European Union (Withdrawal) Bill

Lord Deben Excerpts

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

[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 Callanan]

Yes, we have been a proud recipient of and destination for thousands of international students in the past. They are welcome in this country, they contribute greatly to our education services and I am sure that we will want that to continue in future, but I cannot speculate on what a future immigration policy may look like.

[Lord Deben]

If this is a non-issue, why cannot my noble friend say very simply: “There will be no additional stops or impediments on students”? Does he not understand that constantly saying how wonderful everything is but that he cannot actually tell us anything is very difficult for anyone trying to plan their future and very unfair on young people?

[Lord Callanan]

As I said, I am fairly certain that we will want to continue to welcome as many students and researchers as want to visit this country in future, but, as I am sure the noble Lord will understand, I cannot speculate on what a future immigration policy might be before it has been announced by the Home Office and published by the Government.

Nevertheless, let me say for the avoidance of doubt that I have heard the message from all parts of the House and I will certainly reflect on these matters before we come back to the issue on Report. I understand that there are very strong feelings from all parts of the House about these issues and we will certainly see what we can do about that.

European Union (Withdrawal) Bill

Lord Deben Excerpts

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

As my noble friend Lady Kennedy said, the European arrest warrant was used nearly 200 times between 2010 and 2016 to extradite suspected child offenders. Before the introduction of the arrest warrant, it took an average of 12 months to transfer offenders across the EU. It now takes less than two months. What assessments have been made of the UK’s need to remain part of these cross-border agencies for the purposes of safeguarding children? What assessment has been made of the impact which the loss of co-operation with such agencies would have on safeguarding children? We cannot leave children across Europe vulnerable to crime and exploitation, which can destroy young lives and divide families.

[Lord Deben (Con)]

My Lords, one of the themes that has come through in the debates on many of the amendments so far is that the Government are enthusiastic about where we are, keen on continuing the links and determined that we shall not in any way fall out from those, but unwilling to commit themselves to the obvious solutions. We have heard in this debate tonight an exact repetition of what we have had before.

In other words, some of us are saying that these things were achieved with great difficulty. The European arrest warrant caused enormous argument and could be a really dangerous thing if it were not properly protected by the European Court of Justice. Like everyone else, when I became a Member of your Lordships’ House I was asked what subjects I was particularly going to speak on. The first was the environment, the second was Europe and the third was human rights. Therefore, when the legislation that we are now part of was going through in its various forms, I was very concerned that it was properly protected. However, I was very aware, as is the House, that crime does not know any borders, particularly the type of crime that the noble Baroness, Lady Massey, was talking about.

We need the protection that the warrant gives. When we were kids and we read stories of derring-do, we all knew that the first thing that people would try to do was to get across the channel because then they would be out of the reach of British law, and indeed of the law in many ways. I believe strongly that first of all we have to recognise that what we have we did not get easily and did not arrive simply. To suggest that somehow or other we can produce a different system and call it something else, because that would be convenient to the people who are ill informed enough to want to leave the EU, seems extremely dangerous. We should recognise that this took a lot of doing.

The second point, which has been made very interestingly, is about the nature of mutual recognition. Very often we are divided by not understanding the words that we use. There is an attitude in Britain that suggests that we get it right and other people do not, and therefore they had better do it our way because we know best. That has been our besetting sin throughout the period of our membership of the EU and, if we leave, we will get even worse at it. In other words, we are very keen to teach other people but not frightfully good at learning from them. One of the things that we have learned—I think by accident; certainly not by design—in having to co-operate on these issues is that we have understood much more clearly the problems, difficulties and solutions that others have had in our European home. We have to recognise that understanding mutual recognition is not easy, and the idea that we can suddenly create a different mechanism for doing it is very far-fetched.

On my third point, I have great admiration for the Prime Minister. I do not understand how every morning she wakes up and thinks, “God, I’ve got another day of this”, and deals with some of the people that she has to deal with—I will not list them but we all know which ones I mean. However, it is not good enough to have good intentions and show generalised support. My noble friend who is answering for the Government has given us a great deal of good intentions and noble views but no actual support for real policies and actual determinations. This is not something that we can pass off by merely having good intentions, because it is very hard and we have to be tough about it. We have to say to our friends, “We actually want, and will have, exactly what we have today on these matters because there is no alternative that is better and there is no way that we are going to invent one”, because crime will not wait.

This is a rather important amendment. All it says is that the Government have to move from intentions to reality before they can move. That is not an unreasonable thing for the House which is responsible for our constitution to ask.

I hope that my noble friend is not going to say how important all these things are, how valuable they are, how much the Prime Minister is in favour of them, but that just at the moment, because it is all part of the negotiation, he cannot go further than that. If he does, perhaps for all our debates he might just turn on the recording. That is evidently the answer we are going to have on everything, because that is the answer we have had so far today on everything. If it goes on like this, this House will have to ask whether the Government intend to have a debate or discussion about things that matter, about the future of our nation and our people. Are they going to have a discussion about the things that protect our people, the policing which has to cover areas beyond our borders? Above all, are they going to have a discussion about how this affects Ireland? We have for too long taken for granted the fact that the Irish situation is, at least to a large extent—much less so than the newspapers would have us believe, but still to a large extent—peaceful. We must none of us forget that.

I have to tell my noble friend that it will become increasingly difficult for the Government to uphold their position unless they are prepared to take seriously this House’s demand that they tell us what they want. How can you negotiate with people unless you can say very clearly what you want on crucial issues, and what could be a more crucial issue than this?

[Lord Judd]

My Lords, at the end of all these proceedings, some months down the road, there will be a vote in Parliament. At that time, it will be essential that we know exactly what we are voting for. That is why the speech by the noble Lord, Lord Deben, is so important. There is a fundamental difference between good intentions and concrete policy, there to be implemented. As in our previous debate, the issues are too big; there is no room for an interregnum or period of doubt. We must be able to move from what we have to what is necessary overnight. We must have firm policies and firm decisions that follow from them.

I served on the Home Affairs Committee under the chairmanship of the noble Lord, Lord Hannay, when we were having that dry run, and very interesting it was, too. What I found very telling was that virtually every witness working in the field, when the question, “Will your work become more difficult if we leave the European Union than it is at the moment?” was put directly, said unequivocally yes, they needed the European Union to meet the challenge of the job. Forgive me if I repeat myself, but it is terribly important. Crime is international; it does not recognise frontiers. That is true of trafficking and, as my noble friend said, of drugs. It is true of terrorism. These things do not know national frontiers. Therefore, you must co-operate and work closely with others who face the same difficulties.

The other point I want to make is that, more recently, serving on the Justice Sub-Committee under the chairmanship of my noble friend Lady Kennedy, it has become very clear that we have underestimated—it is rather tragic that the British people have not understood, or begun to understand—how much British lawyers and British legal expertise have been contributing to the strength of European law, which is in all our interests. British lawyers have made a terrific contribution and they are very much respected. In taking evidence from practitioners in this sphere—the chairman is here to strike me down if I am misquoting—they told us over and over how the law is improving under the present system. The overriding authority of the European Court is crucial, however, because it provides a context in which everyone can have confidence in the necessary reciprocity. These amendments are very important, and I hope the Government will take them seriously.

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[Lord Adonis]

My Lords, I have six amendments in this group. They refer to the United Kingdom having continued access after withdrawal to passenger name records, to the Schengen Information System, to the European arrest warrant, to membership of Europol, to the European Criminal Records Information System, and to the fingerprint and DNA exchange with the EU under the Prüm Council decisions.

The questions put to the Minister by the noble Lord, Lord Thomas, went to the heart of the matter—that is, given that the Prime Minister said in her Munich speech that she wishes to see a treaty replace all these elements of the existing arrangements, the Minister should simply tell us the process by which we will be negotiating the treaty. This debate, as with many others, gives the complete lie to the ridiculous assertion that no deal is better than a bad deal. Let us be clear: if there is no deal on 29 March next year, the current arrangements to which the noble Lord, Lord Inglewood, referred, painstakingly negotiated over many years, for the European arrest warrant and the very high levels of engagement between the member states of the European Union—which the noble Lord, Lord Hogan-Howe, said were so important to his work as Commissioner of the Metropolitan Police—all fall.

Is the Minister going to tell us that the security of this country will be as safe as it is now if all those arrangements fall? I assume that he is not, in which case the United Kingdom leaving the European Union with no deal at the end of March next year would be a complete abdication of the national interest. We need to get that firmly established. As we have more of these debates and see the precise benefits of the EU—which, after all, are the reason we went into the European Union—it becomes clearer and clearer that leaving with no deal would be a dereliction of the national interest.

[Lord Deben]

Before the noble Lord leaves that point, does he also agree that asking the Government to explain how this treaty is being discussed and by whom cannot have any effect whatever on the negotiations between the Government and the European Union? Is it not true that several of the questions asked have had nothing to do with the negotiations? We would just like to know where the Government are on matters which are unconnected with those negotiations.

[Lord Adonis]

I entirely agree, and I hope that the noble Lord will say that to the noble Lord, Lord Lamont, who is sitting right next to him. It provides a devastating response to the noble Lord’s intervention just a moment ago.

We are asking the Government simply to declare the policy of Her Majesty’s Government in the negotiations that are taking place. Since one assumes that our European partners are being told what we are seeking to negotiate—it is quite hard to negotiate something if you do not tell the other side what you are seeking to negotiate—I cannot see that there is any damage to the public interest in telling this House and the public. These are very straightforward questions. The noble Lord, Lord Hamilton, says that we should not declare our hand midway. Are we or are we not in favour of keeping the European arrest warrant after 29 March next year? If we are, that is a clear negotiating objective of the Government. It will require a straightforward continuation of the current arrangements, and people like me will say all the way through that it is yet another argument as to why we would be much better off staying in the European Union in the first place and not having to go through this hugely complex and difficult process of attempting to replicate arrangements so that we do not end up with a worse situation, when there is every likelihood that we will.

The devastating response to and commentary on all these matters come from the Prime Minister herself—both in her Munich speech, in which she made it very clear that she would regard it as damaging to the national interest not to have a treaty at the end of March, and in her speech on 25 April 2016 before the referendum, in which she was even clearer on these matters. In that latter speech, in which she sought to argue why we should stay in the European Union, she went through in great detail the benefits that the European arrest warrant, the Prüm arrangements and so on gave to the security of the United Kingdom. Those are all points that the noble Lord, Lord Inglewood, has raised.

The noble Lord, Lord Hogan-Howe, seems to want to will the ends without the means. I understand that he has not had to negotiate these issues himself, but just says, on a wing and a prayer, that he wants these objectives to be secured and is sure that our negotiators in Brussels will be able to do it. If the noble Lord had had any systematic engagement with the Ministers responsible, I do not think he would necessarily have so high a degree of confidence in their capacity to negotiate his objectives.

The Prime Minister herself gave the devastating response to the question of why we should stay in the European Union in respect of these security and justice issues. In her speech of 25 April 2016, when referring to the European arrest warrant and the passenger name record directive, she said that these show,

“2 advantages of remaining inside the EU … without the kind of institutional framework offered by the European Union, a complex agreement like this could not have been struck across the whole continent, because bilateral deals between every single member state would have been impossible to reach”.

