Brexit: Legislating for the Withdrawal Agreement

Lord Callanan Excerpts

Tuesday 24th July 2018 Lords Chamber

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

My Lords, I shall now repeat a Statement made in the other place. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on the White Paper which has been published today, setting out the Government’s plans for legislating for the withdrawal agreement and implementation period.

On Friday 29 March 2019, the UK will leave the European Union, giving effect to the historic decision taken by the British people in the 2016 referendum. The Government are committed to delivering a smooth and orderly Brexit. That is why we have already passed the EU withdrawal Act through Parliament to ensure that our statute book functions after exit, whatever the outcome of the negotiations. I am grateful to this House and the other place for the many hours of scrutiny devoted to that vital piece of legislation. We are now embarking on the next step in the process of delivering a smooth Brexit for people and businesses.

Since June last year, the UK has been negotiating with the EU to decide on the terms of our withdrawal. We have made substantial progress: protecting the rights of EU citizens in the UK and UK citizens in the EU; deciding the terms of the financial settlement; and agreeing a strictly time-limited implementation period. Most of the withdrawal agreement, around 80%, has now been agreed with our EU partners, and we have isolated the outstanding issues for further focused negotiation. I will be meeting Michel Barnier again on Thursday to take forward the negotiations at this critical time. We have already agreed a financial settlement, estimated at £35 billion to £39 billion, well below the figures being bandied around by some when we started this negotiation.

The implementation period agreed is finite and allows for the negotiation and conclusion of free trade deals. Many of these arrangements will require new domestic legislation to deliver them in UK law. That is why, last November, we announced our intention to bring forward a new piece of primary legislation to implement the withdrawal agreement in UK law. Today, we are publishing a White Paper setting out our proposals for this important legislation, which will be introduced once the negotiations have concluded and Parliament has approved the final deal. Our expectation is to reach agreement in October. Under the terms of the EU withdrawal Act, Parliament will then have its say on the final deal. If approved, we will bring forward this legislation so that it can be in place for when we leave the EU on 29 March 2019.

In setting out our proposals today, we are giving Parliament the opportunity to scrutinise the plans well ahead of the Bill’s introduction, given the need to enact the legislation in the time available and mindful of the importance of maximum scrutiny in this House. By publishing the White Paper today, the Government are providing further certainty to people and businesses here in the UK and across the EU. It also sends a clear signal to the European Union that the United Kingdom is a reliable and dependable negotiating partner, delivering on the commitments that it has made across the negotiating table.

Of course, while we are making good progress, discussions are still ongoing in various areas. This means that some parts of the Bill will become clearer only as we settle the remaining parts of the withdrawal agreement. In the light of that, the White Paper we have published today focuses on those parts of the withdrawal agreement where the text has already been agreed. Let me take them in turn.

The UK’s first priority in negotiating its withdrawal from the EU was to reach agreement on the rights of our citizens. That includes the 3.5 million EU citizens who live in the UK, who are valued members of their communities and play an integral part in the life of this country. Likewise, the approximately 1 million UK nationals who currently live in the EU are equally valued by their host countries and communities”.

Excuse me, my Lords. I have a Theresa May cough.

“The agreement reached on citizens’ rights will allow EU citizens in the UK, and UK nationals in the EU, to live their lives broadly as they do now and will enable families who have built their lives in the EU and the UK to stay together. The most important next step will be to provide a continued right of residence for those citizens. EU citizens lawfully residing in the UK on 31 December 2020 will be able to stay.

This month, the Home Office published further details about how EU citizens and their families can obtain settled status in the UK. That statement confirms that the settlement scheme will be simple and straightforward for EU citizens and their families to secure their long-term status in the United Kingdom. This Bill will ensure that EU citizens can rely on the rights set out in the withdrawal agreement and enforce them in UK courts. It will also establish an independent monitoring authority to oversee the UK’s implementation of the deal on citizens’ rights, providing further reassurance to citizens.

