European Union (Withdrawal) Bill

Lord Cormack Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I am one of the signatories to this amendment. As other noble Lords have said, it is about protection and future-proofing. I was initially going to say that the noble Baroness, Lady Hayter, had said it all and perhaps I did not need to rise, but I want to support the point that Amendment 11A from the noble Lord, Lord Low of Dalston, makes: that human rights protection is clearly also important.

I reassure the noble Baroness, Lady Oppenheim-Barnes, that this is not about saying EU legislation has to be enshrined in UK law in perpetuity entirely unchanged. The amendment says there are certain aspects of EU law that we believe are hugely important and it should not be possible simply to amend them by statutory instrument, nor for Ministers to engage in any sort of casuistry to change them. If Parliament wished to amend the legislation then it would be possible, but it would be subject to very strict guidance about the approach that it took. Surely the amendment would allow Parliament to take back control but also ensure that the protections we currently enjoy as part of the EU would be retained.

[Lord Cormack (Con)]

My Lords, all I would say is that the key words in this important amendment are simply “except by primary legislation”. That is why I am glad to support it, because it bolsters what the Prime Minister has already said and promised and it ensures that we cannot have, by sleight of hand, fundamental changes to things that concern so very many people.

[Lord Low of Dalston (CB)]

My Lords, I did not move my Amendment 11A because the noble Baroness, Lady Hayter, had already referred to it in such approving terms. I did not want to take up the time of the House unnecessarily but perhaps your Lordships might permit me a small indulgence to say something about the substance of the amendment. I am also grateful for the endorsement of my amendment by the noble Baroness, Lady Smith of Newnham.

If delegated powers are used to make changes, I underline the importance of construing the list of areas requiring the enhanced scrutiny procedure as including changes to human rights. As the Bill currently stands, such changes can be made without that added assurance. Many areas of human rights are currently protected by EU law, such as rights to privacy under the Data Protection Act 1998 and regulations made under it which give effect to EU law; children’s rights; and protection from trafficking. It is therefore essential that the list of areas requiring the protection of the enhanced scrutiny procedure is understood as including human rights protection in EU retained law.

Brexit: British Citizens

Lord Cormack Excerpts

Thursday 29th March 2018 Lords Chamber

[Lord Callanan]

I think there are 3 million EU citizens here in the UK. I am not sure it is helpful to go back through the history of who offered what. We are delighted that we have reached a deal whereby EU citizens’ rights in this country are granted, which is where we always wanted to be, and—a very important matter—UK citizens living in other EU countries have their rights guaranteed as well. We are happy to have agreed this issue. We want to provide safety and security for those citizens in future, and I am sure the House will endorse that.

[Lord Cormack (Con)]

My Lords, on this historic day, can my noble friend not make a clear statement to the House that, having made this provisional agreement, we will stick to it and every European citizen living in this country will be guaranteed the rights that many of us wanted them to be guaranteed by our taking the moral high ground nearly two years ago?

[Lord Callanan]

Of course we intend to stick to the agreement. I agree with my noble friend: it is good to provide security to those citizens, but it is also important to bear in mind the interests of those UK citizens living in EU countries. We have reached a deal on that—both lots have their rights guaranteed, and that is a good situation.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Morgan (Lab)]

My Lords, this is one of a number of issues where it seems that the Government have created extraordinary difficulties for themselves—a quite unnecessary threat to the cohesion of the union in the long term—as well as the other problems introduced by this legislation.

I am a member of the Constitution Committee; the chairman of that distinguished body is sitting behind me. I am not speaking on behalf of the committee, but for myself. The committee has already noticed that the provision about EU-derived measures is quite inappropriate. It ignores the devolution settlement. As the noble and learned Lord, Lord Mackay, explained, these powers should automatically go to the devolved legislatures—where they belong—but they are given no powers of redress or scrutiny. There seems to be very little consultation. I do not understand why such a high-handed and frankly colonial attitude is being adopted toward the legislators of Scotland, Wales and Northern Ireland. Needless complications are being caused. In Wales, which has had a growing accretion of reserved powers under the Government of Wales Act, unnecessary animosity that is not relevant to the Act is being created. It is a form of centralism that goes against the spirit of recent legislation and the consensual spirit in which this has taken place. Much of that consensus is owed to the noble Lord, Lord Bourne. It is comforting to see him sitting on the Government Benches; I hope he can suggest the reversal of this.

[Lord Cormack (Con)]

My Lords, I join in the tributes to my noble friend Lord Bourne. One thing I hope he will take on board is that the amendment was tabled by my noble friend Lord Blencathra—it has been explained why he cannot be here, and we completely understand—but it was moved, most eloquently, by the noble Lord, Lord Tyler. Nobody could accuse them of being on the same side of the Brexit argument, which underlines the fact that, as our Constitutional Affairs Committee said in its report, the Bill is deficient and the deficiencies are recognised equally by those on both the remain and leave sides. I hope that this will command unanimous support among your Lordships and that there will be no need to put the amendment to a vote at a later stage. I hope that my noble friend Lord Bourne will take on board the virtual unanimity of concern here and give us an encouraging answer.

[Lord Wigley (PC)]

My Lords, I apologise for taking my seat after the noble Lord, Lord Tyler, started but I heard most of what he said from outside the Chamber. I add my voice in support of the comments that have been made. There is an old saying in Wales: you can lead a Welsh workforce through hell and high water but once you start driving them, woe betide. I think we should bear in mind the psychology of this situation. If these amendments are made to the Bill, I do not think that they will undermine the main purpose in any way. I hope the Government can look again at the Bill between now and Report.

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[Lord Cormack]

My Lords, we are extremely fortunate to have in this House the noble Lord, Lord Hannay, who has such intimate knowledge going back over 30 years and more, and my noble friend Lord Luce—I must call him that as we sat together in the other place—who was such a distinguished Governor of Gibraltar and who still maintains his interest as Chancellor of its new university.

I do not want to be at all critical of the noble and learned Baroness, Lady Butler-Sloss, who made a very generous speech, but we have to be careful about the epistle that we who are reckoned to be friends of Gibraltar all received. It was, effectively, a written sigh of relief that at least the UK Government had stepped up to the mark and said that that they were committing themselves to Gibraltar. That commitment is clearly crucial and it is equally very welcome, but it does not solve the problem about which the noble Lord, Lord Hannay, and my noble friend Lord Luce have spoken so eloquently. As the noble Baroness, Lady Northover, said, it is in effect a Northern Ireland situation in miniature, because this is the other border between UK territory and the European Union. People have talked about 350 years, but it is not 350 years, as it is since the treaty of Utrecht in 1713, just over 300 years ago, that we have had this commitment to and legal possession of Gibraltar, which has been continually—or perhaps I should say intermittently—challenged by successive Governments of Spain.

In his speech a few minutes ago, my noble friend Lord Luce made graphically plain what is at stake for the people of Gibraltar. Obviously, I hope that when he replies my noble friend the Minister will reiterate the agreements referred to in the letter we all received, but I hope he will go further and indicate that the UK Government will not sign up to any final agreement that leaves unprotected the people of Gibraltar: nothing is agreed until everything is agreed—the mantra that is repeated again and again. A country should be judged by how it treats its weakest citizens, and by how it treats those parts of its territory which are wholly dependent upon it. The people of Gibraltar are wholly dependent upon the Government of the United Kingdom. There must be no agreement with our European friends and partners—I hope and pray that there will be an agreement—that puts Gibraltar in a precarious, indeed dangerous, position after the end of the transition period.

We talk fairly glibly about the transition period. Of course it is necessary, and we all welcome the progress that was signalled last week and about which we will hear a little more when the Statement is made to your Lordships’ House later this evening; but we are not there yet, and we are a long way from being there over Northern Ireland and Gibraltar. Let us, of course, support the withdrawal of the amendment tonight. I am very glad that there have been no votes in Committee during the long hours we have been debating this Bill, but we may well have to consider another amendment on Report, unless we are utterly confident that there is no question at any time of a sell-out over Gibraltar.

[Baroness Ludford (LD)]

My Lords, the debate this afternoon has amply demonstrated why in today’s Statement the Prime Minister refers to the particular challenges that Brexit poses for Gibraltar. Staying in the single market would mitigate some of those challenges, particularly the economic ones, but there would still be the risk of political problems from Brexit itself.

There has been much talk from Brexiteers about global Britain and even Empire 2.0, which is pretty gruesome, but the damage to Ireland and Gibraltar—I fully agree with the noble Lord, Lord Cormack, and others who have drawn an analogy there—from Brexit belies the claim that Brexit is not focused on a rather little-England perspective and instead has a broad and internationalist one. It would be a terrible betrayal of Gibraltar as well as Ireland if the Government do not have those territories in the forefront of their mind.

The Government of Gibraltar told the House of Lords European Committee that Brexit presented,

“few opportunities worthy of mention”,

and that losing access to the single market in services would be a “severe blow” to Gibraltar’s economy—reflecting the fact that it has been a fundamental tool in Gibraltar’s economic development. It is therefore no wonder that, as others have said, 96% of Gibraltarians voted remain.

The point has been strongly made that Gibraltar depends on the free movement of workers. I was very interested to hear that the noble Lord, Lord Luce, is chancellor of the University of Gibraltar, because it gave evidence to the EU Select Committee inquiry and said how valuable the free movement of staff and students across the border with Spain is to it. It also said that the social welfare system is significantly dependent on the income tax paid by cross-border workers in Gibraltar—and a related point is that Gibraltarians will potentially lose access to healthcare facilities in Spain. So there are so many areas of damage to Gibraltar and the residents of the Gibraltar.

Tourism is another element in its economy that would be profoundly harmed by any border problems. The European arrest warrant was described by the Government of Gibraltar as,

“a blessed relief because it took the sovereignty dispute out of the equation of extradition”.

As it involves mutual recognition between judges, it does not depend on Government-to-Government agreement.

The Government of Gibraltar are particularly worried about the possibility of no deal and a cliff-edge scenario. I believe that the Brexiteers have been cavalier in envisaging this possibility. I have to reproach the Minister in this respect, because he mentioned it again last week to the committee—as did his colleague in the other place Robin Walker. Reviving the “no deal” prospect is breathtaking in its irresponsibility to a territory such as Gibraltar. The Government of Gibraltar suggested that it could result in their frontier being severely disrupted or even closed, which would be “potentially disastrous”. It might mean the UK Government having to step in to support Gibraltar’s economy, as they did in the Franco era. I wonder whether British voters have been told about such a possibility, given that they know, or at least have been told, that Britain’s economy is set to deteriorate if we leave the single market—the Prime Minister has said that—and their incomes might well be squeezed. So there could be quite interesting political problems for a Government defending subsidies to Gibraltar.

