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.

--- Later in debate ---

[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.