European Union (Withdrawal) Bill

Lord Callanan Excerpts

Monday 18th June 2018 Lords Chamber

Moved by

[Lord Callanan]

That this House do not insist on its Amendments 1 and 2 and do agree with the Commons in their Amendments 1A and 1B in lieu.

1A: Page 9, line 21, at end insert the following new Clause—
“Customs arrangement as part of the framework for the future relationship
(1) A Minister of the Crown must lay before each House of Parliament a statement in writing outlining the steps taken by Her Majesty’s Government, in negotiations under Article 50(2) of the Treaty on European Union, to seek to negotiate an agreement, as part of the framework for the United Kingdom’s future relationship with the EU, for the United Kingdom to participate in a customs arrangement with the EU.
(2) The statement under subsection (1) must be laid before both Houses of Parliament before the end of 31 October 2018.”

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[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.

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[Lord Callanan]

My Lords, I thank all noble Lords who have contributed to this debate. Not many people had much to say about the issue of the customs union and the customs partnership; nevertheless, I thank them for their contributions. I thank the noble Baroness, Lady Smith, in particular for her comments; I think that in general they were wise words. As I said at Second Reading and repeatedly throughout the progress of the Bill, of course we are prepared to look at constructive suggestions that have been made for improvements to the legislation. We were in listening mode, we have had extensive debate internally in government about many of the points that have been raised and, where we have been able to, we have moved to reflect some of the comments, amendments and Motions that have been made by Members of this House. However, I say to the noble Lord, Lord Newby, that our position has always been that many of the debates we have had—and the customs union one is part of them—were not necessarily core to the central purpose of the Bill; rather, they were about the Government’s negotiation priorities. Of course, when we have an agreement there will be further legislation and we will be able to come back and discuss these matters in more detail.

Bearing in mind the wise words from the noble Lord, Lord Grocott, I am sure many English Members will want to try to watch the game later. I hope Scottish, Welsh and Northern Irish noble Lords will not want to unduly frustrate this process to enable us to do that.

On the issue of the customs union, the Government have been clear that we are leaving the customs union and that we will seek new arrangements that allow us to trade goods and services as frictionlessly as possible with the EU, free us to strike trade deals around the world and avoid any return to a hard border between Northern Ireland and Ireland. I hope noble Lords will be able to accept the amendments that were made in the other place. Once more, I beg to move.

Motion A agreed.

Moved by

[Lord Callanan]

That this House do not insist on its Amendment 3 and do agree with the Commons in their Amendments 3A and 3B in lieu.

3A: Page 9, line 21, at end insert the following new Clause—
“Maintenance of environmental principles etc.
(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—
(a) a set of environmental principles,
(b) a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,
(c) a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),
(d) provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and
(e) such other provisions as the Secretary of State considers appropriate.
(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—
(a) the precautionary principle so far as relating to the environment, (b) the principle of preventative action to avert environmental damage, (c) the principle that environmental damage should as a priority be rectified at source,
(d) the polluter pays principle,
(e) the principle of sustainable development,
(f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,
(g) public access to environmental information,
(h) public participation in environmental decision-making, and
(i) access to justice in relation to environmental matters.”

3B: Page 15, line 13, at end insert—
“( ) section (Maintenance of environmental principles etc.),”

[Lord Callanan]

My Lords, the issue of environmental protections spanned several hours of debate in our House, both in Committee and on Report. Indeed, an amendment was made to the Bill, tabled by the noble Lord, Lord Krebs. The Government considered the noble Lord’s amendment but decided instead to give our backing to an alternative amendment put forward by my right honourable friend Sir Oliver Letwin. That amendment provides further reassurance to Parliament of the Government’s intentions to uphold environmental protections after exit and sets out in legislation that the Government will publish a draft Bill no later than six months after Royal Assent to this Bill. It delivers robust protections. In particular, it acknowledges that there may be circumstances where the new independent environmental body should be able to take the Government to court, which I know was a desire of many noble Lords. This power will be proportionate and appropriate and will supplement established processes, including of course parliamentary scrutiny.

