European Union (Withdrawal) Bill

Lord Callanan Excerpts

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

These amendments today are critical to the way in which we are going to leave. That is what the Bill is about, and Article 50 demands that the framework should be there. They therefore pose absolutely crucial questions and I am looking forward to the Minister’s response to them. I hope he can indicate whether the Viennese view of Secretary of State Davis or the “bridge across the channel” Johnson view that will guide the future of this country.

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

My Lords, it is a great honour to contribute to the first day in Committee on this historic Bill. Let me say at the outset that I look forward to working constructively with colleagues from across the Chamber throughout the course of Committee to scrutinise and improve this vital Bill in the national interest.

Clause 1 is the shortest of all in the Bill—you would not believe it from the debate—but it could scarcely be more important. This debate has shown the House at its passionate best, but it was not really about Clause 1 at all. I think all noble Lords recognise that, when we leave the EU, we need to repeal the European Communities Act. So we have had a fascinating debate on the UK’s potential ongoing membership of or future relationship with the single market, the customs union, the EEA and EFTA. These are of course issues of profound importance and I understand that noble Lords have strong views on them, but everybody really knows that they are not matters which the Bill is designed to address.

However, I will happily rehearse the Government’s position once again. What this Government seek is a bold and ambitious economic partnership that is of greater scope and ambition than any such existing agreement. We have listened to EU leaders and we understand and respect the position that the four freedoms of the single market are indivisible, and that there can be no cherry picking. For that reason, we do not seek membership of the single market after we leave the EU, and nor do we seek membership of the customs union. By leaving the customs union and establishing a new and ambitious customs arrangement with the EU, we will be able to forge new trade relationships with our partners around the world and maintain as frictionless trade as possible in goods between the UK and the EU, providing a positive and powerful voice for free trade in the world.

Of course, I am talking about our future relationship with the EU. To answer the question which I think came from the noble Lord, Lord Fox, we also seek an implementation period which, we have been very clear, will be based on the existing structure of EU rules and regulations—but during which the UK will be outside the EU.

Let me take this early opportunity to draw the attention of noble Lords to our publication today of our proposed draft legal text for the section of the withdrawal agreement in relation to the implementation period. We have published this in part to facilitate parliamentary scrutiny. It is right, too, that the British public should be able to see our position. The details of that implementation period would be implemented in domestic law through separate primary legislation, after we have reached agreement with the EU and after these Houses of Parliament have voted on that agreement.

In the meantime, a number of amendments in this group seek to mandate our continued membership of one or both of the single market or customs union, presumably in perpetuity. But put simply, this is not something the UK Government could deliver unilaterally, even if we were so minded. The amendments tabled by the noble Lord, Lord Wigley, get around that by proposing maintaining the same rights, freedoms and access within the UK that we have currently, which in practice means staying in the single market in all but name but without any reciprocal guarantees from the EU. That would be the worst of all possible worlds.

Other amendments seek to mandate the Government to take a particular negotiating position or to pursue particular objectives. Leaving aside what I have said about those not being our objectives, the amendments raise constitutional questions about the role of these Houses of Parliament and they raise practical questions too. Who is to say whether the Government have truly made these things their negotiating objectives? How would they be judged? Would we see the courts ruling on the conduct of the negotiations, and what would be the consequences if they did so? I recognise the noble intention behind these amendments, but I do not think we can contemplate making them, especially when the repeal of the ECA or the exercise of crucial delegated powers becomes contingent on them. That is a recipe for undermining the essential certainty that this Bill is designed to create.

Other amendments call merely for reports to be published on certain things. In response to the question asked by the noble Lord, Lord Hain, we have confirmed that when we bring forward the vote on the final deal we will ensure that this House is presented with the appropriate analysis the Government have done to make an informed decision, and we will take such steps as we can to facilitate scrutiny in the interim. But the particular reports and timetables suggested are arbitrary and may not in fact serve Parliament well.

