European Union (Withdrawal) Bill

Lord Callanan Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Goldsmith]

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

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

I thank the noble Lord, Lord Lisvane, for introducing this amendment, which stands also in the names of the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Hayter. I am glad to have the opportunity to address it.

First, I reassure noble Lords that the strength of feeling around the exercise of delegated powers by those not immediately accountable to Parliament has been heard, as I said the other evening. The Government are looking very closely at the issue of transparency before Parliament, and we will of course hold that at the forefront of our minds as we consider our position ahead of Report.

At the heart of this Bill is the repeal of the European Communities Act, including Section 2(2) of that Act. As noble Lords on all sides of the Committee know, that provision has been the vires used for many statutory instruments made by many Governments in recent years. This Bill does not replace that power. Although there are several broad powers in the Bill, with some approaching the breadth of Section 2(2) of the ECA, they are, unlike that power, time limited. The Bill is not an assault on Parliament but, rather, the means by which this Parliament will take back control to itself.

--- Later in debate ---

[Lord Goldsmith]

It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

[Lord Callanan]

My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

[Lord Adonis]

If I could have a last celebratory intervention on the Minister in Committee, can he indicate to the House when the Government intend to use the powers they would get under this Act to repeal the 2011 Act?

[Lord Callanan]

I do not want to give the noble Lord a precise date at this time. We will wait until the legislation is on the statute book before deciding such things.

Crucially, a second referendum is not provided for by the 2011 Act. As I hope I have set out, that Act could never have been intended to achieve that goal.

[Lord Adonis]

Is the Minister indicating that the Government may repeal the 2011 Act in advance of the repeal of the European Communities Act 1972?

[Lord Callanan]

I will not comment any further on the repeal date, I am afraid, no matter how many times the noble Lord asks me.

I refer noble Lords to the first sentence of the first part of the Explanatory Notes to that Act. Acts of Parliament or referenda are required by the 2011 Act,

“if these would transfer power or competence from the UK to the EU”.

We are leaving the EU. That process is neither governed by the types of decision referred to in the 2011 Act, nor involves a change to the treaties on European Union or the functioning of the European Union. Those treaties will go on without us, governing the EU and its institutions, for which we wish only the greatest of success. Moreover, I hope it is unquestionable for the Government to pursue a withdrawal agreement that will transfer power to the EU; it is the nature of leaving the EU that it must involve a transfer of power back to the UK. Therefore, I say with all due respect to the noble Lord, Lord Adonis, that it is disingenuous of him to mislead others outside this House that the 2011 Act is an instrument to deliver a second referendum on our membership of the EU.

We are progressing towards establishing a future relationship with the EU as an independent third country. As part of this, we will require new processes for approving our new relationship with the EU. The Government are committed to giving Parliament a vote on the final deal of our withdrawal agreement negotiations.

[Lord Liddle]

The Minister is saying things that directly contradict what the Prime Minister has said: that we will have an implementation period in which we will follow the laws set by the EU without having any say over them. In her Mansion House speech, she said that we wish to maintain regulatory alignment with the EU in a large number of areas. That means following EU laws without having any say in them. Will the Minister accept that point?

[Lord Callanan]

I will not accept that point. We have not agreed anything yet. We are still to have those negotiations.

[Lord Liddle]

Is the Minister saying that he rejects what the Prime Minister said in her Mansion House speech?

[Lord Callanan]

Of course I am not saying that. I am saying that we are in the process of conducting a negotiation. We have said that when have concluded that withdrawal agreement, we will return to this House with the withdrawal agreement and implementation Bill. The noble Lord will be able to make all his points—at great length, no doubt—over and again during that process. He has made those points many times in the course of this Committee, so if he will forgive me I will make a bit more progress and then we can all go out and have an enjoyable evening at the end of this stage.