The amendment also requires that the draft Bill includes a list of the environmental principles, such as the “loser pays” principle and the precautionary principle within it. The draft Bill and the forthcoming policy statement will provide further details of how these environmental principles will be interpreted and how they will apply. These proposals will ensure that the primary focus of the principles will be the formation of policy at a national level.

As we made clear in our consultation document and in last week’s Commons debates, the amendment applies only to England and to reserved matters. The draft Bill itself will similarly apply only to England and to reserved matters. That means that neither the amendment nor the draft Bill that will flow from it will trigger the legislative consent process. I understand that the Welsh Government do not share our view, and it is of course open to them to put forward a legislative consent Motion in the Assembly. That is clearly a matter for the Assembly and it would not change the UK Government’s view.

The noble Lord, Lord Krebs, has tabled a further amendment on this subject for consideration today. I fear that the Government are unable to accept it as we do not believe it is appropriate to use this Bill fully to design the policy for the creation of the new independent statutory body and the new statutory policy statement. We have already supported an amendment in the other place to ensure that there is a statutory commitment for government to set this body up. We are consulting stakeholders and will bring forward policy proposals and a draft Bill in due course. Deciding further detail on the body through the amendment would undermine that very consultation process.

The UK has a long history of environmental protection, and we will safeguard and improve on this record as we leave the European Union. This commitment underpins our 25-year environment plan and the Government’s pledge to leave the environment in a better state than we found it. Leaving the EU means that we now have a unique opportunity to design a set of policies that drive environmental improvement with a powerful and permanent impact tailored purely to the needs of our country.

I hope that noble Lords will accept the amendment sent to us from the other place and recognise that it underpins our pledge to use the opportunity that Brexit provides to strengthen and enhance our environmental protections, not to weaken them. We continue to welcome consultees’ views as part of the ongoing consultation on environmental principles and governance. I therefore urge noble Lords to accept the government amendment and beg to move.

Motion B1 (as an amendment to Motion B)

Tabled by

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[Baroness Jones of Whitchurch (Lab)]

My Lords, government Motion B follows the debate that we have been having throughout the passage of the Bill on the enforcement of environmental principles. On each occasion, noble Lords have voted on a cross-party basis around the Chamber to send a message that the Government’s proposals are not good enough and do not represent the protections for the environment that we currently enjoy in the EU.

At Third Reading this House supported, with a significant majority, an amendment that set out how current EU rights could be replicated in UK law. I am sorry that the Government did not feel able to support it when it went back to the Commons. They did, however, finally and reluctantly—as the noble Lord, Lord Krebs, said—come up with their own alternative. It is a step forward, and I am pleased that many of the arguments made by our side of the House, and across the Chamber, have had some impact.

As the Minister will know, the views that we expressed are supported by tens of thousands of individuals, activists and NGOs around the country who have campaigned vigorously on these issues. So we have made progress, but there remains—as my noble friends said—unfinished business. We will continue, therefore, to use every opportunity to achieve what we have been promised. All we are trying to do is replicate what we already have—and to be assured that it will be in place on Brexit day.

At the heart of environmental protection we need a green watchdog, on a statutory footing and independent of government, that can take appropriate enforcement action against Ministers and arm’s-length bodies when they ignore their environmental responsibilities: in other words, a watchdog that replicates the current role of the EU Commission. We also want an obligation on Ministers to act in accordance with the provisions of the Bill, rather than simply to “have regard to” the provisions, which is a much less stringent legal requirement and could lead to considerable legal uncertainty. Finally, we want to ensure that our exit from the EU does not end, by accident or design, in a diminution of rights and powers otherwise enjoyed in the EU.

It is important that these issues are resolved because, as we debated at Third Reading, the Government’s proposed alternative—the environmental principles and governance Bill—will not be available, at the earliest, until after the next Queen’s Speech. For many of us, moreover, the consultation document produced in advance of that Bill is a thin and unpromising start to the promises made by the Secretary of State to deliver a world-leading environmental body, with independent, statutory backing, to hold the Government to account.