The Government intend to secure a new partnership with the EU. We will legislate in accordance with that and nothing in this Bill threatens that. This Bill is designed only to prepare our statute book; it is agnostic as to the outcome of the negotiations and rules nothing in or out. We will legislate for the agreement reached with the EU in due course.

Finally, let me say something about the EEA and the amendments tabled in the name of the noble Lord, Lord Adonis, and the noble Baroness, Lady Ludford, concerning the EEA. Amendment 152, for example, seeks to make continued membership of the EEA one of the UK’s negotiating objectives, while Amendments 193 and 203 require a parliamentary vote on withdrawal from the EEA before making regulations under the power in Clause 9. Amendment 225 seeks to prevent notification of the UK’s withdrawal from the EEA agreement. On that specifically, our legal position remains unchanged. Article 127 does not need to be triggered for the agreement to cease to have effect.

My noble friend Lady McIntosh also asked about the EEA. In the absence of any further action, the European Economic Area agreement will no longer operate in respect of the UK when we leave the EU. However, as the Secretary of State has said, our existing international agreements should continue to apply during the proposed time-limited implementation period.

[Lord Adonis]

Will the Government publish the legal advice they have had in respect of that proposed procedure on withdrawal from the EEA?

[Lord Callanan]

The noble Lord knows the answer to that question.

[Noble Lords]

Oh!

[Lord Callanan]

We are not going to publish confidential legal advice. That has been the position of previous Governments, and it is the position of this Government. Our aim is to ensure continuity with international partners

[Lord Adonis]

I—

[Lord Callanan]

No, I have given way to the noble Lord once. I have answered his question. I have referred to his points. If he will forgive me, I will make some progress.

[Lord Adonis]

My Lords—

--- Later in debate ---

[Lord Callanan]

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

[Baroness McIntosh of Pickering]

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

[Lord Callanan]

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

[Baroness Hayter of Kentish Town]

There were a number of other questions, such as the one I raised on regulations, that are absolutely pertinent to the Bill. We will come later to how the regulations will be brought over and put into our law, and we will have debates on that on days three, four and five, I think. The question I asked the Minister specifically is: does he know about the work being done by Conservatives, along with Americans, to change regulations to assist a different form of trade? This is relevant to this Bill because we will be coming on to how we secure those regulations and their status in our law. I think the Minister’s understanding of those discussions is relevant today.

[Lord Callanan]

My Lords, there is a huge amount of work being done by various economists, lobby groups, institutions and think tanks on regulation and various agreements. I am not aware of the specific work the noble Baroness talks about. Of course I know some of the individuals she mentioned—they are good friends of mine—but I am not aware of all that work. Now she has mentioned it, I will go away and have a look at it. I am sure it is very good, but I cannot comment until I have seen it.

[Lord Hannay of Chiswick (CB)]

The Minister puzzled me slightly just then by saying that once the implementation phase—that piece of Orwellian language —is complete, the object will be to negotiate with the EEA partners of Norway, Iceland and Liechtenstein to preserve our present relationship, but that includes free movement.

[Lord Callanan]

With great respect to the noble Lord, I do not think I said that we would preserve the present relationship. We will want to establish a new relationship with those states. We have always had close and friendly relationships with them. Ultimately that will be a matter for the negotiations.

[Baroness McDonagh]

I do not feel that any of my questions were addressed. I apologise to the Committee, but I have to say to the Minister that he has not addressed whether he agrees with the estimate of the Secretaries of State about progress on trade deals. This is paramount information to understand what needs to happen in terms of customs union, single market and so on. I wonder whether my questions can be addressed.

[Lord Callanan]

My Lords, I thought we were here to discuss the Bill. We have spent three hours and 20 minutes debating so far, and I have listened very carefully to what everyone has said. I have sought to answer a lot of the questions where they were relevant to the contents of the Bill. The clause that we are debating repeals the European Communities Act. I understand that many Members want to raise concerns about the referendum, whether they thought the campaign was right or not and whether various people said various things or not, but I really do not think they are that relevant to the clause of the Bill that we are debating.

