European Union (Withdrawal) Bill

Lord Hannay of Chiswick Excerpts

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

[Baroness Butler-Sloss]

I do not know the answer to that because what I have been told by Gibraltar House, in particular by Fabian Picardo, the Chief Minister, is that there have been careful discussions with various Ministers, particularly the Minister for Exiting the EU, and that there will be protection during the transition period. There are also careful negotiations between Gibraltar and the UK on what happens after Brexit takes place. Those are not finalised, but the Gibraltarians are confident that they will get what they want because the Government have said that they wish to ensure the seamless continuation of the existing market access into the UK and to enhance it where possible.

Perhaps I may move on. The UK Government have been clear and insistent in stating that they are negotiating for the whole of the UK, including Gibraltar, and are standing shoulder to shoulder with the Gibraltarians in their unswerving commitment to the UK/Gibraltar relationship. However, I would add that the threat from Spain is real and continuing. Only in the past week or 10 days, another threat has come from Madrid about the exercise of the veto. However, the Gibraltar Government have accepted the assurances of the United Kingdom Government that the existing market access arrangements between the UK and Gibraltar will not be affected by the exclusion of Gibraltar in any sort of veto exercise by Spain during the transition period. Moreover, as I have said, there are continuing discussions about the position post Brexit and there remains, I have to say, a continuing threat from Spain. Perhaps unlike the noble Lords across from me in the Chamber, I would like to congratulate the Government on their approach to Gibraltar and how they are working with the Gibraltarians.

Gibraltar is a strong and faithful friend of the United Kingdom—it is important to remember that—and it deserves to be looked after properly. I can assure the Committee, however, that everything I have seen leads me to believe that the United Kingdom is acting entirely fairly and correctly. It is doing its best, and it is a good best, to make sure that the arrangements for Gibraltar during the transition period—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the noble and learned Baroness for giving way. I shall speak in support of the amendment before it is withdrawn, but if I have understood the noble and learned Baroness rightly—I have also received a letter from the representative of Gibraltar in London—everything she has said relates solely to the relationship between Gibraltar and the United Kingdom. I have to say that that is not the heart of the matter. The relationship between Gibraltar and the United Kingdom has existed for 350 years and is not affected one way or the other by our membership of the European Union, so the Government are generously giving the Gibraltarians back what they already have.

What I should like to know is whether the noble and learned Baroness, because she is much better informed than I am on this matter, is aware of what has been agreed for the transitional period and the period beyond on the relationship between Gibraltar and the rest of the European Union.

[Baroness Butler-Sloss]

I can be corrected on this, but I think I am right in saying that much of what was arranged between Gibraltar and the United Kingdom on the business between the two countries was directed by the EU, and consequently it is important that the arrangements between the United Kingdom and Gibraltar make it absolutely clear that all trade between the two countries would continue unimpeded. I know no more about what is being said about Gibraltar and the EU than, I suspect, anyone else in the Chamber other than the Minister, because I assume that all of this is subject to the negotiations. But the United Kingdom Government have promised that they will stand by Gibraltar and that they will make sure that they are negotiating for Gibraltar as well as the whole of the rest of the United Kingdom.

I am not in a position to say any more than that, but the amendment was necessary when I tabled it. It is clear that it is not necessary now, but I was not asked to withdraw it. I would not have dreamed of accepting such a request. I was told that it was not necessary for it to go to a vote and that the Gibraltar Government would prefer us not to vote on it, for perfectly obvious reasons. If relations between Gibraltar and the United Kingdom Government are as good as I am told they are, I do not have the slightest desire to rock the boat. I do not propose to take this amendment any further beyond Committee. I beg to move.

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[Lord Chidgey]

I can only say to the noble Lord that it is quite obvious that we have a long way to go to reach an agreement between the United Kingdom and Spain. It is worth remembering that the issue of the sovereignty of Gibraltar, which is with the UK, has been set in stone and not necessarily agreed by Spain. The offer of any talks about Gibraltar’s future with Spain are set in stone to be entirely dependent on the agreement of Gibraltar. However, further than that we have not gone.

[Lord Hannay of Chiswick]

My Lords, I declare an interest in this matter because I was a part of the accession negotiating team rather a long time ago and responsible for the conditions that related to Gibraltar. Subsequently, in the early 1980s, I was sent to Madrid by the then Foreign Secretary and the Minister for Europe, Lord Hurd of Westwell, to ensure that the Spanish Government opened the border before they tried to get the British Parliament to ratify their treaty of accession. So I have had a little bit of experience of this.

