European Union (Withdrawal Agreement) Bill

Lord Callanan Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Hutton of Furness (Lab)]

My Lords, in moving Amendment 2, I shall speak also to Amendments 22 to 28. The withdrawal agreement requires the United Kingdom to establish a new independent body to monitor the implementation of the citizens’ rights provisions contained in the agreement once the implementation period has elapsed. As noble Lords will be aware, there are over 3 million EU and EFTA nationals living in the United Kingdom today. The independent monitoring authority to be set up under this Bill will therefore have an essential role in helping the United Kingdom to meet its international obligations. It goes right to the heart of our standing as a nation governed by the rule of law and on respect for human rights and individual liberties, so this is a very important part of the Bill. My main concern with Schedule 2 as it stands —this is why I have tabled these amendments—is that it appears to place administrative convenience ahead of the proper enforcement of citizens’ rights. This is unacceptable; my amendments are designed to address this imbalance.

Amendments 2 and 22 relate to the composition of the independent monitoring authority. It must surely be a matter of principle that a body such as this, charged with the important responsibilities that we are about to give it, should comprise a majority of non-executive members. That is consistent with every principle of good, corporate governance. These amendments will make that clear. At the moment, it is not clear—in fact, quite the opposite. Under Schedule 2, it is possible for the body to be properly constituted and make decisions even without a majority of non-executive members. If we allow that position to go unchallenged, there is a risk—small perhaps, but not a risk we should be prepared to run—of executive capture. We should not let that happen.

Amendment 23 deals with the balance of the non-executive members. The Bill does not require the non-executive members to reflect properly the nations of the United Kingdom. The words “so far as possible” are inadequate in this context and should be removed. There can be no excuse not to ensure a proper reflection of the nations in the membership of the IMA.

Amendment 24 deals with defective appointments and vacancies. Given the importance of the work of the IMA, it should surely be possible to ensure a full complement of non-executive members. In the case of defective appointments, I do not think that decisions taken by people who have not been properly appointed should be treated in the same way as the decisions of people who have been properly appointed. Otherwise, what on earth is the point of our requiring the Secretary of State to follow a particular appointment process?

I turn now to Amendment 25. Under the schedule as currently drafted, the IMA could delegate to any official of the authority all or any of its decision-making powers other than the production of its annual report. I do not think that that can be right either. Surely the powers to investigate and reach decisions on individual cases or complaints brought to the IMA must be the sole preserve of the members of the IMA itself. My amendment would ensure that that is the case.

Amendment 26 also deals with quite an important issue of principle. In my view, sub-paragraph (4) as it is currently drafted is completely at odds with sub-paragraph (3). If the IMA is satisfied that the UK has failed to comply with its international obligations under the agreement or it is satisfied that a public authority has acted in contravention of the agreement—that is what this part of the schedule is dealing with—then surely it would be astonishing if the IMA could simply ignore this and decide not to take any action at all.

When the composition of the IMA was first revealed and the Department for Exiting the European Union published its document explaining the remit and mandate of the authority, it said:

“The IMA will be established to monitor the UK’s application of the citizens’ rights parts of the Agreements and identify any breaches.”


However, sub-paragraph (4) allows the authority to completely ignore any evidence of a breach of the UK’s international obligations; it allows it not to pursue an inquiry even though it is satisfied that such a breach has occurred. So it might decide to investigate some breaches of our commitments under the agreement but not all, and I do not think that is right. My amendment would therefore delete that provision from the schedule altogether.

Amendment 27, which I have tabled, also deals with a fundamental question of procedure. Sub-paragraph (3) in this part of the schedule seems to me to drive a coach and horses through the whole concept of an effective monitoring body. It is hard to imagine that many of the complaints we can envisage being made to the IMA will not involve at least the potential for an issue to be resolved or referred to the courts. This sub-paragraph gives the IMA a carte-blanche power to simply refuse to make any inquiries even if there is evidence that such a breach has taken place or that it believes that the proper redress is for an individual action in the courts. I do not believe there can be a justification for such a carte-blanche power, and certainly not one that is as widely drafted as this is.

On Amendment 28, many noble Lords have focused on the powers granted under the schedule for the Secretary of State to transfer the functions of the IMA to another body at some point in the future. Here I definitely can see why the Secretary of State might want to do this at some point in the future, but we should insist as a minimum threshold that any new body that might discharge these important statutory powers has the same constitutional safeguards—regarding independence and regional representation, for example—as the IMA. That is how we are setting it up under the schedule so surely any new body should reflect those essential provisions. I therefore do not think this amendment is asking for very much. It would simply require the Secretary of State to satisfy himself that any such body that these functions are transferred to is constituted in the same way as the IMA.

Lastly, on the point about dissolving the IMA, perhaps the Minister, whose response I am looking forward to, could confirm that under Article 159(3) of the withdrawal agreement the joint committee would have to agree the abolition of the IMA anyway, so the UK has already ceded authority—to use that argument—over the continued existence or otherwise of the IMA. I beg to move.