Let us be frank: that is why we are in the European Union, why it serves our national interest and why we have a very high degree of co-operation when it comes to justice and home affairs.

We are talking about very large numbers. The Prime Minister herself gave the figures, saying that in the five years prior to her speech—2011 to 2016—5,000 people had been extradited from Britain to Europe under the European arrest warrant, and 675 suspected or convicted wanted individuals were brought to Britain to face justice. She said:

“It has been used to get terror suspects out of the country and bring terrorists back here to face justice”.


Just as the noble Lord, Lord Thomas, gave his extraordinary statistics about how long it used to take to get extradition proceedings under way, the Prime Minister said:

“In 2005, Hussain Osman—who tried to blow up the London Underground on 21/7—was extradited from Italy using the Arrest Warrant in just 56 days. Before the Arrest Warrant existed, it took 10 long years to extradite Rachid Ramda, another terrorist, from Britain to France”.


These issues are of the utmost gravity and we need an assurance from the Minister that, in the negotiations for the treaty that the Prime Minister referred to in Munich, we will seek to maintain arrangements that are in every respect as good as those we currently have. If we do not have those in the treaty she presents to Parliament at the end of the year, many of us will say that this whole Brexit process has seriously damaged the security of the United Kingdom.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Young of Old Scone]

My Lords, I want to add to the voices of those who have said that there is a lack of clarity and point to a specific example that raises some questions: the circular economy package. We, along with our European colleagues, have been working on this since 2014 and it is due to be agreed shortly. There is legislation to amend six EU directives on resource use, all of which are incredibly important both domestically and internationally. That includes things such as the waste framework directive; the packaging and packaging waste directive, which has a big impact on the Government’s commitment on plastics; the landfill directive; and directives on end-of-life vehicles and batteries in electrical and electronic equipment, for example, all of which will be hugely germane to our potential export of motor vehicles and other electrical equipment. We will be approaching exit day with the package enshrined in EU law, but we will not have had time—nor indeed will many member states—to implement it.

For me, this package is important for a number of reasons. First, there are hugely important international commitments that we need this legislation to fulfil. Secondly, we have spent an awful lot of time on it and have been quite effective in making and shaping it to ensure that it fits with our requirements, as well as being effective for the environment. Thirdly, one assumes that we are going to keep a car industry going in this country, and I doubt that we can maintain our trade, or the levels of exchange of components for the automotive industry, across national boundaries if we do not adopt similar standards.

I am concerned about the “snapshot” mentioned by the noble Lord, Lord Pannick. I understand that it is required, but if that snapshot will leave us with a great need for this legislation to go forward but an inability to make it happen, then I must press the Minister on how he envisages that such a situation will be dealt with. It would have a poor effect not just on the environment but on our ability to trade.

[Lord Deben (Con)]

My Lords, I draw the attention of the House to my declaration of interests. I declare an interest in the question of waste and I would like to follow on from the noble Baroness.

I am inclined to follow the comments of the noble Lord, Lord Pannick, in dealing with this amendment. My problem with the snapshot concept—although it is the concept—is that it is rather fuzzy at the edges. Unless we think carefully through this, we will find that if we leave the European Union we may have signed up to obligations which we have not had time to carry through but which we intended to carry through. We may also sign up to obligations which, perhaps in retrospect we did not intend to carry through. However, that is unlikely. We may also have signed up to obligations where we had not worked out how we were going to carry them through. So there is bound to be uncertainty at this stage.

I emphasise what the noble Baroness has said: we have worked extremely hard across the board on a number of packages, particularly those concerned with the environment. Her Majesty’s Government have been enthusiastic about most of the elements that that contains. The noble and learned Lord who has replied to the previous two debates has been extremely helpful, not only in explaining to the House where the Government are but in giving us real hope that they will look carefully at the real questions we have raised. It is not a question of whether or not you are in favour of Brexit but of how we get this right. As the Minister has been kind and generous in that way, I hope he will help us to see what we should do. I say to my noble and learned friend that I do not think we should do this, but it is clearly something we have got to do if people are to know where they will stand.

[Lord Pannick]

The noble Lord is undoubtedly right that there will be instruments in Brussels to which we have contributed and which we would wish to incorporate into domestic law. This Bill does not prevent that. It is designed to provide the best snapshot possible, and Parliament is perfectly entitled to—and no doubt will—adopt many other later instruments and incorporate them in appropriate form into domestic legislation.

[Lord Deben]

I agree with the noble Lord, Lord Pannick, on that. However, the problem comes when an agreement is in Brussels and has been agreed by us but the implementation date comes later. That is the part I am particularly concerned with.

I am also concerned to take the opportunity to say to my noble and learned friend that one of the ways in which this Bill can be more readily acceptable is for the Government to be clear with the House. If there were such circumstances, would the Government be prepared to say now that they would seek to implement those things to which they had signed up in advance in a form they would choose? That is not an unreasonable thing to ask the Government to do. Otherwise we will go through this period—it seems as though it will go almost to the end before we know what is going to happen—of negotiating, discussing, agreeing and indeed voting on some of these matters, and no one will know whether, having voted for them, we were then willing to accept them into our own system and law and implement them, having signed up to them.

It would be helpful for all of us who are trying to work these things out and trying to run businesses to remove that uncertainty by committing the Government to say that they will implement what they have signed up to, in a form which they may choose, but under British law.

[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment and declare my interest as being employed by Cambridge University; essentially my day job is teaching European politics. As the noble Baroness, Lady McIntosh, and the noble Lord, Lord Wigley, have pointed out, this amendment fills a gap in the proposed legislation, although I understand that it is probing in nature. At present, Clause 2 talks about saving EU-derived domestic legislation—that part is clear—while Clause 3 looks at incorporating direct EU legislation. However, the gap lies in EU legislation which has been agreed or adopted, and here I disagree with the noble Lord, Lord Pannick.

If the legislation has already been adopted by the European Union it will not then be amended, so the issue is that if the 28, including the United Kingdom, have already agreed legislation but the UK has not yet transposed it, that is legislation which we would have expected to be in place at the snapshot point of 29 March 2019. If the legislation has not been transposed by then, there is a question of where we are on 30 March 2019. If, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it is simply a question of adopting things later, that is one thing for a crash-out Brexit, but if there is going to be a transition period and we are supposed to be absolutely at one with the EU 27 on the day we leave, surely that includes legislation that has been adopted but which we have not yet transposed and which we therefore have a duty to transpose.

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[Lord Deben]

Does my noble and learned friend agree that my noble friend Lady McIntosh has raised an issue that probably should not be answered in this way, but provides a difficulty for the Government that would be overcome if they said, when they had agreed and supported a particular decision, that they would then carry it out in whatever way they thought was the most sensible? That means that we can go on discussing and not be left in some sort of oblivion.

[Baroness Ludford]

Before the noble and learned Lord answers that point, I add a further complication. Whether we agree to a directive or not, if it was adopted by qualified majority voting it would still be adopted with an obligation for the UK to implement it. That does not quite solve the issue. What is raised is surely a very valid issue. It may not strictly come within the definitions in the Bill, but there is still a legal obligation if a directive has been adopted at EU level, whether we agree to it or not.

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[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Mackay of Clashfern, says that he is confused about the transition; my worry is that the people on the Bench in front of him remain confused about what a transition period means—but let us put that to one side.

I want briefly to broaden the discussion to regulations—I know that the amendment refers to directives, but it is probing and there is an important issue here which Ministers may have heard. The clinical trials regulation was mentioned at Second Reading. Like many of the measures that we are discussing today, that would have been adopted but not implemented, either because it was complicated or it took a lot of work to get everyone lined up to it—so it would not have reached its implementation date by the time we left. It might well reach that date during the transitional period—which raises another question and, probably, another Bill. If it is a standstill only on measures that have come in by the day we leave, there will be important issues to address such as the clinical trial regulations and those others that we have heard about today. They will not count as retained law, leaving us reliant on regulations that rapidly become obsolete—those relating to cars I know less about, but certainly in respect of those relating to clinical trials it would end our ability to participate. All such regulations are about not just anonymity but the way data are held. It will happen very quickly: if we are not on the same basis as the rest of Europe, our ability to be involved in those could end quite promptly. That is obviously important to patients, but also to researchers and, indeed, the pharmaceutical industry.

I wrote to the noble Lord, Lord Callanan, on 19 January and he replied very rapidly on 26 January. As we have heard today, he confirmed the Bill’s approach, which will bring over only regulations actually operative as we leave. That would exclude these clinical trial rules, for example, although we agreed them back in 2014. The letter that the noble Lord kindly wrote to me makes smoothing comments, if you like. It says, “Yes, we recognise the importance of close co-operation, we want UK patients to have access to innovative medicines, for which we need to be part of the same system, and we want the UK to be one of the best places to do science”. I turned over the page expecting the Lord Deben response, which would be to say what we are going to do about it. Unfortunately, at that point the letter stops. It says that we will discuss with the EU how to continue to co-operate in business trials but it fails to look at what will be needed, which is, I fear, a legislative process to make that happen.

[Lord Deben]

Will the noble Baroness be kind enough to make a distinction between these things? It seems to me that this is not a matter to discuss with the EU. The British Government could perfectly well say that where they have signed up to something already, they will in fact implement that. They could do this about regulations and directives if they wished to. They could do that in advance and would not have to say that they would have to discuss it with the European Union. That would help all of us and be an earnest of the Government’s good will.

[Baroness Hayter of Kentish Town]

I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Deben (Con)]

I am sure the noble Lord is aware that there is only one vet in an abattoir who is not a national of the rest of the European Union. So this is not a small issue. He might think vets are going to run around chasing animals but it is much more likely that there will be no vets to run around chasing anyone.

[Lord Wigley]

Absolutely—I accept that entirely. I was painting the picture that had been depicted by the noble Lord, Lord Hain, in order to illustrate how ludicrous the situation is. The noble Lord is right with regard to the backgrounds—the national origins—of a very large proportion of the vets that we have; we just do not have enough now. If the demand is going to be that much higher, the problem is going to grow out of all proportion.

I turn to Amendment 30, to which I have added my name, to support the comments made by the noble Baroness, Lady Jones. I support the amendment, which probes the surprising situation that the Bill does not include provision to carry into UK law the principle of Article 13 of the Lisbon treaty recognising animals as sentient beings. Of course animals cannot be put on a pedestal alongside human beings, but they are clearly sentient, as the noble Baroness said. No one who has had anything to do with the countryside or with animals would deny that possibility, so the question arises as to why we are deliberately excluding this. Alarm has been raised among animal lovers as the Animal Welfare Act 2006 does not fully cover this, if we had to resort to that direction.

In the other place, the Government gave an understanding that they would consider how this could be rectified. I would be glad to know what their intentions are. I am not sure whether they are in a position to do so, but I suggest that an amendment should be put into this Bill to give MPs another bite at the cherry. However, if the Government are relying on the draft legislation that I believe they introduced on 12 December to cover this point, a response to the draft Bill was due in by 30 January, as I understand it, but there is still considerable dispute about the appropriateness of Clause 1. We in the Committee have a right to know what the Government’s intentions are on that, and whether the provisions that they are trying to make in that direction will meet some of the points raised by the amendment.

