did not enjoy the full or initial support of the Government. Of these, one was totally accepted on agencies and another largely accepted, with minor changes, on Northern Ireland. Eight were rejected, although on some of these enhanced protections for EU-derived protections the Government have since made further concessions, or, in the case of sifting, reinstated earlier amendments. Five have been replaced with amendments in lieu. We will consider these today, including the one we are talking about now on the customs union and the publication of primary legislation to enforce environmental protections.

We are grateful to the Government for their consideration and acceptance of so many of the points raised in your Lordships’ House. Even before the Bill returned to the other place, significant changes were made on a range of issues, including removing the power to levy taxes or establish new public authorities by statutory instrument, which is particularly important for the new environmental enforcement body; additional explanatory statements and reports to Parliament; the introduction of sunset clauses on some issues; the prevention of the repeal or amendment of devolution clauses by secondary legislation and significant amendments in your Lordships’ House on devolution provisions; and clearer guidance for courts and tribunals relating to future decisions of the CJEU. Importantly, we have seen the removal of a clause that I had never seen before in legislation; that is, one giving a Minister the ability to amend the Bill via an SI. That has gone.

Despite disappointment at the rejection of some Lords amendments, this legislation is better for the work that we have undertaken. We have not exceeded our defined and limited role, but we have used our remit to provide for greater consideration, further reflection and meaningful changes. As the Leader of the House has said previously, reinforced by Ministers in the other place, there is no legislation that does not benefit from scrutiny in your Lordships’ House.

We understand that in a democracy this can be both an asset and, at times, a source of frustration to government. Canadians describe their second Chamber as a Chamber of sober second thought—a further opportunity to think things through and fine-tune legislation. That makes the outbursts of some pro-Brexit MPs all the more ridiculous. As we discuss these final amendments from the House of Commons, we have seen a fair bit of sabre-rattling from some of the most enthusiastic Brexiteers and supporters. Inaccurate and misleading press headlines such as “Enemies of the People” and “Saboteurs” may add excitement and drama, but they do nothing to improve the quality of debate or journalistic integrity.

We have also heard calls for this House to be abolished, to be replaced with a committee of experts or an elected House. I know that many hold honourable and genuine positions on different kinds of reform, but to base a case for fundamental change to and abolition of the current system on disagreement on a Bill shows poor judgment. In response to proposals for an elected House or House of experts, I suggest that such a House might not be quite so compliant in accepting the primacy of the House of Commons.

Today, our role is very clear. This House does not and should not engage in ping-pong lightly or without thought. The process of ping-pong is not to challenge the elected House, but to provide an opportunity. Where matters are clearly and obviously unresolved in the House of Commons, that is where they should be dealt with. The reported disagreement since Friday between the Government and their own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration, and it can be resolved only by those elected to the House of Commons.

Lords Amendments 1 and 2 on a customs union have been returned to this House with, in effect, just one amendment, changing “customs union” to “customs arrangement”. This is unnecessary, but I understand why the Government have done it. It is because the Government do not yet know, even today, what they want. Currently, they have two work streams: a customs partnership and maximum facilitation. However, when the Dutch Government are advising their manufacturing industry not to buy car components from the UK because our future customs relationship with the EU is unclear, we know that there is a problem that needs to be addressed urgently. As a result of the amendment from your Lordships’ House, the Government are now committed to return to Parliament in just over four months, by the end of October this year, with a Written Statement on what they have done and how they will proceed. I do not now feel that this is an issue that we should return to the other place.

[Lord Newby (LD)]

My Lords, I associate myself with much of what the noble Baroness has said about the role of your Lordships’ House. The role played by the Lords on this Bill has been completely in line with constitutional precedent. We indeed defeated the Government 15 times, but the Government used the Lords stages of the Bill to introduce more than 150 amendments of their own, including extremely important ones on devolution. That is because they recognised that your Lordships’ House was indeed the place in which the Bill could be improved.

Of the 15 amendments we passed, as the noble Baroness said, the Government have accepted almost half, either in whole or in part. This is not, incidentally, something that one would gather by reading the popular press. The Government have also chosen to use this stage of the Bill to introduce an amendment of their own in an attempt, possibly unsuccessful, to resolve the “meaningful vote” issue. They clearly recognise that the Lords has a vital part to play in improving legislation, even at ping-pong stage, and they are sensibly seeking to do so in this case.

--- Later in debate ---

[Lord Howard of Lympne (Con)]

My Lords, this is not a debate about the integrity of Mr Dominic Grieve, and I shall do my very best to avoid mentioning his name again. It is a debate on the terms of the amendments before your Lordships’ House this afternoon. My noble friend the Leader made a cogent and compelling case for the government amendments and I do not intend to elaborate on it at any length. She made it clear that the effect of the amendment in the name of my noble friend Lord Hailsham would be to confer on Parliament a negotiating power that has always resided in the hands of the Executive in our country. That is why, as my noble friend the Leader said, Professor Vernon Bogdanor has described the amendment as a “constitutional absurdity”. It is a measure of the weakness of the case put forward by my noble friend Lord Hailsham that he was driven, in the end, to impugn the validity of the Article 50 vote in the House of Commons—a vote passed by a very large majority in the very House whose cause he purports to champion as the basis of his amendment.

I want to elaborate briefly on a point just made by my noble friend Lord True. My noble friend Lord Hailsham said, at the very outset of his speech, that the purpose of his amendment was to give the House of Commons the opportunity to consider it. It is a simple and irrefutable fact that the House of Commons will have that opportunity without passing my noble friend’s amendment. The House of Commons will have that opportunity if the Government’s amendment is passed, because that amendment has not been considered by the other place. So, when the Government’s amendment comes to the other place, it will be open to them to accept it, reject it or amend it. They can amend it in the terms of the amendment put forward by my noble friend Lord Hailsham. The very purpose of his amendment—

[Baroness Smith of Basildon]

My Lords—

[Lord Howard of Lympne]

I will give way when I have finished my sentence. The very purpose of the amendment put forward by the noble Viscount can be achieved without its passing.

[Baroness Smith of Basildon]

I apologise to the noble Lord for interrupting, but I may be helpful on House of Commons procedure. If an amendment goes from this place to the House of Commons and is amended, the chances are that the only amendment that could be voted on is a government one. At the moment of interruption, only government amendments are voted on. Back-Bench amendments would not be voted on.

[Lord Howard of Lympne]

The operative phrase in the noble Baroness’s observation was “the chances are”. I believe that, if the House of Commons wished to consider the amendment in the terms put forward by the noble Viscount, it would be able to do so.