European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, three and a half years after the referendum, at long last the people’s decision that we should leave the EU will be honoured, as Parliament passes this withdrawal legislation. There are issues about Parliament’s role in the process provided for in the Bill, but the major constitutional crisis of Brexit, the clash between the people and Parliament, is over. We are at a historic turning point for our country. The withdrawal from the EU that this Bill will enact can be the prelude to the renewal of our democracy and our economy, and to healing the wounds in our society.

The Government are right to insist in Clause 33 that the negotiation of our new relationship with the EU must be accomplished by the end of this year. There can be no virtue in perpetuating the transitional limbo. The essential elements of the necessary agreements can be negotiated on this timescale. On trade, we start from a position of regulatory alignment and no tariffs or quotas. To the noble Lord, Lord Barwell, whose maiden speech I very much admired, I say that it is in neither side’s economic interest to erect barriers where there are none. Any difficulties are not technical but political, and their resolution must be a matter of political will. As a country responsible for our own laws, we must insist on the principle of regulatory equivalence, not replication.

The free trade agreement between the US and Australia was negotiated in a year, in 2005, despite opposition from the agricultural lobbies in both countries, because President Bush and Prime Minister Howard were both determined to deliver it. A will to deliver quickly on the part of the EU will be much encouraged if we pursue parallel negotiations on an FTA with the US. If European manufacturers and farmers see the prospect of American exports entering the UK market tariff-free, they will press European leaders and negotiators very hard not to disadvantage them through having to face new UK tariffs.

Brexit is straining the union of Great Britain and Northern Ireland. Welcome as the restoration of the Northern Ireland Executive and Stormont is, the fact remains that, whatever his protestations, to secure the withdrawal deal the Prime Minister cut Ulster adrift. His deal, providing for a new customs border in the Irish Sea, the subject of Clauses 21 to 24 of the Bill, gives a large shove towards a united Ireland.

I am more optimistic that Scotland can be retained within the UK. At the election, 54% of voters in Scotland voted for unionist parties; the situation is much more ambiguous than Nicola Sturgeon claims. I think that when Scots look down the barrel of the independence gun, they will flinch: they will balk at the economic sacrifice entailed by losing their subsidies from English taxpayers and will not want a hard border at Gretna Green.

Those former Labour voters in the red wall constituencies of England who were determined to have Brexit, despite all the advice from economists and remainers that it would make them poorer, demand a new politics. They are right to do so: they are the people who have been worst failed by neoliberalism. Market forces have been allowed to destroy communities and tradition, and have produced deep and persistent poverty, chasms of regional inequality, chronic financial crises and a climate emergency. Withdrawal from the EU will help us escape the havoc of neoliberalism, still dominant in a Brussels infested with the lobbyists of big business. Finance, inexorable as it is, is not the be-all and end-all, and nor is GDP.

The cruelties of austerity, such as the two-child limit for social security and the closing of Sure Start centres, have become intolerable—the Brexit vote told us this. The case for fiscal expansionism has now been accepted by the Government. We must reinvent the role of the state in rectifying injustice and using its power in humane intervention, so as to support the precariat and the people who are the casualties of technological change. Rules restricting public investment to the south-east must be rewritten. Support must be given, not just for big infrastructure projects but for local people creating productive local economies in post-industrial areas. Local culture and dignity must be respected. Whitehall must give away power and allow revived autonomy in communities across the UK.

This legislation opens the way to a rebuilding of national self-belief. We can end the ugly attitudes of nativism in a new era in our international dealings. Withdrawal from the EU entails radical remodelling of politics and policy, and so much the better.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Hamwee]

My Lords, my name is also put to the amendment. In the Commons, the Minister said that the clause enables the Government to

“maintain our statute book in accordance with the social security co-ordination provisions”.—[Official Report, Commons, 7/1/20; col. 323.]