The other aspect that I wish to address is that EU laws on animal sentience have allowed Wales—the National Assembly and the Welsh Government—to take a lead on certain animal safeguarding matters. I remember that when my own party, Plaid Cymru, was in coalition government in the National Assembly from 2007 to 2011, we were able to introduce legislation to ban the appalling electric shock collars that had been used. Can the Government give an undertaking that, when these powers are repatriated from Brussels, the National Assembly and indeed the Scottish Parliament will retain the competence that exists under European provisions in order to take the sorts of steps that I have mentioned in relation to electric shock collars and, indeed, a range of other animal well-being provisions? Can we be assured that these powers will not be centralised to Westminster, thereby imposing on to Wales and Scotland a straitjacket that may constrain their ability to act in a positive manner on these important matters?

[Lord Deben]

My Lords, I declare an interest as the owner of a few Red Poll cattle, which are the local cows of my part of Suffolk. I also was one of the longest-serving Ministers of Agriculture, and this is a matter of very great importance to me. I hope that my noble friend the Minister will realise that he is asking of us, if he does not accept these amendments or agree to do something about this issue, three things, and none of them seems to me acceptable.

The Minister is asking us to accept that, when the Government promised that the withdrawal Bill would take into English law all that is at the moment in European law, and that we would start again from there, that is not the case with sentient animals. The noble Baroness, Lady Jones, explained that very clearly. There are two ways in which it does not. First, it is not complete—and the Government accept that, because they had very urgently to rush forward the advice that they were going to produce a sentient animal Bill to overcome the gap in this Bill. Will my noble friend explain why it is not in the Bill? It is a real issue. If the whole purpose is to use this Bill to ensure that the law after we leave, if we were to leave the European Union, will be the same as before, why is there this exception? It is very important for my noble friend to answer that question because he has in the past, when I have asked him other questions, told me that it is not about the withdrawal Bill, that it is a different issue and comes up elsewhere. This is clearly about the withdrawal Bill—the issue is clearly missing and it ought to be here. My questions are, “Why isn’t it here?”, and whether he will undertake to include it.

We are also supposed to accept that there will be a Bill that will cover this issue. That is a difficult thing for this House because we know very well that, with the best of intentions, the Government do not have a great deal of time to bring in these Bills, and certainly not before the self-imposed end date that they insist upon. Therefore, are we supposed to rely not only on the Government’s good faith, which I am sure I can, but on their ability to deliver on time? Otherwise, there will be a gap when this protection is not afforded.

No doubt my noble friend will say that we will work all that out in the negotiations, but these negotiations are likely to take place after the due date on which we would leave, if we leave the European Union. What is more, clearly, it is not going to be left to the negotiations, because he has already told us that we are going to have a sentient animal Bill—so it is not just a matter of the negotiations. Not only are we supposed to accept that this is outside the Bill, even though that is the Government’s fundamental proposition about the Bill; we are also supposed to accept that they will be able to bring forward legislation that will cover this matter in time for there not to be a gap, which is unconnected with the negotiations because otherwise we would not need to have that until after the negotiations, in which case we could merely take it into our law.

I am afraid that this is very complex and, worse than that, we have before Parliament a Trade Bill. It is clearly the Government’s intention not to restrict their future trading arrangements to ensure the high standards of animal welfare that I spent quite a lot of my life arguing about in the European Union and working for in this country. Those standards are not enshrined in the Trade Bill. There are no arrangements in that Bill for this House to discuss, or to have, in any sense, an influence on, trade negotiations and agreements. We are, therefore, fixed into a position in which we have to accept that this omission from the arrangements of the withdrawal Bill is accidental—it is of no importance and will be covered by another Bill. We also have to accept that there will be another Bill and that it will be in time. What is more, we are to accept that what is in the other Bill will cover this issue. As we know, it has, in the words of the noble Baroness, Lady Jones—I would not like to use the phrase myself but I can repeat it—“been rubbished” by the Select Committee which looked at it. It does not actually do the job.

The Trade Bill will not give any protection for animal welfare, so that our farmers, who meet high standards, will have to accept imports from elsewhere which do not meet them. The argument about chlorinated chicken—I know that phrase has been ridiculed but it is useful—becomes very strong. I hope your Lordships are aware of why the words “chlorinated chicken” are so important. The United States has to chlorinate its chickens because it does not have high welfare standards and unless you chlorinate them you have even more food-borne disease than America has now. It has at least four times the food-borne diseases that we have in Europe. This is no passing comment; it is a fundamental issue of the health of the British people, leave alone the issues of sentient animals.

I am sorry that there is more to say—but this is a very serious area. The Government seem to have misunderstood the way in which you take EU laws into British law. EU laws have always to be read in their context, inside the protocols which make those laws operate. The trouble with this particular bit of the withdrawal Bill—as indeed with much of it—is that when you take the bare bones and put them into English law, you lose that context. You really do have to find a way of getting the context in, otherwise the bare bones do not have the same effect as they do at the moment in the application of EU law.

There is another thing that I find difficult with the Government’s willingness to discuss this issue in such a peculiar manner. I can understand my noble friend, and other Ministers at various times, recognising that some of us do not think that withdrawal is a very good idea. That is perfectly understandable, but we are not debating this on that basis. What we are doing is trying to make sure that the withdrawal Bill does what it is supposed to do—and we are trying to do that as a House that has that specific duty and job. I know that the Daily Mail finds that hard to understand, but what we are here for is to ensure that the legislation that is passed is, in detail, what was intended. The House of Commons—the other place—is now less able to do that because of the way in which it restricts the time spent on these matters. I know that my noble friends would much prefer this House to spend less time on the Bill. But if we do not spend the time, no one else will go through it in the way that we will have to if this is not to be a disaster not just for animals but for human beings, because we will have none of the necessary restrictions.

--- Later in debate ---

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

My Lords, this has been an excellent debate and I thank all noble Lords who have contributed to it. I start by directly addressing the question put by the noble Baroness, Lady Bakewell, the noble Lords, Lord Wigley and Lord Davies, my noble friend Lord Bowness and others. There is no question but that this Government regard animals as sentient beings. As we said on this issue in the other place, we certainly agree with the sentiment of the amendments, such as that of the noble Baroness, Lady Jones of Moulsecoomb. However, as I will set out, we cannot support them.

Article 13 of the Treaty on the Functioning of the European Union, to which many noble Lords have referred, places an obligation on the European Union and EU member states when formulating and implementing certain EU policies to have regard to the welfare requirements of animals because animals are sentient beings. However, the weakness of that article—this relates directly to my noble friend Lord Deben’s point—is that it applies only to a limited number of EU policy areas and, even then, allows for certain religious and cultural traditions which many would consider to be cruel. Two examples, of course, are bull-fighting and the production of foie gras. Article 13’s effect on domestic law is minimal. As the Secretary of State for the Environment has made clear, as we leave the EU, we believe that we can do much better.

We have made it clear that we intend to retain our existing standards of animal welfare once we have left the EU, and, indeed, to enhance them. This Bill will convert the existing body of EU animal welfare law into UK law. It will make sure that the same protections are in place in the UK and that laws still function effectively after we leave the EU. However, the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better. That is why, at the end of last year, the Government published draft legislation, the Animal Welfare (Sentencing and Recognition of Sentience) Bill, to which a number of noble Lords have referred. The draft Bill sets out how we can better enshrine in domestic law the recognition of animals as sentient beings.

Let me reply to the questions asked by my noble friend Lord Bowness and the noble Baroness, Lady Jones. The Secretary of State for the Environment has been clear that we will legislate and that there will be no gap left in our law on sentience after we leave the EU. We believe that the draft Bill is a significant improvement on Article 13, imposing a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas outlined in Article 13.

[Lord Deben]

My noble friend has said that the reason we are not including that part of the article which is excluded is that it does not go very far and it is not good enough, but that is not what the Government promised. The Government said that they were going to include in this Bill all the present legislation. That is all we ask. Why will he not include even so deficient a piece as this and then do the additions afterwards, which is what he has told me he is going to do on every other occasion?

[Lord Callanan]

Because we do not think that Article 13 works in the context of UK law; it applies only to EU law. I have set out why we think we can do better.

The public consultation on the draft Bill closed on 31 January. The Government are analysing the responses and will publish a summary and next steps in due course—I hope before we get to Report. I hope this reassures the noble Baroness, and indeed my noble friend Lord Deben, about the Government’s firm stance on animal sentience.

European Union (Withdrawal) Bill

Lord Deben Excerpts

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

[Viscount Hailsham]

My noble friend Lord Forsyth was also guilty, I hasten to say; we were the same in that respect.

The third point is that statutory instruments are not amendable by either the negative or the affirmative procedure. Moreover, and this is the point that we dealt with on Wednesday, the regulation-making power is triggered if the Minister thinks it appropriate. I remember very clearly the way that my noble friend Lord Callanan dealt with the argument that we should delete “appropriate” and insert “necessary”. He did not like it, but he is left with this: if a Minister, by affirmative or negative resolution, thinks it appropriate to levy an imposition—a charge, a contribution, a fee—on a citizen, he can do that. I regard that as a very unhappy state of affairs and, should this come to Report, I will not be supporting it.

[Lord Deben (Con)]

My Lords, I was once estimably advised by the noble Lord, Lord Turnbull. I want to look at this amendment from the point of view not of the civil servant but of the Minister. I think your Lordships’ House has already understood how difficult it would be for a Minister to understand what he could or could not do under this part of the Bill. First of all, he would have to turn to the modern equivalent of the noble Lord, Lord Turnbull, to ask him what the distinction between a fee and a charge was, and I am not sure that the noble Lord’s equivalent could be entirely precise as to what that distinction was because it is almost impossible to tell.

The noble Lord sitting next to the noble Lord, Lord Turnbull, got up and pointed out the word “contribution”. Of course when talked of in terms of national insurance a contribution is manifestly a tax, but it does not cover the cost of the service to which it is actually appended. It must therefore be possible to have a fee that does not cover the cost but is in fact a tax. That suggests that this part of the Bill—I do not speak of any other part—has not been entirely well thought through.

[Lord Forsyth of Drumlean]

I do not wish to prolong this but I have been reflecting on the definition by the noble Lord, Lord Turnbull, of a tax. He said that it was if you made a surplus. Does that mean that if a charge were being made for a service and the body concerned cut its costs so that it was making a surplus, it would then turn into a tax?

[Lord Deben]

It seems to me that almost any circumstance does not fit this part of the Bill; indeed, I find it difficult to find a single circumstance that does. I hesitate to put this to my noble friend because on the last occasion when I tried to be helpful he found me more unhelpful than usual, so I shall be very careful, but I ask him to imagine that this particular clause was being proposed by a monarch who simply said, “I want to have the powers to decide what kind of word I am going to use for taking money out of your pocket without proper parliamentary control”. I think I know what our forefathers would have said to that monarch. He might indeed have been in fear of his life, for this is precisely what Parliament is about.

We ought not to deal with this merely in the reasonably light-hearted way in which we have pointed out that this is an ill-conceived, utterly ill-thought-through and entirely indefensible bit of the Bill. We should take it one stage further and say that it is fundamentally unacceptable in a democracy that any mechanism can give Ministers the power to decide on taxation without representation. This is what we are here for. This is what Parliament is here for.