Lastly, as has been pointed out, Brexit means that Gibraltar will depend on the good will of Spain. It will no longer have EU law there. That law has not been perfect and there are still some issues, but Gibraltar has looked, with justice, to the EU to arbitrate and defend it in disputes with Spain. But it will not have that protection if we Brexit, and the onus will be on the UK to take action. So, like other noble Lords, I think this is a very important issue and I look forward to the Minister telling us exactly how the Government are going to look after Gibraltar, in the same way that there is huge feeling in this House about the maintenance of no internal border in Ireland. I think that the Government have a lot of explaining to do.

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

Let me first agree with the noble Lord, Lord Collins: it has indeed been an excellent debate on an extremely important topic. I also thank the noble and learned Baroness, Lady Butler-Sloss, for raising the issues, but we do not believe that the new clause is necessary. It posits the need to protect the rights of persons and businesses either from or established in Gibraltar operating in the UK, but none is directly affected by the Bill.

As I begin, I say that we are steadfast in our support for Gibraltar, its people and its economy. Let me directly address the issue put to me by the noble Lords, Lord Hannay and Lord Luce, and by the noble Baroness, Lady Northover, about the implementation period.

The territorial scope of the draft withdrawal agreement, including for the implementation period, explicitly includes Gibraltar. That is right, and consistent with our view that we are negotiating on behalf of the whole UK family. We want to get a deal that works for all, including for Gibraltarians. The noble Lord, Lord Hannay, asked me to be specific, and it is in Article 3, section 1, paragraph (b) of the draft agreement.

In legislating for the United Kingdom, the Bill seeks to maintain, wherever practicable, the rights and responsibilities that exist in our law at the moment of leaving the EU, and the rights in the UK of those established in Gibraltar are no exception to that. We respect Gibraltar’s own legislative competence and the fact that Gibraltar has its own degree of autonomy and responsibilities. For example, Gibraltar has its own repeal Bill.

We are committed to fully involving Gibraltar as we prepare for negotiations to leave to ensure that its priorities are taken properly into account. As has been mentioned, we are working closely with Gibraltar, including through the dedicated Joint Ministerial Council on Gibraltar EU Negotiations.

The Bill, however, is not the place for legislation about Gibraltar. The Bill does not extend to Gibraltar, except in two very minor ways: that, by virtue of Clause 18(3), the powers in Clauses 7 and 17 can be used to amend the European parliamentary elections legislation, which of course covers Gibraltar; and the Bill repeals some UK legislation that extends to Gibraltar.

However, we understand the concerns being expressed through the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss. In response to those concerns, I hope that I can reassure the Committee that access to the UK market for Gibraltar is already protected by law, and my ministerial colleague at the Department for Exiting the EU, Robin Walker, agreed a package of measures at the last Gibraltar JMC on 8 March that will maintain, strengthen and indeed deepen UK-Gibraltar ties.

In financial services, where UK-Gibraltar trade is deepest, this is granted by the Financial Services and Markets Act 2000 (Gibraltar) Order 2001 on the basis of Gibraltar’s participation in EU structures. We have agreed that the UK will guarantee Gibraltar financial services firms’ access to UK markets as now until 2020, even in the unlikely event of no deal being reached. We will design a replacement framework to endure beyond 2020 based on shared high standards of regulation and enforcement and underpinned by modern arrangements for information-sharing, transparency and regulatory co-operation.

Obviously, I always hate to disappoint the noble Lord, Lord Foulkes, but when it comes to online gambling, the UK has provided assurance that gambling operators based in Gibraltar will continue to access the UK market after we leave the EU in the same way as they do now, and we are working towards agreement of a memorandum of understanding which will enable closer working and collaboration between gambling regulators in Gibraltar and the UK. This work is already under way, so we consider that the amendment is unnecessary.

In this way, we will deliver on our assurances that Gibraltar will enjoy continued access to the UK market for Gibraltar business, based on the Gibraltar authorities having already agreed to maintain full regulatory alignment with the UK.

We will of course keep Parliament informed of progress. Gibraltar is regularly discussed in Questions and in debate: for example, in Oral Questions on 30 January and on Second Reading of this Bill on 31 January.

I hope that I have addressed the noble and learned Baroness’s concerns, and I urge her to withdraw the amendment.

[Lord Cormack]

Before my noble friend ends, could he assure the Committee that it will be an absolute aim of negotiations to ensure that Gibraltar continues to enjoy commercial intercourse with the rest of the European Union?

[Lord Callanan]

I am very happy to assure the Committee of that. As I said, we are working closely with the Government and people of Gibraltar. They are at the forefront of our consideration; they are our fellow citizens and our allies. We are working with them, we are co-operating with them and of course, alongside the rest of the negotiations, that will be one of our priorities.

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[Lord Dykes]

All the amendments are designed, rather like the noble Lord, Lord Tugendhat, inferred, to improve the technicalities of the Bill, despite people having different views on our future membership or not of the European Union. There may be a stronger content in, for example, some of the suggestions made by the noble Viscount, Lord Hailsham, which I fully support, but that is perhaps the only such example in that cluster.

[Lord Cormack]

My Lords, I have one simple message: do not tie the hands of those negotiating on your behalf.

[Lord Lamont of Lerwick (Con)]

Will my noble friend at least acknowledge that if his concern is that the Government will be boxed in, he should be aware that the Bill allows Ministers to extend the date by order?

[Lord Cormack]

Yes, but it is therefore contradictory to have a specific date written in the Bill because the Government are answerable to Parliament and Parliament is sovereign, as we have said many times over the past few weeks; it seems like an eternity. The one message we should convey is that we should not seek to tie the hands of those who are negotiating. We will do so if we put a particular date in the Bill. Failure to reach agreement by that date will then be trumpeted abroad as a failure. None of us wants that. There must be flexibility.

[Lord Forsyth of Drumlean]

With respect, my noble friend has not dealt with the point made by my noble friend Lord Lamont. He says that Parliament must have sovereignty but the House of Commons amended the Bill to allow Ministers to change the order if necessary. That would require the approval of Parliament, so what is he talking about?

[Lord Cormack]

Very simply, I am talking about the fact that the Bill, as it is before the Committee, has a specific date in it. The purpose of these amendments—tabled by my noble friend the Duke of Wellington and others—has been to give the flexibility that the Bill does not allow at the moment. I am surprised if my noble friend cannot see that. I am not arguing against the prudent and excellent speech made by my noble friend Lord Tugendhat. He made the point as effectively as anybody could. Therefore, let us try to unite on Report around an amendment that will give the additional flexibility that changes in the other place have not given.

[Viscount Hailsham]

Does my noble friend assent to the proposition that Back-Benchers in the House of Commons should be able to trigger the process, as well as Ministers?

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[Lord Cormack]

Parliament must have that ability and most Members of Parliament are Back-Benchers, so it is axiomatic that that is the case and I hope that we will come to an agreement on Report that will, in effect, satisfy the purpose of these different but complementary amendments.

[Lord Newby (LD)]

My Lords, as a co-signatory to Amendments 334 and 343, I support them and the thrust of the debate. It can be summarised in a sentence from the noble Lord, Lord Hannay, who said that it was neither necessary nor desirable to have 29 March in the Bill, which was why that date was not in the Bill in the first case.

Noble Lords on different sides of the argument have suggested why there may be a need to be flexible at the end. Can the Minister help me to understand the draft agreement, published last week, which seems to admit of one of them? In Article 168—entry into force and application—a paragraph is printed in yellow, which means that the negotiators have agreed on the policy objective. So, the Government have agreed the following policy objective:

“This Agreement shall enter into force on 30 March 2019. In case, prior to that date, the depositary of this Agreement has not received the written notification of the completion of the necessary internal procedures by each Party, this Agreement may not enter into force”.


That seems to admit of two possibilities. One is that there is a slight delay until the depositary has received the necessary notification of all parties to the agreement, including the European Parliament as well as this one, having gone through those procedures. The other potential meaning—I cannot believe that it is the meaning but it is not clear—is that if by, say, 1 April the European Parliament has not notified its agreement to the agreement, the agreement would fall. I cannot believe that that is the meaning. I thought that the meaning must be that if the formalities of the parties of the agreement have not been completed, the agreement is in abeyance until they have been. It raises the interesting subsequent question as to how the two-year period in Article 50 is interpreted. Can the Minister attempt to explain that position and what the Government understand by the meaning of Article 168 to me?

The bigger point I seek to make is that there are a number of reasons why it may be in everybody’s interests to slightly change the date on which our exit is triggered. The way in which the Bill has been amended does not facilitate that process and it should therefore revert to its original drafting.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Monday 19th March 2018 Lords Chamber

[Baroness Jones of Moulsecoomb]

My Lords, I object strongly to that comment about people who support Brexit supporting a lowering of standards. That is absolutely not true.

[Lord Cormack (Con)]

My Lords, I had not intended to intervene on this amendment but I am slightly provoked by my noble friend Lord Spicer. There is a fundamental point here which was touched on both by the mover of the amendment and by the noble Lord, Lord Liddle. In fact, they have unwittingly or otherwise echoed what the Government have been saying from the word go—that they want us to remain a European power. There is no question of our not remaining in Europe; we are just detaching ourselves from the European Union. That does not bear too close an examination, because of course we are a European power and a European country.

If we are to remain an essential part of Europe—a nation that truly pulls its weight within Europe—we have to have standards that are similar to those accepted throughout Europe. Whether in the area of environmental control or the quality of sea water, which we touched on a couple of weeks ago, or other things, such as the medical issues that we have debated, we have to have rigorously upheld standards that are similar to and commensurate with those of our great neighbours, France, Germany and the rest of the European Union. Therefore, when my noble friend responds to this brief debate, it is important that he underlines the Government’s commitment to standards that are comparable with those enforced by our European neighbours. Although they will have to be enforced in a different and more domestic way, enforced they must be.

[Lord Goldsmith (Lab)]

My Lords, my noble friend Lord Haskel has raised some important issues, which we should carefully consider—I hope that the Government will do so. He is plainly right that one of the consequences of our departure from the European Union will be the loss of the benefit of EU governance institutions and the standards that they set and enforce. It is worth underlining the word “enforce”, as the noble Baroness, Lady Ludford, did. This is not just about having the standards; it is also about having institutions that are capable of enforcing them.