I hope, therefore, that the Minister will address our ongoing concerns, despite the progress that has been made. I hope that he will make it clear that what we have before us is a minimum set of proposals and that negotiations will continue on the details. I hope, too, that he fully understands that we are not going away and will press these arguments at every opportunity.

[Lord Callanan]

My Lords, as I said at the start of this debate, the issue of environmental protections has been widely discussed during the Bill’s passage through both Houses, and I thank all noble Lords who have contributed today. In particular I say to the noble Baroness, Lady Jones—who I know feels passionately about these issues—that we agree with her that the environment should be left in a better state than when we inherited it, and that we want to use the opportunity of Brexit to design environmental policies that in many respects are more advanced than those of the European Union but are tailored purely for the benefit of the United Kingdom. I am sorry that the noble Baroness feels disappointed, but she has the commitment of the Government—and the Secretary of State—to take these matters forward in the Bill once the consultation is finished.

I will address some of the points that were made. As I set out earlier, the consultation document is clear that these proposals are for England only. They cover areas that are the responsibility of the UK Government. The amendment requires the Secretary of State to publish a draft Bill and makes no substantive change to the law in Wales or anywhere else. This goes to the heart of the point made by the noble Lord, Lord Wigley. We will work closely with the devolved Administrations on the new body, including on whether they wish to take a similar or, indeed, different approach themselves. The UK Government view is definitely that this amendment does not meet the test for legislative consent.

I reiterate that the amendment sent to us from the Commons represents an opportunity to strengthen and enhance our environmental protections, not to weaken them, and I hope that your Lordships will agree it today. I emphasise that we are still out to consultation on the main legislation. There will be plenty of opportunity to contribute to that consultation. I know that noble Lords and noble Baronesses who feel passionately about these matters will be able to contribute to that consultation—and then, of course, once the draft Bill is launched, there will be frequent opportunities in this House to debate the issues at great length, which I am sure noble Lords will take full advantage of.

Motion B agreed.

Motion C

[Lord Callanan]

Moved by

That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, and do propose Amendment 4B as an amendment to the Bill, and Amendments 4C to 4E as amendments to its Amendments 9, 161 and 162, in lieu—

4A: Because the Bill already contains sufficient protection for the areas of EU law concerned.

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[Lord Callanan]

My Lords, we now come on to the issue of enhanced protection of retained EU law. We have always understood the concerns that motivated noble Lords, but were concerned that the original amendment proposed by the noble Baroness, Lady Hayter, did not strike the right balance. In short, that amendment, as discussed in the other place, would have risked weakening rather than strengthening the rights in retained EU law. It would have left us unable to ready the statute book for exit or update it after exit, wreaking havoc across our domestic statute book in the process. However, in the best traditions of this House, both sides have now found more common ground. The noble Baroness, Lady Hayter, has tabled another amendment, which is aligned in its purpose if not in the mechanism used, with the amendments in lieu standing in my name. I am glad that the noble Baroness has been able to table a Motion to agree to some of those amendments.

Noble Lords will recall that at Report we brought forward amendments assigning a status to the different categories of retained direct EU law. The noble Baroness, Lady Hayter, herself mentioned, when tabling her original amendment, that there is a class of law where our amendments at Report did not provide for enhanced protection. That is our domestic implementation of EU directives, which is preserved through Clause 2 of the Bill. Much of this domestic implementation has happened under Section 2(2) of the European Communities Act 1972, which has historically been the delegated power used to implement many, if not most, of our EU obligations.

The Government are alive to the unique position that regulations made under the ECA to implement directives hold in our domestic legislation. They implement law which was negotiated at the EU level and which the UK as a member state was under a binding obligation to implement. They could in the past be modified only within the constraints of EU law. That is why the Government have tabled Amendments 4B, 4C, 4D and 4E, to reinforce protections for regulations created by Section 2(2) of the ECA and put in place an enhanced procedure once we have left the EU for secondary legislation amending such regulations.

