All Earl of Kinnoull contributions to the European Union (Withdrawal Agreement) Act 2020

Wed 15th January 2020
European Union (Withdrawal Agreement) Bill
Lords Chamber

Committee: 2nd sitting (Hansard continued)
Committee: 2nd sitting (Hansard continued)
Committee: 2nd sitting (Hansard continued): House of Lords
Department for Exiting the European Union
7 interactions (372 words)
Mon 13th January 2020
European Union (Withdrawal Agreement) Bill
Lords Chamber

2nd reading (Hansard)
2nd reading (Hansard): House of Lords
2nd reading
Department for Exiting the European Union
3 interactions (769 words)

European Union (Withdrawal Agreement) Bill

(Committee: 2nd sitting (Hansard continued))
Earl of Kinnoull Excerpts
Wednesday 15th January 2020

(1 year, 9 months ago)

Lords Chamber

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Department for Exiting the European Union
Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town (Lab)
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My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.

As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.

Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.

Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.

Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.

Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.

The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that

“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]

Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.

Earl of Kinnoull Portrait The Earl of Kinnoull (Non-Afl)
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My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:

“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”

It runs through that procedure and says, in paragraph 10:

“The European Parliament shall be immediately and fully informed at all stages of the procedure.”

That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:

“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.

That is at paragraph 23. It goes on:

“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”

As a European Union Committee member, I find that the extraordinary thing that one has been able to see with MEPs over the last four years is the way in which they have started using those powers to get a good grip on the scrutiny of the process that is Brexit. The Brexit Steering Group, energetically chaired by Guy Verhofstadt—a regular on all our TV screens—is regarded as a deeply successful model. I have been told that by more than one Commissioner, by many officials within the Commission, by Guy Verhofstadt naturally, and by Michel Barnier. I have checked with various other members of the European Union Committee and they believe that to be the case. I have not checked with my noble friend Lord Kerr of Kinlochard; perhaps he will confirm his agreement. It really has been deeply successful, and the Commission members have found it good and have enjoyed the process.

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Lord Callanan Portrait Lord Callanan
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The noble Baroness makes my point very well. The reason why I did not was because there had been no further negotiations since that legislation was passed. There was nothing to update the House on. It illustrates the point that it is bad legislation, and bad to set out these precise timetables in legislation. There needs to be flexibility on behalf of the Government and of course on behalf of Parliament. Of course, the changes to domestic law required by the future relationship treaty will require legislation for their implementation. This will mean, of course, that Parliament will have its say, just as it is having its say on this Bill and on the amendments. It should be noted that the key powers provided by these clauses would be given to the House of Commons. Last Wednesday, MPs rejected a similar power in an amendment in Committee by 344 votes to 255. Noble Lords are welcome to ask the other place to think again about what powers it should have, but I am confident of what its response will be.

Earl of Kinnoull Portrait The Earl of Kinnoull
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I am sorry to interrupt the Minister. I should have said a big “thank you” for the time he spent with me on this topic in his cosy office. I am afraid that there will be a bit more time spent as well. I was very keen that he cover two things. First, he covered his view of Article 218, but he did not go at all into the interinstitutional agreement, which really expands, quite dramatically—I read it out—on what the European Parliament receives automatically. It is not having to ask for it—it receives it automatically, which is quite a big difference. Nor did he comment at all on what David Davis had said to us about parity of information, which is a different point in fact than that made by the amendment. I was really asking the Minister to comment about whether the parity of information pledge made by the then Secretary of State in the summer of 2016 was still current.

Lord Callanan Portrait Lord Callanan
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I did not cover that specifically. The noble Lord quoted the document—I have it in front of me—and it refers to the Commission providing early and clear information to Parliament. It is not specific on what information exactly should be provided and at what stages; its very nature is that of an interinstitutional agreement attempting to cover a whole range of different scenarios. My point is valid: the Commission controls what information is provided and when. With regard to his other point, the pledge still holds, essentially. The Government are committed—the Prime Minister said it—to provide as much information as is possible to Parliament to enable it to provide its proper scrutiny, without conflicting with the necessity to conduct a lot of these negotiations in confidence as we do not wish to prejudice our negotiating position.

I know the noble Lord, Lord Wigley, will be very keen to hear my point about the devolved Administrations. We are firmly of the view that it is the responsibility of the UK Government to negotiate on behalf of the United Kingdom. Nevertheless, we recognise the specific interests of the devolved Administrations in our negotiations with the EU and their responsibilities for implementing that legislation in devolved areas. We have been clear that the devolved Administrations should be closely involved in preparations for the negotiations, and will continue to engage with them extensively. Indeed, only last Thursday I attended the 21st meeting of the Joint Ministerial Committee on EU Negotiations, where we had a constructive—as they say, full and frank—exchange of views with the Scottish and Welsh Governments and, at the time, the Northern Ireland Civil Service. Now that we have an Assembly up and running in Northern Ireland, I am sure it will want to contribute to these negotiations as well.