Of course, the Government will say that we can and we should take over ourselves the setting and enforcement of appropriate standards. But there are challenges in doing that, to some of which the noble Lord, Lord Cormack, has referred. If we are going to have standards in which people have confidence, they need to be delivered by institutions in which there is demonstrable independence. That then gives rise to credibility: the standards and the institutions that set them must be seen to have a distance from Ministers and not be subject to expedient ministerial policy-making. We have so far become used to—indeed, perhaps taken for granted—the fact that there are standards that are set by the current EU institutions which have rigorously debated and taken into account national standards. However, as my noble friend said, we need to be assured that standards—he mentioned in particular general data protection rules, but other standards as well—are not lowered.

That raises an important point. In this Bill, the Government have taken the view, in my view quite rightly, that the fundamental rights that are protected by the European Convention on Human Rights, now by our own Human Rights Act, cannot be changed without parliamentary scrutiny—indeed, only by primary legislation. That is not the position that is proposed in relation to other rights or standards that are, in many people’s eyes, as important. We need clarity on these issues. It is not enough for the Government to say that they recognise the need to maintain high standards of protection; they need to explain how those high standards of protection are in fact to be achieved, and to do that in a way that gives rise to confidence.

My noble friend Lord Liddle raised a further important point—and, if I may say so, he played an important part in this himself in previous years—about the conversations and co-ordinations that have taken place between European countries in setting policy and the standards that go with policy. It would be good to hear from the noble and learned Lord the Minister whether those will be continued and in what way.

There is much to support in this amendment and in the principle that my noble friend has put forward. It is supported by the noble Baroness, Lady Jones of Moulsecoomb, and I do not think for one moment that the fact that she has added her name to it means that the amendment will be looked at less—quite the opposite, I suggest. We look forward to hearing what the noble and learned Lord has to say in response to this amendment.

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[Lord Forsyth of Drumlean]

So what? It was not a health and safety measure; it was an employment law measure. The point that I made still stands.

I hope that we will not spend any more time discussing this second referendum, which is just an attempt by people in this House, who are unelected, to subvert the decision made by the British people.

[Lord Cormack]

My Lords, last week we had an interesting debate on what should happen if Parliament was given a take-it-or-leave-it decision. There was considerable support for the point of view that I sought to put forward with the support of many other noble Lords, which is that we should maintain our membership, suspend Article 50 and tell the Government to try again. I believe that that is the right course because Parliament is sovereign. I believe very strongly that the plebiscite is inimical to parliamentary representative democracy. I also believe that, because Parliament is sovereign, it can make what decision it wishes. We are talking about Parliament and not about the Executive. Throughout our debates, we have had a disturbing series of illustrations that the Government believe that the Executive are supreme. It is not; it is Parliament that is supreme.

We will not have a vote tonight, because these are probing amendments. But were we to have one, I would not vote for the amendment—not because I am completely out of sympathy with many of the points that were eloquently made by the noble Lords, Lord Newby and Lord Foulkes, and by others who have spoken in the same way, but because I believe it is premature to put an amendment of this nature into this Bill at this time. It is crucial that we do not undermine, but underpin, the sovereignty of Parliament, which is what we should be doing when we come to votes on Report. There will be votes, and I am quite sure I will be supporting a number of the amendments.

[Viscount Ridley]

My noble friend is talking about the sovereignty of Parliament. Does he recall that just an hour or two ago we were debating different amendments, which were essentially about putting standards from the European Union into the Bill to make sure that this country does not diverge from them later? Essentially, the basis of those amendments was not having faith in Parliament to do these things correctly.

[Lord Cormack]

That is a complete travesty, a total misreading or a fundamental misunderstanding. If Parliament decides to have these standards, they are there at the insistence of Parliament. That is all that those of us who took part in that very brief but rather graphic debate were arguing.

I go back to the point that I was seeking to make: we should be seeking to underpin the sovereignty of Parliament in this place. If the deal is a very bad deal, I hope that Members in another place will have the courage to vote according to their consciences. I never had any problem voting against the Government in the other place: I frequently voted against Mrs Thatcher’s Government, much as I admired the noble Baroness Thatcher. I frequently found myself in different Lobbies on issues such as the poll tax, or community charge, and did not believe that I was doing anything other than representing my constituents to the best of my ability on issues that were contentious and where I took a particular line.

We all know what a bad deal is, and I very much hope that if the deal is a bad one, they will have the courage in another place to reject it. We cannot make that ultimate decision: although I hope we give it support, this is fundamentally a House of Commons matter, and if it decides that the only proper, ultimate way out is to put that to the people, then that is up to the Commons. A sovereign Parliament has the right to do that.

I end on the note that I am very disturbed about a proliferation of referenda, because it goes a long way towards undermining parliamentary sovereignty. If it is the ultimate decision of the other place, so be it, but it is premature to seek to insert this amendment in this Bill at this time.

[Lord Lea of Crondall (Lab)]

Could I just clarify something with the noble Lord? I am very sympathetic to what he is saying, but he has twice said, “We all know what a bad deal would be”. But we do not. I suspect in a few months’ time that we might regret not appreciating that we need some criteria to judge what is a good deal and what is a bad deal—whether, as some people might think, it is single market, customs union or whatever. Unless there are some criteria against which we can judge the outcome, we will be all over the place, which could lead to a very interesting debate on Report on this very question of a mandate.

[Lord Cormack]

A bad deal would be a deal where the trading relations with the other 27 nations of Europe are appreciably worse than they are at the moment. A bad deal would be one where we are not able to reach the agreements the Prime Minister has herself said she wants to reach on such things as Erasmus and Europol. We could go on and on, but we will know what is a bad deal. I hope it will be a good deal, but if it is a bad one, it will be completely wrong to say, “Take it or leave it”. There should be another go, which is why we had that amendment last week.

[Baroness Wheatcroft (Con)]

My Lords, my name was on the original amendment tabled by the noble Lord, Lord Newby, and I now speak to its reincarnation. We have heard a lot about the sovereignty of Parliament, which we are of course proud of, but Parliament did pass the European Union Act 2011, which provided for a referendum on any treaty change. I do not know how individuals voted on that Act, but I suspect some of us in the Chamber who are now professing our belief in the sovereignty of Parliament and our antipathy to referenda voted in favour of that provision. It may well be that the 2011 Act and its provision for a referendum on any change in the EU’s treaty relationship with the UK is still applicable, and a legal action is going on now to try and establish that, but in the belief that the law can sometimes take a long time, I think it is important that we should move ahead on these amendments.

The people, as we have heard, are in favour of a vote on the deal. The latest opinion polling from Open Britain found that 65% of people believe that they, and not just politicians, should have the final say on the deal, and I agree with them. I voted in favour of such a move during the Article 50 process, so at least I have the virtue of being consistent. At that stage I expressed my dislike of referenda. I retain that dislike, but if one gets into a mess with a referendum, it may well be, as others have suggested, that the only way out is with another one.

We are in a mess. Parliament is in the most extraordinary position of pushing ahead with legislation which the majority of parliamentarians believe will be bad for the country, and I find it really difficult being part of that process. We are told that we must do it because we are implementing the will of the people, but this is simply not the case. As others have said, whatever the people voted for, they did not vote to get poorer. The Government are doing what the people instructed them to do: they are exploring how we might exit from the EU. But when we have an answer to that, it is the people who should decide on whether it is exactly what they want and where they want to go to.

Many times in this process it has been apparent that the outcome will be worse rather than better. Even the “Tiggerish” chancellor, when he came out with his projections of the economy, making the best of it, did not refer to the fact that all of those forecasts are lower than they were before the referendum. Things are not getting better. They may be looking slightly less worse, but they do not look good.

It should be the people who decide. We have heard about the young—my noble friend Lord Dobbs says they do not all vote as one and may well change their minds. This is true, but an overwhelming majority of them do not want to become little Englanders. They like the benefits that they get from Europe.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Callanan]

I fear that I will disappoint the noble Lord yet again. It is of course a vital subject. We are currently formulating our proposals. It will of course be a matter for negotiation, but the Home Office will, I believe, set out in a White Paper later this year how a future immigration system might work.

[Lord Cormack (Con)]

I am most grateful to my noble friend. I have heard every word of this debate and have refrained from taking part because the case was being made so splendidly by everybody who was. Quite honestly, I say with due respect to my noble friend, appreciating the difficulty of his task, that all he has presented to the House is a stone wall. Frankly, this is not good enough.

[Lord Callanan]

I can only apologise for disappointing my noble friend. Of course, we take very different views on the issue of our EU withdrawal, so perhaps he will forgive me on this occasion for not agreeing with him.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, my name is to this amendment. I think most of us would agree that Clause 9 as it stands is simply not fit for purpose or constitutionally acceptable. It leaves it to Ministers to decide and implement whatever our divided and chaotic Government have by then asked for and managed to negotiate with the rest of the EU. I find it astonishing that the Government have failed to set out their negotiating preferences 18 months after the referendum and 12 months before the proposed exit day.

In six days in Committee we have had a process of discovery about the number of issues on which the Government do not have a coherent view. The noble Lord, Lord Callanan, has argued that the Government are protecting their negotiating position. It seems to me they are rather protecting their nakedness on much of it as they do not have a coherent position. In the speech he just made he said that they do not want to have their negotiating position constrained. The Government have themselves produced a number of red lines that constrain their negotiating position. Parliament must be allowed to constrain their negotiating position in other ways. Every day in Committee and on almost every subject we discover more issues that are important to Britain’s prosperity and security on which the Government remain confused and unclear about what their preferences are.

The Prime Minister’s speech the other week was a major step forward. She moved to recognise that we need to maintain in a number of areas that she specified—but only a few—close relations with the European Union. The Luxembourg Prime Minister’s comment on her speech was entirely appropriate: the United Kingdom now intends to move from a position where it is inside the EU with a number of opt-outs to one in which it is outside the EU with a large number of opt-ins. Parliament would wish to have a view on that. What we heard in the first debate this morning was: how many of these opt-ins do the Government wish to have? They must have a view on that and they ought to share it with Parliament. They need to share it with their European Union partners. It is not a negotiating position on which we wish to maintain flexibility.

Given all of that, it is all the more important for Parliament to have a meaningful and coherent vote on a package—or the absence of one—well before the prescribed exit date is reached. That is what Amendment 150 and the others in this group talk about, in one way or another. The Government seem to be more concerned about negotiations within the Conservative Party than with the long-term national interest of the country. We parliamentarians, in both Houses, therefore have to be the guardians of the national interest, and that requires substantial changes to Clause 9.

[Lord Cormack]

My name is on the second amendment in this group, Amendment 151. I am most grateful to my noble friends Lord Balfe and Lady Verma and the noble Lord, Lord Reid, for adding their names to it.