[Baroness McDonagh]

I apologise; I will make another attempt because I do not feel that I am making my questions understood. My questions are based on Amendments 191 and 206, and the purpose of the amendments is to seek answers so that we know whether we need to press them to a vote. My question is very clear: how is progress going? Does the Minister believe that the estimates given by the two Secretaries of State in the other place can be relied upon, and how are we getting on in terms of progress on the trade deal? This is paramount to understand what needs to go in the European Union (Withdrawal) Bill, and those amendments are before the House.

[Lord Callanan]

I am sure that the statements made by the Secretaries of State in the other place are true and valid and that they will be endeavouring to fulfil them. There will be further legislation, as we have said, on the withdrawal agreement and implementation Bill when we have sought and obtained agreement with the EU, and I am sure that further international trade Bills will follow in due course as well. However, that is not the subject of this legislation, as the noble Baroness well knows.

[Lord Bassam of Brighton (Lab)]

My Lords, the Minister was on his feet for just 12 minutes dealing with a debate that had taken over three hours. There are four sets of amendments here that deal with delegated powers. He has not addressed that issue at all in this debate but it is very much the focus of those amendments. That is a pretty shabby performance, actually, and this House is entitled to be extremely dissatisfied with the response that we have had. Further, we have had a big debate about the single market and the customs union but the Minister dismissed that in his opening comments. He said the Government were preparing themselves for a customs union-lite type of arrangement but failed to set out any details of what that might look like. This House deserves better explanations to its amendments than that, and I hope this does not give rise to an equally shabby performance on all the other amendments that we have to consider; there are over 300 of them.

[Lord Callanan]

I realise that. I apologise if the noble Lord is disappointed but I was trying to address what is actually in the Bill. As I said, further legislation will follow. We have spent three and a half hours so far debating one grouping of amendments, and we have eight further groupings to get through this evening on the timetable agreed by all the usual sources.

[Baroness Hayter of Kentish Town]

I am sorry to say this, but the amendments were taken by the Public Bill Office as being in scope. They are therefore relevant to the House.

[Lord Adonis]

My Lords, before the Minister finishes after the very short intervention that he has just made, I point out that he did not respond at all to the points made by noble Lords from around the Chamber about the Good Friday agreement. Would he give the view of the Government, since it appears to be in question at the moment, about the future of the agreement and whether he agrees with the former Secretary of State for Northern Ireland who said it had now served its purpose?

[Lord Callanan]

I am happy to clarify for the noble Lord that we remain completely committed to the Good Friday agreement.

[Lord Forsyth of Drumlean (Con)]

My noble friend has been accused of not being very experienced. I point out to those Members opposite that we are in Committee but we have had three and a half hours of Second Reading speeches, not speeches on the amendments.

--- Later in debate ---

[Lord Callanan]

I am sorry to disappoint the noble Baroness, but we will be having a number of Brexit Bills, not least of which will be the withdrawal agreement and the implementation Bill, once we have reached agreement. I shall endeavour to respond to all the questions that I have been asked.

Repealing the European Communities Act is an important step to ensure that there is maximum clarity on the law that will apply in the UK after we leave the EU. I cannot see the sense in needing a separate Act to repeal the European Communities Act. This repeal in Clause 1 is front and centre of the Bill; indeed, this Bill was originally called the great repeal Bill. To prevent this Bill from repealing the European Communities Act would undermine perhaps the most important part of it.

I suspect that I have read the intention of the noble Lord, Lord Adonis, correctly when I say that he would prefer the European Communities Act to be repealed in the withdrawal agreement and implementation Bill that was announced by the Secretary of State in November. That Bill would then deal with the implementation period and our relationship to EU law during that period. This may be founded on the misconception that, if Parliament does not repeal the European Communities Act and appoint an exit day, that will somehow prevent the UK exiting the EU. If that is the case, I am sorry that I have to disappoint the noble Lord: our leaving the EU is a matter of international law, and we are leaving no matter what is or is not done to the European Communities Act.