We will have left the EU and be free to change these laws, but it is right that this is possible only within the constraints placed on us by active and informed consideration by Parliament, via an enhanced procedure which will involve everything the noble Baroness has called for. This proposed enhanced procedure for amendments to Section 2(2) regulations reflects their unusual nature and unique status in our legislative framework, and will complete the tapestry of protection that is threaded throughout the Bill’s provisions for retained EU law in all its many different forms. These government amendments deliver the noble Baroness’s goal, and I hope I can persuade her of this.

I will also explain the four reasons why the Government cannot accept the noble Baroness’s alternative Amendment 4F and why I believe, happily, that our amendment resolves all of those issues. The first issue is devolution. I know that the noble Baroness is fully committed to the devolution settlements, as am I and my ministerial colleagues. As it is written, the noble Baroness’s amendment only allows amendment by primary legislation or subordinate legislation made under an Act of Parliament. This means that no subordinate legislation at all made under devolved Acts can amend retained EU law in these areas, even when it is within the competence of the devolved Administrations. Where Acts of this Parliament allow the devolved Administrations to make subordinate legislation, the amendment would require devolved legislation to be subject to a procedure before this Parliament.

I know that it will not have been the intention of the noble Baroness to impinge on the competence or procedures of the devolved Administrations and Parliaments, and I am sure it was not her intention to create an unprecedented position in which devolved legislation made by a devolved Minister should be considered by this Parliament. This could, of course, be solved by some radical changes in the drafting, but the issue has been addressed in our amendment by providing that it applies only to instruments made by UK Ministers before this Parliament. This is doubly important at this late stage in the Bill’s passage, when there is no time to seek supplementary legislative consent from the devolved Assemblies.

Our second concern with the noble Baroness’s amendment is the range of still significant issues where it would create legal uncertainty. Amendment 4F refers to retained EU law “relating to” various policy areas. Quite apart from the fact that there are certainly other areas potentially worthy of protection, we are concerned that it will never be clear what law falls into these categories. An example would be a piece of EU legislation relating to which classes of investor may or may not purchase certain financial products. Does that relate to consumer protection or financial conduct, or both? Will it depend on the intent of the modification in question?

As we have said before, if anybody feels that their private interests have been adversely affected, would they be able to challenge any SI on the basis that it had improperly either undergone, or not undergone, the enhanced procedure referred to in the amendment? Even if an SI had undergone the higher of the two procedures, confusion over which procedure should have applied could very well give rise to a host of legal challenges on procedural grounds and risk crucial corrections to ready our statute book for exit or future improvements being struck down. Again, happily, we believe that the government amendment resolves this issue by being clear that it focuses on the legislation made under Section 2(2) of the European Communities Act to implement EU directives, and which is preserved by Clause 2 of the Bill. This will apply to all policy areas. We have also ensured that instruments can be combined and that, where there are grey areas, an instrument can safely be upgraded to our enhanced procedure. Our amendment provides both certainty and enhanced protection across the board.

The third concern is the interaction with other provisions in the Bill. I am very pleased that both Houses have now accepted the provisions on status which the Government tabled on Report. These set out how EU regulations, tertiary legislation, decisions and treaty rights will be amended, in particular ensuring that EU regulations and treaty rights will only be amended as if they were primary legislation. However, these provisions do not account for those others. If there is an EU regulation relating to one of the areas in the noble Baroness’s amendment, this Bill would provide two competing procedures and potentially conflicting instructions for how to amend it, and the scrutiny which would apply to any amendment by secondary legislation. In some cases, we might be able to muddle through but that would not be good law. As I said a moment ago, it would also open any changes to these important EU regulations being struck down. This cannot be good for the certainty that any enhanced protection is meant to provide.

The fourth issue is that we wish to say more in the Bill itself and less in SIs, as the Opposition have pushed for throughout the passage of the Bill. The noble Baroness’s amendment asks us to set out an enhanced procedure in an SI, including for the approval of both Houses and consultation. I am pleased to assure the House that we have done this already in the government amendments, which will provide that any changes made to these regulations by existing powers within our statute book will go through the affirmative parliamentary procedure. There will therefore be—this cannot be stressed enough—a debate and a vote in both Houses on every one of these statutory instruments. But they also go one step further, providing that these changes will also attract a new, enhanced pre-laying scrutiny requirement, which will ensure that there is a proper opportunity for public and parliamentary consultation on its content before the draft is laid.