All EU member states must implement the agreement in full and provide certainty to UK nationals on the continent. As the Home Secretary recently stated, we now need to know more details on how each member state will fulfil their obligations and implement their side of the agreement. We will be further pressing for those details over the summer.

The next chapter of the paper deals with the strictly time-limited implementation period that the UK agreed with the EU in March. The UK will leave the EU on 29 March 2019. After this, we have agreed an implementation period that will ensure that people and businesses will have to plan for only one set of changes as we move towards our future relationship.

From 30 March 2019 until 31 December 2020, common rules will remain in place, with EU law continuing to apply, and businesses will be able to trade on the same terms as they do now. During this period we will not be a member state and we will have the flexibility we need to strike new trade deals around the world, something many argued we would not be able to achieve in the negotiations.

To legislate for the implementation period, we must ensure that the UK statute book continues to reflect the relevant provisions of EU law as they apply to the UK during this time-limited period. As the House will know, the current mechanism for bringing EU law into UK law is the European Communities Act 1972. Under the EU withdrawal Act, that Act will be repealed on 29 March 2019. Therefore, as set out in the White Paper, the EU withdrawal agreement Bill will contain a time-limited provision so that parts of the ECA are saved until 31 December 2020. These changes will ensure that our statute book functions properly throughout the implementation period, according with the agreement that we have made with the EU.

I turn to the financial settlement, the structure of which was agreed in December on the basis that it would sit alongside our future partnership.

As we have said from the start, nothing is agreed until everything is agreed. That is in keeping with Article 50 and with the guidelines given to the EU for the negotiation.

We will have a framework for our future relationship with the EU alongside the withdrawal agreement. Our approach to that future partnership is set out in our White Paper published earlier this month. There must be a firm commitment in the withdrawal agreement requiring the framework for the future relationship to be translated into legal text as soon as possible. It is one part of the whole deal that we are doing with our EU partners. Of course, if one party fails to honour its side of the overall bargain, there will be consequences for the deal as a whole, including the financial settlement. In addition, we have agreed an obligation for both parties to act in good faith throughout the application of the withdrawal agreement.

The White Paper published today explains that the EU withdrawal agreement Bill will include a standing service provision to allow the Government to meet the commitments of the financial settlement. In the interest of transparency and oversight, it also includes proposals to enhance the existing scrutiny arrangements for the payments made to the EU.

This White Paper sets out our approach to delivering the withdrawal agreement and implementation period into law. I look forward to discussing all the proposals with honourable Members across the House. It is a necessary part of our leaving the European Union and ensuring a smooth and orderly departure. It provides clarity and certainty to EU citizens living here and UK nationals abroad that their rights will be properly protected. It will enact the time-limited implementation period, giving businesses greater certainty and giving the public greater finality with respect to our relationship with the EU. It provides for the appropriate means of paying for the financial settlement.

Above all, with 80% of the withdrawal agreement settled with our EU friends, this White Paper is another key milestone on the United Kingdom’s path to leaving the EU. I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, before I comment on the Statement, I note the Prime Minister’s Written Statement on a machinery-of-government change, which was published but surprisingly not covered in the Statement. It says that the Prime Minister will lead on the negotiations with the EU, with Mr Raab demoted to being her deputy and with the Cabinet Office Europe Unit having,

“overall responsibility for the preparation and conduct of the negotiations”.

That does not seem to be much of a vote of confidence in DExEU, which, with its Secretary of State, and I am afraid to say the Minister here, has been somewhat sidelined. Perhaps the Minister can comment on that.

I welcome this White Paper, although its publication on the last day of term is perhaps somewhat disrespectful to Parliament, as I said in Questions earlier. There is a sense of unreality threaded through it. The Statement says that the Government are,

“committed to delivering a smooth and orderly Brexit”—

this while Ministers continue to sabre rattle about no deal, which makes the assertion later in the Statement about being “a reliable negotiating partner” somewhat difficult to believe. I am afraid that even the Minister could not keep a straight face when he repeated that part of the Statement.