That puzzled me, because they do not need this to do that. Both noble Lords who have spoken pointed out the potential problems. The noble Viscount, Lord Hailsham, reminded me that, so often when the House is asked to look at secondary legislation—or is given the opportunity to do so, having had to take positive steps to raise the issue—people who are affected and organisations that know about it make really valid and useful points. It does no good to the reputation of the House to be able to do no more than say, “Well, I’ll raise that in debate”, because we know that we cannot make any changes. I support what is proposed here; it is entirely sensible and in no way wrecking.

[Lord Howarth of Newport (Lab)]

My Lords, Clause 13(5) contains a Henry VIII power; it is admittedly constrained by the specific subject matter and context of the Bill, but is none the less within those constraints a wide-ranging power:

“The power to make regulations … may … be exercised by modifying any provision made by or under an enactment.”


Henry VIII clauses are in principle objectionable, and in principle the Government ought always to explain to us why they think they are justified.

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the opportunity to respond to the amendment of the noble Baroness, Lady Hayter of Kentish Town, and others. I thank all those who have contributed to this debate.

The noble Baroness put it very well; the importance of this measure should not be underestimated. As we leave the EU, protecting the rights of UK nationals in the EU and EU citizens in the UK, including EEA, EFTA and Swiss nationals remains a massive priority for this Government. It is a commitment that we have delivered very clearly in the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. For those noble Lords who have enjoyed the pleasure of reading those pages, it is a really hefty chunk of the withdrawal agreement. The detailed and complex nature of these commitments is testified to by the large number of pages taken up describing them. For brevity’s sake, I will not go through these pages and will refer to EU citizens and agreements thereafter.

The dynamic nature of the EU’s social security co-ordination rules means that, following the end of the implementation period, updates at the EU level to the EU social security co-ordination regulations will be reflected in the agreement and therefore apply to those citizens within the scope of the agreement. The current social security system is dizzyingly complex. These updates are also very complex; they include minute changes to things such as definitions, the templates in which organisations communicate with each other and the line by line minutiae of the regulations. They ensure the clarity and delivery of benefits for citizens and the operational viability of the overall system. This clause ensures that the appropriate authorities, including the devolved Administrations, have the power to make regulations to align the domestic statute book with the amendments made in these regulations.

A question was asked about Henry VIII powers. I reassure the House that these provisions are focused solely on the regulations described in Part Two, Title III of the withdrawal agreement relating to social security co-ordination, as well as to the supplement, and deal only with matters arising.

[Lord Howarth of Newport]

The Minister pointed out that the regulations are extraordinarily complex. Would he accept that, the greater the complexity, the greater the need for accountability?

[Lord Bethell]

No, that is a neat way of putting things, but it is not quite the point I was trying to make, which is that they are very closely defined in terms of breadth and that the detail of the regulations is so minute that it would waste the time of these Houses to go through them line by line. It is important for solidity and confidence in the system that they are expedited quickly and resolved without delay. Without wishing to give the game away regarding what I am about to say, the bottom line is that we simply do not have the legislative capacity in these Houses to go through all the complexity of the details as they arise at an EU level.

[Lord Bethell]

No; my noble friend puts it well, but I am alluding to the fact that there is a hierarchy of priority, and there are matters of significant policy and implementation that are of a sufficiently high level to warrant the attention of the House. However, this clause refers to matters of an operational nature, which are there to implement the agreed clauses of the withdrawal agreement.

There is no question of this clause being used to bring in new policy, new arrangements or the kinds of policy changes that, frankly, would warrant discussion in the Houses. That is the reassurance that I am trying to communicate to the House, that any changes in the actual policy and arrangements and the benefits of those in the 5 million, whom the noble Baroness, Lady Hayter, accurately referred to, are absolutely not part of either the intention or the way in which these clauses are written.

[Lord Howarth of Newport]

If there is no intention to change policy, why is Clause 13(5) in there?