This amendment proposes that any SI created by an existing power in our statute book which amends or revokes any Section 2(2) regulation must be published 28 days in advance of a draft being laid before both Houses of Parliament—a period, I hasten to add, which does not include recesses. This is not merely if the Minister thinks it is warranted, as the noble Baroness’s amendment suggests. This 28-day period presents both the public and parliamentarians—as well as parliamentary committees—with the opportunity to comment and make recommendations on the content of the statutory instrument. Any recommendations will then be reflected upon by the Government, who will consider whether to amend the SI ahead of laying it before Parliament. When introducing the SI to Parliament, the Minister or relevant authority will then also have to provide a “scrutiny statement”, which details the Government’s response to the recommendations they received and any representations from other quarters, and their consideration of them. This statement is designed to sit alongside and complement the statements which the Bill already requires Ministers to make alongside any SI amending Section 2(2) regulations, explaining them and the “good reasons” for them, and therefore for any departure from EU directives as they stood on exit.

I apologise to noble Lords that I have dwelt at length on the details here, but before closing I will also draw the House’s attention to the numerous other commitments the Government have made to ensure that rights and protections within equalities, workers’ rights and consumer protection and other rights and standards are not diluted or damaged as we depart from the EU. In regard to equalities, a government amendment to the Bill from its initial Commons stage ensures that the Government provide confirmation that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010 when using the powers in the Bill. The UK has a long and proud tradition of upholding and championing rights and protections, both domestically and internationally. This is a legacy the Government are determined to build on as we move into the next chapter of this country’s history. I hope that the government amendments are welcomed by this House as the best solution forward in this matter, and I beg to move.

Motion C1 not moved.

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[Baroness Neville-Rolfe (Con)]

My Lords, I give my strong support to government Amendment 4B in its unamended form and to Amendments 4C, 4D and 4E, and I encourage others to do so, if necessary. Throughout the passage of the Bill I have been concerned about serious mistakes that might creep on to the statute book if statutory instruments made under the Act are not published and consulted on. Proposed new paragraph 5CB(2) responds well to those concerns with, 28 days in advance, publication of the drafts of any instruments making changes to provisions enacted under Section 2(2), which has been the parent of much UK law over the last 45 years.

If I have understood correctly, there is cause to celebrate and to thank the Minister for this change and for the other scrutiny changes. They will allow all relevant stakeholders, whether they are consumers, trade unions or from business, or indeed from other countries, to review such drafts and help the Government to address any concerns and correct any errors of the kind that we all want to avoid as EU rules are carried over into UK law on Brexit day.

[Lord Callanan]

First, I thank the noble and learned Lord, Lord Goldsmith, for his comments and for his support, which I think I detected, for the Government’s amendments. I am also very grateful for the comments of my noble friend Lady Neville-Rolfe, who has taken a close interest in this matter. It is a very technical but important matter, and I know that she has engaged on it with Ministers and officials. She brings the benefit of her experience in government and we are grateful for her contributions.

As I said in opening the debate on this Motion, the government amendments are the final thread in the tapestry of protection woven by the Bill. On Report, we addressed protected EU regulations and treaty rights, and now we are adding, as requested, an enhanced procedure to protect the legislation implementing directives. Most importantly, the government amendments deliver the procedure and the protection that underlies it. I therefore commend them to noble Lords.

Motion C agreed.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 20, to which the Commons have disagreed for their Reason 20A.

The Commons disagree to Lords Amendment 20 for the following Reason—

20A: Because it is not consistent with the constitutional roles of Her Majesty’s Government and Parliament in relation to the conduct of international relations.

[Lord Callanan]

My Lords, in the other place, much was made of the constitutional and practical concerns that applied to the amendment in the name of the noble Viscount, Lord Hailsham, on parliamentary approval of the outcome of negotiations. These concerns extend also to the amendment in the name of the noble Lord, Lord Monks, on parliamentary approval of a mandate for future negotiations.