We should be absolutely clear that Gibraltar’s status depends automatically from our membership; it was not negotiated or negotiable, because Gibraltar was a European territory for whose foreign affairs we were responsible. There is no question of it being negotiated—I have to admit that it was slightly easier that Spain was not a member of the European Union at the time we joined. Where we wished not to apply the treaty as it was drafted in 1956 to a European territory for which we were responsible—namely, the sovereign base areas in Cyprus—we had to negotiate an opt-out because, otherwise, they would have been automatically included in all the provisions of our accession treaty.

It follows from this, I think, and this is where I turn to the Minister, the fount of all wisdom, that on the day we leave—not the end of the transitional period—Gibraltar’s status within the European Union must cease. It will no longer be a European territory for whose external relations a member state is responsible, because, if the Government have their way, the United Kingdom will not be a member state of the European Union on 30 March 2019. I support the amendment because it is still pretty necessary, but can the Minister tell us how the transitional provisions, which relate to a United Kingdom outside the European Union—that is the determined wish of his Government—will be affected from 30 March? Which provision in the agreement on the transitional period reached in Brussels last week—a very welcome agreement—will cover Gibraltar, which is the dependent territory of a country which is outside the European Union?

Going slightly wider, we have to look beyond the relationship between Gibraltar and the UK, important as that is and welcome as the Government’s assurances to the Government of Gibraltar are—they are extremely welcome—to the relationship between Gibraltar in the future and the European Union as a whole. That will not be easy, frankly. Anybody who thinks it will be easy to negotiate ain’t seen nothing yet: it is not going to be easy, it is going to be very problematic.

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[Lord Callanan]

Of course I understand those concerns and why the industry needs to be properly regulated. That is being done and we are working with Gibraltar to ensure consistent regulation across the two territories. But of course that is not a matter for the Bill, I am pleased to say.

I hope that, with those reassurances, I have addressed the noble and learned Baroness’s concerns—

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way, but he has left us—and, through us, the Gibraltarians—in a degree of uncertainty. I imagine he will have difficulty replying to this, but presumably he does not think we can negotiate better terms for Gibraltar’s access to the EU 27 than we negotiate for ourselves. That would be a pretty startling victory for the Government, which might just be beyond their powers. If that is so, and as the Prime Minister admits that our access to the European Union 27’s market will be less good after the end of the transitional period than it has been while we are a member, presumably Gibraltar will have to take a hit too.

The second question, which the Minister has not addressed at all, concerns the movement of people across the border between Gibraltar and Andalusia. What does he envisage for that? Presumably, the immigration Bill, which may one day cease to be a mirage floating out there, always several months away from us but never quite attained, will one day be sitting on our Order Paper and will have to regulate how Gibraltar treats migrants or other people crossing that border who currently and during the transitional period are covered by free movement. What are the Government’s plans for that?

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[Lord Hannay of Chiswick]

My Lords, I support this amendment, which is in my name, too, and also Amendment 343, which contains more of the same objective. The purpose of the amendment, as the noble Baroness, Lady Hayter, has said, is to remove from the Bill the date of 29 March 2019 for its entry into force. Putting that date in the Bill is neither necessary nor desirable—and that, clearly, was the view of the Government when they tabled the Bill because, as the noble Baroness said, there was no mention of that date in the Bill at all when it was tabled last April. It was subsequently inserted—for reasons that I shall not dwell on, because I do not particularly want to speculate about dealings within the Government’s party; they were clearly something to do with that—only at a later stage, at which point there was a lot of rejoicing from those who believe that leaving the European Union at any cost is a good and noble objective. The formulation was then watered down a bit by the House of Commons before it sent it to us—but I suggest that it should be removed altogether.

The Government have basically dealt with the issue of whether the date is necessary. It is perfectly clear that it is not necessary, otherwise why did they table a Bill without it? But is it desirable? On desirability, I would argue strongly against it, as has the noble Baroness, Lady Hayter. For one thing, it risks closing off one option that exists under Article 50 and will exist all the way through to 29 March: namely, that the EU 27 and the UK might, by common accord, wish to prolong the two-year cut-off date from the time of notification of our intention to withdraw. I do not intend to speculate under what circumstances such a wish might arise, because they are manifold. It could be for a very short period of a purely technical kind due to an absence of time to conclude all the work that needed to be done, or it could be for a longer period, which would obviously have rather more important implications. The Brexit committee in the other House has raised that possibility; it has canvassed it and I do not think that it is wise for us to put in this Bill something that contradicts it.