[Lord Bethell]

All the arrangements within this part of the Bill are heavily constrained to Title III of Part Two of the withdrawal agreement. There is therefore no need to escalate to questions of policy; if there are questions of policy, they will be brought to the House but in a completely different way. The purpose of this clause is to make sure that there are no conflicts or inconsistencies in domestic law that refer to the current commitments within the withdrawal agreement, which could give unfair treatment and uncertainty about the rights and benefits of the 5 million in the group of people who benefit from these arrangements. It allows Ministers to protect the entitlements—

--- Later in debate ---

[Baroness Humphreys (LD)]

My Lords, my contribution to this debate on Amendment 59 will be very brief, because everyone has said what I want to say. I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for tabling this amendment and giving me the opportunity to add my name to it. I am also grateful for the detailed analysis that he and the noble Lord, Lord Wigley, provided, and for the comments of the noble Baroness.

The independent monitoring authority for citizens' rights will, as noble Lords have outlined, be composed of an independent board of members with experience of matters covered by the citizens’ rights agreements, and—this is important—knowledge of the relevant laws and issues in Scotland, Wales, Northern Ireland, and, I believe, Gibraltar. As the noble Lord, Lord Wigley, pointed out, it is important to note that these qualifications for membership of the IMA are the result of many hours of negotiation between the Government and the devolved Administrations. The qualifications have been taken very seriously. The amendment seeks to ensure that if the functions of the IMA are transferred to another body, the same qualifications for membership of the new body should apply. This seems to be an eminently sensible, simple and straightforward request. I hope that the Minister can commit to it from the Dispatch Box tonight.

[Lord Howarth of Newport]

My Lords, I want to underscore the very important point that was very well made by the noble and learned Lord, Lord Thomas, about the need for courtesy and respect. The union is under considerable stress. The stress is perhaps less severe between Wales and England, because Wales voted to leave the European Union. None the less, we are dealing with very sensitive matters. It is surely elementary that the UK Government in London should consult and proceed with the maximum delicacy and sensitivity. There will be sensitive questions when it comes to the implementation of many of the arrangements that feature in our EU withdrawal. The right of Wales to diverge on the implementation of these regulations and other matters will obviously be important to respect.

At the same time, it will be very important that in Wales there is a recognition that divergence can be a fairly perilous course. Given this range of sensitivities, it would send a very helpful signal if the Government accepted Amendment 59. I cannot imagine why they would have any difficulty in doing so. It would signal their intent to continue in a fully conciliatory, fully constructive spirit of co-operation and respect for the rights of the devolved Administrations.

[Lord McNicol of West Kilbride]

My Lords, I rise to speak to Amendments 58 and 60. The noble Lord, Lord Greaves, has touched on many of his probing amendments, and there has been much debate about Amendment 59, so I do not need to cover that.

The establishment of the independent monitoring authority is an important step in implementing the UK’s obligations to EU citizens under the withdrawal agreement. However, the Government’s approach to the IMA leaves a number of important questions unanswered, hence the large number of probing amendments in this and other groups. There are concerns regarding the delegated powers, allowing Ministers to transfer the IMA’s functions—or even wind the organisation up—by statutory instrument, hence the amendment in my name.

At ministerial briefings, the Minister has explained that, later in the withdrawal process, it may make sense for the IMA’s functions to sit elsewhere. Can the Minister give an example of where those functions may be moved to, and why this would be preferable to maintaining an independent body? Can he also confirm that in the event of such transfers there will be no practical impact on citizens? Finally, can he provide assurances that, in the spirit of co-operation, the Joint Committee will be fully briefed regarding any changes to the IMA or the exercise of its functions? To touch very briefly on Amendment 59, in the name of the noble and learned Lord, Lord Thomas, again many important issues are raised regarding the transfer of functions, aiming to ensure that the new executors of such functions would need specific knowledge of UK nations and the regions.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I suppose I should declare an interest as regards Clauses 21 and 22 because I live and work in Wales, so the stability of the devolution settlement is therefore important to me personally, especially as my work is in areas of the devolved competences.

I should point out that, along with a clear majority, I was alarmed at the prospect of a no-deal Brexit and therefore relieved when the Prime Minister and the EU negotiators managed to agree a process for an orderly EU withdrawal. Clearly, the Northern Ireland protocol is critical to that, and I am sure that no one wishes to imperil the withdrawal agreement by wilfully obstructing the implementation of that protocol.