Let me begin by setting out once again that Parliament has a critical role in scrutinising the Government’s negotiating position. It is our responsibility as a Government to provide both Houses with ample opportunities for scrutinising both the approach that we are taking to exiting the EU and any implementing legislation. And we have done so. This has included the Secretary of State’s Oral Statements after every negotiating round; committee appearances; ministerial and Prime Ministerial speeches; position and future partnership papers—I could go on. Most recently, we have committed to produce a White Paper on our proposed future relationship with the EU, which we have said will be published next month.

The scrutiny received during these parliamentary appearances, and in the multitude of reports from the committees of this House and the other place, have been of great value and done much to help inform the Government’s work so far. There has also been a wide range of engagement activity by government with key stakeholders across business, civil society and other interested groups.

Debates in this place and the work of the committees of both Houses represent valuable forums and opportunities for parliamentary scrutiny, and we have used Parliament’s input to shape our approach to the negotiations. While some think that Parliament should have a greater role in setting the terms of our negotiations, this cannot be accepted for either principled or practical reasons.

Practically, we simply cannot hold up the already tight negotiating timetable by providing for a further approval process prior to negotiations ending. On principle, as the Secretary of State said in the other place, the Government cannot demonstrate the flexibility necessary for a successful negotiation if their hands are tied midway through the process. That will do nothing but guarantee a bad deal for this country. It must be for the Government, not Parliament, to set our goals for the negotiations on the UK’s exit from the EU and to conduct them.

Of course, the Government are always mindful of the fact that further legislation will have to be introduced where it is needed to implement the terms of the future relationship in UK law. Any such legislation must, of course, make it through both Houses of Parliament.

It is a long-established constitutional principle that the Government set the direction during international negotiations, and that principle exists for good, practical reasons. The other place recognised this when it voted down the amendment in the name of the noble Lord, Lord Monks. As the House of Commons has clearly taken this view, I hope that noble Lords will agree that we should not insist on the amendment. I beg to move.

[Lord Monks (Lab)]

My Lords, I am disappointed that this amendment did not gather more support in the other place than it did; it was rather crowded out in the shadow of the previous amendment, on which the vote has taken place. My co-signatories and I wanted Parliament to give a steer to the Government on the approach to take in the talks about the future relationship between the UK and the EU. I do not accept that that is unconstitutional. The British constitution evolves, changes and moves. It was not so long ago that Parliament insisted on having a say when Britain went to war, which was unprecedented in our history. This initiative was therefore justifiable.

At present, the Government are flying rather blind in the negotiations. The Cabinet is split; the White Paper has been delayed again. I understand that there is to be another brainstorming session at Chequers soon to see whether the Cabinet can find agreement on what that future relationship should be. Parliament cannot just sit in the stand and watch this fumbling go on in government, the Cabinet and the Conservative Party.

We will therefore return to these matters when the White Paper is eventually published. We will hope to see what criteria the Government and others have in mind to judge the final deal, whether it is a good deal, a not-so-good deal or a turkey. In those circumstances, Parliament will have to step up to the mark and cannot just pretend that it has nothing to do with it until the final deal’s shape emerges.

[Lord Callanan]

I thank the noble Lord, Lord Monks, for his speech. I did not agree with the sentiments, but I take his point. We are fully committed to involving Parliament throughout the process of our negotiations to leave the EU. We have given what may be an unprecedented level of parliamentary scrutiny of Ministers across the Government and of the preparations and negotiations on exit. However, this amendment is not the right way for Parliament to scrutinise the negotiations. The House of Commons has taken a clear decision on it and I urge noble Lords therefore not to insist on it.

Motion G agreed.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendments 37, 39 and 125, to which the Commons have disagreed for their Reason 37A.

37A: Because it is better for a default “exit day” to be specified in the Bill rather than appointed by regulations made under the Bill.

[Lord Callanan]

My Lords, we come again to the issue of exit day. Both Houses have debated this issue extensively during the Bill’s passage. There is therefore little new to say about how exit day operates in the Bill. It is an appointed day on which a significant number of the key provisions of the Bill have their material effect. As that provision entered this place, it followed international law clearly and precisely. It was in line with the precise date and time at which we would leave the EU; it was not a date that the Government picked arbitrarily. There was also a mechanism to change the date in the Bill if that were so agreed, with specific reference to the circumstances in which that international law mechanism would be activated.

