Civil Procedure (Amendment) (EU Exit) Rules 2019

Debate between Lord Foulkes of Cumnock and Baroness McIntosh of Pickering

Monday 25th February 2019 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, I hesitated to rise because I was sure that a number of other people would raise issues. A number of distinguished lawyers, people who understand the constitution better than I do and people who understand, even more than I do, the implications of what we are doing are present. We are dealing with something of monumental importance. Those of us who are astonished at the way that the Prime Minister is acting at the moment—as though she were a dictator in a banana republic—are amazed at the way that some Members of Parliament of both Houses seem to be sitting back and letting it happen.

The implications are astonishing. We have already looked at them in relation to visas. We are now told that if we come out of the European Union at the end of March we will have to have visas, and it will cost €60 to go to countries which we can now go to freely and as many times as we like. We will have lorry parks all over Kent because of the arrangements for customs clearance. There are questions over medicines and food supplies, which people are really worried about. The president of the CBI is warning us on behalf of all industries of the Armageddon that we face. On aviation, we have already discussed how we are still concerned that flights might not be guaranteed to all destinations after the end of March.

We now come to a life or death matter which is of great importance to everyone. We are talking about sanctions against Daesh or ISIS, action against Russian oligarchs and dealing with terrorists. These are major issues. All it needs is for some mistakes to creep into the statutory instrument that we are considering for something dreadful to happen and for us to fail to be able to deal with terrorists in the future or impose sanctions when we wish to. There are likely to be unintended consequences if we get this wrong.

Normally, if we were starting from scratch, we would go through primary legislation line by line. The noble and learned Lord, Lord Mackay, with his huge knowledge, would alert us to some of the imperfections contained in it and my good friend, the noble and learned Lord, Lord Hope—again, from his great experience—would point out some of the difficulties. We would go through it line by line and be able to consider and vote on amendments. However, because this is being dealt with through a statutory instrument it is, again, a take-it-or-leave-it situation.

It is absolutely unacceptable for a Parliament to be treated in this way. I find it astonishing that people whom I know to be manifestly concerned are willing to sit quietly and let this get through. This is not acting as a Parliament and scrutinising something in the way that we should; it is a meek acceptance of something being pushed through, having been started to patch up differences in the Conservative Party for party-political reasons by David Cameron, who has now fled the scene. He is no longer with us or taking any responsibility for the mess that he has got us into. Other people spread lies during the leave campaign about what was to happen and some of them, for a while, took the Queen’s shilling, but they are no longer with us or taking responsibility for what is happening. It is outrageous that this is being undertaken. I hope that at some point before the end of March, more and more people will get up and call the situation unacceptable, which it is. If we allow all these statutory instruments to go through again and again—day after day, without question or challenge—then we are not fulfilling our function as a legislative Chamber of the Houses of Parliament of the United Kingdom, and we should be ashamed.

[Baroness McIntosh of Pickering (Con)]

I am not outraged. I welcome the statutory instrument. I have merely a factual question to put to the Minister. Paragraph 3.4 on page 1 of the Explanatory Memorandum says:

“In the view of the Department, for the purposes of Standing Order … the subject matter of this entire instrument would be within the devolved legislative competence of the Scottish Parliament if equivalent provision in relation to Scotland were included in the Act of the Scottish Parliament”.


My understanding is that the current legislation is governed by the regulations adopted in Scotland in 2017. Can the Minister tell us how the department in question reached that conclusion, and what discussions were had with the relevant department and with the Scottish Parliament itself before bringing forward the statutory instrument today?

Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018

Debate between Lord Foulkes of Cumnock and Baroness McIntosh of Pickering

Tuesday 18th December 2018 Lords Chamber

[Lord Foulkes of Cumnock]

I do not. It is not just Michael O’Leary who has said that. I am trying to be briefer than usual, but if I was going to go on for longer I could mention many other examples. But if Michael O’Leary is wrong, we need to be told unambiguously that this is not one of the real threats from a no-deal Brexit.

Among the 700 statutory instruments required for the crazy prospect of a no-deal Brexit, the Secondary Legislation Scrutiny Committee drew special attention to these regulations because they,

“give rise to issues of public policy likely to be of interest to the House”.

That is why I negatived them in Grand Committee, so that we could have a debate in the House. That statement is certainly true, and the more we know about the potential implications, the greater the interest will be in this—and, I think, the greater the anger is likely to become. For example, how many people realise that it is not only flights within the European Union that are threatened by a no-deal Brexit? The whole basis of our aviation relations with the rest of the world is via the European Union. In all, the EU governs direct UK aviation access to 44 other countries, including the US and Canada. My second request for a guarantee is: what guarantees can the Minister give today on a smooth transition, which means no groundings or delays, for these routes beyond? Remember—we are going to keep careful note of this.