Nevertheless, the Henry VIII powers in respect of doing so are wholly unrestricted—something which other Members have quite understandably expressed disquiet over. The concern is that such powers would enable Ministers of the Crown unilaterally to amend the devolution settlement as laid down in the Government of Wales Act—and the equivalent legislation for Scotland and, indeed, Northern Ireland itself—or to enable Ministers to make such changes without any scrutiny by the legislature.

I understand that Ministers may conclude that it is necessary to adapt devolved competences; for example, to underpin the unfettered access of Northern Ireland agricultural produce to the market in Wales, even if it fails to meet the standards which have been adopted in Wales itself or across Great Britain as a whole. I also understand why they might not want to follow the cumbersome route of primary legislation to achieve this.

But where the National Assembly—or Senedd, as it will be known—agrees with changes to its own competence, there is a perfectly acceptable route, as the noble Baroness, Lady Hayter, has said, via a Section 109 Order in Council to achieve this without primary legislation. I would argue that any attempt to proceed in a matter of this kind without securing the agreement of the devolved Government and legislature in question would be likely to ignite a major constitutional conflict. No one should underestimate the tensions there are at the moment around the devolution settlements.

The aim of the amendment is therefore to promote an exception to this power in respect of the Government of Wales Act and, for the sake of logical consistency, the equivalent legislation in respect of Scotland and Northern Ireland. If the Minister does not concede, or at least provide reassurance, that these powers will not be used to change the devolution settlements without consultation and agreement by the institutions affected, it will inevitably fuel suspicions, as has already been said, that the UK Government want the power to make changes to the devolution settlements even when the National Assembly and Welsh Government are opposed to such changes.

As I said at Second Reading, it is about ensuring consultation, not veto. In many areas the item of negotiation is very likely to straddle devolved and reserved competences. The use of an overriding Henry VIII power—rather than a Henry VIII power in conjunction with a Section 109 Order in Council, or simply the Order in Council—would be completely inappropriate. It would ride roughshod over the settlement we currently have. It would appear to be a potential abuse of power. I am not saying that this Government intend to abuse their power, but we have to be concerned that whatever we put in legislation now could produce unintended consequences in the future.

[Lord Howarth of Newport (Lab)]

My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

[Lord Thomas of Cwmgiedd (CB)]

I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.

This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.

The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.

--- Later in debate ---

[Lord Howarth of Newport]

Is the Minister therefore saying that the Delegated Powers and Regulatory Reform Committee is incorrect? Paragraph 9 of its report notes that Clause 41

“contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament … Such regulations are made pursuant to the negative procedure.”

[Lord Duncan of Springbank]

To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.

We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.

It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:

“Do you feel lucky, punk?”


and “Make my day.” I am not sure either one is particularly relevant.

In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.

On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.

Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.

[Baroness Finlay of Llandaff (CB)]

My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.

Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.

This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.

Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.

I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.

Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.

At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.

This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do it by regulation. Such decisions ought to be made by Parliament in primary law, ensuring that the sort of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.

[Baroness Deech (CB)]

My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.

Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.

There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.

I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.

--- Later in debate ---

[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

[Lord Howarth of Newport]

How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?

[Lord Keen of Elie]

I do not consider that this clause in any sense violates the principle of the separation of powers.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Bowness]

That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.

I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.

I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.

It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.

[Lord Howarth of Newport]

My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.

It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.

When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.

I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.

Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.

I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.

It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.

There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.

[Lord Kerr of Kinlochard (CB)]

The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.

[Lord Howarth of Newport]

It was desperate expedient. The Government had no option, given the parliamentary arithmetic.

[Lord Kerr of Kinlochard]

That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.

The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.

I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.

[Lord Howarth of Newport]

Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.

[Lord Kerr of Kinlochard]

Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.

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[Viscount Hailsham (Con)]

My Lords, I associate myself with the remarks made by the noble Lord, Lord Newby, and indeed with the remarks I suspect will be made by the noble Baroness, Lady Hayter. I will not go into the detail of the matter because it has been very eloquently argued by the noble Lord, Lord Newby. I will confine myself to three general points.

