European Union (Withdrawal) Bill

Lord Cormack Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

Finally, although we are considering only one exit Bill, it is likely that there will be a dozen, or even more, exit Bills in total. The powers given to Ministers in this Bill will be a powerful precedent for the others. I beg to move.

[Lord Cormack (Con)]

My Lords, I was very glad to add my name to the amendment and the others in this group. I am sure that I speak on behalf of many Members of your Lordships’ House in thanking the noble Lord, Lord Lisvane, for moving the amendment so concisely and convincingly.

I suggest that is it necessary that we pass the amendment. Whichever side of the Brexit argument one is on—the noble Lord, Lord Lisvane, has already touched on this point—one can still believe that it is of fundamental importance that the powers of Ministers should be contained in a sensible and democratic manner by Parliament. Ministers are answerable to Parliament for all that they do, and they should not be able capriciously to decide what is appropriate and what is not.

The word “appropriate” is itself extremely unsatisfactory. It may well be that no one in your Lordships’ House has any doubt about the way in which Ministers in the present Government would behave—that we can trust them implicitly to exercise judgment and discernment in all issues, just as my noble friend Lord Hailsham did when he was a Minister—and by Jove he needed containing from time to time, as he readily admits.

Seriously, this amendment places no real obstacle in the way of any self-respecting Minister. We were reminded in Committee that we are dealing with well over 100 individuals. It means that he or she will act with regard to what is necessary and not to a subjective analysis, as far as the Minister is concerned, of what is appropriate. If agreed by your Lordships’ House, the amendment will not in any way inhibit the overall desires of those who are passionate for Brexit. Nor will it particularly advance the cause of those, like me, who are very sceptical about the benefits of Brexit. What it will do is make every Minister—all 100-plus of them—if given the opportunity to make an executive decision, examine with precision and be able to justify that his or her decision is governed by that word, “necessary”. I hope that we will have a brief debate and a conclusive outcome—unless my noble friend rescinds his nodding of a few minutes ago and accepts, as he should, the impeccable logic of the amendment.

[Lord Howarth of Newport (Lab)]

My Lords, as the noble Lord, Lord Lisvane, suggested in his admirable speech, taking back control should not be a licence for the Executive to arrogate to themselves new arbitrary powers, and Parliament should not permit them to do so. It is entirely appropriate that your Lordships’ House offers this advice to the other place. No self-respecting MP would think otherwise. I very much hope that the other place will agree with us.

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The purpose of these amendments is to get some confidence from government that, in introducing changes where there will not be routine checks, we do not find ourselves having ad hoc checks that end up involving racial profiling. I know that on the last occasion a commitment was given about this but, unfortunately, events since in Northern Ireland have not inspired confidence in many of those who are working on the issues of civil liberties and human rights. On that basis, I beg to move the amendment.

[Lord Cormack]

My Lords, speaking as a former chairman of the Northern Ireland Affairs Committee in another place, I think that we should all thank the noble Baroness, Lady Kennedy of The Shaws, for raising this issue. I hope that we will have a sensitive response from my noble friend the Minister. Knowing his track record, I am fairly confident that we will. But if ever we needed reminding how important it is that we handle these matters with sensitivity, we only have to say the words “Windrush generation” and remember the deeply shaming facts of the last few weeks. In an empty Chamber last night, we had a Statement on that, but although the Chamber was virtually empty, every single Member of your Lordships’ House who spoke said, effectively, the same thing.

We are dealing with the movement of people and, particularly, we are dealing with people who have for many years—in some cases, 30 or 40 years or more—had all the rights and privileges of the British citizen. As we know, there is real concern in the rest of the European Union among those who are sad about what happened with your Lordships’ verdict last year that we should give an unconditional guarantee from the word go. They are now apprehensive and, although I believe that it is entirely unnecessary for them to worry about the Windrush effect, nevertheless they are worried. So I hope that, when responding to this debate, which I trust will be brief, my noble friend will be able to give comfort not only to the noble Baroness, Lady Kennedy of The Shaws, but to Members in all parts of your Lordships’ House, in all parties and on the Cross Benches, who share her concern at these important matters.

[Baroness Ludford]

My Lords, from these Benches, very briefly, I just say that we share the concerns expressed in the amendments of the noble Baroness, Lady Kennedy. There are just two points that I would ask the Minister to respond on. First, what is the meaning of “routine” in the Northern Ireland position paper of last August? There was a pledge that:

“The development of our future immigration system will not impact on the ability to enter the UK from within the CTA free from routine border controls”.


A lot hangs on that adjective; can the Minister please elaborate on what that means and on what border controls will be allowable?

Secondly, the draft withdrawal agreement requires the UK to ensure that the CTA,

“can continue to operate without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members”.

How will it be ensured that the free movement rights of EU citizens that Ireland is obliged to secure will be respected post Brexit?

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[Lord Newby]

My Lords, I support what the noble Baroness, Lady Smith, just said. It is 6.40 pm. It would be unprecedented to break for dinner at this time. I do not suggest that there is anything other than concern for your Lordships’ stomachs in the mind of the Government Chief Whip, but I ask him to reconsider whether he wishes to put this matter to a vote.

[Lord Cormack]

We can negate it with our voices—we do not need to go into the Lobbies.

[Lord Newby]

I suspect that the mood of the House is to negate it—and the quicker we do it, the better.