I have become increasingly depressed and disturbed with every day that we are facing this Bill, particularly because my noble friend—whom I totally respect—is so fervently on the Brexit side that he does not seem to be able to grasp the importance of the points that are being made about the sovereignty of Parliament. In the Lord Speaker’s corridor, on the wall opposite what the Americans euphemistically call a comfort station, is a row of cartoons. One of them concerns Queen Caroline. Most noble Lords will know that she had a somewhat unfortunate relationship with her husband, George IV, and was locked out of the abbey for the coronation, but she was the idol and darling of the people. The cartoon refers to her as “Britain’s best hope”, and “England’s sheet anchor”. That sums up, in a phrase, the attitude of many of those who have embraced the Brexit cause.

But where are the details? Where is the substance? The important point of this amendment, as of the one previously moved by the noble Baroness, Lady Hayter, is that it wants to give Parliament centrality. Indeed, it is building, constructively, upon the one amendment that was carried in another place and was most eloquently moved by my right honourable friend Dominic Grieve. I think he would accept, as would most of your Lordships, that that put down a marker but did not guarantee a position. This amendment, similar to the one eloquently moved by the noble Baroness, Lady Hayter, would build on that and rectify the position. It calls for Parliament to approve the final terms, by statute, before they are referred to the European Parliament and would guarantee Parliament a meaningful say on the withdrawal agreement at a meaningful, realistic, sensible time. There is no point in merely going through the motions if Parliament is not going to have a proper opportunity to deliver a verdict at a time when something can be done about it. It builds on Amendment 7—as my right honourable friend Dominic Grieve’s amendment was numbered in the other place—to ensure that Parliament has ample time for consideration of whatever agreement is reached. At the moment, there is not a sufficient guarantee that Parliament will have that time to examine the agreement before the European Parliament does so. In effect, we are also building on the amendment moved by the noble Lord, Lord Monks, earlier today.

I want to be brief, because we had a long debate on the first group of amendments. I am delighted that my second amendment, Amendment 199, is a wholly Conservative amendment, because the other signatories are my noble friends Lord Balfe, Lady Verma again and Lord Deben. In this amendment, we are saying, as Conservatives who believe fundamentally that the nation is making a mistake but who want to rescue as much as we can, that a no-deal outcome is not acceptable. It aims to ensure that if Parliament fails to endorse the proposed agreement, the UK will continue with the existing arrangements and relationship with the European Union, and it will require the Government to seek an extension of Article 50 so that negotiations can continue.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Hannay of Chiswick]

Yes, that is exactly my opinion, too.

[Lord Cormack (Con)]

I am grateful to the noble Lord. My only point is that no Government can at any time bind a future Parliament.

[Lord Falconer of Thoroton (Lab)]

My Lords, a final answer to the question by the noble Lord, Lord Forsyth, would be that we do not just leave automatically. There is a whole range of choices that have to be made and those choices involve the Government negotiating an agreement and then, I would respectfully submit, Parliament deciding whether it approves of the deal that has been done. As the noble Baroness, Lady Altmann, rightly said, this is not about trying to frustrate the outcome of the referendum, but trying to get to a sensible answer, which Parliament takes responsibility for.

We had a fantastic debate this morning and I invidiously single out the four speeches by my noble friends Lady Hayter and Lord Reid of Cardowan, the noble Lord, Lord Patten of Barnes, and the noble Viscount, Lord Hailsham. They were absolutely terrific in terms of establishing—and re-establishing—the principle of parliamentary sovereignty. I recommend my noble friend Lord Reid’s speech; this is not some abstract principle—it is about Parliament performing its rule and its role in order that there is better governance of our country. There are three particular effects in this respect.

First—and I can say this, having been in government—there is nothing that makes government decisions better than the fact that you will be grilled by Parliament on those decisions; it makes you think them through much more. The more this Government think that they can do Brexit without being grilled by Parliament, the worse the decisions will be.

Secondly, every time I speak to people in the European Union, they ask whether this Government have the authority to do any deal, because of their precarious political position. The more that the people with whom we are negotiating think the Government will have the authority of Parliament, the more they will pay attention to what the Government are doing.

Thirdly, we want a deal that the country has confidence in. People are much more likely to have confidence in a deal that does not appear to be the product of a negotiation between the Prime Minister and Mr Jacob Rees-Mogg but which appears to be something that Parliament as a whole is willing to approve.

For those three reasons, all of which are practical, I think it is really important that Parliament has a meaningful vote. The debate this morning indicated that there was broad consensus around this House that Parliament should have a meaningful vote. I will just draw out three aspects of that meaningful vote—does the Minister agree that these aspects will be covered?

First, the meaningful vote must be in respect of the withdrawal agreement, the transition agreement and the political declaration that it is envisaged will be agreed between the European Union and the United Kingdom on the future trading relationship between the two. I include that because, as the Minister knows, Article 50 says that the withdrawal agreement must have regard to the future relationship.

Secondly, the meaningful vote—in order to be meaningful—must take place at such a time as it can affect the result. That means before the European Parliament has voted, and while there is still time for Her Majesty’s Government to go back and negotiate further, if that be the wish of Parliament, in accordance with any one of the three agreements or political declarations I have identified.

--- Later in debate ---

[Baroness Altmann]

It is indeed our job to make recommendations to the other place if we believe that there are issues in this Bill which go to the heart of some of the constitutional matters relating to it.

[Lord Cormack]

Will my noble friend remind my other noble friend that the Bill has gone through all its stages in another place? It is now before us. We have to amend it as and when we think, and the other place has to pronounce on our amendments. It is our duty to say to it, “Please think again”, if we feel that is necessary. At the end of the day, the other place will have the final word.

[Lord Elystan-Morgan (CB)]

My Lords, a point was made by several noble Lords as to a delay in the operation of Article 50. If I remember rightly, under Clause 2, there is a period of two years. Can that be invoked unilaterally or does it need the consent of all 27 other members? I would be most grateful if the Minister could reply. If not, I have no doubt that the noble Lord, Lord Kerr, will correct us.

--- Later in debate ---

[Lord Callanan]

Yes, I fear the noble Lord is wrong about that. I think he is referring to the final trade agreement, which we hope will be a mixed agreement and will therefore need approval in national parliaments. The Article 50 process does not require approval in national parliaments.

[Lord Cormack]

I respectfully suggest that my noble friend is wrong in saying that it is impossible to guarantee a vote in our national Parliament before one in the European Parliament. If we are taking back control, surely in this of all Bills we can give that assurance.

[Lord Callanan]

I can give him the assurance that we intend, we expect, we hope and we want the vote in this Parliament to take place before the European Parliament votes, but we do not know at what stage the European Parliament will vote: it may be, to quote a hypothetical circumstance, that this Parliament will be in recess and that the European Parliament will have a vote immediately thereafter. However, I do not know; I am just saying when we want it to take place and we expect and intend it to do so.

--- Later in debate ---

[Lord Callanan]

The Government’s position is clear that Article 50 will not be revoked. We will discuss the question—

[Lord Cormack]

My Lords, with everything he says my noble friend is repudiating the authority and position of Parliament, and asserting the supremacy of the Executive. That is inimical to parliamentary democracy.

[Lord Callanan]

I think I am asserting the supremacy of the people who voted in a referendum.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I make two short suggestions. One is that all the words that we have heard today should be treated exactly the same. The second is that Parliament should deal with all of them.

[Lord Cormack (Con)]

My Lords, my noble friend Lord Deben, in his scintillating speech, referred to the power of arbitrary monarchs. I do not need to remind him—or anyone else in your Lordships’ House—that 369 years ago something happened to a monarch who had sought to exert those powers absolutely. The ultimate end of ship money was outside Banqueting House in Whitehall on 30 January 1649. I do not want to make too many historical diversions, but I was grateful to the noble Lord, Lord Tyler, whom we missed last week when we really began these debates on Wednesday, for referring to what I had sought to say then. This is the specific consequence of the generality that we abhorred last week—giving to Ministers, effectively, arbitrary power.

--- Later in debate ---

[Lord Forsyth of Drumlean]

My noble friend mentioned VAT. Is that not an example of where Parliament no longer has the power to reduce the rate of VAT below 5% because we have given that to the European Union? Is not our leaving the European Union an example of restoring the authority of Parliament to impose taxes?

[Lord Cormack]

Our leaving the European Union is an exceptionally unfortunate measure that will do great damage to this country, in my opinion. But the answer to my noble friend’s specific question is that it was enacted by Parliament—a Parliament of which he was not a Member but of which my noble friend Lord Deben and I were—and that, knowing the consequences, we voted for it because we believed that it was in the general interest of our country. We were behaving as Members of the House of Commons should behave. It was properly debated, thoroughly approved and it came on to the statute books as other things have done.

I go back to what I was saying when my noble friend interrupted me. We have a duty to protect and to urge the other place not to abdicate the central power of an elected House—to deal with taxation. I hope that when my noble friend replies we will have a slightly more satisfactory and understanding reply than we had last Wednesday. I hope, too, that he will ensure, if not today, that we have a glossary of all these terms, including charges, fees, taxes, contributions and levies. At the end of the day they all mean something very similar: imposing an obligation to pay. People should never fall under that obligation unless it is imposed by their representatives in Parliament. We have a duty, as the second Chamber—the unelected Chamber—to say to our colleagues at the other end of the Corridor, “Please do not abdicate; please flex your muscles; please do not give to Ministers—the 109 whom we talked about the other night—or to other bodies or authority a power that is only rightly yours”.

[Lord Judge]

My Lords, my name is to Amendment 126. I do not want to say very much. I can think of another word to add to that great list and I could give my view of the history of how taxation became the weapon for democracy, ultimately. Taxation is the ultimate control that the Commons has over the Executive. Just reflect on the set-to in the United States of America a few weeks ago: Senate and President at odds over money. These issues must be resolved at parliamentary level and House of Commons level—not by regulation.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I want to add one short point to what has been said about sentences of imprisonment. It is likely that if the Government think it necessary to introduce new criminal offences, they are not going to be offences of assault or anything of that kind, but offences that relate to the conduct of business between the United Kingdom and the European Union. What we are talking about here are possibly mainly regulatory offences, for which sentences of imprisonment may not be necessary at all. However, such offences may affect severely the conduct of companies and the relationships between them, the conduct of local authorities and so on. Therefore, I ask that included in the scrutiny that the Minister has very helpfully promised is a slightly more sophisticated test that bears in mind the effect of potential new offences on the business community and the economy.