There is a clear assertion that the financial settlement is already agreed, so why does the Secretary of State for Exiting the European Union continue to question the Government’s commitment to honouring this bill? We chop and change. We hear one thing from a Statement in Parliament and then we hear quite other things from Ministers in the media, which is completely unacceptable.

On citizens’ rights, some of us noted that the Statement says that EU citizens in the UK and UK nationals in the EU will be allowed,

“to live their lives broadly as they do now”.

That is quite a loaded word, “broadly”. What does it mean? What rights that they have now does it rule out?

Will the withdrawal and implementation Bill incorporate the full text of the withdrawal agreement and the framework on the future relationship? It would be useful to know. Before Parliament comes to the Bill, there will be a Motion, after the negotiations are concluded, on whether Parliament approves the deal—I look at the Chief Whip at this point, as the noble Baroness did. Are the Government planning a decent gap between the tabling of the Motion for approval of the deal and the debates in Parliament? Also, how many days are they scheduling for debate on that Motion? We went round the houses on whether the Motion should be amendable. Are the Government committed to allowing it to be amendable?

The White Paper repeats the commitment,

“to providing Parliament with appropriate analysis prior to the vote”,

on the approval Motion so that Parliament can make an informed decision. Will there be independent input into the analysis?

The application of EU law will continue at least until December 2020. The Statement rather glosses over the implications for the EU withdrawal Act, some of which were picked up by the noble Baroness, Lady Hayter. We have to look at the White Paper to attempt to understand the full interaction with the EU withdrawal Act. Paragraphs 63 to 67 will bear much detailed scrutiny. Paragraph 73 proposes the extension of the correcting power until December 2022. Could the Minister bring out the full implications of that? Paragraph 75 says that the new Bill will have provision to “defer, revoke or amend” the SIs that will have been passed under the withdrawal Act. That sounds like Henry VIII powers squared. How shall we deal with it all? It sounds incredibly complicated.

In last night’s debate, I talked about how the Government were disingenuous, bordering on dishonest, about some items—and that is certainly true about the reference to the European Court of Justice in this Statement. We have the usual assertion, which the Minister did not quite repeat last night, that the direct jurisdiction of the ECJ ends when we leave. But that is not true, is it? The White Paper also says:

“EU mechanisms for supervision and enforcement will continue to apply to the UK”.


Does that include Commission infringement proceedings? It certainly includes the supervision and jurisdiction of the European Court of Justice—which, of course, will have been deprived of its UK judge. Do the Government think we are stupid, and do not understand the full implications of what will happen during the transition period, and even afterwards? The jurisdiction of the ECJ is not ending even if we leave next March, and it would behove the Government to be a little more candid about the reality of the situation.

[Lord Callanan]

I thank both noble Baronesses for their comments, and I shall take each of their questions in turn. I thank the noble Baroness, Lady Hayter, for her kind wishes for the holiday. Let me extend the same wishes to her: I hope she enjoys reading the White Paper alongside her bucket and spade on the beach. I take her point about timing, but we thought it was important to get the White Paper out before the Recess to give Members of Parliament in another place and here the chance to look at it carefully before we come back in September.

Northern Ireland is not in the White Paper because those provisions are not agreed yet. We did not want to leave the White Paper until everything was agreed; we wanted to give Parliament the opportunity to scrutinise the provisions now. Obviously, those provisions are not agreed, and we will come back to the House when we have an agreement.

As for the implementation period, the EU withdrawal Act will repeal the European Communities Act 1972 on 29 March. We will, however, have to ensure that the UK can continue to apply EU law during the implementation period. This will be achieved by way of transitional provision in which the EU withdrawal Act will amend the Act so that those elements of the ECA strictly necessary for the operation of the time-limited implementation period are preserved for its duration; I hope that is clear.

On no deal, yes, obviously if there is no withdrawal Act, all the issues agreed under the withdrawal Act will cease to apply. We will need to look at those matters again, but preserving the rights of EU citizens would be a top priority in such circumstances. As for timing, yes, we are still targeting an agreement in October, and the EU also agrees with us in targeting that. I repeat the obvious point that if we do not have an agreement in October, parliamentary time to implement the necessary legislation will, of course, start to get extremely tight.