The point at issue is not whether such a postponement of the two-year deadline might or might not be in the national interest. We will only know that when the debate on it takes place. I argue that to foreclose the option now, so as to make it difficult—probably impossible—to proceed in that way is not sensible; rather, it is irresponsible. I have no doubt that the Minister will tell us that the Government have no intention whatever of making use of the postponement option. Her script can be easily imagined—and it is of course the Government’s entire right and privilege to say that. However, that is different from trying to bind Parliament to say it, which is what they are seeking to do with this provision: to lock us all into the Brexit tower and throw the key out of the window. That is never usually a very good way of proceeding.

So I hope that, on further consideration, the Government will agree. All they are being asked to do is revert to the original form of the Bill which they themselves introduced last July and to have no reference in it to the date of 29 March.

[The Duke of Wellington (Con)]

I support Amendment 334, a cross-party amendment to which I have added my name, and which goes with Amendment 343. As other noble Lords have said, it is a modest amendment which simply restores the original wording of the Bill. As has also been said, here and in the other place, the Bill is about process not outcome. The amendment makes no attempt to delay the date on which we leave the EU. I believe that we will be told by the Government that one justification for putting the date in the Bill is to remove uncertainty. There are many uncertainties ahead of us, post Brexit, but there is surely no uncertainty about the date on which we leave the EU. It is clear that, under Article 50, we leave the EU on 29 March 2019 unless it seems at the time to be in the national interest for the Government to request a limited extension or delay in order to complete the process of withdrawing.

It could be that the withdrawal and implementation Bill has not yet passed through both Houses of Parliament. The European Parliament may not yet have passed it. There could still be matters to negotiate. There could be various reasons, but the point is that it could be in the national interest, at the time, to seek a delay. I am sure that a small delay would be granted by the other 27 member states if we were near the end of the process. I am aware that an amendment tabled in another place by Sir Oliver Letwin gave Ministers the power to change the exit date. However, I believe it is right—this is the fundamental point of the amendment—for this House to ask the other place to think again about the necessity of putting the date in the Bill. Is that necessary? Is it expedient? This amendment and the related amendments are intended to give the Government, and Parliament, greater flexibility. I hope the Government will accepted them in the spirit in which they are intended.

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[Lord Hannay of Chiswick]

I am most grateful to the noble Baroness for giving way. She seems to have overlooked the fact that the Government will be perfectly capable of putting a date into the implementation Bill, which they have told the House will be brought forward before 29 March and which will be after the conclusion of the negotiations, and that will not present the same problems as doing it now. She also, if I may say so, has not dealt with the fact that it is frankly irrelevant whether, when the Government tabled the Bill, the non-mention of 29 March left it all to Ministers or left it all to Parliament. What is relevant is that the Government did not see the need to put 29 March in the Bill at all.

[Baroness Goldie]

Turning to the last point first, I have, for the sake of the noble Lord, tried to clarify where the Government were—as he rightly indicates—where they went, and why they went to that position. I cannot add to that: that is why we are in the position that we currently are. I will cover his other point about the connection with the implementation Bill, and I hope he will show me forbearance and let me deal with it.

I turn to Amendments 334 and 343, tabled by the noble Baroness, Lady Hayter, which seek largely to bring the Bill back to the state of its original drafting. However, as I have already set out, the Bill was not acceptable to the elected Chamber in that state. Instead, an acceptable compromise was reached that does two things: it simultaneously diminishes the power of Ministers in exercising delegated powers and increases the role of Parliament. It also introduced flexibility in varying the date, if required. It is not the case, as the noble Baroness suggested, that it is a straitjacket. That fear of rigidity and inflexibility was echoed by the noble Lord, Lord Hannay, in relation to the hypothetical extension of the Article 50 period. If that were to happen, exit day would then be linked to when the treaty ceased to apply, and the flexibility to vary the date is then expressly provided for in the Bill.

The noble Baroness, Lady Hayter, was worried that the insertion of a specific date in the Bill would somehow prejudice the Government’s ability in the negotiations. However, it is the very flexibility that is now in the Bill that enables the Government to respond sensibly and responsibly to whatever the negotiations may produce. That was also a fear on the part of my noble friend Lord Tugendhat and others, but the Government argue that, far from the flexibility prejudicing the negotiations, it facilitates and provides elasticity in the conduct of the negotiations. Given that, I regret that I am unable to support the noble Baroness and the Opposition Front Bench in attempting to overturn the existing provisions of the Bill. We believe that what emerged from the other place strikes the right balance.