[Lord Cormack]

My Lords, I support what the noble Lord, Lord Carlile, has just said and ever so slightly disagree with my noble friend Lord Hailsham. Whatever the nature of the offence, it is wrong that it should be created in this way. I agree with the noble Lord, Lord Carlile, that custodial sentences are highly unlikely, but that is not the point. To create any sort of offence in this way is fundamentally wrong and we should not have anything to do with it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I agree with what the noble Lord, Lord Cormack, has just said. As the noble and learned Lord, Lord Judge, the noble Viscount, Lord Hailsham, and my noble friend Lord McNally explained, the Bill as drafted would permit Ministers, when they consider it “appropriate”—a point made by the noble Viscount and a word discussed at length last Wednesday—to create by regulations new criminal offences carrying up to two years’ imprisonment for wide and diffuse purposes. As discussed last week, regulations could also be used to make any provision that could be made by Act of Parliament. The Henry VIII powers are as all-embracing as could be imagined. This is all the more shocking in the context of the creation of new criminal offences. These may concern individual liberty, certainly; reputation, always; and the conduct of business, as the noble Lord, Lord Carlile, has pointed out.

The report of the Delegated Powers and Regulatory Reform Committee—on which I sat for a number of years—described the powers as “wider than we have ever seen”. It described Clause 7 as notable for its width, novelty and uncertainty, and the same can be said of all three of the clauses in question. The principle is simple: it is in general not acceptable for the Government to have the power to create new criminal offences by regulation without an Act of Parliament. That principle was treated as cardinal when I was on the Delegated Powers Committee.

In 2014 the committee produced a document headed Guidance for Departments, directed principally at memorandums for the departments. However, on the question of criminal offences it was considered so out of order that new criminal offences would be created by regulation that the guidance did not even address that possibility. The committee said:

“Where a Bill creates a criminal offence with provision for the penalty to be set by delegated legislation”—


that is, the Bill creates the offence—

“the committee would expect, save in exceptional circumstances, a maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification”.

However, this Bill potentially permits the creation of a new range of criminal offences. Both the Bill and the Explanatory Notes are silent about everything to do with such offences as might be created except for the broad statement of their purpose in the three clauses, in the most general terms, and with no indication of what offences are envisaged, except that the maximum penalty must not exceed two years imprisonment—which, as the noble Viscount, Lord Hailsham, pointed out, is a not insubstantial period.

The basic principle was enshrined in Article 39 of Magna Carta: that no one should be imprisoned or stripped of his rights or possessions or deprived of his standing in any way except by the lawful judgment of his equals or by the law of the land. These are constitutional principles as old as this Parliament, and we should be very careful in dealing with the issue of allowing the right of Parliament to insist on a say over criminal offences being created by the diktat of Ministers.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Wednesday 7th March 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I wish to make two very brief points. First, I want to endorse entirely what my noble friend Lord Renfrew said. The points he made on the archaeological issues are of very great importance indeed, and it is crucial—I speak as a fellow of the Society of Antiquaries and a former vice-president of that body—that these points are taken into account.

My other point, in a slightly lighter vein—but still with serious intent—is to support my noble friend Lord Deben, who made a splendid speech. As he made it, I could not help but remember an Adjournment debate in the other place, over 30 years ago, when the late, great Reggie Bennett mentioned the problems that he had enjoying his favourite sport of swimming off the south coast. He said, “Mr Speaker, there are very few beaches onto which I can now go and swim. All I can do is go through the motions”. That just brings home, in a very simple but important way, that we owe a lot to directives that have come from Europe and been brought into our laws. My noble friend Lord Deben referred to that in his speech; he played a very important part in that regard. It is easy to bash directives—we have all done it; I have done it—but collectively, we owe a great deal to what has come out of Europe on the environment, and been sustained and endorsed in this country.

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

My Lords, the issue of environmental protection was widely debated during the Bill’s passage through the other place. Of course, it has now been widely debated, with great ability, by many noble Lords here. We have already had a thorough debate on the important topic of animal sentience and I am grateful to noble Lords for their amendments on that issue and on the wider issue of maintenance of EU environmental principles.

Although I welcome the sentiments behind these amendments—Amendments 66 and 108, in the name of the noble Baroness, Lady Jones; Amendments 112 and 113, in the name of the noble Lord, Lord Krebs; Amendment 67, in the name of the noble Lord, Lord Judd; and those in the names of the noble Lords, Lord Adonis and Lord Wigley, and the noble Baroness, Lady Miller of Chilthorne Domer—I believe them to be ultimately unnecessary, for reasons I will now set out.

As my noble friend Lady Byford indicated, on 11 January, the Prime Minister launched the 25-year environment plan. That sets out our determination to leave our environment in a better state than how we found it and outlines steps to achieve this. Launching the plan, the Prime Minister stated:

“Let me be very clear. Brexit will not mean a lowering of environmental standards”.


Of course, we are committed to internationally recognised environmental principles, as set out in the Rio Declaration on Environment and Development in 1992, known as the Rio principles. This declaration includes the ideas behind a number of the environmental principles listed in Amendment 66, including sustainable development, the precautionary principle, the polluter pays principle and access to environmental information. These, as well as other principles, are also features of multilateral environmental agreements to which the UK is a party. For example, the OSPAR Convention—the Convention for the Protection of the Marine Environment of the North-East Atlantic—and the Gothenburg Protocol on air pollution both apply the precautionary principle.

Although these principles are already central to government environmental policy, they are not set out in one place. That is why the Secretary of State for Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles. The new policy statement will draw on current EU and international principles and will underpin all our future policy-making. The Secretary of State for Environment, Food and Rural Affairs also announced on 12 November our intention to consult on a new, independent and statutory body to advise and challenge government, and potentially other public bodies, on environmental legislation, stepping in when needed to hold these bodies to account and to be a champion for the environment.

In reply to the noble Lord, Lord Krebs, my noble friends Lady Byford and Lord Caithness and other noble Lords, this year we will consult widely on the details of the announcement from the Secretary of State for the Environment—I apologise to noble Lords that I cannot be more specific about a date at the moment. That consultation will explore the precise functions, the remit and powers of the new environmental body, and the nature, scope and content of the new statement on environmental principles. This will be the start of a detailed conversation with stakeholders. There are many stakeholders in this area and it is important to gather their views before coming to any decisions, which is why I cannot be more definitive at this stage on timescales.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Wilson of Dinton]

The noble Viscount reinforces the point which I am trying to make. The Explanatory Notes explain that the power also extends to,

“altering Acts of Parliament where appropriate”.

We are talking about the power to make law and to amend existing law. This is the dream of tyrants through the ages. It is something which is repugnant to the history of this country and the development of our legal system. My argument to the Committee is that the House should lean as hard against it as it can, provided that does not get in the way of achieving the desired result of a functioning legal system. We should not leave leeway which allows Ministers to do things which would be policy changes. I am uneasy about the danger that policy changes could come through the use of the power.

When you try to marry 40 years of legislation with British law, there will be endless choices to be made: you could go this way; you could go that way. Policy is tied up in the interstices of quite small decisions about how the laws should be married together. We should lean against anything which encourages policy change and we should focus the Minister’s power exclusively on achieving a functioning legal system, without going wider. If the law as it emerges needs to be improved, it should be improved by separate legislation that goes through proper processes. We should give only the power that is strictly necessary from the point of view of the objects of this legislation.

Another point I draw to the Committee’s attention is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but I am not now—but if I read the Bill correctly, it gives the power to a Minister of the Crown, as defined in the Ministers of the Crown Act 1975. Section 8 of the Act says that a Minister of the Crown is anyone who holds,

“office in Her Majesty’s Government”.

I have not checked this, but my memory is—it used to be imprinted on me when I was working in the Civil Service—that you can have up to 109 Ministers in the Government, so 109 people are being authorised to make or to amend law. In addition, the Commissioners of Customs and Excise will be given the power to make law and amend law, subject to the restrictions. That is another seven people—a Permanent Secretary and a number of directors-general—being given this power which tyrants dream of.

In addition, I draw the Committee’s attention to where the Explanatory Notes say that the power could include,

“sub-delegating the power to a public authority where they are best placed to deal with the deficiencies”.

So we are talking about giving public authorities the power to make law without going through parliamentary processes and to amend law. What is a public authority? According to Section 14, “public authority” is defined by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that,

“‘public authority’ includes … a court or tribunal”.

I ask the Minister: are we seriously proposing to give the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in that subsection says that “public authority” includes,

“any person certain of whose functions are functions of a public nature”.

The proposal before this Committee is that the power to make and amend law within the conditions set out in the clause could be capable of being given to any person certain of whose functions are of a public nature, which in essence is any public servant. I put it to the Committee: is this necessary or reasonable?

[Lord Cormack (Con)]

Without reference to Parliament.

[Lord Wilson of Dinton]

Is this reasonable without reference to Parliament, or to the lightest sifting procedure where any recommendations can be made?

I ask the Minister whether he has an estimate of how many people may be given the power to amend law and make law. I would be interested just to know the number. If you have so many people, possibly hundreds, given the power, you should restrict it as much as you possibly can, so far as is consistent with the objects of the Bill.

Why do I think that the phrase “the Minister considers appropriate” is inadequate? First of all, “appropriate” is a word which should be avoided as much as it possibly can. In my last jobs in the Civil Service, I was sometimes faced with proposals that the Minister should be able to do something “when appropriate”. I always reached for my red pen and struck it out.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, from this side of the Committee I shall speak to Amendment 244A, in my name, which comes from the Constitution Committee and was mentioned by the noble Lord, Lord Wilson, in his opening remarks. The amendment’s purpose is to provide a more objective test and a requirement for Ministers to state that they have applied an objective test. Should they have failed to do so, they become accountable for not having done so. That is the value of it. It is in no way exclusive of the series of amendments in the remainder of the group, almost all of which replace “appropriate” with “necessary”. I will come to that in a moment. I want to appreciate the words a few moments ago from the noble Lord who is the former—and much respected—chairman of the Constitution Committee. His contribution is one that Ministers really ought to note.

We are dealing with wording in this legislation that worries us enough in this context. However, noble Lords should be in no doubt that, if this wording remains in this legislation, subsequent debates will take place around the idea that, “It was included in the withdrawal Bill and there were some very serious issues raised in that, so it must be acceptable” and that it must be reasonable to use such a shallow test of appropriateness for very far-reaching statutory instrument powers. Numerous other Bills will come before us in the course of this Parliament which have statutory instrument powers in them, and this and future Governments will draw on the precedent of how this legislation is worded.