This House chose to send for reconsideration by the House of Commons amendments that undid the careful consideration and multiple amendments that its Members had provided. I understand that many here wanted to ensure that there was as much flexibility as possible in the Bill but I repeat that it is international law, not domestic law, that determines when we leave the EU. I am afraid that I am not surprised that the other place has rejected our amendments. I hope noble Lords accept that the Commons has had the chance to think again, and has come to the same conclusion that it did previously. I suspect that many knew what the Government’s position would be before they saw it on the Order Paper, but I hope that having framed it in this way it is clear why I am asking the House not to insist on its amendments today. I hope the House is content that it has played its revising role on this point by asking the other place to think again but, having done so, will now let the matter rest. I beg to move.

[Lord Hannay of Chiswick]

My Lords, I was one of those who proposed the amendment that has not found pleasure in the other place. I recognise that, as the Minister has said, the date of our departure from the EU will actually be determined not by what we put into the Bill but by international law—namely, Article 50. If under Article 50 it is decided that a longer period than the two years is needed, no doubt that will be agreed by common accord with Brussels, and the Minister will be standing at the Dispatch Box telling us that after all 29 March is not set in stone. At that moment, I will try not to remind him of the various times at earlier stages of the Bill when he said it was set in stone.

My own view was that the date has no place in the Bill, and that was actually the view of the Government at the outset. However, they changed their minds as part of a political manoeuvre. As the Minister has said, there is some flexibility built into what is known as the Letwin formula, which is the one that the House of Commons has reverted to, and I do not think we should trouble the scorers any more on this matter.

[Lord Callanan]

I thank the noble Lord, Lord Kerr, for his remarks.

[Noble Lords]

Hannay!

[Lord Callanan]

I do apologise; the time is getting late. It is right that this be laid down with clarity and certainty for the public. It is strange that I get Hannay and Kerr, confused, isn’t it? It is also right that our law be aligned with the international law that has determined this date. The Bill reflects both the date on which we and the EU are committed to the UK exiting the EU. I am therefore glad that noble Lords are not insisting on these amendments.

Motion K agreed.

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Moved by

[Lord Callanan]

That this House do not insist on its Amendment 51, to which the Commons have disagreed for their Reason 51A.

51A: Because it is not the policy of the government for the United Kingdom to continue to participate in the EEA as part of its future relationship with the EEA States.

[Lord Callanan]

My Lords, the Commons voted by an overwhelming majority of 201 to reject the amendment tabled by the noble Lord, Lord Alli, which requires continued participation in the European Economic Area to be a negotiating objective for the Government. As set out by the Solicitor-General in the other place, seeking to participate in the EEA agreement beyond the implementation period would not pass the Prime Minister’s test that our future partnership with the EU must respect the referendum result. It would not deliver control of our borders or our laws.

The other place also voted by a majority of 82 to reject the alternative amendment tabled by the Opposition Front Bench replacing the requirement to remain in the EEA with a requirement to make it a negotiating objective for the UK to maintain full access to the internal market. The Commons objected to that amendment for a range of reasons. It did not respect the indivisibility of the four freedoms, it did not deliver control of our laws and it did not respect the referendum result. That is why the Commons, and indeed several members of the Labour Party, chose to vote against it. Instead, the elected House opted for the certainty put forward in the Government’s position, which is not to seek membership of the single market after we leave the EU but instead to seek the broadest and deepest possible partnership, covering more sectors and co-operating more fully than any free trade agreement anywhere in the world today.

The view of the other place is clear and I hope noble Lords will be able to respect it. I beg to move.

Motion N agreed.

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Moved by

[Baroness Evans of Bowes Park]

That this House do not insist on its Amendments 110 and 128, to which the Commons have disagreed for their Reason 110A, and do propose Amendments 110B to 110J in lieu—

110A: Because the Commons prefer their proposed arrangements for sifting.