It is no good my noble friend reading out, as he will, the carefully phrased answers, because the people who have written the answers have caused the problem in the first place. They are the ones who have not understood that taking back control does not mean giving it to my noble friend. It means, if it is necessary—I do not think it is, but if it is—giving it to Parliament. This is part of the Bill which does not so do. The amendments attempt to put right what is, in the immortal words of some Members of the House, a dog’s breakfast, which is rude to dogs.

This is entirely unacceptable, but there is one bit that I find more unacceptable than any other. If this is necessary in order to carry through our international obligations, which is an argument that has been used, it is a peculiar addition to a Bill which is removing us from international obligations. The one place where this should not be is in the withdrawal Bill. We are withdrawing from international obligations on the basis that we do not want to have them, but writing in an ability to assert international obligations by secondary legislation.

My noble friend Lord Forsyth, who has followed me so far, did not like my little comment about the EU, but I am sure he agrees that we should not be using secondary legislation to impose taxation as a result of international obligations. That is not what it is about.

My last point is very simple. I have always found the word “expediency”, when used by Ministers, a red flag. Ministers always say that something is necessary because it is expedient. Expediency is always the excuse for doing something which you cannot do properly but which you get through on the basis that this is an emergency, it is urgent, or it has something to do with terrorism—we can find some reason or other that means we cannot wait for the proper process.

I was a Minister for 16 years. We are three former Ministers. None of us thinks that this power should have been given to us, so just think how little we believe it should be given to people with a different political view. I say to the Minister, who is well to a different part of the Conservative Party from me, that he should be the last person to give these powers to Ministers.

[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.

--- Later in debate ---

[Lord Callanan]

If my noble friend will stay with me, I will come on to that. Beyond that specific issue, I will set out the Government’s intention with regard to fees and charges. We have included the powers in Schedule 4 to provide for fees and charges in order to be clear and transparent. It is, however, necessary for the powers in Clauses 7 and 9 to interact with existing regimes to correct deficiencies within them, and to properly modify them to reflect the withdrawal agreement. Without prejudice to our negotiations, an example of such a correction might be modifying a fee in relation to the authorisation of a credit rating agency so that the fee becomes payable to the UK financial regulators rather than the European Securities and Markets Authority. That might be argued to amount to the imposition of a new fee.

The requirements to pay new fees and charges established under Schedule 4, and the ability to modify existing regimes, will depend on deficiencies being properly corrected and on functions being transferred. Clauses 7 and 9 are not primarily aimed at imposing fees, and they cannot impose other kinds of charges, but sometimes that will be part and parcel of the correction. In answer to the questions about fees and charges from the noble Viscount, Lord Hailsham, the noble Lord, Lord Deben, and the other poachers turned gamekeepers—if I may refer to them as that—on the Privy Council Bench, a fee is a payment only for a service received. By a charge, in paragraph 6(2) of Schedule 7, we mean anything which goes beyond cost recovery. Clause 7 cannot create a charge. In addition, creating either a fee or a charge is subject to the affirmative procedure.

The argument against a tax restriction—

[Lord Deben]

There is a large number of fees that are paid to, for example, the Environment Agency, to carry out certain services. We have no idea whether those fees are equalled by the amount of work that is done. The Environment Agency says: “We want this amount of money because we need it”. There is no proof. If one were to prove that the agency spent less money than the fee, does it then become a charge or a tax? There is a real issue here. My noble and learned friend Lord Mackay points to the fact that one may define it like this but how does one prove it, and how does the House deal with it? Is it not better to not have this distinction at all?

[Lord Lisvane]

Before the Minister responds to that point, could he also answer my question? He has sought to make a distinction between a fee and a charge. Could he explain why, at page 761 of the latest edition of Erskine May, there is no distinction made between fees, charges, impositions, contributions or anything else of that sort? The test which is set out there, and is reflected in the current practice note from the Office of the Parliamentary Counsel—available on its website—is whether or not those payments are,

“akin to taxation in their effect and characteristics”.

I suggest that an additional test needs to be applied to the template which the Minister has offered.

--- Later in debate ---

[Lord Callanan]

Because in such circumstances we will need to react quickly in the light of the events as they happen, depending on—

[Lord Deben]

Whether it is expedient.

[Lord Callanan]

I did not want to use the word “expedient”, as it had been referred to.

European Union (Withdrawal) Bill

Lord Deben Excerpts

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

[Baroness Finlay of Llandaff]

My Lords, I am a signatory to two of the amendments in the name of my noble and learned friend Lord Hope of Craighead. I should declare first that I am a member of the Bevan commission, which has been quoted, and I should also say that funding for Wales has indeed been a concern over time.

To return to these amendments and the core issue of trust, a wise saying comes to mind: trust arrives on foot and leaves on horseback. It seems as if we have had a few galloping horses through the Chamber this evening, but we have to move forwards. In the new world we will face after Brexit, which will not be easy—no one is now pretending that it will be—we need to be a United Kingdom and we need to pull together. Given the Minister’s remarks in response to the previous group of amendments—he indicated that he sincerely wants to bring the parties together to restore trust and find a resolution that helps us to move forward—I hope he will be able to work with others to achieve that, and that he will give serious consideration to these amendments. They have not been tabled to divide; rather they seek to establish a degree of reconciliation, restore trust and find a working way forward.

[Lord Deben (Con)]

I wonder if I can be my usual emollient self at this point. I admit to being of Welsh extraction with a Welsh-speaking father. My noble friend Lord Forsyth spoke entirely from the point of view of someone who has been bruised—I would be on his side in this—by the activities, and sometimes more than that, of the Scottish nationalists. But the debate here is not about vetoes, although the amendment would confer them; rather it is a debate about trust. My noble friend says we can all work it out: this Government, the coalition Government and the Labour Government continued the utterly unfair system of the Barnett formula, which has done such damage to Wales, and, as the noble Lord, Lord Wigley, said, the Labour Government retained large sums of money, rather than pass it on in the system we previously had.

My noble friend knows very well that I believe in a single market. I do not have a view that narrows that single market to the United Kingdom. I look to a single market that continues through the whole of Europe, which is, of course, of great benefit to all of us and I am sad that he should try to remove us from it. But I do not think that it helps in this debate not to face the very considerable lack of trust in both Scotland and Wales, where there is a history of not getting a fair share except almost by force.

Scotland has managed to get itself into what many of us feel is the opposite position. That is how the Barnett formula works. It would be good for the Government of Scotland occasionally to recognise into what a favourable position history has put it. However, I should not like the Committee to fail to recognise, because of the way these amendments are drawn and have been put together, the specific position of Wales, not least because of the special position in which the north of Ireland has managed to get itself, for political reasons, and the historical position Scotland has been in. This is not to sow discord between the parts of the United Kingdom; it is merely to say to my noble friend the Minister, for whom I have enormous respect—his last speech summing up was an exemplary one to show how the Government can deal with issues in a way that at least makes the Committee feel that it is listened to; I thank him for that, because it was a very different touch—that there is a real feeling among people in Wales that the history does not help people believe that the United Kingdom Government will be entirely even-handed on this issue. Therefore, if, in the withdrawal Bill, Wales has its membership of the European Union, from which it has benefited very significantly, taken away, is there a way the Government can at least give greater confidence to Wales? If they do not, I fear the ability to come to a compromise will be made very considerably more difficult.

I feel my noble friend Lord Forsyth was partisan in the way he concentrated only on Scotland. He was kind enough to say that he did not know about Wales, but I do, so in these circumstances, will the Minister please give us a little more confidence? I should very much like my noble friend, whose own name reminds us of Aberystwyth, to give us a feeling that Government will, in some way, find a manner to give confidence in the Bill, since this is not appropriate.

[Lord Wallace of Tankerness]

My Lords, as a co-signatory to the amendment, I shall briefly make three points. My first is to correct something said by the noble and learned Lord, Lord Hope of Craighead. He said that the smooth running of the early years of devolution was because we had a Labour Government in Westminster and a Labour Government in the Scottish Parliament. In fact, it was a Labour-Liberal Democrat coalition in the Scottish Parliament. That is an important difference.

Secondly, I endorse what the noble and learned Lord said when he gave the example of orders under the European Communities Act 1972 and the memorandum of understanding between the Scottish Government and United Kingdom Government on consultation, and how these might be taken forward. My experience in the Scottish Executive at the time was that it worked. I can say that because I cannot remember an issue over which there was any major dispute. It is also fair to say that I cannot think of any major dispute on that kind of area, some of which was very technical, while the Scottish National Party was in either minority government after 2007 or majority government after 2011. It is possible on a whole range of technical issues to get some common- sense agreement. That is why we should persevere.

Thirdly, the noble Baroness, Lady Finlay, said that underlying the amendments is an effort to have building blocks for trust. I shall not repeat the arguments I made in the previous debate other than to say to the noble Lord, Lord Bourne, that, like the noble Lord, Lord Deben, I appreciated his comprehensive response to it. He seemed to suggest that I had spoken about allowing a veto over areas that were non-devolved. Given that the previous amendments were about modifications to the Scotland Act, I do not think anything I said could have given that implication. Here, where we are talking explicitly about matters within the devolved competence of Scottish Ministers, that cannot be said either. I think there is something we can build on there.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Empey (UUP)]

My Lords, before I speak to the amendment in my name, the noble Lord, Lord Tope, tempts me down memory lane. I served on only the first two terms of the Committee of the Regions; he is a veteran with many stripes on his arm and much more experience. I recall that when it began we had a president, Jacques Blanc, who was the president of Languedoc-Roussillon. We invited him to Belfast and he came in a pillar of fire, having hired a private jet. By the time he came to Belfast, he was Jimmy White and not Jacques Blanc. He then proceeded to tour the European capitals in that jet, much to the chagrin of our paymasters in the European Parliament. I do not know whether the jet has yet landed—but, whatever it did, President Blanc ran up against the buffers of the accountants in the Parliament. Nevertheless, it was an interesting body, but it was a mixture of those of us who were from local authorities and the very powerful—the Bavarians were on it and others with enormous resources. So it was not a balanced body, but it was interesting and at least everybody could have their say.

This probing amendment would require the UK Government to seek agreement with the European Union during the withdrawal discussions—which would of course include the transition period—that the current legal framework underpinning the regulation of medical devices in the EU will be maintained after 29 March 2019. This would enable notified bodies hosted in the United Kingdom, such as the British Standards Institute, to continue to perform conformity assessments on medical devices both from within the UK and across the EU, and issue CE safety label marking after the UK’s withdrawal. The noble Baroness, Lady Kennedy of The Shaws, earlier introduced a number of amendments concerning the welfare of women and young girls and said that she was hoping to put this clearly on the agenda that was moving forward—and this is what I am trying to do this evening.

On 14 September 2017 the noble Lord, Lord O’Shaughnessy, our Health Minister, gave a speech at the Association of British Healthcare Industries on the future of medical technologies post Brexit. He set out the Government’s commitment to the medical tech sector and discussed the opportunities and challenges it faces as the UK leaves the EU and what support the Government were going to offer. There were some core principles in the speech about regulation and conformity assessments post Brexit, including that patients should not be put at a disadvantage and that the industry must get its products into the UK market as quickly and simply as it does now. He said:

“I want to give this promise; no matter what the outcome of the negotiations—on basic patient safety and public health issues—the UK will be, as it always has been, a willing and reliable partner for Europe”.