Also, what steps have been taken to guarantee that our safety and maintenance regimes, which again are framed within the EU regime, will be acceptable to every country in Europe and the wider world after 29 March? According to the European Aviation Safety Agency, certificates previously issued by the CAA before exit day would no longer be automatically accepted in the EASA system after 29 March. Has there been any progress on a definitive answer to the massive implication of that statement? How is it to be resolved?

When we last discussed these matters, the Minister was unable to say how many extra staff the CAA has taken on, or will take on, for its hugely increased workload. This is one of the many costs of preparing for Brexit; it is already taking on more staff. Can she give us an indication today of how many staff will be needed to deal with route licensing in that hugely increased workload, as well as its other responsibilities? These are huge questions. We are only three months away from our potential exit from the European Union, unless some hand of fate intervenes. We do not want vague assurances that discussions are continuing. They will guarantee nothing, and both business and private travellers now need specific, hard and clear assurances from the Government who have led us into this cul-de-sac.

I am not going to press this to a vote today. I would have liked to have done so, but some of my colleagues have said, “Let’s give the Government an opportunity to answer these points”. It is not because I am in any way satisfied, but I will give the Government the opportunity to make their explanation and give us the guarantees today. I am sure that the Minister will recognise that this in no ways absolves the Government from finding a solution that avoids a no-deal Brexit, thereby eliminating the extremely serious threats to civil aviation that we are discussing. Let us hope that sense prevails and we are not faced with a no-deal disaster—otherwise I believe that the kind of things I have predicted today will cause tremendous problems after 29 March. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that this little debate has been called. I declare my interests at the outset, as a former transport spokesman in the European Parliament and a one-time rapporteur on a civil aviation report. Subsequently, I was a spokesman in the House of Commons for the Conservatives when in opposition.

I would like to put a number of small questions to my noble friend the Minister today. The House has been particularly well served by the Secondary Legislation Scrutiny Committee’s report on these regulations, which raised a number of policy issues that need to be addressed. I must say that I find the amendment to the Motion that the noble Lord, Lord Foulkes, has put before the House quite attractive.

My question relates to the implications for air service agreements with the EU and the EEA. There is also a broader question which does not seem to have been addressed in these regulations which I know is causing great concern. I omitted to say that at the time I married my husband he was an airline executive and is now in receipt of a pension from Delta Air Lines. I have not consulted him on my notes today, but perhaps it would have been better to have done so.

American carriers are concerned about cabotage and their right to fly internally within the EU. We are currently part of the common travel area. Will my noble friend address what happens when the United Kingdom leaves the European Union on 29 March regarding the fourth and fifth freedoms and US and other international carriers? That does not seem to be addressed in this regulation, but I know it will be exercising many of the airlines at this time.

Page 4 of the Secondary Legislation Scrutiny Committee’s report raises a number of issues and I think the House will take a great interest in the Minister’s reply. Paragraph 16 states:

“In the event of no agreement, EEA airlines will now also need to apply for a foreign carrier permit to operate in the UK”.


As suggested, I would like to press the Minister about the basis on which these expectations are founded and what co-operation and negotiations she is having with EU carriers to ensure that the necessary permits will be in place before 29 March so that there is no gap in aviation post Brexit. How long does the Minister think it will take to apply for these permits? What cost will there be to the airlines in this regard? Will she take this opportunity to correct what I hope are incorrect newspaper reports over the weekend that passengers are being told not to fly after 29 March next year because it is all too difficult to know what rights will be in place and what permits will be required for passengers to apply for visas or permits to travel?

I would also be grateful for a response from the Minister on this question. When she referred to the current wet leasing arrangements, she said that this will be in relation to reciprocity. How will this carry on after 29 March, particularly as it is understood that carriers may not benefit from the current arrangements once we have left the European Union?

The amendment to the Motion tabled by the noble Lord, Lord Foulkes, asks for UK membership of the European common aviation area. Does my noble friend have a date for the application that we intend to make to that area?

I shall conclude with a general point. I understand that these regulations might have been put forward as a draft negative, in which case I am not sure that we would have had the chance to consider them. If that is the case, the House was given a very clear understanding during the passage of the EU withdrawal Bill that no policy should be decided by secondary legislation and that all policy should be decided by primary legislation. My fear is that the statutory instrument before the House today is getting perilously close to determining policy. I hope that the Government will put down a marker that when it comes to other Bills, such as the Agriculture Bill and the environment Bill, no policy will be applied through regulation but will be in the Bill. When we were in opposition that was always our very clear understanding.