With regard to a debate on the White Paper, happily the Chief Whip has been sitting here and he tells me that he thinks that a very positive suggestion. Provided that other business is dispensed with in an appropriate way, he will endeavour to find the time for that debate. I hope that summarises his view correctly.

Moving on to the noble Baroness, Lady Ludford, the Prime Minister is of course leading the negotiations. On something of such crucial importance to the United Kingdom, I think it would be expected that she would lead on behalf of the country but she will be ably supported by the Secretary of State, who will back her up in all the critical areas. On citizens’ rights, let me repeat the answer that I gave to the noble Baroness, Lady Hayter: of course we want to see citizens’ rights preserved and we expect to see them broadly or essentially preserved. I would be happy to write to her with all the details but it is a hugely complicated area. We published the details in December. I am sure that days on debate for the Motion will be agreed by the usual channels.

With regard to the ECJ, as set out in the draft withdrawal agreement the Court of Justice will have an ongoing role on citizens’ rights but this role will be temporary and narrowly defined. Our courts can ask the CJEU for a legal view on the interpretation of the citizens’ rights parts of the withdrawal agreement if they need answers to questions before they can decide on a case. It will be for the courts to decide whether they need that legal view on interpretation.

[Baroness Ludford]

Before the Minister sits down, what then does paragraph 78 mean? It says that,

“during the implementation period, the existing EU mechanisms for supervision and enforcement will continue to apply to the UK” .

That means the ECJ.

[Lord Callanan]

I will write to the noble Baroness but I am conscious that Back-Bench Members want to have some time for questions as well.

--- Later in debate ---

[Lord Callanan]

There is always wisdom in my noble friend’s suggestions but I think whether there should be a Joint Committee of both Houses is a matter for Parliament rather than the Government. We are working through the details with the EU at the moment on exactly what the composition of the joint committee will encompass. However, we expect it to be multilayered, possibly with one level of officials similar to UKRep and one ministerial level as well, but that agreement has still to be made.

[Lord Liddle (Lab)]

My Lords, returning to paragraph 7, which was referred to by the noble Lord, Lord Cormack, paragraph 7.b. refers to Northern Ireland but the only commitment it makes is that,

“the Government has been clear about its steadfast commitment to the Belfast Agreement”.

Is there any reason why, in this document, the Government’s commitment to no hard border has not been put down in black and white or why the amendment that this House passed on Northern Ireland and the avoidance of a hard border, which was accepted by the other place, has not been repeated? Do the Government continue to accept what they accepted in December: that there needs in this withdrawal agreement to be a backstop agreement on the avoidance of a Northern Ireland hard border?

[Lord Callanan]

There was no need to repeat that in the text because it is of course now part of the withdrawal Act, which is the law of the land. We remain committed to there being no hard border and to the backstop, as agreed in December. Negotiations are ongoing with that at the moment and, as I said to the noble Baroness, Lady Hayter, the reason that it is not in this White Paper is because it is not agreed yet.

[Lord Kilclooney (CB)]

My Lords, as someone who lives at the border, I welcome the Minister’s Statement and I accept that the Government are fully in support of the Good Friday agreement—the Belfast agreement—which I helped to negotiate. That is not in question. There are two types of crossings at the Irish border. One is by people, one is by trade. It was suggested earlier in the discussion that there was no agreement on the Northern Ireland issue. Can the Minister confirm that the crossing of people—the common travel area between Northern Ireland and the Republic of Ireland—is already agreed by Brussels, Dublin, Belfast and London and is not in question? Let us remove that from the debate.

Secondly, since so many people from Northern Ireland drive into the Republic and back again, will United Kingdom driving licences issued in Scotland, Wales, England and Northern Ireland have the same respect in European Union countries, including the Republic of Ireland, after Brexit?