I chair one of the joint ministerial committees; I have been up to Scotland many times to take part in these sessions and my noble friend Lady Williams has also attended them. A number of UK Ministers go and there is regular dialogue with all the devolved Administrations, both on the negotiations and, up until now, on ongoing EU business. That will continue and we are looking at how that should develop and be taken forward when we are no longer an EU member state and we move on to the implementation phase. We are committed to ensuring that we have the best deal for all parts of the United Kingdom. The devolved Administrations are, of course, free to engage with their own respective devolved legislatures as part of this process, but the delay that would be caused by creating unnecessary powers of veto could, in our view, frustrate our ability to finish negotiations by the end of the year.

We believe that the Government have a mandate to begin the negotiations and there is no need to introduce additional hurdles or delays before those negotiations can begin. I hope the noble Baroness and the noble Lord, Lord Wigley, will therefore feel able not to press their amendments.

European Union (Withdrawal Agreement) Bill

(2nd reading (Hansard): House of Lords)
Earl of Kinnoull Excerpts
Monday 13th January 2020

(1 year, 9 months ago)

Lords Chamber

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Department for Exiting the European Union
Lord Newby Portrait Lord Newby (LD)
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As your Lordships’ House knows, I and my colleagues on these Benches have spent the last three and a half years arguing that Brexit was not in the best interests of the British people and that they should have the opportunity to have a further say, in the light of the evidence available, on whether they really wished to leave the EU. We reluctantly came to the conclusion last October that, the withdrawal agreement Bill having secured its Second Reading, and in the absence of a majority in the Commons for a confirmatory referendum, a general election was the last and only way in which Brexit by Christmas could be avoided. We knew that this was a second-best way forward—from our perspective, a referendum would have been far preferable—and we knew that it was a risk. We took the risk, but we did not succeed.

I realise that there are many people who fervently believe that we should remain in the EU who would now try to undermine the legitimacy of the current Bill by saying either that the original referendum result itself was flawed or that, given that all the polling shows that the majority of the British people would still like to remain in the EU, there is not a proper democratic mandate for Brexit. I am afraid I disagree. Everybody who voted last month knew that the election was, in reality, a proxy referendum on Brexit. There were of course other factors, notably the quality of the leadership of the Labour Party, but having fought the election on the slogan “Get Brexit done” and having won that election, the Prime Minister has the mandate and the votes in the Commons to take Britain out of the EU.

This does not change my belief that there is no such thing as a good or sensible Brexit. We on these Benches continue to believe that it will damage our economy, our security and our international reputation, but we are now faced with this Bill, which will indeed take us out of the EU. It does not, of course, get Brexit done, but it starts the process—a process which the Prime Minister will oversee with a solid Commons majority behind him. It is his Brexit. He owns it, and he will be judged by its successes and failures. The fact that the Government have a large majority and have indicated that they have no intention of accepting any changes whatever to the Bill is no excuse for your Lordships’ House to fail to scrutinise and challenge its detailed provisions, nor to vote to secure changes which we believe are in the interests of individuals or the country as a whole. This is what we will seek to do.

This is, of course, the second withdrawal agreement Bill presented to Parliament. The first version got its Second Reading in October but was superseded by the election. At that point, the Government lacked a secure majority and were prepared to make sensible concessions to get that Bill through. Now, free from such a constraint, they have removed all these concessions, however sensible or uncontentious they were. They have in their place inserted some new and contentious provisions. Amendments to reverse some of these changes are the principal area in which we will seek to improve the Bill. We will also seek to consider elements of the Government’s negotiating mandate which we believe the Bill should cover.

The removed concessions are, first, the so-called Dubs amendment on allowing unaccompanied refugee children to join family members in the UK. The Bill simply requires the Government to report on their policy in this area and undermines the substance of their earlier commitment. The Government may say, as the Minister has this afternoon, that this will make no practical difference. But if that is so, there is no reason for changing the original provision and we will support the noble Lord, Lord Dubs, in trying to reinsert it.

Secondly, the original Bill had sensible and detailed provisions for parliamentary oversight of the negotiating process. These have been deleted. They provided for Parliament to consider and approve the Government’s negotiating objectives, to report back to Parliament on the progress made in the negotiations and to require Parliament to approve any negotiated future relationship treaty. The only possible reason for the Government to delete these provisions is that they wish to avoid being held to account by Parliament, and to conduct and conclude negotiations with the EU with as little parliamentary scrutiny as they deem fit. We know that in practice this means as little scrutiny as they can possibly get away with. The original provisions should be reinserted.