Furthermore, the European Commission recently warned manufacturers within the EU that CE safety labels provided by notified bodies based in the UK may no longer be valid after Brexit. The Commission document states:

“Subject to any transitional arrangements that may be contained in a possible withdrawal agreement, as of the withdrawal date, the EU rules in the field of non-food and non-agricultural products, whether for use by consumers or professionals no longer apply to the United Kingdom”.


That means that the UK will no longer operate as a host country for EU notified bodies as it currently stands.

Significantly, the European Commission has advised manufacturers to consider the legal repercussions of their current conformity assessment procedure, advising that in future they will need to gain their CE certification through an existing EU member state after the UK’s withdrawal, or to transfer existing files to an EU notified body. It should be noted that, while manufacturers can obtain a CE label from any notified body in the EU, the UK has built an expertise in this area, with approximately 40% of medical devices and 60% of high-risk medical devices on sale in the EU having been certified in the UK by a notified body. The British Standards Institute has led the way in such testing and has recently set up an office in the Netherlands so that it will continue to have an EU-country representation post Brexit.

The development with the European Commission regarding the publication of the notice to stakeholders mentioned earlier would impact on the five existing UK-based notified bodies working in the area of medical devices, including the BSI. BSI chief executive Howard Kerr has previously suggested in media interviews that he believes that a mutual recognition agreement on medical devices between the UK and EU will most likely be achieved during the course of the negotiations, allowing for retained aligned standards after Brexit. As for the possibility of the UK hosting notified bodies after the UK’s withdrawal from the EU, some so-called third countries are able to operate as host nations for a notified body, including Turkey, Switzerland and Norway—so it is possible that an agreement can be made between the UK and the EU.

I believe that mutual recognition agreements and related conformity assessments post Brexit will be vital for sustained patient access to medical devices post Brexit. Although not always at the forefront of the current debate on the EU withdrawal Bill, they are still important so that treatment is consistent for patients. I believe that this approach is also in the spirit of the broad principles and objectives of the Bill: to make sound provision for the transfer of EU law into UK law. Mutual recognition agreements will be the mechanism within the necessary new trade arrangements to transfer into UK law the rights with regard to conformity assessments that the UK currently has in the area of the regulation of medical devices.

The second dimension to this is that there are a number of manufacturers of such devices in the United Kingdom, not only in my own region but elsewhere. They tend to have concentrated in the higher-value and higher-quality areas of the sector. So I believe that this item, although it may not attract the full House that we had earlier on other aspects of the debate, is nevertheless a significant matter. I believe that it should be drawn to the attention of the Government so that it is included in the agreement. It can be done—we know that—and I believe that it is something we should pursue vigorously. I beg to move.

[Lord Deben (Con)]

My Lords, I support the comments of the noble Lord, Lord Empey. It seems to me, though, that one should put them into a wider picture, because this is yet another example of how the best outcome of the negotiations is worse than where we are. I do not think that this Committee has to remind the country as a whole that this is what we are negotiating. We are negotiating a situation that we already have but in which we will of course have no say. Even if we get the very best deal we can, and protect our industry and the excellence of our regulatory structures—which, as the noble Lord, Lord Empey, rightly pointed out, has meant that in one case 40% and in another case 60% of these devices are brought here, whether or not they are manufactured here, because of the excellence of our regulatory control—we will no longer have a say in the central issue of how the regulatory structure is changed in future. This is crucial in this case because, as we all know, medical devices are constantly changing and improving. If we accept that, then we recognise that the way they are regulated—the way in which we set the standards—will also change, and that we will play no part in such decisions.

I am a patriotic person. I object strongly to the intention of sidelining my country from these things and us being the beggar, because that is what we are going to have to be. To compare us with Turkey, to put it delicately, does not fill me with enthusiasm. I suggest that this is another example of the intended consequences of Brexit because the people who are enthused by Brexit—and I see few of them around just at the moment—want to believe in a world in which we can operate on our own without any drawbacks. The noble Lord, Lord Empey, has rightly pointed out that that is not possible, and that the world we live in is a world of co-operation and joint concern in getting the right answers.

I wanted to intervene because I was unhappy with one part of what the noble Lord, Lord Empey, said. He talked of the need to protect ourselves and the importance of this to his own Province as part of the United Kingdom. I want to turn it round and refer to the importance of our contribution to these decisions, the important place that Britain should have in these discussions, not only with regard to medical devices—and the curious expression in the amendment that I particularly like, which refers to the “safeguarding of public health”—but of course to any medical aspect. We have had several debates in the Moses Room on precisely these issues. What this means, of course, is that Britain is saying, “We no longer want the opportunity to play a proper part in seeing that we do this right”.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I would say to the noble Lord, Lord Deben, that we are really shooting ourselves in the knee. It is a matter of active interest to a significant minority of Members in the House, because replacement knees and hips are among the medical devices which are most common among us.

[Lord Deben]

I was going to suggest that there is probably not a Member of the House who should not declare an interest in this debate, because there are few of us who have not had some device or other implanted. Are we not lucky that they were made and regulated in this country?

[Lord Wallace of Saltaire]

Shortly after the referendum, I was sitting in the orthopaedic surgeon’s office with my wife, who was about to have a new hip, and he explained to us how leaving the European Union would cost the NHS more and would make it more difficult for him to procure what, in his opinion, was the best artificial hip available for the occasion. It was made by a multinational company in southern Ireland with bits—as noble Lords will know, these are complicated devices—coming from across the border and various other places. This undoubtedly would be more expensive, take longer and cost the NHS more. It is yet another example of where, despite the false promises of how much money would flow into the NHS, it will actually be completely the other way round. We will be creating artificial obstacles of one sort or another for these artificial devices, which will affect us all extremely closely. Those of your Lordships who have not yet got one will probably get one within the next 10 years. As the noble Lord says, we are absolutely shooting ourselves in various different embarrassing places by accepting that, in leaving the European Union, we are making these possibilities more difficult and more expensive.

--- Later in debate ---

[Lord Deben]

I bring the Committee back to the fact that this is a Bill about withdrawal, so we might ask why this amendment has been tabled. I say to the noble Lord, Lord Warner, how important the amendment is because of the Government’s commitment. The Government said that they were taking into British law all that was in European law. This amendment draws attention to the fact that the Government are not doing what they said they would: they are not taking into British law the protocols and those things that surround European law to which one can refer in a court case. We have been precise in what we have taken in and the Government have been precise in what they have excluded.

I speak in favour of the amendment because there is no reason why the Government cannot accept it. It is not possible to say that this is all a matter of negotiation—we are not going to negotiate this. Before my noble friend Lord Duncan spoke on the amendment before last, he gently upbraided me for suggesting that I knew how he was going to reply, and of course he did reply that it was not possible to commit the Government to the protection of medical devices because that was going to be part of the negotiation. However, there will not be a negotiation as to whether we will uphold the highest standards of public health; that will not be part of the negotiation at all. What is true is that the protection that, as a member of the European Union, we now have under European law would no longer be afforded to us were we to leave the European Union. Therefore, this amendment is merely to ensure that the withdrawal Bill does what the Government said that they wanted to do, which is to take into British law all those things that at the moment are in European law. This is an important amendment, because it helps to complete what, unfortunately, the Government left out from what they said that they would achieve.

There is a second reason why the amendment is so important. I am fortunate to be the chairman of the Committee on Climate Change. One of the things that is important to us is that we have a statutory position. When the carbon budgets, which we prepare, are passed into law by both Houses of Parliament, they cannot be changed thereafter without the Committee on Climate Change saying that that is right and proper. That is how we in Britain have made sure that we do not go back on our climate change commitments.

For most of our laws, we do not have that kind of protection, but we did and do have it because of our membership of the European Union. That is the kind of change that we will have to make if we leave the European Union to make sure that the public are as well protected after so sad an occasion as they were before. It is not me saying that but my right honourable friend the Secretary of State for Defra, who is not known for his enthusiasm for the European Union. He has made it clear that we need to protect the people of Britain post Brexit by having very clear rules which give independent enforcement of environment law. He said we cannot have a system whereby environment law is affected by the whims—or sensible policies—of Ministers. He said we have to have something independent and has promised that he will present it to the Houses of Parliament. If that is true about environmental law, is it not also true about public health law? Do we not need precisely the same protection for public health that we clearly need to replace the protection we have in the European Union on the environment?

I shall listen extremely carefully to my noble friend’s answer, but I do not think that we can now say that the reason this is not acceptable is because of negotiation, nor do I think the Government can really say that they do not believe that this is what their policy is. This is, after all, only a statement of what the Government have said they believe—so why can we not put it on the face of the Bill, continue the protection which the British people have in the European Union, so that if we leave we at least make sure that public health is as protected afterwards as it was before?

[Baroness Finlay of Llandaff]

My Lords, as the noble Lord, Lord Deben, has pointed out, this is about moving into our law the regulations that currently protect us. That is why it seems appropriate in this Bill. I remind the Committee that the implications of Brexit for our health were published in the Lancet in a review in November last year, which detailed the areas that are in jeopardy. A fortnight ago, the Guardian reported a leaked document highlighting an unprecedented, co-ordinated effort by transatlantic right-wing think tanks to secure what they described as the “ideal” trade arrangement between Britain and the USA, which would involve the UK diluting its existing standards on food safety. I remind the House that the excessive use of antibiotics has resulted in superbugs, which is precisely why we have been worried about diluting any food safety standards. Working conditions in the farming areas that want to export to us are troubling. This would tear up the precautionary principle, whereby companies have to prove their product is safe before it can be sold, rather than waiting for it to be proven unsafe before it is recalled. That precautionary principle and the principle of safety run right through everything. As my noble friend Lord Patel outlined, and as previously discussed in Amendment 30, this relates to all of the infective areas, but it also covers toxic substances and the way that we handle those.

I strongly support this amendment because it would build up the health protections that we have built up slowly since we entered the European Union. It would simply guarantee the continuity of the present conditions and ensure that Articles 9, 11 and 168(1) of the Lisbon treaty are actually respected. It would require European institutions to maintain high levels of human health in all their policies and activities and would mean that these are then mirrored in the UK. It would of course affect areas of shared competence, such as environmental law, health and safety law, and public health law, as well as trade law. By mainstreaming this, it would build on precedents in UK law such as in Section 75 of the Northern Ireland Act, Section 149 of the Equality Act and Section 3 of the Human Rights Act. It covers acts of all public authorities, as I understand it. Judicial acts taken in interpreting retained EU law would then be subject to the same standards that we are used to and have become accustomed to. It covers the whole of the UK, irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh. I cannot see a reason not to accept it. It would maintain the standard to which we have become used. We are all aware of the dangers of dropping that standard.

--- Later in debate ---

[Lord Duncan of Springbank]

In this instance, it is not part of EU retained law, but that is not the point. We are saying that the powers that already rest in the Secretary of State’s hands are equal to the powers that would come through this amendment.