I will address the noble Lord’s question about exit day and procedure. What will become Section 14(4)—currently Clause 14(4)—could be used to change the exit day in the Bill only if the Article 50 period were to be extended; it could not be used to prevent us leaving the EU. That is a matter of international rather than domestic law. The exercise of Section 14(4) to alter the exit day in domestic law in accordance with Article 50 would be subject—in answer to the noble Lord, Lord Tyler—to the affirmative procedure in both Houses. I will give more detail on that in a minute. We do not expect to use this power and we are leaving the EU on 29 March 2019.

The noble Lord, Lord Hain, and the noble Baroness, Lady Hayter, asked further questions about our exit day and the amendment. In the other place we tabled an amendment which set exit day in order to provide certainty and clarity, and we accepted further amendments on the issue, again to provide further clarity. The amendments set the exit day in the Bill as 11 pm on 29 March 2019, while retaining the technical ability to amend the date at a later stage. As I said, that can happen only if the European Council—including the UK, of course—unanimously decides to change the date on which the treaties cease to apply to the UK, as set out in the famous Article 50. We do not intend this to happen.

I will give the noble Lord, Lord Tyler, more detail on his point. Any change to exit day in domestic law under the power of what will become Section 14(4) will be by the affirmative procedure, guaranteeing a vote in both Houses. The affirmative procedure in this instance is provided for in paragraph 10 of Schedule 7.

Providing for the date of the repeal of the 1972 Act in the Bill that implements our withdrawal agreement might seem tidy in certain scenarios, but it would put the legislative cart before the diplomatic horse in what I feel would be quite a dangerous way. Both the withdrawal agreement and the implementation period are, of course, still matters for negotiation. This Bill, being agnostic on the negotiations, is designed to prepare the statute book for our withdrawal. I say to the noble Baroness, Lady Hayter, that there will be additional legislation to implement our withdrawal agreement. As I said a moment ago, this Bill is designed to implement the clearly expressed will of the British people to leave the EU, and therefore the date of repeal is set at the point that the UK will fall out of the Treaty on European Union and the Treaty on the Functioning of the European Union.

There are many demands on parliamentary time, as we know to our cost, and this is the Bill that will prepare our statute book for exit. The amendment would force the date of repeal into the agenda of another Bill. This is the right time and place for the debate on the repeal of the ECA, and the debate should incorporate all the additional context and provisions necessary for a smooth exit. Indeed, if we did not reach an agreement and the second of the noble Lord’s amendments were agreed, we would be in a state almost of paradox. To repeal the ECA, the Government would be compelled to enact a statute for the purposes of Clause 9(1) of the Bill— a clause which itself is predicated on the existence of a withdrawal agreement. So we would be forced to enact a statute enabling us to approve the final terms of the withdrawal agreement and set the date of the repeal of the European Communities Act without such a withdrawal agreement existing. That is too much of a logical conundrum to ask any Bill to bear, and not an acceptable way to go about legislating.

Clause 1 will provide certainty to businesses and individuals that the European Communities Act will be repealed on exit day. Any attempt to change this while negotiations are ongoing would lead only to a lack of clarity on the law that will apply in the UK after we leave the EU. This would run counter to the primary aim of the Bill, so I hope that the noble Lord will be willing to withdraw his amendment.

[Lord Tyler]

I am grateful to the Minister for seeking to clarify the point about process, and I take on board what he said about paragraph 10 of Schedule 7. But will he give an absolute undertaking to the Committee that there will be no attempt to accelerate the process? I think he would accept that, if the Minister in this case were seeking to do something at speed, for expediency’s sake—surely that would be the only circumstance in which it would be necessary to change the date—it would be extremely difficult to give both Houses of Parliament advance notice and the usual time for consultation. Is the Minister giving us an absolute undertaking that the normal process and timescale will apply and that there will be no attempt to accelerate the process?

[Lord Callanan]

Yes, I am giving the noble Lord an assurance that the normal timescale of the affirmative procedure for statutory instruments would apply in this case.