[Lord Callanan]

Yes, I can confirm that the common travel area has been agreed. If the noble Lord reads the White Paper we published last week, he will see that driving licences is one of the areas that we need to discuss with the EU. It is a matter of negotiation, but of course it is something that we want to agree and we expect it to be relatively uncontroversial.

[Lord Beith (LD)]

My Lords, I remind the Minister that paragraphs 78, 79 and 80 make it absolutely clear that the jurisdiction of the Court of Justice of the European Union remains throughout the implementation period and that the UK Government can, as if the UK were a member state, take cases to that court should they find that there is a reason to do so. This is a welcome example of having your cake and eating it.

Can the Minister give a guarantee that the necessary domestic legislation which will be required to preserve the rights and entitlements of the Norwegian community in Britain will be in place so that there will be no break or discontinuity for that important group who contribute to our economy?

[Lord Callanan]

Yes, I can confirm what the noble Lord said about the European Court of Justice. With regard to the Norwegian community, we are currently in negotiations with EEA member states and hope to reach an agreement on citizens’ rights similar to that which we have agreed with the EU.

[Lord Hamilton of Epsom (Con)]

I congratulate the Government on the agreement on citizens’ rights. Is this not a vindication of not taking unilateral action to guarantee the position of EU citizens in this country without simultaneously guaranteeing the rights of British citizens in the EU? Are we saying that the meaningful vote will be on a Motion or will it be incorporated into the Bill, which will take in the whole EU withdrawal agreement which is part of this Statement?

[Lord Callanan]

With regard to UK citizens in the EU, it is of course equally important for us to reach agreement on their behalf. That is one of the areas that we are pursuing with other EU member states. Of course, the matter is agreed. We are making preparations to implement our part of the bargain and we need to make sure that EU states are doing similar things for British citizens.

With regard to the exact form of the Motion to be agreed, the meaningful vote is now incorporated into the withdrawal Act.

[Lord Adonis (Lab)]

The Secretary of State has apparently told the House of Commons this afternoon that the Government are making preparations to stockpile food in the event of no deal. Does the Minister think that that is sensible? Secondly, paragraph 118 of the White Paper states, with no qualification whatever:

“The UK will pay its share of the EU’s liabilities as at 31 December 2020”.


Are there any circumstances whatever in which Her Majesty’s Government will not honour that commitment?

[Lord Callanan]

Obviously I have not had the benefit of listening to what my right honourable friend the Secretary of State said in another place, so I will read what he said before commenting on it, but I am not aware of any plans for the stockpiling of food. It seems to be a fairly ridiculous scare story. It will not have escaped the noble Lord’s notice that there are many countries outside the European Union that manage to feed their citizens perfectly satisfactorily without the benefit of EU processes.

[Lord Adonis]

The Minister has not answered my second question.

[Lord Callanan]

Remind me what it was again.

[Lord Adonis]

Paragraph 118 of the White Paper states:

“The UK will pay its share of the EU’s liabilities as at 31 December 2020”.


Are there any circumstances in which the Government will not honour that commitment?

[Lord Callanan]

I go back to what I said earlier: this is an agreed part of the withdrawal Act. Article 50 states that there needs to be agreement on the withdrawal Act and on the future economic partnership. Both parts go together. If both are agreed, both are satisfactory and both are approved by this House, of course there will be no problem, but if there is no deal, nothing is agreed until everything is agreed. That applies as much to the financial settlement as it does to the future economic partnership.

[Lord Wallace of Saltaire (LD)]

My Lords, the White Paper makes it crystal clear that the one thing that will change in April 2019 is that we will no longer be present in any of the discussions on security, foreign policy, economics, rules and regulations or whatever, but apart from that, all EU rules and regulations will continue to apply to Britain. That seems to me to fit exactly Jacob Rees-Mogg’s definition of vassal status. Surely, the shorter the transition period the better and if, as now seems unavoidable, we are incapable of making much more progress in defining the future relationship after we leave before March 2019 because the Government are still divided on what they want, surely it would be preferable to delay leaving until we have a clearer sense of what our future relationship might be.