[Lord Deben]

If it is not part of this Bill, why not? The Government said that they were going to take this into the legislation. Why is it excluded? That is why people are frightened—because the Government have not put it in the Bill.

European Union (Withdrawal) Bill

Lord Deben Excerpts

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

Moved by

[Lord Deben]

12: Clause 4, leave out Clause 4 and insert the following new Clause—
“Saving for rights etc. under section 2(1) of the ECA
(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day, form part of domestic law by virtue of section 2(1) of the European Communities Act 1972 continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations, restrictions, remedies or procedures so far as they form part of domestic law by virtue of section 3.(3) Where, following the United Kingdom’s exit from the EU, retained EU law incorrectly or incompletely gives effect to any rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day, a Minister of the Crown must as soon as possible make regulations for the purpose of giving correct and complete effect to such rights, powers, liabilities, obligations, restrictions, remedies and procedures.(4) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”

[Lord Deben (Con)]

My Lords, the proposal here is to overcome the problem that arises under this present law, as presented to your Lordships’ House, which is that it does not include those elements of European Union law that are not specifically written down but are in the protocols and the like. I will not press this amendment to a vote, and I am sure my noble friends will be pleased about this. I make it clear now, however, because an amendment will be debated on Monday that I will want to press to a vote. In this circumstance, some of my colleagues may wish to press it, but I merely put the point to the House that the Government promised us something very simple. They said, “We are going to put into British law all that we now have in European law. Then, after that, if we want to make changes, we will be able to make those changes”.

Even those of us who are deeply disturbed by the Government’s decision to continue with the extremely damaging activity of leaving the European Union at least felt that we were then going to start with a situation where we were not automatically losing some of the protections provided by the European Union. What was more, we felt that, were we then to decide to change things, perhaps we would find that there were some advantages to our leaving the European Union. So far, I have not found any, but let us imagine that we were to do so. Then we would, in proper parliamentary order, decide on the changes. I say to my noble friends that the real issue for me here is that—and I say this, too, to those who are leavers—the Government have not carried through what they said they would. They have not put into the withdrawal Bill all those things that protect us and provide for our sensible behaviour in the European Union. They have also made it clear, by a number of parts of it, that they will not offer Parliament the chance in the future to make decisions in a proper parliamentary way. Indeed, they intend to do by subsidiary legislation a whole range of things that, in my view, should not be done.

We have just had a vote that has made it clear that this House believes in parliamentary democracy and this is another attempt to raise these issues. I say to my noble friends—particularly to my noble friend Lord Callanan, who is, of course, a leaver, so he has the disadvantage of believing in this Bill—that the Government have promised something, and I do not believe that they are carrying out that promise. Therefore, we sought in this amendment to encourage the Government to think to themselves that they should really take seriously the proposition that, in future, we would have in our law,

“the rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day, form part of domestic law by virtue of section 2(1) of the European Communities Act 1972”.

These should continue and, after exit day,

“be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.

Even if my noble friends do not like this fact, we need this because the public, our businesses, our organisations and our voluntary organisations need it too. They need certainty and I do not see why they should not have it. We have managed to have all this for a very long time. I cannot say we have had all of them for 40 years, because some of these things were brought in in the meantime, but we have had them for a very long time and it has not destroyed our nation. Why can we not continue in this way until we decide, in a parliamentary manner, that we want to change it? That seems a perfectly sensible attitude. Therefore, we have tabled this amendment, which is designed to ensure those protections.

Many people will feel that this is the right amendment to support. I hope that they will also support the amendment on the environment that we have tabled for Monday, with the enormous support of people from across the House, particularly the Liberal Democrats, who have been very helpful in understanding what this is about. We have an amendment that covers much of what we are trying to say here, but I still think this is the Government’s opportunity to explain a simple thing to us: why do the Government not want to ensure that what they said they would do is in fact done? If the Minister says that there is something wrong with the amendment, I understand: we are all amateurs at writing amendments. Of course, it is quite possible that there is some fundamental reason why this is not the way to do it. If that is the case, I would like the Minister to say, “We will take this away and, in the excellent manner that we have in the House of Lords, come back at Third Reading with an amendment that simply does what we promised”.

I have been in politics for a very long time and was a Minister for 16 years. I have always thought that Governments should do what they promise. I have always been as critical of my own party when they did not do it as I was of coalition parties and the Opposition. I do not like promising things and not delivering, so I hope that as a result of this amendment my noble friend will say, “Yes, you have a point here; there are some things we have left out. Can we sit down and talk about what those things are and can we produce an amendment that will meet that requirement?” Can we also guarantee that, if in the future we wish to change those things, we will do so with proper parliamentary procedure and not with something that we all know is a means by which the Executive imposes things on the people?

This Parliament—elected or not elected—is here to protect the people against the overuse of executive powers. That is what we are here for. I am afraid that some of my noble friends are not here, but I am appalled by some people who get up and say that the reason why we are proposing these things is because we do not want to leave the European Union. We know perfectly well that we do not want to leave the European Union, but the reason we are proposing these things is that, if we do leave the European Union, we do not want to lose some of the things that are beneficial to us. I object to people insulting me, saying that I am trying to stop the Bill. I am trying to make the Bill acceptable to the British people. People did not vote to muck up their whole future, to get rid of things merely to enable some rather extreme people to run the country in a way that is unacceptable. They voted to maintain the good things and they did not want to remain a member of the European Union. I am sorry that they decided that, but I do not see why I should not try to make this the best Bill that I can. I object to being insulted by saying that I am trying to do something else. I am trying to make this a good Bill. Therefore, I say to my noble friends: “Will you help me make this a good Bill? If this is the wrong amendment, then will you please promise to produce the right amendment?” I am very happy—and I am sure my noble friends will join me—to help the Government to produce the amendment that would do what we want to do here, if this is not the right way to do it. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support Amendment 12, to which my name has been added, and the comments of the noble Lord, Lord Deben. The amendment follows the concerns expressed by the Constitution Committee over the current wording of Clause 4. These were extensively debated in Committee and the case was powerfully made by the noble Lords, Lord Krebs—who unfortunately cannot be with us this evening—Lord Pannick and Lord Carlile, among others, that existing Clause 4 creates legal uncertainty, not least by its determination that provisions in directives must have been tested in a court prior to exit day.

What is more, existing Clause 4 fails to deliver the promises made time and again—promises that we have heard again this evening—that the withdrawal Bill will apply the same rules and laws after we leave the EU as existed before exit day. This is because there is no mechanism built into the Bill to address any omissions or powers incorrectly or incompletely transferred. Instead, the noble Baroness, Lady Goldie, suggested that we would have to rely on correcting mistakes or omissions through domestic legislation, without an obligation on the Government to do just that. Therefore, our amendment addresses this challenge head on. In order to ensure that environmental protections—and other protections, because this is not just about the environment —are not weakened by omission or design, it will place a duty on Ministers to correct that error.

To achieve this comprehensively we have drafted a new clause to replace Clause 4 which makes clear those obligations on Ministers. The new clause removes the problematic prescriptions in Clause 4(2)(b) concerning the need to have the rights predetermined in a court of law. This never made sense, as many environmental rights are accepted either as common-sense policies or have such huge public support that they could not realistically be challenged through litigation. It then makes it clear that the Minister has a duty to act and make a remedy where rights, powers, liabilities, obligations and so on are incorrectly or incompletely transferred.

--- Later in debate ---

[Baroness Goldie]

Perhaps I can, with my next contribution, enlighten the noble Baroness about her concern. However, I point out that the Government’s observation about the practical obligation of reviewing 40-plus years of EU membership to ensure that they have correctly and completely implemented directives is merely part of the reason why we cannot accept the amendment.

Perhaps I may continue and shall try to address the noble Baroness’s point. Although the Government believe that successive Governments have always sought conscientiously to implement EU legislation in accordance with our obligations as a member state—that is where we are—such a review as required by the amendment could throw doubt on certain domestic implementation, again potentially creating confusion within well-accepted and relied-upon parts of our domestic law. That is the anticipated and foreseeable consequence of that part of the amendment. Given the wide scope of EU law that will be retained by Clause 4—not just directly effective provisions arising from EU directives—this would also present a huge practical and resource-intensive challenge to the Government. I suggest that the effect of such a duty as we leave the EU cannot be ignored.

The effect of the amendment would be to profoundly undermine the Government’s clear and coherent position on retained EU law. We have previously talked about how the Bill must take a snapshot at some point, otherwise there will be complete ambiguity, confusion and uncertainty as to what is being transferred, and I believe that that desire for clarity would be very seriously affected by the amendment. As such, I ask my noble friend Lord Deben to withdraw the amendment. I should add that I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if my noble friend wishes to test the opinion of the House, he should do so now.

[Lord Deben]

I am sorry to have heard what my noble friend—especially this particular noble friend—has said in reply. She may say that, mayn’t she? But nobody else thinks that. Everybody else who has looked at the circumstances says that we should retain the rights that we have now and that if we want to change them, we should do so in a proper parliamentary way afterwards. That is all we are saying. We can talk about a lack of confidence and people not quite knowing where they are, but I have to say to my noble friend that people do not know where they are at the moment because the amendment is not something that the Government are taking up.

My noble friend then mentioned the word “snapshot”. I am a little tired of that word. If you want a snapshot, that is what this amendment is. It is a snapshot of where we are now, and we are saying that we stay where we are until we—the sovereign Parliament of the United Kingdom—decide to change that. Instead of that, we have not a snapshot but a fuzzy picture that has bits in it. They are the bits that the Government have decided are suitable for us and not the bits, some of them in the background, that are important for us.

I say to my noble friend that there was a time when I would have taken her arguments rather more seriously. Then I got the message that some of the promises that the Government made about taking care of what they do on the environment once independent and outside the EU do not seem to be forthcoming. All those things we were told about something parallel to the Committee on Climate Change do not seem to be coming forward as we were told they would be. This is at least a way of making sure that the Government continue to do what they have had to do under European Union law, until such time as they ask Parliament to change it.

I want to address two other things that my noble friend said. Do not talk to me about resources. This whole Bill is going to cost the British taxpayer more than anything one can possibly imagine. That is why, every time I ask how much this costs, the Government do not answer. This is the only Bill I have ever seen in front of Parliament that is uncosted in every detail. I declare an interest as chairman of an organisation that represents people who give financial advice. We have just looked at the cost to the financial industry of changing everything because we are leaving the European Union. I am merely saying that the resource costs of this Bill are enormous. So please do not tell me that we cannot have an audit of what we are implementing, making sure that they are the right things, because of resources.

The last thing I want to say is this. My noble friend said that there were a number of things here that, for one reason or another, are not quite what she would like even if she were prepared to help us. She has said that she is not going to help us, so I might have to be more unhelpful myself in the future. I want to say one thing about this that is not about Parliament but about the world outside. Increasingly, people are becoming very cynical about what the Government have in mind for the protections of our human rights, our environment and the other things that we hold dearest. They are beginning to think that preparation is being made for arrangements with other countries that will make it difficult for us to protect all those things, from animal welfare to human rights, which we hold dear. My noble friend may think that that is an unfair approach, and I am not suggesting that it is a true one; I am merely saying it is a perception. When a perception like that becomes as universal as it now is, it is up to the Government to remove it.