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

My Lords, I thank the noble Lord for his amendments. Given his long experience of government, he will understand that we have designed the IMA’s constitution as set out in Schedule 2 in line with the best practice for the establishment of new public bodies. I fear that the amendments he has tabled risk undermining that approach.

As noble Lords will be aware, we have introduced a number of requirements relating to the membership of the IMA’s board in line with the well-established procedures relating to the governance of public bodies. An important principle of this is that the board of public bodies must contain more non-executive than executive members. That is why we have required the Secretary of State to ensure that, as far as possible, the number of non-executive IMA members exceeds the number of executive members. It is also why the Bill sets out that an IMA board meeting is quorate only if there is a majority of non-executive members present. Because these restrictions exist elsewhere in the Bill, Amendment 2 is unnecessary.

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As to the position of the Government, we will wait to hear what the noble Lord, Lord Callanan, has to say. Noble Lords will have noted what the noble Lord, Lord Beith, said in opening about the position of the noble and learned Lord, Lord Keen of Elie, whom I too admire and consider a serious lawyer and a proper and ethical person. That he is not here says a lot about the state of the Bill as it stands.

[Lord Callanan]

My Lords, I shall speak to Amendments 12 and 13 in the name of the noble Lord, Lord Beith, and Amendment 14 in that of my noble and learned friend Lord Mackay of Clashfern. We debated this matter at length in Committee and the Government have noted the strength of feeling across the House about both a power in principle and the different uses to which it might be put. However, I regret to inform the House that the amendments cannot be accepted.

The clause provides for an important principle: UK courts should be able to interpret UK laws. After the implementation period, that is a matter for us to decide. My noble and learned friend Lord Keen and I have had significant engagement on this issue with noble Lords across the House during the past few days. I can say on behalf of both of us that we are grateful to those noble Lords who met us. While I know that it has not been possible to allay noble Lords’ concerns, I hope that it has become clear that the Government will implement this policy sensibly and in a way that works for courts across the whole United Kingdom.

As my noble and learned friend Lord Keen noted when we debated the matter in Committee, two vital safeguards are built into the Bill. First, we must consult the senior judiciary. The Government are also happy to make it clear that, where the clause requires us to consult other appropriate persons, we also intend to engage with the devolved Administrations.

Secondly, this power can only be used before the end of the implementation period—a critical issue. There is no way in which a Minister can interfere with a live case, nor seek to unpick a single historic judgment which the Government have taken a dislike to. This is a power to allow the Government time to consult, consider and soberly extend the jurisdiction of UK courts to the historic case law of the Court of Justice of the European Union, properly reflecting that, after the end of the IP, such case law will form part of our domestic legal order. The way in which courts are to do this will be made clear. At all times, there will be legal clarity on the rules of interpretation when any cases concerning the body of retained EU law come before those courts. Again, I thank noble Lords for their contributions to this debate and their constructive engagement with our proposals.

Amendments 12 and 13, in the name of the noble Lord, Lord Beith, would mean that retained EU case law would continue to bind our courts, other than the highest courts of appeal, long after the end of the implementation period. For this reason, those amendments are not acceptable to the Government. Amendment 14, in the name of my noble and learned friend Lord Mackay, is an interesting suggestion but, as drafted, it would create a reference process and confer a role upon the Supreme Court that would be novel in a domestic context and could have unintended consequences, including serious implications for the role and case load of the Supreme Court. We look forward to continuing to work closely with noble Lords in the development of these regulations and will continue to listen to the many constructive ideas that have been put forward on this subject. With our commitment to work closely across the House and consult on this issue over the coming months, I hope that the noble Lord will be able to withdraw his amendment.

[Lord Beith]

My Lords we are no further forward at all on which courts it is intended shall acquire the power; on what the test they will be required to carry out is; or on any reliable process by which we can ensure that Ministers do not get involved in specifying the circumstances in which courts, at any level, can depart from existing case law. The beauty of the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, is, as he explained, that it seeks to satisfy the Government’s objective—as restated now by the noble Lord, Lord Callanan—that any court in the land should be able to engage in this process. This is not a very wise thing to do but, if it is going to be done, it should be done with the protection suggested by the noble and learned Lord: that it should involve a reference process which the Supreme Court can take up if it sees reason to do so. On that basis, and knowing in what high regard the noble and learned Lord is held, I am content to seek the leave of the House to withdraw my amendment, so as to facilitate him pressing his.

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[Lord Barwell]

I do not intend to get into this debate in detail; I wished to speak briefly. All I will say is that that approach has been clear for some time, and the Government got a clear endorsement for it in the general election. I say that as someone who had a different view.

I conclude my remarks by simply saying this. There is a case in some circumstances for the Government seeking approval for particular positions; it may strengthen their hand in negotiations. But there is also a real danger, as my noble friend said, that if both sides set out their positions in detail at the outset, you rule out possible negotiating solutions.