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[Baroness Ludford]

My Lords, we on these Benches support the points made by the noble Lord, Lord Kerr, who is arguing for consistency throughout the Bill that taxation or “tax-like charges” should be imposed only by primary legislation. That is all I need to say at this stage.

[Lord Cormack]

As my name is on the amendment, I merely endorse what my friend the noble Lord, Lord Kerr, and the noble Baroness have said. We want consistency. We are glad that Clause 8 is to be taken out of the Bill, but the point that he made about Schedule 4 is very important indeed. I know we cannot vote on that amendment tonight but I hope that my noble friend Lady Goldie, who I am delighted to see will reply to this debate, will be able to give us an assurance that this matter has been taken on board.

[Baroness McIntosh of Pickering (Con)]

My Lords, it seems appropriate for me to speak to Amendment 47, in my name and that of the noble Baroness, Lady Smith of Newnham, for the simple reason that government Amendment 47A seeks to remove Clause 8 from the Bill and the purpose of Amendment 47 is to amend Clause 8 by adding the words as printed on the Marshalled List.

I tabled this amendment for Report because, in my view, my noble friend the Minister’s response in Committee lacked clarity. Since then, of course, we have had a vote on an amendment requesting that the Government negotiate a customs arrangement, which was agreed in this House by a substantial majority. Of course, when that amendment goes to the other place it could be rejected, so I would just like to raise a number of issues on Report which will be helpful at Third Reading or in any future altercation between here and the other place if the amendment seeking a customs union does not find favour there.

On 21 February, my noble friend Lord Callanan explained that, in his view,

“the regulations of the EEA will continue during the implementation period. For the period after the implementation period we will seek to negotiate an ongoing relationship with the other three member states of the EEA”,

and that this approach would mean that,

“we seek the continued application of the EEA agreement for the time-limited implementation period to ensure continuity in crucial elements of our trading and non-trading relationship with those three EEA states”.

The lack of clarity came, I believe, when the Minister went on to say:

“Participation in the EEA agreement beyond the implementation period would not work for the UK. It would not deliver on the British people’s desire to have more direct control over decisions that affect their daily lives and it would mean accepting free movement of people … We will instead seek to put in place new arrangements to maintain our relationships with those three countries: Norway, Iceland and Liechtenstein”.—[Official Report, 21/2/18; col. 180.]

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[Lord Kerr of Kinlochard]

I agree with the reading by the Minister and the noble Baroness, Lady Hayter, of whether one has continuing membership of the EEA after one has left the EU: one does not. However, I am struck by what the Minister has just said about the moment when one leaves. I am not sure that it is at the end of the transition period. I think it may be at the moment when we leave the EU—in other words, in March next year, not 21 months later. I am not quite sure why the lawyers in the EEA, EFTA and the EU should accept that once we have left the EU we still remain in the EEA.

[Lord Cormack]

Write a letter.

[Baroness Goldie]

Or offer up a prayer, one or the other. My noble friend Lord Callanan says we are seeking to continue these international agreements, and I presume that is forming part of the negotiations.

I turn to Amendment 47 specifically because my noble friend Lady McIntosh deserves a response. Initially it was in a group of its own and my noble friend Lord Callanan was going to respond in detail, but I shall try to deal with the substance of the amendment. I must begin by repeating that the Government’s intention is to end our membership of the single market because remaining in it would fail the first test for the future economic partnership that the Prime Minister set out at Mansion House: it would fail in delivering control of our borders, law and money and would mean the UK accepting the four freedoms, including freedom of movement. That simply would not deliver the result of the referendum. As the Prime Minister set out in her Mansion House speech, the Government are instead seeking the broadest and deepest possible partnership, covering more sectors and co-operating more fully than any free trade agreement anywhere in the world today. Given those objectives, I cannot support the amendments that seek to keep the UK in the single market.

My noble friend seeks in particular to include any obligations or legal requirements arising from continued membership of the EEA or of EFTA, should agreement be reached on remaining part of the EEA or rejoining EFTA, in a definition of “international obligations” for the purposes of Clause 8. As I have said, the Government have tabled an amendment to remove Clause 8 from the Bill and, as has been made clear, we are not seeking to remain in the single market through the EEA agreement.

For clarification, the Government have no plans to rejoin EFTA because leaving the EU offers us an opportunity to forge a new role for ourselves in the world, to negotiate our own trade agreements and to be a positive and powerful force for free trade. It is also worth mentioning that membership of EFTA would not necessarily be a quick and easy solution, as some have argued; all the EFTA states would have to agree to us rejoining and, even if they welcomed us back, we would not have immediate or automatic access to their free trade agreements. Our entry into each one would need to be negotiated individually with the third countries involved. Similarly, if we were to seek longer-term participation in the EEA agreement, we would have to first join EFTA.

It is not proper for Governments to legislate contrary to their policy intention. We cannot bind future Parliaments and therefore do not need to purport to legislate to leave the door open. Future Governments can of course bring forward whatever legislation they choose to. In any event, joining the EEA or EFTA would give rise to new obligations and the implementation of such new requirements would not be possible under the Clause 8 power, which covers only existing obligations. I hope I have satisfied my noble friend as to why the Government cannot accept her amendment, and in the circumstances I ask her to withdraw it.