One of the ways they could do that is to make sure that nothing that now protects us is removed, except by parliamentary activity. That is what we ask for here. Although I will not press this amendment, I say to the Government that there is a political issue here. As a Conservative, I want to say that this Government will undermine their position unless they make sure that all those who care about these issues do not think that the withdrawal Bill will undermine their rights and protections. This Government have to recognise the seriousness of the position on those issues.

Amendment 12 withdrawn.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Inglewood (Con)]

My Lords, as much as by anything else, I was prompted to sign the amendment because I was unclear as to precisely what the Government’s plans might be in this area. As we all know, one of the basic principles of the Bill is to parachute existing EU law into domestic legislation so that on Brexit day minus one and Brexit day plus one, the rules to be adhered to will be the same—albeit that the constitutional framework and administrative structures around them may be quite different—so that, in the real world, it is a seamless transition.

Failure to bring that about will not only breach the principles behind the Bill but, probably at least as important, it is likely to bring chaos. One attribute of environmental law—I generalise—is that it is principles-based in its operation, involves a whole range of bodies and is in turn integrated with a whole lot of laws of different kinds around the world. I am concerned that the way that this sector works could mean that the seamless transition that we are looking for and discussing will not work in this context in accordance with the principles behind the Bill, because of recent political discontent echoed about some aspects of it. I am looking for reassurance.

[Lord Deben (Con)]

My Lords, the Government have been very clear in their promises, and this has helped many in their consideration of the Bill. I know that the Minister and I do not always agree, but I must say that I have been very impressed by the way the Secretary of State for Defra, with whom I also do not agree on the subject of the European Union, has been determined to ensure that our exit from the European Union will not mean that the protections we now have for the environment would be lessened. He has made that clear again and again.

I am indebted to a noble friend who pointed out that the Secretary of State nodded vigorously when the right honourable Sir Oliver Letwin said in the House of Commons:

“I am now confident that the Government will bring forward proper new primary legislation to create an independent body outside the House with prosecutorial powers that will replace the Commission as the independent arbiter to enforce environmental rules and to ensure that the Government are taken to task in court without the need for the expense of class action lawsuits”.


I think the whole House can accept that, wherever else we may disagree, we have come to the conclusion that the Government are serious in their intention in this area.

As chairman of the climate change committee, I have been very happy to celebrate recent decisions by the Government about the environment. The request for us to advise on how we might implement the decisions of the Paris agreement to move towards the goal of 1.5 degrees is welcome to all of us. I therefore want to see the promises made by the Secretary of State for Defra and the Government as a whole carried through. I am sure my noble friend understands why we have tabled the amendment: because of the urgency and uncertainty to which the noble Baroness, Lady Brown, referred.

Sir Oliver Letwin was very clear about this. He said:

“I am delighted to say that we have talked sufficiently to Ministers to be confident that they will be bringing forward both the consultation and the legislation in time to ensure that it is in place before we exit the EU. Of course, I would also want to wait until January to see the consultation to ensure that that engagement is fulfilled, and I am sure that the other place will want to look at what is said in the consultation and to assure itself that the new statute is coming forward before it consented to allow this Bill to proceed”.—[Official Report, Commons, 12/12/17; col. 227.]


That is why we have tabled the amendment. I know that my noble friend will accept that it contains only what the Government have said they wanted to do. It has done so in a way that, as nearly as possible, reflects the Climate Change Act, which has been so successful, and which the Government have been foremost in celebrating in this, the 10th year of it having been passed. What we want is to engage the Government in their own assertion. In this, I have to say that we have been supported right across the House. The Liberal Democrats, for example, have done a great deal to press this. The Cross-Benchers, the Labour Party and the Conservative Party have united in seeing this, as have Brexiteers and non-Brexiteers. I am sorry that my noble friend Lord Spicer is not in his place, but this is no plot of remainers; it is only a reflection of what the Government have promised to do.

I finish by saying to my noble friend that the reason we want this in the Bill is that it is crucial for people concerned about the environment to know in detail that this is protected. The problem with the environment, as my noble friend Lord Inglewood said, is that its protection is often not in individual laws but in the acceptance of the precautionary principle that we should not do anything that damages the environment. It is those things that make the difference.

I was converted to all this as a very young man when I first read Rachel Carson’s book Silent Spring. It reminds us that there was a time when people ignored all this. They did not think about it or believe that it mattered. We have moved from that to a point at which these principles are accepted. If we leave the European Union, there will be no way in which that is included within our legislation because the protocols, preambles and indeed, the generalised acceptances, are removed from this Bill.

This therefore is a reflection of what the Government say they want and adds nothing to it. I very much hope that they will feel that this is a moment when, however different we may be—I have sometimes been rather tough on the Government’s views—this at least is something that can be wholly accepted because it will carry through what the Government themselves said they would do.

--- Later in debate ---

[Lord Callanan]

That is not part of the amendment we are discussing, but I am happy to provide the noble Lord with that reassurance. Yes, we are discussing the exact nature of our participation in the various agencies during the implementation period.

I hope the commitments that I have made, in particular on the fact that the consultation on environmental principles will be published ahead of Third Reading, are sufficient for your Lordships to feel able not to press the amendment.

[Lord Deben]

I am very pleased with what my noble friend said about the environmental principles and the like, but will he confirm that, if the House feels, when those principles are published, that they are not sufficient and that we need to bring at least part of what we tabled here into the law of the land in the Bill, it will be possible for an amendment of that kind to be brought forward on Third Reading?

[Lord Callanan]

Yes, we are saying that we will be able to address this issue again after noble Lords have had a chance to look at the consultation on the statement of principles and the consultation on the new environmental body.

I hope my reassurances are enough to enable noble Lords not to press the amendment and that they will take the opportunity to consider the contents of the consultation before we get to Third Reading.

European Union (Withdrawal) Bill

Lord Deben Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Reid of Cardowan]

The noble Lord may be able to predict whether it will be better or worse, but any deal that is acceptable to the British Parliament would be better than the disastrous situation of no deal at all. But that may need time. Why have an artificial deadline cutting us off from the conclusion of a deal, which may be there in the bones or, in the famous words of the Brexit Secretary, as a “platform”—and deny ourselves the opportunity of having the alternative of a cohesive deal rather than no deal, which I think would be the worst of all worlds? This is an opportunity that we should take.

A lot of the debate on Amendment 49 was about the ideological motives of those who are handling this. As my noble friend and occasional protagonist Lord Grocott keeps pointing out, I was a reluctant remainer. I was sceptical about the eurozone and the bureaucracy and unaccountability of the European Union, but on balance I wanted to stay in because all the challenges that we face are global: cyber, terrorism, trade and the environment. Being part of a larger bloc is, on balance, worth it. Therefore, my approach to this is pragmatic, not ideological. I admit to being confused by the ideological positions of the leaders of the major parties. We appear to have the leader of one party who is ideologically inclined to remain in the European Union but doing her best to get us out of it, and a leader of the other party who is ideologically inclined to remove us from the European Union who appears to be doing his best to keep us in part of it. I am confused about the ideologies that are supposed to be driving this on all sides of the House.

I believe that we should take what the noble Lord, Lord Cormack, called a common-sense position. It is possible that the vote on the final deal could be little more than a deal or no deal choice, where a rejection of the Government’s Motion would mean the UK exiting the EU with no deal on WTO terms, which would be the worst possible option for the UK. That is not according to me, in my lack of wisdom, experience, depth and analysis, but according to the Government’s own impact studies. I believe that we must insure against that, which is what Amendment 62 seeks to do.

The Secretary of State told the House of Commons that the agreement will deliver the “exact same benefits” as our EU membership. That is basically what the noble Lord, Lord Hamilton, said our objectives were. As it happens, that is also the commitment of the Opposition Front Bench, which has adopted it as one of its six tests. Amendment 62 simply safeguards this commitment by guaranteeing that we keep our current benefits until a withdrawal agreement has been reached that can match our objectives. As the noble Lord, Lord Cormack, said, it is a common sense, pragmatic amendment. It has no political motivation and no ulterior motive, other than the objective of preserving the best for this country. That is what this whole debate is supposed to be about.

It is my great pleasure to support Amendment 62. I am grateful to the noble Lord, Lord Cormack, for indicating that, if time constraints prevent us pushing this to a vote later tonight, we may come back to it at another stage.

[Lord Deben (Con)]

My Lords, I do not think that this is really about the European Union. This is about parliamentary sovereignty. I have to say that I do not understand why it is that the Government do not want Parliament, in the end, to be in a position to make the decisions which these two amendments make possible. It seems to me, in any case, that that would be valuable to the Government in negotiation, because it would enable them to say that a deal, if both sides want a deal, is one that has to get through Parliament. However, I do not want to go down that route. I want to go down the route of parliamentary sovereignty.

This is the most important decision we have made for a very long time—perhaps the most important peacetime decision that we have made ever. There are people in this House on either side of the debate and I would not be able, even if I wished to, to pretend that I was not absolutely committed to one side. But I am also a parliamentarian, and it is clear to me that there is no reason why Parliament should not make sure that it is able to make a proper decision on this issue and to make a decision that does not leave the nation in an impossible position. All that these two amendments really do is to ensure that there is a sensible programme into which Parliament is “properly”—I use that word in almost a technical sense—conjoined.

Why should one not want this? Well, one might not want it because it is not properly drafted. Of course, the technique of Governments of all kinds is to say that they would be very happy to go along with something but unfortunately there is this or that technical reason why it does not work. Maybe that is so, but I would therefore ask the Government this: if it is technically wrong, would they come before the House with the amendments that would make it technically right? If they do not, they are saying that in this most important issue of all, the Executive are going to make the decision, and that they wish to leave themselves open to making the circumstances in which Parliament cannot make a sensible decision. They would be saying to Parliament, “Vote for us or total disaster and collapse”. This is the technique of dictators down the ages: “Me or chaos; me or something much worse”. This House should insist that the decision is in Parliament’s hands. That means avoiding circumstances in which it is possible for the Executive to say, “However bad this is, anything else would be very much worse”.

My noble friend Lord Hamilton is also arguing from a clear, previous position—so we are in the same situation. He asks whether we have any evidence that going back for a further negotiation would be better. I have been in business since I was 22, except for when I was a Minister, and I have never started by saying that if the negotiation was not successful I was not prepared to go back and see if I could do better. That is how you run businesses and make money. It is how you improve the circumstances. I do not know in advance whether I can achieve something better, but I would never say that I would never go back and put myself into a position in which I could not negotiate again.

So I say to my noble friend that all this amendment says is that if Parliament decides that a negotiated agreement is not satisfactory, then, and only then, the Government will have to go back and seek something better.

[Lord Hamilton of Epsom]

Is the negotiation with the EU not somewhat unique, because you are negotiating with 27 different countries?

[Lord Deben]

It is unusual to negotiate with 27 different countries, but I have negotiated with large numbers of different people on the other side. That is one thing that we just have to accept. It is, like anything else, a negotiation. If we think that it is so unique that we cannot do it, we should not have started the negotiation in the first place. It does not make any difference if you have a second negotiation: it is the same position that you had with the first negotiation. The fact that it is with 27 different countries makes no difference because it does not change from the first negotiation to the second. I do not think that my noble friend has a point on that.