[Lord Callanan]

My Lords, Amendment 15 would introduce a new clause that would require the Government to publish their negotiation objectives and provide regular reports on the progress of negotiations. As a number of noble Lords observed, this is a different amendment from that which your Lordships considered in Committee, as it no longer contains any formal role for Parliament in approving objectives before negotiations begin. I personally am pleased that the Opposition have accepted that the negotiation of international trade agreements is rightly a function of the Executive. However, this amendment still seeks to impose statutory reporting requirements which, in our view, are simply unnecessary.

The noble Baroness set out what those requirements are, but for the benefit of the House, the amendment would require publication of the negotiation objectives and two-monthly reports on the progress of negotiations, beginning no later than 15 June. The interest in the objectives is somewhat surprising, as the Government’s vision for the future relationship with the EU is already set out in detail in the political declaration; and this is the answer to the point made by the noble Lord, Lord Liddle, in his intervention on my noble friend Lord Barwell. The House has already had ample time to consider this document. It was laid before each House on 19 October last year, and many committees of your Lordships’ House have already opined on it.

As to the two-monthly reporting requirements, beginning no later than 15 June, this could mean a maximum of four reports before 31 December this year. I remind the House that the Prime Minister has already committed that

“Parliament will be kept fully informed of the progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]

I agree with the point made by the noble Lord, Lord Howarth, that the setting out of reporting requirements in statute, as proposed by this amendment, would be a mistake. The Government will of course, as always, support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations, in line with the PM’s commitment. As my noble friend Lord Bridges pointed out, both Houses will have all the usual tools of scrutiny at their disposal.

I listened with interest to the numbers quoted by my noble friend Lord Bridges; he somewhat pre-empted me. I hope he will forgive me, but my numbers are slightly different from his. I pointed out in Committee that Ministers have spent over 760 hours to date addressing these issues in the House. I personally have spent over 230 hours—sometimes it feels a little longer—answering questions and responding to debates in your Lordships’ House. Officials tell me that I am one overnight sitting away from clocking 250 hours by 31 January, which I hope will make me eligible for a medal. Over its lifetime, DExEU has made over 100 individual Written Statements to each House and responded to 23 Select Committee reports, two of them just yesterday. By my calculation, that is an average of one publication every 10 days, not one every two months, and all without any statutory reporting requirements. That, of course, is without counting the various position papers and other publications also made by the department.

I have no doubt that the situation would be the same in the House of Commons. The Speaker heard very clearly the Prime Minister’s commitment to provide information. He has the powers at his disposal to ensure that Parliament can hold the Government to their commitments. Select Committees will continue to question Ministers. They also have the right to request papers. Opposition day debates and the Backbench Business Committee will continue to provide many opportunities for both Houses to consider all these issues.

I remind the House, as I did in Committee, of the risks in creating fixed points to report before knowing anything of the negotiating schedule. At worst, this could mean that Ministers would be required to provide public commentary at a critical point where confidentiality is paramount, thus potentially undermining the UK’s negotiating position. Alternatively, the reporting deadline might fall when there is nothing to say, since progress would already have been reported by other means, in line with the Prime Minister’s commitment. I pointed out in Committee that I saw this just two weeks ago, where a reporting date set in advance by the Benn Act resulted in a grand attendance of three Members—me and the noble Baronesses, Lady Hayter and Lady Ludford —speaking in that particular debate, which we had to hold by virtue of the Benn Act that you were all so enthusiastic to pass.

These reports are at the mercy of events and they can very often end up being completely worthless, failing to assist Parliament in holding the Government to account. The long-standing mechanisms of both Houses to hold the Government to account will work well because they are flexible and can respond to events, unlike statutorily set out reporting requirements. This House is rightly keen to ensure that it will be kept up-to-date on negotiations, but legislating for it in this way is a very blunt and inflexible approach. During our exit negotiations, Parliament has demonstrated clearly that, where a majority feels that it is receiving unsatisfactory information or is concerned by the direction of travel, it has the tools and the will to secure this information. Nothing has changed on that front as we look to the future negotiations. This Parliament already has a lot of power and this amendment adds nothing to it. I therefore hope that the noble Baroness will feel able to withdraw it.

[Baroness Hayter of Kentish Town]

I am quite surprised by the Minister’s response. I thought he really enjoyed discussions with just the noble Baroness, Lady Ludford, and me late at night, that his 230 hours here were just the foothills and he was looking forward to more.

We have had an interesting discussion, including my noble friends Lord Howarth and Lord Liddle, and the noble Lords, Lord Wallace, Lord Bowness and Lord Barwell. I apologise, I did not mean to include the noble Lord, Lord Barwell, in that, because the interesting thing is that in addition to those noble Lords we have our experienced negotiators. The noble Lord, Lord Hannay, has probably put more than 230 hours into negotiating. The noble Lord, Lord Bridges, before he took off—he is back three rows from where he was—negotiated on this, and obviously the noble Lord, Lord Barwell, did too. The lessons that they have pulled from this are different. Of course, two of them were part of the Executive, so it is no wonder that they do not want this extra parliamentary scrutiny.