Thirdly, the original WAB had provisions to protect workers’ rights. This Bill does not, and they should also be inserted.

Of the new provisions in the Bill compared to its predecessor, the most politically significant is Clause 33, which prohibits any extension of the implementation period beyond the end of 2020. This provision means either that the Government are relaxed about the possibility of having no trade agreement in place and operating on WTO terms from next January, or that the provision is a negotiating ploy which will be ditched if and when it proves impossible to reach a quick agreement. Your Lordships’ House has expressed its view on the undesirability of leaving with no deal on numerous occasions. The Prime Minister’s breezy self-confidence will not make such a course any less damaging. Putting a clause in a Bill as a negotiating ploy is simply not what legislation is for. The clause should be deleted.

A second series of new provisions relates to the ongoing rights of EU citizens in the UK. The Government have put in place a system under which all EU citizens currently resident in the UK can apply for and receive new permanent residence status. This is welcome and uncontroversial. Concerns remain, however, about how the system will be managed; for example, on how to avoid EU citizens being deprived of their current rights by default if they do not register in time and on the provisions for appeals. There remain great concerns among EU citizens in the UK on these and other points, and we should take this opportunity to ease them.

Thirdly, in respect of the powers given to Ministers, there are several respects in which the spectre of Henry VIII hovers over this Bill. For example, in Clause 27, it is proposed that Ministers should be able to amend retained EU legislation by secondary legislation under a worryingly broader definition of what constitutes a deficiency in the legislation in the first place. There are also the new proposed powers in Clause 26, which allow Ministers to direct an unspecified range of courts and tribunals on which aspects of EU retained case law they must follow. This is a most extraordinary and unsatisfactory power, and we will support the amendment in the names of the noble Lords, Lord Pannick and Lord Anderson, and indeed my noble friend Lord Beith, to delete it.

Moving on from the changes to the previous withdrawal agreement Bill, there are issues relating to the Government’s negotiating mandate which need to be considered and inserted in this Bill. When we debated the withdrawal Bill in 2018, we sought to include provisions which related to the Government’s negotiating mandate—issues which were covered by the political declaration but which we thought so fundamental that they should be included in that legislation. We will want to discuss some of these issues again and try to include them in this legislation. They include participation in EU programmes including Erasmus and Horizon and the European medicines regulatory framework. They include maintenance of environmental and animal welfare standards. They include the nature of a security partnership. This Bill should cover them all.

We at least have somewhat longer to scrutinise the Bill than was the case in another place. We need to make sure that we use this time wisely to limit the damage which Brexit could do to our economy, our constitution and our values as a liberal democracy.

Earl of Kinnoull Portrait The Earl of Kinnoull (Non-Afl)
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My Lords, annexed to the EU Committee’s report of last Friday is the letter that the committee sent to the Leader of House on 4 November last year, setting out our questions about the Bill’s provisions on parliamentary oversight. I draw the House’s attention to the Government’s response to that letter of last Friday afternoon, 10 January, for which I thank the noble Lord, Lord Callanan.

I want to make just two points concerning Parliament’s role, first, in overseeing the withdrawal agreement’s implementation and, secondly, in scrutinising the next round of negotiations. The Bill leaves much to be desired both areas.

I turn to the Joint Committee that will oversee the implementation of the agreement post Brexit. There will be much for the Joint Committee to do, particularly on Northern Ireland, where the revised protocol is little more than a sketch plan. I note particularly, as did the noble Baroness, Lady Hayter, that the Joint Committee can amend the withdrawal agreement itself. The Bill, however, provides no mechanism for parliamentary oversight of the Joint Committee. There is no statutory requirement to publish decisions, documents or agendas, to report back to the House, or anything else.

Our letter to the Leader last November urged the Government

“to bring forward amendments to provide for appropriate parliamentary oversight and scrutiny of the Joint Committee”.

No such amendments have been forthcoming. In his letter to me of last Friday, the noble Lord, Lord Callanan, said that Clause 34, which requires a Minister to co-chair the Joint Committee, was intended to enhance parliamentary oversight. He continued by saying that

“members from both Houses will be able to hold Ministers to account for actions taken at the Joint Committee. In due course, we would be keen to explore with individual members or committees how we can further strengthen ministerial accountability.”

I confess that I do not quite understand that logic. Ministers are anyway accountable to Parliament, including for the actions of civil servants. It is difficult to see how Clause 34 addresses the issue that we have raised, to which I am sure we shall return in later stages of the Bill. In any event, I ask the Minister whether he will agree to meet me shortly, as part of his exploration of strengthening ministerial accountability.