I understand that there are concerns regarding the interplay between the implementation period and exit day. However, as I will reiterate shortly, this is not a Bill designed to legislate for the implementation period.

I move now to Amendment 345A, tabled by the noble Lord, Lord Adonis, which would remove part of Clause 14(4)(a). It always distresses me to disappoint the noble Lord, Lord Adonis, but not only am I not departing from my script—as he was speaking, I was busily adding to it. With his amendment, if the date at which the treaties cease to apply to the UK is different from the date we have put in the Bill, Ministers could amend the definition of exit day to any new date and not just the new date on which the treaties will cease to apply, as the Bill currently prescribes. The Government are conforming to international law, and we want to keep the Bill in line with that position. That is why we are unable to accept the noble Lord’s amendment.

Amendments 344 and 346, tabled by my noble friend Lord Hailsham, take a different approach, including seeking to insert a new clause which would make the exercise of powers under Clause 14(4) subject to a parliamentary resolution. Paragraph 10 of Schedule 7 already provides explicitly for a parliamentary vote on any changes to exit day. This was part of the compromise reached in the other place and is, I suggest, an appropriate level of scrutiny.

Amendment 334A, tabled by the noble Lord, Lord Adonis, attempts to shift the setting of exit day into the statute enacted for the purpose of Clause 9(1) of this Bill. I understand the noble Lord’s amendment to mean that he wishes exit day to be set in the withdrawal agreement and implementation Bill—something to which the noble Lord, Lord Hannay, referred a moment or two ago. With respect, I think we are familiar with the sentiments of the noble Lord, Lord Adonis, when it comes to leaving the EU, and I appreciate that within this House he is not alone. However, with regards to Clause 14, the failure to set an exit day for the purposes of this Bill has no bearing on whether or not we leave the EU, but such a failure certainly affects the manner in which we leave. If we cannot set an exit day, many functions of the Bill which hinge upon it—such as the repeal of the European Communities Act and the snapshot of EU law—would simply not occur. That would render the Bill largely redundant, preventing us from providing a fully functioning statute book and creating a void leading to total legal uncertainty when we leave—but we shall still leave.

Amendment 335, tabled by the noble Lord, Lord Wigley, attempts to set exit day at the end of the implementation period. I can appreciate the argument made here, which has been mirrored by some of the contributions made today. However, it is not the role of this Bill to legislate for the implementation period; that is for the forthcoming withdrawal agreement and implementation Bill. To do so in this Bill would link its operation inextricably to the ongoing negotiations, which is not the intention of this Bill. This Bill is intended to stand part and is—I have used the phrase previously—a mechanism or device whereby we avoid the yawning chasm which would occur if a huge bundle of very important law disappeared into a black hole. We cannot allow that to happen.

I accept that Amendment 345, tabled by my noble friend Lady Wheatcroft, is well intentioned. However, I suggest that it is unnecessary. I believe that the intention behind this amendment is to ensure that exit day can be changed if Parliament resolves to instruct the Government to request an extension of the Article 50 process—this was the point to which the noble Lord, Lord Hannay, referred. But as I pointed out earlier, if the Government were to make such a request, and that request was granted, the power would be engaged by virtue of subsections (3) and (4) anyway, so it is covered. I also reiterate a point made in an earlier debate that, fundamentally, it is our belief that we should not extend the Article 50 period and that this Bill is not the vehicle to raise questions of whose role it is to act on the international plane.

I finish by quoting directly from the Constitution Committee’s report on the Bill, which I know we all hold in high regard. It said that, on exit day:

“The revised definition of ‘exit day’ in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between ‘exit day’ as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK”.


I realise that I may not have persuaded all of your Lordships of the Government’s position but I would at least hope that noble Lords will have some regard to the committee’s assessment of this issue. On that note, I hope the noble Baroness will agree not to press her amendment.

The noble Lord, Lord Newby, asked a pertinent question. He said that the Government have indicated in the draft agreement published recently that certain provisions apply, and he referred to a particular paragraph. I merely remind him that the Government have said before that nothing is agreed until everything is agreed, and the exit day power gives the Government the flexibility to reflect whatever is agreed in the final text of Article 168.