As to the distinction between “appropriate” and “necessary”, the suggestion I have heard that Ministers do not realise they are open to legal challenge is, I think, quite wrong. Ministers are well aware that they might be open to legal challenge, and that is why they prefer “appropriate” to “necessary”. It gives them a “plump legal cushion”—that wonderful expression of the noble Lord, Lord Wilson—behind which they can hide. It is just not good enough; we have to find better wording. If Ministers are unhappy with necessity, they must come up with something more effective. We find the word “appropriate” used in many contexts. It conjures to mind the sort of instructions for a day out that say “Appropriate footwear should be worn”. That clearly indicates to the person who has to make the decision that they have a fair degree of discretion—it could mean hiking boots or other firm-soled shoes, as long as it is not stilettos or ballet pumps. They have a choice. Ministers are desperately trying to preserve choice for when they bring forward statutory instruments under this legislation.

The problems of the statutory instruments are not confined to Henry VIII provisions, as the noble Viscount, Lord Hailsham, pointed out. There is the inability to amend any of these statutory instruments, whether they are Henry VIII in their impact or whether they impact merely on previous statutory instruments. The inability to amend them grossly weakens Parliament’s ability to deal with matters that would normally be in primary legislation.

I am not only sympathetic to the amendment that the committee itself has put forward, which has my name on it, or something like it, but I am also very supportive of the attempt to find a better word than “appropriate”. So far, at any rate, necessity seems the right provision.

[Lord Cormack]

My Lords, I have added my name to a number of amendments that delete “appropriate” and insert “necessary”. They are all in this group. I do not claim any particular merit for that amendment: the noble and learned Lord, Lord Goldsmith, is, I believe, the lead name on this amendment. The fact is, we have one thing in common. Whether is it “essential”, as my noble friend Lord Hailsham will doubtless seek to persuade us in a few minutes, whether it is “necessary”, used in the context described by the noble Lord, Lord Wilson, when he moved his amendment so admirably, or whether it is a bare “necessary”, I do not mind. I frankly have a slight preference for the wording of the noble Lord, Lord Wilson.

We are in a very sad place when, having been told that we were taking back control, what we are doing is bestowing control. Parliament is bestowing control—if this goes through—on the Executive. I have quoted before in your Lordships’ House the famous Motion moved in 1781, I believe, in another place by Colonel Dunning: “The power of the Crown has increased, is increasing and ought to be diminished”. Substitute “Executive” for “Crown” and that is what this is all about. I also think of the immortal words of my friend the late father of my noble friend Lord Hailsham, who talked about an “elected dictatorship”.

Are we really seeking to leave the European Union—which I believe is a foolish step—to bestow on the Government the power which Parliament should take? That is the fundamental question. We should not bestow the power on or allow any Minister—whether he or she be ever so high or ever so low, whether he or she be at the top of the 109 or at the bottom, it matters not—to change the law of the land, and then indeed extend it, as the noble Lord, Lord Wilson, pointed out in his admirable speech, to public bodies and to the courts. We live in a parliamentary democracy. Your Lordships’ House rightly has much less power than the elected House, but we can act as a check and a balance and as an encourager to those in another place. These are probing amendments tonight, of course, but I am confident that this will come to a vote on Report, and we should say to our colleagues in another place, “Do not give up the power which you exercise as representatives, not delegates, of your constituents, because if you do that, it will be a real nail in the coffin of democracy”.

I personally believe that a referendum is inimical to representative democracy. But, as we have said before, we are where we are. We are moving away from the European Union, but we must move away as a parliamentary democracy, where power ultimately resides not in No. 10 Downing Street, the Treasury, or in any ministerial office but in the Chamber at the other end of the Corridor. Your Lordships’ House has a particularly important role in stiffening the sinews of those at the other end of the Corridor. There is an enormous wealth of experience in your Lordships’ House, which was demonstrated by the noble Lord, Lord Wilson, this evening, and which would have been demonstrated, I am sure, with equal eloquence by the noble Lord, Lord Lisvane, had he been able to be with us. We in a sense must see ourselves as the servants of democracy, but with a duty to put some real strength in the directly elected House.

I hope that we will have a response from the Minister this evening that will indicate that he understands what this is about. He, of course, is one of the 109. He may be low down on the list, but he is there. Whether he is 109, 108 or 73, I know not and I care not—but he is there. I hope that at the very least he will repudiate any notion of exercising power that it is not for him to exercise. We have to address this issue, whether we think in terms of Henry VIII or Thomas Cromwell or Oliver Cromwell, all three of whom would have looked upon this as a marvellous mandate. We have a duty. Tonight we are probing, but there will come a night when we must vote if the response is not as it should be this evening.

[The Lord Bishop of Leeds]

My Lords, I add my voice to those who are expressing caution. I sympathise with Ministers. Somehow a balance has to be struck between the technical freedom and flexibility to deal with matters as they arise—that is a legitimate concern—and the constitutional questions that have been raised this evening. The words matter. The word “significant” is one of my pet hates, where people use it because they do not want to find a more precise word. You always want to ask, “Significant of what?” They probably mean, “It’s important” or “It matters to me”.

“Appropriate” is another one. It is a word that creates space when we do not want to be precise—but when you are dealing with matters of law you need precision. It seems to me that the very simple mechanism of changing “appropriate” to “necessary”, with some criteria by which it could be deemed to be necessary or unnecessary, offers the sort of balance that the Committee is looking for.

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

My Lords, I thank noble Lords very much for what has been an excellent debate. I use the word “debate” but only one point of view has been expressed and I have heard the message from all sides. However, I shall address the issues under consideration.

I say, first, to my noble friend Lord Cormack that he has put an intriguing thought into my mind. I will speak to my officials first thing tomorrow morning to find out where I, as a Minister of State, come in this list of 109—I suspect more towards the bottom than the top but we will find out.

The noble Lord, Lord Wilson, asked me about the number of people who will be able to exercise this power without parliamentary scrutiny—a question that I suspect is almost impossible to answer. I think that the main issue is not the number of people but the number of limitations on the exercise of that power. The power is time limited and clearly limited in what it can be used for. It may only prevent, remedy or mitigate deficiencies in EU law, and of course secondary legislation is subject to well-established parliamentary procedures. Where legislative powers are sub-delegated to public authorities, this will always be subject to the affirmative procedure.

I am pleased to have the opportunity to revisit what is clearly a very important issue in the context of the Bill. The Government will place some additional draft examples of statutory instruments or parts thereof in the Library of the House. That is something that a number of noble Lords have asked for in meetings that I have had with them, so I will ensure that that happens—most likely tomorrow.

I have listened with interest to the many contributions today, and to the extensive contributions of the Constitution Committee, which I had the pleasure of speaking to this morning along with my colleague in the other place, the Solicitor-General. I have read the reports of that committee and of the Delegated Powers and Regulatory Reform Committee, which have very much helped to frame our thoughts on this issue.

As a number of noble Lords have said, both those reports go into great detail on the scope of the delegated powers. As many noble Lords will also be aware, they come out with quite different recommendations. As I said at Second Reading, we are approaching this matter in a spirit of collaboration. The Government are looking very closely at how the powers in the Bill are drawn and how they will be exercised, particularly in the light of the committee recommendations and developments in other pieces of legislation.

As the Constitution Committee notes, comparable arguments were made during the passage of the sanctions Bill through this House and a mutually agreeable position was found in that instance. That has clearly informed the committee’s recommendation and we are receptive to the arguments made in its report. I am confident that a mutually agreeable position will be found.

As I will explain in a moment, the Government do not see the DPRRC’s recommendation as workable. However, we would very much like to talk to noble Lords following the debate, with an eye to coming back to this issue on Report.

As noble Lords will appreciate, the situation that this Bill responds to is, quite simply, unprecedented. A vast amount of EU law is being transferred to our statute book, including thousands of EU regulations. As such, the programme of secondary legislation to ensure that this law operates effectively must match that. In the face of such a task, it has always been clear that the Government will need relatively broad delegated powers to deliver a functioning statute book. Indeed, the Constitution Committee outlined in its interim report that “relatively wide” delegated powers were inevitable.

I understand that there are noble Lords who have had concerns about delegated powers for some time, and the Government are keen to continue listening to suggestions in order to improve those areas of the Bill. That listening process started during this Bill’s passage through the other place, where a number of changes were introduced to reduce the scope and increase the parliamentary scrutiny of the delegated powers. However, we cannot significantly restrict the scope of these powers, which, it is acknowledged, need to be broad.

Let me deal directly with the concerns raised by the noble Lord, Lord Wilson. Much of the concern about the delegated powers focuses on the use of “appropriate” to describe the discretion afforded to Ministers when making regulations to correct deficiencies. In case there is some misunderstanding here, let me be clear: “appropriate” in Clause 7 does not give Ministers unrestricted discretion to correct anything that they may wish or like. Corrections must not be appropriate per se; they must be appropriate to correct the particular deficiency they are addressing. The threshold for ministerial decisions is set firmly within the context of those purposes.

I appreciate that there is a degree of subjectivity to these tests—but that is true of almost all tests, and it is important to acknowledge that there are limitations on the power. Parliament polices the Government’s interpretation of its vires to act through the mechanism of the Joint Committee on Statutory Instruments, which I have no doubt will take a keen interest in instruments under this Bill; and ultimately, as a number of noble Lords have pointed out, these tests are litigable in the courts. So we cannot responsibly remove “appropriate” from the Bill.

I will now delve into the detail of the various different permutations of amendments seeking to restrict the scope of the delegated powers. The first amendments I would like to discuss are Amendments 201, 243 and 245, tabled by the noble Lord, Lord Bassam, which attempt to ensure that Ministers have considered that exercises of the main powers are made for good reasons and are reasonable courses of action. These match the Constitution Committee’s recommendation, and a smaller group were added to the Sanctions and Anti-Money Laundering Bill.

Amendments 74, 117 and 139, tabled by my noble friend Lord Hailsham, seek to write into the Bill that Ministers’ consideration of the appropriateness of any exercise of the delegated powers must be made on reasonable grounds. This is the right type of approach in not altering the fundamental scope of the powers.

[Lord Cormack]

Is my noble friend saying that he has made his mind up—or the Government have made their collective mind up—on retaining “appropriate”?

[Lord Callanan]

If my noble friend will forgive me, I will discuss that in a second.

Ministers make their decisions on secondary legislation based on reasonable grounds in the normal course of events. The use of these powers will be subject to the usual public law principles designed to ensure that the Executive act reasonably, in good faith and for proper purposes. I accept, however, that noble Lords have principled and legitimate concerns and we will ensure that these are addressed and that the reasonableness of a Minister’s courses of action is made clearer. Given the views expressed today, I would like to engage in further discussions with noble Lords with a view to returning to this issue on Report.