I turn to parliamentary oversight of the negotiations on the future UK-EU relationship. Clause 31 of the October 2019 text of the Bill provided for this. A resolution of the Commons—and a debate in the Lords —would have been required to approve the negotiating mandate and the final treaty. In between there would have been quarterly reports on progress. Clause 31 has disappeared from the new Bill. There is now no formal mechanism ensuring parliamentary oversight of the future relationship negotiations. There is still the Constitutional Reform and Governance Act, but that is a weak power at the end of the matter only, which can anyway be set aside by a Minister. Accordingly, the Bill means that there would be no legal barrier to the Government negotiating and ratifying the future UK-EU relationship treaty without any parliamentary involvement, other than in passing any implementing legislation.

It is worth contrasting that with the position in the EU. Negotiations under an Article 218 legal base require extensive consultation with the European Parliament and, potentially, its consent. Thus, there will be close parliamentary oversight on the EU side but, as things stand, next to nothing on the UK side. In summer 2016, the then Secretary of State, David Davis, commenting on whether the UK Parliament would enjoy parity with the European Parliament during the withdrawal negotiations, said:

“We will certainly match and, hopefully, improve on what the European Parliament sees.”

In the light of that, why was Clause 31 of the October 2019 Bill removed?

In his letter to me of last Friday, the noble Lord, Lord Callanan, said:

“The Government will however take its obligations to Parliament seriously. We look forward to discussing this role, and the role of Parliament more generally, with both Houses during passage of the Bill.”

I anticipate that this House will spend much time during the passage of the Bill on parliamentary oversight of the future relationship negotiations. If the Government are not willing to move on these issues, we will find that in leaving the EU, and losing the oversight powers of our MEPs and the EU Committees of both Houses, we will have weakened, not strengthened, transparency and accountability where international agreements are concerned, to the long-term detriment of our democracy.

I hope that the Government will hear and respond to these concerns. The best time to make concessions is when one enjoys a position of strength.

Lord Cormack Portrait Lord Cormack (Con)
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My Lords, it is a great pleasure to follow the noble Earl. He made some extremely important points, underlining the fact that there is a continuing role for Parliament. Like other noble Lords, I look forward to the maiden speeches of the noble Lord, Lord Mann, and my noble friend Lord Barwell. It would be entirely right to pay tribute to my noble friend for all he did to produce what we now refer to as the Theresa May agreement, which many in this House would have accepted—with some reluctance—to move forward. However, the electorate have now told us to move forward.

I refer to the time in 1945 when the Labour Party had had a massive victory at the general election and the House of Lords was dominated by hereditary Conservative Peers. Two men with vision, judgment and an ability to compromise—the great Lord Addison, a great Lincolnshire man, leader of the tiny Labour Party in your Lordships’ House, and the Marquis of Salisbury—drew up what became known as the Addison/Salisbury or Salisbury/Addison convention: no Bill that was in a manifesto should be denied a Second Reading in your Lordships’ House. Of course, that obviously applies here, but I would argue that more applies here.

There are many aspects of this Bill that I think make it inferior to the previous one, but there will be ample opportunity during this parliamentary year to look at many aspects of the Bills in the Queen’s Speech, a number of which impinge upon our relationship with Europe. That is the time for us to apply our forensic powers of examining and scrutinising legislation. I very much hope—and it is because I have the future of your Lordships’ House very much at heart—that the Bill will not be subject to a great number of amendments and that there will be no votes on it in this House. It is, however much some of us may regret it, the manifest will of the people. The Prime Minister has a large majority, to which the noble Lord, Lord Newby, referred—very generously. It is the will of the people that we leave, and that we leave by the end of this month. That was explicitly stated throughout the election campaign.

Again, I am not saying that I was enthusiastic about that, but I recognise, as a democrat who believes that the ultimate power must always rest at the other end of the Corridor, that we would be foolish in the extreme to hold up this Bill in any way. There are other opportunities. We have our European Committee. We have a whole range of options for calling people to give evidence and for holding Ministers to account, but this Bill, imperfect as it is, is what the Government are determined to get through. We have to be realistic and recognise that the Prime Minister has two things at his command: a large majority and a large measure of euphoria in the other House, sustaining and impelling that majority. Whatever happens in your Lordships’ House, this Bill will go on to the statute book without amendment. Therefore, I implore colleagues in all parts of the House, if they have a real regard for our important powers of scrutiny and examination, to exercise them throughout this parliamentary Session and throughout this Parliament when there is not a time constraint, as there is on this Bill.

Let us flex our muscles, by all means. Let us have a vote, from time to time, by all means. As one who voted quite frequently against the Government in the last Parliament in your Lordships’ House and who also voted many times against his party in another place, I know that that can be done and sometimes should be done, but there are times when it should not be done, and this is one of them.