The real issue is the fundamental fact: the amendment does not operate unless Parliament has voted in a particular way. The Government’s answer to the amendment must therefore be that they have a reason not to let Parliament continue to be involved after such a vote. The Government do not think that Parliament will take such a decision. They are very sure—and I have listened to government speakers again and again—that they will produce a result that will be cheered by Parliament. We will all be thrilled with what they have been able to achieve. I would be very suspicious if the Government’s answer is that they do not think they will get that sort of result and therefore do not want to get themselves into a difficult position. I am assuming that, whatever agreement they have, it will be a good one and this amendment will never come into operation.

The only reason for the amendment is to be a backstop for the circumstances in which the Government do not achieve what they tell us they can achieve and they therefore produce something that is so unacceptable that Parliament decides that it cannot accept it. The Government have to say, “What happens then?”. Unless they accept the amendment or some technically different one that suits them, their only answer can be, “We the Executive will decide”. That is why this is not about the European Union. It is about the powers of Parliament and it is why I am surprised at my noble friend Lord Hamilton, who was chairman of the 1922 Committee, who protected and defended the rights of Members of Parliament and who believes and believed in the nature of Parliamentary democracy. It is why I do not understand why this divides the House.

This should be something that both leavers and remainers—and those who wander between and those who are confused—all of us, should accept that we want Parliament to be in a position to accept and to decide. This will not work unless Parliament has decided that it does not want the agreed solution. The amendment will not come into operation unless that happens. Surely it is not too much to ask that the Government say, if we get to that point, that Parliament should have the right to ask the Government to go back and try again.

[Lord Adonis]

My Lords, I am a great admirer of my noble friend Lord Reid and therefore, if he presses this to a Division later on in the evening or at whatever hour of the night we get to it, I will of course support him. I have nothing against the contents of the amendment because it is clearly desirable that, if we cannot support the Government’s treaty, the default should be that we stay in the EU unless the House of Commons has a better set of propositions that it wishes to agree to.

However, my concern is that there is a certain element of unreality to the proposals to try to bind the hands of the House of Commons as to what it may or may not do in the autumn. One of two things will in fact happen when the Prime Minister presents her treaty. The House of Commons will either vote for it or vote against it. There are no other alternatives. If the House of Commons votes against the treaty, that is, to all intents and purposes, a Motion of no confidence in the Government. There has not been an incident since Gladstone’s Home Rule Bill in 1886, which was rejected by the House of Commons, where the central plank of a Government’s policy was rejected outright by the House of Commons. The idea that there could be a further negotiation after that is entirely unrealistic. The negotiation would have been concluded with the European Commission and the Council of Ministers, and ratified or not by the European Parliament and so forth. It is not realistic in the real world to expect that there would be further negotiation.

In the eventuality that the treaty is rejected, there are only two things that could conceivably happen. Either there will be an election because the Government have been defeated on what is in effect a Motion of confidence—it might take a formal triggering Motion under the Fixed-term Parliaments Act to produce it—or there will be a referendum, which we discussed earlier. A referendum could happen if the House of Commons itself resolved that there should be one immediately after the defeat or perhaps as an amendment to the Motion that the noble Lord, Lord Callanan, has said would be tabled. Everything else beyond that seems to be superfluous. The policy of the Government will then be the outcome of the referendum or the outcome of that election. A Government will have to be formed after the election, which will have to have a European policy and that will then be the policy of the Government that they would seek to negotiate in Brussels. There would either be some amendments to the treaty, if that is possible or—as I hope there is a Labour Government—there will be a decision not to proceed with Brexit, or there would be a referendum and we would proceed with the outcome of that referendum.

I say all that mainly to my noble friend on the Front Bench and her colleagues in the other place. There is no point in engaging in this displacement activity at the moment and making it sound as if we are being very tough on Brexit by placing ever more elaborate manacles and handcuffs on what might or might not happen in the vote in October. The only thing that really matters is the attitude of the Labour Party when the Government present their treaty. Either we are in favour of it or we are against it. If we are against that treaty, I can assure my noble friend that everything else will take care of itself. If we are against the treaty and vote against it, we do not need all the protections in this Bill. One of two things will happen. Either there will be another referendum or there will be an election. If there is an election, what matters is the policy of my party in that election. Will we or will we not proceed with Brexit if we win the election? Very simple facts of political power come into play.

What happens in Parliament after that will depend on those decisions. Ever more elaborate provisions in this Bill are, I say respectfully, entirely beside the point because they miss the reality of political power. That is that there has to be a Government, they have to have a policy and that can come from only one of two ways. Either a new Government are returned if this Government are turned out on the treaty or there is a referendum that will determine it.

I am entirely in favour of everything in my noble friend’s amendment and I hope that it will be warmly welcomed from the Front Bench, but what really matters, I say to my noble friends, is the policy of the Labour Party when the Prime Minister presents her treaty. If we are against the treaty and we are successful, there has to be either an election or a referendum. I am afraid that there are no alternative options on offer.

European Union (Withdrawal) Bill

Lord Deben Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I support the amendment moved by the noble Lord, Lord Krebs. The environmental principles were debated at length in Committee and again on Report. Then, as the noble Lord said, the Minister assured us that a consultation document would be forthcoming before Third Reading. Indeed, it was published last Thursday. In paragraph 9, on page 2, it states:

“This consultation explores the functions of a new, independent, statutory environmental body to hold government to account on the environment and support our longer term objective on this, to be the first generation to leave the environment in a better state than that in which we inherited it”.


This has been the stated aim of the Secretary of State on many occasions, and the aspiration is covered in the 25-year environment plan. He further aspires to have a world-leading environmental watchdog to safeguard the environment. I fear that this accountable body proposed in the Environmental Principles and Governance consultation falls a very long way short of being a world leader. Neither will it deliver the fine words in paragraph 9 of the document.

As the noble Lord, Lord Krebs, has already demonstrated, advisory notices are not likely to bring polluters to book, nor safeguard the habitats and environments of the countryside and towns that we hold so dear. This is far weaker than the current arrangements through which the European Commission has the power to initiate court action to remedy breaches of environmental law. A world-leading watchdog needs strong legal powers, not merely the ability to make suggestions and issue advisory notices.

The weakness of the powers, functions and scope of the consultation is disappointing. The amendment seeks to remedy that by insisting that environmental law be complied with. While it may often be possible to ensure compliance without recourse to the courts, an effective watchdog will need a range of meaningful legal powers, including the power to initiate court action.

It is essential for the new institution to engage closely with those affected by environmental problems, but the consultation document does not even commit to receiving complaints from the public. This represents a backward step from the complaints process currently in place. Additionally, the consultation is limited in its jurisdiction and suggests that the remit will apply only to central government, and not to other public authorities.

Restricting the enforcement role to central government will take away important safeguards, and risks alienating communities from those responsible for looking after their local environs. It will not be possible to challenge those who make the decisions that affect people and nature directly and personally. The few teeth the watchdog has will fail once people realise that it cannot help them solve the environmental problems they face. The amendment makes it clear that the watchdog and the principles should apply to public authorities in general, rather than only to central government.

Although the publication of the consultation is welcome, it does not provide the reassurances and certainty that many stakeholders had been expecting. As the noble Lord, Lord Krebs, said, it contains no commitment to enshrine environmental principles such as the precautionary principle and the “polluter pays” principle in the forthcoming Bill. Instead, we can look forward to a “policy statement”. Previous experience of policy statements in relation to biodiversity is that they have proved ineffective.

The Government have promised a world-leading environmental watchdog and enhanced environmental standards after Brexit, yet, in practice, the consultation proposes to give the environment less protection after Brexit than exists now. The status of the environmental principles is at risk of being downgraded and the proposals for a new watchdog are far from world-leading.

There is no timescale for the Government to publish their response to the consultation, nor can we be assured that the environment Bill will appear in the autumn. There are many examples of government proposals stalling, including there still being no clarity on when the Government intend to announce the next steps following their call for evidence on the important issue of corporate liability. The consultation closed in March 2017 and the response has yet to be published.

The Government wish us to be the first generation to really make a difference to the environment. The clue to how the environment will be protected and saved is in the word “generation”. That means all of us—not just Cabinet Ministers and the Government, not just Members of the other place, nor even just Members sitting in your Lordships’ Chamber today. Nor is it to be left to the public, who have had the decline in the state of the environment brought to their attention so vividly by Sir David Attenborough.

We cannot afford to leave a gap in environmental legislation that might allow irreparable harm to be done. Every single one of us must play our part, but we will not be able to safeguard our environmental assets—living and breathing, growing and archaeological —if the watchdog on which we rely has no teeth to operate. We have an opportunity today to act; I urge your Lordships to take it.

[Lord Deben (Con)]

My Lords, I declare an interest as chairman of the climate change committee. That is why I strongly support the amendment. We see here exactly what played out during the debates on the climate change committee.

I want first to thank the Government for a serious attempt to move in the direction we wanted. My noble friend and I have not always agreed, but what he promised in the sense of a real contribution has been made. What we have to say now is only in sadness rather than out of any antagonism. My noble friend Lord Framlingham, who followed me in part of my former constituency, really cannot say that this is an irrelevant amendment, because we are talking about what the Government have placed before us. This is part of the withdrawal Bill; it has nothing to do with our pro or anti-Brexit position.

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

Of course not.

[Lord Deben]

If my noble friend is going to say that, I shall find it rather difficult to move towards him, because it is not; I speak as chairman of the climate committee because it is not. The reason I speak is simply this: we were promised that we would pass into UK law all the protections that we have as members of the European Union, so that, on the day after our leaving, we would be in the same position in respect of those protections. Under the present arrangements, we will not be.

As I say, this repeats what happened with the climate change legislation. The then Government were in favour of it in general, but when it came to the detailed powers, the Treasury opposed it. The Minister in Defra, or at least its equivalent in those times—it was then the Minister at the Department of Energy and Climate Change—was in favour of those powers. That battle was fought in the then Government, and they decided that they would not give the powers until we were able to show that there were enough Labour Members to give a majority in the House of Commons so that they would have to give way. Happily, it therefore became an all-party Bill that we can all claim credit for, passed by the Labour Government and ultimately supported by every party in Parliament.

--- Later in debate ---

[Baroness Jones of Whitchurch]

No, I am not going to give way. The noble Lord has already had several opportunities to intervene, and he does not have the support of the House behind him.

[Lord Deben]

Would the noble Baroness please give way? It is sensible in debate to give way, and I hope that the noble Lord, Lord Framlingham, will be allowed to intervene.

[Lord Framlingham]

I am grateful to the noble Baroness for giving way. The point that I am making—

--- Later in debate ---

[Lord Callanan]

Yes. All current processes will continue until the end of the implementation period.

The Government have acted as a responsible Government should. They have done what this House invariably asks them to do by setting out a range of options and inviting views to inform policy through the consultation process.

[Lord Deben]

Does my noble friend mean that, until the end of 2020, we would be able to take an enforcement action to the European Court? If he does not mean that, the system does not continue and the Government do have to put into the Bill an alternative. But if he does mean that, it is a revelation.

[Lord Callanan]

My Lords, as we have announced on numerous occasions, there will be further legislation to consider this matter when we have completed—