Amendments 71, 72, 76, 77, 78, 79, 116, 118, 140, 229, 253, 254, 257, 258, 264, 265, 276, 277, 290 and 291, which were tabled by noble Lords including the noble Lord, Lord Lisvane—to whom I spoke yesterday and I understand why he is not in his place today—the noble Lord, Lord Foulkes and the noble Viscount, Lord Hailsham, seek to exchange “appropriate” for “necessary”, about which we have had a great deal of debate, in the main powers and schedules in which it can be found. I understand noble Lords’ concerns but, as I have stated, this would have a serious impact on our vital programme of secondary legislation to prepare our statute book for exit day. “Necessary” is a high bar to meet. The courts have said that the nearest paraphrase for “necessary” is “really needed”, but such a test would be too constrictive.

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[Lord Callanan]

I think I have made my position clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of noble Lords.

Amendments 73, 119 and 141 tabled by the noble Viscount, Lord Hailsham, and also spoken to by my noble friend Lord Lang, meanwhile used “essential” rather than “appropriate” to limit the discretion of Ministers in exercising the delegated powers. This really is very similar to the amendments which propose the use of “necessary”. I think that a court would likely interpret the meaning of “necessary” and “essential”—in this context—in much the same way and, therefore, I will not repeat the arguments that I have already made.

[Lord Cormack]

I beg my noble friend to talk to his ministerial colleagues and think again, otherwise the Government will suffer the most massive, crushing defeat when this comes up on Report.

[Lord Callanan]

I said at the start that I am setting out a position, but I have heard the messages that came to me from all sides of the Committee and I very much take on board the point that my noble friend makes. I shall state again that, despite their breadth, these are not powers designed to deliver major policy changes and they can only be read in light of their purpose. For Clause 7(1), that is to “prevent, remedy or mitigate” deficiencies arising from withdrawal.

Amendment 244A, tabled by the noble Baroness, Lady Taylor, the noble Lords, Lord Beith and Lord Dunlop, and the noble and learned Lord, Lord Judge, touches on a point to which I will return to in more detail later, but I will stress now the risks of introducing additional legal uncertainty by creating new and untested definitions to the law. However, I am conscious of the need for transparency in this process and we will look to see how, in line with developments and other legislation, we can ensure that ministerial decision-making about the appropriate exercise of the powers is more transparent to the Committee.

Amendment 75, tabled by my noble friend Lord Hailsham, allows me the opportunity to expand upon the reasons why we are taking the correcting power and to build upon the arguments made in previous days of debate. Areas of our domestic law, such as those relating to EU obligations, will be redundant when we leave the EU. The Bills repealed by Schedule 9 are an example of this. Some noble Lords will consider that having provisions that do nothing on the statute book is not harmful. Indeed, the Easter Act 1928, which was never commenced, continues to sit on the statute book with no effect and causes no harm. My noble friend Lord Hailsham and the noble Lord, Lord Campbell, also argued that there is no legal recourse under the use of powers under Clause 7. That is not strictly correct. If the threshold set out in the Act is overstepped the regulations can be struck down by judicial review.

European Union (Withdrawal) Bill

Lord Cormack Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 26th February 2018 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I apologise for not having spoken in the debate at Second Reading, but I was unable to be here on the first day. The amendments I am supporting for the most part try to deal with the obstacles put in the way of ordinary people, both young and old, who are on holiday, working or studying abroad. These include the amendments that seek to protect the European health insurance card scheme and Erasmus+, which is the subject of the next group. I have added my name to Amendment 9, moved by the noble Baroness, Lady Thornton, and I have my own Amendment 205 in this group which seeks specifically to retain the EHIC scheme and to which the noble Lords, Lord Judd and Lord Davies of Stamford, have added their names.

To focus on the holidaymaker’s point of view, I am a great believer in the EHIC scheme. Like millions of others across Europe, I carry the card with me when I go abroad, and I certainly would not travel without it. It has been a help to me personally when I had a combination of a flu-like virus and asthma in Germany. It is also clear from the stories I have heard—ranging from needing stitches after a hotel poolside fall to pulled muscles and broken legs on the ski slopes—how extraordinarily helpful the scheme has been to others, and I have even heard about a case of amnesia. All these are situations where immediate medical attention is required. In those circumstances, the last thing people want to worry about when on holiday or on a business trip is having to book the next flight back to the UK or having to claim immediately on their travel insurance. Apart from the fact that treatment is free and comparable to what one would receive at home, the scheme reduces stress. In the case of a concussion that I was told about, it meant that the person could return to the hospital for monitoring without the worry of paperwork or bills. It also gives peace of mind to the many people who have not needed to use the card but carry it nevertheless—something which cannot be overestimated.

Once you have the card, it is a simple and bureaucracy-free system for the holidaymaker. It does not replace travel insurance, but works well in conjunction with it. I realise that my speech is an unashamed advert for a scheme which saves British people thousands of pounds in bills and reduces the claims and costs of travel insurance. The fear of course is that those costs will rise steeply if we lose the scheme. A replacement scheme or schemes might do all this, perhaps through agreements with individual countries, but presently the one card covers all the single market countries, the 31 EEA countries and Switzerland. Clearly, it would not be in our interests to adopt a scheme that is less comprehensive geographically, and retaining the scheme would be the easiest and most convenient option. If we stay in the single market in some form, there should be no problem.

It is worth noting that citizenship itself is not an aspect of the EHIC scheme; rather, it is based on country of legal residence so that British people living in France or Spain, for example, can apply for a card through their health services. It should not be forgotten that the scheme works for the benefit of British people living abroad as well as those from other countries living here. It is a properly co-operative system—a two-way street.

Accusations of health tourism always ignore what we as individual citizens get out of the system. A freedom of information question in 2015 revealed that in 2013-14, the treatment of ill British tourists in other countries of the single market cost more than five times that which European visitors cost the NHS. Perhaps the one improvement we can make here in the UK is to become better at recouping the moneys we are entitled to through the use of the scheme, and last year’s Public Accounts Committee report, NHS Treatment for Overseas Patients, stated that the systems for cost recovery appear to be chaotic. Other countries recoup what is owed to them and there is no external reason why we cannot do so as well. But that does not invalidate a scheme that continues to work tremendously well for the benefit of millions of people throughout Europe, including millions of British citizens both here and abroad.

The process of leaving the EU has thrown light on a lot of the concerns of ordinary people that perhaps were taken for granted. The EHIC scheme is one of those areas. No one voted for higher travel insurance costs and no one voted for less healthcare support while they are on holiday. The Government should pledge to retain this scheme.

[Lord Cormack (Con)]

My Lords, no one voted for insecurity. A very strong and powerful case has been made, particularly by the noble Baroness, Lady Finlay of Llandaff. This is a simple issue. Disease is no respecter of persons, boundaries or sovereignty. In chasing this mythical beast of sovereignty we seem to be prepared to lay so many things upon the altar that we need not lay.

It has been said in the course of this brief debate that we have no obligation to opt out of the EMA. My reading would support that. So why does a party that has always prided itself, for as long as I have been a member of it—for the last 60 years—on not being doctrinaire erect a doctrine and then seek every opportunity, regardless of the consequences, to jeopardise what exists and works perfectly well? It is a nonsense. I hope that there will be no vote on this amendment—it is a probing amendment—but I sincerely hope that, if the Government cannot accept the irrefutable logic of what has been said, we will return to it on Report and be well prepared to vote on it.

[Baroness Blackstone (Lab)]

My Lords, I will speak on Amendment 11 and in support of what my noble friend Lady Thornton, the noble Baroness, Lady Finlay of Llandaff, and the noble Lord, Lord Cormack, said. I do so as the former chair of Great Ormond Street Hospital Foundation Trust, which I chaired for more than eight years until last summer. As many noble Lords know, it treats children with rare diseases and very serious illnesses. Much of its ground-breaking and innovative work, which is internationally renowned, is done as a result of, and based on, its research, much of which is carried out in collaboration with colleagues across Europe.

I will illustrate this in three different areas, which I think will bring home to your Lordships just how important it is that we do not abandon or neglect this issue. I will start with childhood cancer. Some 92% of our most important clinical trials for children with cancer in the UK require international collaboration. In 30%, the UK is the lead country, co-ordinating the international collaborative trials. This leadership role would sadly change rapidly if we no longer followed the same regulatory framework for clinical research as the rest of the European Union.

I turn to childhood epilepsies. Children and young people with epilepsies that are resistant to current therapies represent, as a group, at least 137 rare diseases with seizures as a common symptom. Collaborative European multi-centred trials are, I stress, the only way forward in assessing new targeted treatments. There are simply not enough patients in these categories of the many different aspects of epilepsy to do this work in one country alone.

I turn thirdly to children with HIV infection. Trials in paediatric HIV infection over the last 25 years have all been international. The UK works in partnership and collaboration with trial centres throughout Europe, and in particularly close collaboration with Italy, France and Spain. HIV treatment is very fast moving. It is vital that medicines for children do not get left behind. Our important European collaborations, including EU funding of our network, training and capacity building, have ensured the timely availability of drugs for children, not only in Europe but worldwide.

I cannot overstate the concern of the consultants and research specialists involved in this work about the threat posed for them by leaving the European Union. I do not think it an exaggeration to say that, without such work, the lives of very sick children would be sacrificed. I hope we can think again about this.

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[Lord Cormack]

My noble friend is batting on a difficult wicket. We understand that. He has my total personal sympathy for the plight in which he finds himself, but what he has said this afternoon just ain’t good enough. It is important that he takes on board what has been said during this debate, particularly by the noble Baroness, Lady Finlay of Llandaff, and that when we come to this on Report, he has some substantial and detailed specific progress to report to your Lordships’ House.

[Lord Callanan]

I thank my noble friend for his comments. A lot of these matters are still to be negotiated in the next phase. We made substantial progress in the first phase, and we will endeavour to ensure that we make good progress to achieve a good working relationship with the EMA and to guarantee the rights of travellers through a system similar to the European health insurance card for those travelling in future. I hope to be able to provide more information on Report.

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[The Earl of Clancarty]

My Lords, I have added my name to both the amendments in this group. I have tabled Amendment 204, which will be discussed later in Committee, on maintaining rights and opportunities for young people, and Erasmus+ is a part of that amendment.