I ask a second question, about paragraph 10, which states:

“After the UK has left the EU, power will sit closer to the people of Scotland, Wales and Northern Ireland than ever before. The devolved institutions will see a significant increase in their decision making powers as a result of the UK’s exit”.


I tried extremely hard, but I could find no reference to the English regions in the document. As the Minister will know, Yorkshire, the north-west and the north-east stand to lose disproportionately more than the rest of England from Brexit, yet there appears to be no awareness that they will also need devolution and, perhaps, a new consultative mechanism. Are the Government considering that?

Lastly, I see that EU citizens will be treated under the Immigration Act 1971 as they move towards settled status. We are well aware that the Home Office charges considerably for moving towards settled status and UK citizenship. Can we be assured that the Home Office will not impose substantial charges as EU citizens in this country go through that process?

[Lord Callanan]

There are a number of questions there and I will try to answer them as quickly as possible. I agree that the shorter the transition period, the better. We will not take up the noble Lord’s option of delaying leaving. As I am tired of repeating, we are leaving on 29 March 2019. To delay leaving presents the fundamental problem that the EU is legally prohibited from agreeing a future trade deal as long as we are still a member state, so that would just delay the period when we could formally have negotiations and legally agree a trade deal. I certainly agree that the shorter the period, the better.

With regard to the regions and finance, the noble Lord will be aware that the Treasury is currently considering a shared prosperity fund to replace some elements of EU regional finance. With regard to future regional devolution, I fear that those are not matters for me. He will have to ask colleagues in government about that. With regard to EU citizens, the settled status fee is fixed at £65. I am not aware of what charges the Home Office is likely to impose for any other form of citizenship, but I am sure we can find out and write to him.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend for the White Paper. Perhaps I may clarify two points with him. In preparing for yesterday’s debate on the other White Paper, I had the distinct impression from the food industry, which is quite dependent on third-country citizens, particularly current EU citizens, that it is not entirely clear that its long-term status has been secured. Can my noble friend redouble his efforts to ensure that all sectors, whether food, care or health, are made aware of the arrangements?

I declare my interest, in that I practised EU law in Brussels for a while. What will be the certification procedure for those who wish to convert their EU qualifications into UK qualifications post Brexit? Paragraph 40 of the White Paper refers to the,

“Mutual Recognition of Qualifications Directive”,

and states that the,

“arrangements will be provided for, as necessary, in separate legislation”.

Will my noble friend explain what the timetable for that legislation will be? Will the certification be clear before we leave the European Union on 29 March?

[Lord Callanan]

I do not think that I understood all of the questions. The same provisions of settled status apply to workers in the food sector as in every other sector. We are trying to communicate the offer to EU citizens as much as we possibly can after a number of events, in collaboration with various EU embassies, to provide information to their citizens on the processes and procedures for applying, along with DExEU and Home Office staff. We will be doing more of those events.

With regard to lawyers, I do not know whether this answers her question but the existing professional qualifications were recognised as part of the withdrawal agreement for existing citizens. The future recognition of qualifications, after the end of the implementation period, is a matter for negotiation. It is in the White Paper. It is something that we want to agree and we think it mutually desirable, but it has not yet been agreed.

[Baroness McIntosh of Pickering]

In connection with the mutual recognition of professional qualifications, I would like to know whether the legislation will come before this House and the other place before 29 March. It is a perfectly innocent question. The document states that in,

“the Government’s recent White Paper on the future relationship, the UK has proposed that, after the implementation period, there should be a system for the mutual recognition of … qualifications”,

but legislation will be needed. I simply want to know the timetable for that legislation.

[Lord Callanan]

We have still to agree a system of recognition of professional qualifications for after the implementation period. That is in last week’s White Paper. Maybe I should write to my noble friend on the exact detail of that.

[Lord Lexden (Con)]

Turning to Northern Ireland, will my noble friend confirm that no arrangements will be made that create any form of difference or division between that part of our country and the rest of the United Kingdom?

[Lord Callanan]

Yes.