If we lose our programme membership of Erasmus, it will be a huge blow not just to our young people, which would certainly be bad enough, but to the whole higher education sector, which benefits from the many projects that Erasmus has to offer, including not only the student exchange scheme but staff exchanges and projects involving the institutions themselves. The exchanges also include work placements, which can provide much experience of other work environments for British students. This is of course not just about experience and learning in the narrow sense; it is about the reciprocation of ideas, the effect of cultural exchange, and the knowledge that British students gain of other cultures and of how things are done elsewhere—and indeed vice versa, as there is also an extremely important soft power element in the creation of so many UK alumni across Europe.

Student exchange schemes embody an open-mindedness—even an open-heartedness—which is a far cry from the attitudes taken by some sections of the British press, which are currently crowing about the number of EU nationals leaving our shores.

There are some who say that, instead, we should develop independent arrangements with universities further afield. The fact is that we are developing relationships further afield anyway. For example, my nephew is at Northern Arizona University for a year, where he is studying American history as part of a degree course at Swansea University, with which Northern Arizona has an agreement. In a poll two years ago, 42% of students said that they were interested in travelling to non-Anglophone countries, some outside the EU. It should not be a case of either/or. To close down or risk closing down these wonderful educational opportunities for young people on our own continent would be perverse and a giant step backwards. Nothing in Erasmus says that one thing precludes the other.

The Government guarantee our current membership only up to 2020. There needs to be something much more concrete. Jessica Cole, head of policy at the Russell group said this month:

“We are expecting the European Commission to put forward proposals for the next Erasmus programme later … this year. There is an opportunity now ... for the UK to help shape that programme ... The UK Government needs to be engaged in this important process, especially whilst we still have a seat at the table”.


She goes on to say that,

“it should be a priority for the UK Government to secure continued UK participation from 2021 onwards ... the Prime Minister should indicate whether the UK intends to negotiate participation at the earliest opportunity”.

I ask the Minister: when will this indication be made?

On the wording of the amendments before us, one thing that we need to be careful about is the status of membership. It is possible—probably very likely—that we will retain membership technically, but there is a huge difference in the actions possible between programme membership, which we have presently, and partner membership, where we will be effectively left out in the cold. The phrase “on existing terms” in the amendment of the noble Baroness, Lady Garden, is crucial. We need absolutely to maintain the existing level of participation.

It needs to be said that, if we do leave the single market, we risk losing our programme membership. Witness what happened to Switzerland, which was expelled from the programme membership of Erasmus and from Horizon 2020 following a referendum that allowed a policy which compromised its own free movement deal with the EU. Switzerland has now realised what it was in danger of losing, and has since re-joined Horizon 2020 and is likely to re-join Erasmus+ properly in 2021.

In this and in so many other instances, it is wrong to think only of how the EU is treating us. We have enjoyed access to these programmes through our membership of the EU—at the very least, through being part of the single market. They have been an integral part of the deal, which has always been a two-way street. We should instead be asking ourselves: do we really want to risk losing access to programmes which have been, and still are, so beneficial to our young people, the higher education sector and research development in the UK—and, therefore, to the country as a whole?

[Lord Cormack]

My Lords, it is some 500 years since the great humanist scholar Erasmus came to this country to visit his friend, Thomas More. I always thought it was particularly appropriate that this programme, which has come to dominate today’s debate, was named after that extraordinary European. Whatever our nationality and identity, we are all European.

I should declare an interest, in that I was a visiting parliamentary fellow and have for many years been a senior associate member of St Antony’s College, Oxford. I have therefore seen at first hand how crucial it is that highly intelligent young people from different countries get to know each other. The programme has done untold good for this country, because so many from that particular college have gone back to their countries to occupy high positions in government and the civil service, and sometimes the highest position of all as head of state.

I have raised the Erasmus issue a number of times in your Lordships’ House and I have never been reassured by the answer I have been given from the Front Bench. A guarantee for 17 months is no good at all. As has been said already in this debate, those who are in charge of academic programmes, be they scientific or in the humanities, need to be able to look ahead. I have two granddaughters who are undergraduates—one will graduate this year and the other in two years’ time—and they may just benefit from this, but there is no absolute guarantee. Yet I know that their studies and their outlook on life would be immeasurably enriched by their having the opportunity to travel and to study abroad, in particular to study on our continent of Europe.

It really is important that we continually make the point that we are Europeans. No act of this Parliament or any other can alter that fact, and nor can any referendum result, be it on 23 June 2016 or on 23 June in some other year.

There has been much talk about a deep and rich partnership, and of course we want that, but we have to start now to be specific. One thing we can be specific about is this: here is a magnificent programme from which students and university staff have, over the past 30 years, benefitted enormously.

A couple of weeks ago, I was at a 21st birthday dinner at the University of Lincoln, a university that has risen spectacularly in the tables. It regards its 10% of foreign students as enormously important, and the chance its students have to study abroad as enormously important.

We know that there are countries outside the EU that benefit from Erasmus: so what, in the name of goodness, is holding back the Government from saying, “We are making an unequivocal commitment to continue this”? There is no reason why we cannot; there is every reason why we should. We are in an unfortunate position at the moment, with no clarity, much confusion and contradictory statements being made by different members of the Cabinet. I am told they are at one now, following their outing in Chequers last week, and I hope that is right.

However, we could make things so much better by making a number of pledges and commitments. We are part of this and intend to remain part of it because, if this country is to flourish after Brexit, it will depend, perhaps more than anything else, upon the quality of our education and, particularly, of our university education.

Those who are Brexit orientated should particularly remember that there is no doubt that the vast majority of young people in England, Scotland, Wales and Northern Ireland wanted to remain part of the EU. I deeply regret that we are not going to, but we can hang on to some of the best aspects of it, and this is one.

[Lord Deben (Con)]

My Lords, I declare an interest in that I am chairman of the Committee on Climate Change, which means that I depend considerably on the relationships between universities doing the kind of research that is necessary. I also have a daughter who had an Erasmus scholarship and I therefore care about this issue considerably.

I listened with great care to my noble friend’s response to the previous debate about medical matters. I emerged little the wiser as to where the Government were, intended to be, might be, would have been, thought they could have been, may in the future be if this or that might happen. We cannot go through 10 days or more in Committee—this will go on for some time—in which that will be the answer to every question put forward. There have to be sensible answers to sensible questions. This is a sensible question to which there is only one sensible answer. He is on a strong wicket on this occasion because he does not need to think any harder than deciding that doing both of these things will in no way interfere with the negotiations we have with the European Union. When we come to discuss everything else, it will not make a jot of difference if we have been sensible about these two things because they are clearly issues in which both we and the rest of Europe have a common concern and understanding.

On the research position of our great universities, we would be foolish to imagine that that happens by accident or that it is an eternal verity which will go on forever despite anything we may do. One of the reasons—not the only one—that our universities have been able to maintain and improve their position has been their openness to the rest of Europe, both in terms of the people with whom they work and the universities and institutions with which they can be the lead in so many of the occasions supported by Horizon 2020. The Government need to think carefully about the ease with which we can slip back down that list of leadership if we do not take the right decisions.

The Government must also not be blinded by a fear that anyone who disagrees with anything in this Bill is somehow or other perpetuating an anti-Brexit position. Everyone knows that I am entirely anti-Brexit and shall go on being so; that is absolutely true, but I am talking about something quite different. It is a simple matter concerning our universities and our young people. My daughter was one of the 300,000 people—a huge number—who have enjoyed this experience and she now speaks a little Catalan as a result, which is a useful skill at the moment.

This is a wonderful opportunity for my noble friend because what he could do now is make the Committee feel that the Government are genuinely listening to genuine discussions. I do not want to embarrass anyone, but a number of people in this House are dedicated Brexiteers but on this particular matter they are on our side. That is because it ain’t something about Brexit; it is about the sensible way forward. I therefore ask my noble friend this: why not accept this very sensible amendment? In case he is not apprised of this, let me tell him why he has been told not to do so. The rule is that nothing must change based on the argument that if anything changes, it will all be too late and we will not get it right. This is one thing that can be changed and will make no difference whatsoever to the timetable, so that argument will not wash. However, no doubt it is on his list of responses, but if I have said it, perhaps he will not say it himself.

The second reason that my noble friend will no doubt put forward is that it is all part of the negotiations. “We are working very hard to get closer to the rest of the European Union”. I can tell you how to stay close to the European Union, and that is not to try to leave it. If you are not going to do that, do not tell us that the Government are working hard to get closer when this is a way to do it. Just say, “We want to stay in the Erasmus programme and in Horizon 2020. We will play our full part and we will work with the Union in the way it wants us to. We are not going to be silly enough to say that this is just another item in the long list of things that we are going to discuss with the rest of Europe”.

I say to my noble friend that here is a chance for him to shine. Here is an opportunity for him to show that he has a mind of his own and say the obvious thing, which is yes.

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[Lord Cormack]

I am grateful for that, but if that is the case then why do we not carry on beyond the three years?

[Lord Callanan]

If my noble friend will have some patience, I will come to that in a second. Supporting young people to study, work, volunteer, teach and train abroad, and supporting their schools, youth and sports organisations to build transnational partnerships, helps us to create a new generation of globally mobile, culturally agile people who can succeed in an increasingly global marketplace.

In response to the noble Baroness, Lady Royall, I say that the UK has a strong offer to EU and international students, with four universities in the world’s top 10 and 16 in the top 100. In fact, as the noble Lord, Lord Adonis, pointed out, we received many more students under Erasmus than we sent. Erasmus is an important programme, but it represents only about half the student exchange programmes we have in the UK.

Our young people get first-hand experience of different cultures, helping them to broaden their horizons and their ambitions. Students who have spent time abroad as a part of their degree are much more likely to achieve better degree outcomes, improved starting salaries and stronger employment prospects, as noble Lords have pointed out. This is especially the case for students from disadvantaged or less represented backgrounds.

In response to the noble Earl, Lord Dundee, no decisions have yet been made about post-2020 programme participation as the scope of that programme has not been agreed. We look forward to the Commission’s proposal, which we expect to be published in May. Participation in the successor to the Erasmus+ programme, which we think is valuable, will form part of the negotiations.

The UK fully participated in the mid-term evaluation of the current programme and we reached broadly the same conclusions as the Commission: the programme works well but there is room for improvement and simplification, especially for smaller applicants. UK respondents to the mid-term evaluation made many detailed comments and criticisms, but few suggested that radical change was needed. The proposal for the next programme will be published in May, as I said, and we are currently shaping the debate and looking forward to further discussions with the Commission about that.

We see future co-operation in education programmes as an area of mutual benefit to both the EU and the UK, provided that we can agree a fair ongoing contribution.