The first is that the position that the Government are now taking in the Bill is wholly inconsistent with the position that we took before the general election. We are entitled to know why, as a matter of substance rather than political guile, the Government are moving from a position previously expressed to that now expressed in the Bill.

Secondly, following a point made by the noble Lord, Lord Newby, I say that this prohibition is bogus because we all know full well that a Government with a majority of 80 in the House of Commons can, if they so choose, reverse a provision in a Bill—as they did, for example, on the Fixed-term Parliaments Act. If that is true, then anybody who says that this will help the Government in their negotiations with the European Union is talking nonsense, because the European Union interlocutors will know as well as we do that this provision can simply be set aside.

I come to my final point. I have been involved in negotiations, both as a politician and as a lawyer, for 40 years, and I believe in the importance of flexibility. In the last debate, a number of noble Lords talked about the importance of giving the Government flexibility and not tying hands. The noble Lord, Lord Howarth, was one; the noble Lord, Lord Butler, was another; and a third was my noble friend Lord Callanan, who made the point that events can overturn outcomes and things can happen which are surprising and destroy timelines. That is going to happen if we impose an arbitrary timetable. What could well happen—indeed, what is likely to happen—is that the Government come back with either weasel words and an amendment of the statutory time; or we get a partial and incomplete agreement, or an unsatisfactory agreement, or no agreement at all. If we had more time, the situation could be perfected.

This is a profoundly unwise provision in the Bill and we would do well without it.

[Lord Howarth of Newport]

My Lords, I will not repeat the arguments that I put to the House at Second Reading in support of Clause 33 and the ruling out of an extension of negotiations beyond the end of this year, but will just make two points now. I was surprised that the noble Lord, Lord Newby, who, as I recall, once held the economic brief for his party, appeared not to recognise the profound damage to our economy that the prolongation of the Brexit process has already caused. It has now been three and a half years, during which it has been very difficult for rational participants in our economy to make investment decisions or decisions of other kinds. Our economy is now in a fragile condition, and it cannot be in our national economic interests to perpetuate this process any further than is absolutely necessary. For that reason, it is highly desirable that investors should be able to look forward with some confidence to the conclusion of the negotiations about the future relationship by the end of this year.

That brings me to my second point. Again, I was puzzled as to why the noble Lord, Lord Newby, considers that a bare-bones agreement would cover only tariffs and quotas. I cannot see why the essential elements of all the necessary agreements cannot be negotiated between now and the end of the year. Personally, I would be quite relaxed if some technical fine-tuning were still needed subsequent to 31 December, and indeed I accept that the multiple process of ratification across the European Union will take some time. If we can achieve the certainty provided by a resolution of the key issues by the end of the year, that can only be helpful, 2and if the Government reaffirm their determination on that point in the form of Clause 33, that will also be helpful.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the noble Lord, Lord Callanan, in his arguments against Amendment 27, said that it would be easily overtaken by events. That provides a great argument for the removal of Clause 33. The noble Lord, Lord Newby, pointed out correctly that the next deadline point is 1 July 2020. I confess that I looked at a website to check, and that is 168 days away. If you add in holidays, weekends and so on, and think about how many days that gives us to reach a point where we have to decide whether or not we are ready for the deadline of the agreement with the EU, it is a very short time indeed. The noble Lord, Lord Howarth, said rightly that the economy and companies—I am particularly concerned about small businesses—have been greatly damaged by the uncertainty around Brexit. Removing Clause 33 will take away another point of uncertainty and will give us stability instead of yet another deadline.

Earlier in Oral Questions, my noble friend Lady Jones referred to the false classification—subsequently withdrawn—of Extinction Rebellion in a police document as bringing the law into disrepute. Particularly among young people, it caused grave concern. As the noble Lord, Lord Newby, said, passing this Bill with Clause 33— with something we know the Prime Minister has accepted may have to be removed; we know that a one-line Bill can do that at any point up until 31 December—brings the law into disrepute.

There is also the risk of a crash-out if we get to the end of the year and do not have an agreement. There is a strong suspicion out there in the country—and perhaps among some in this House—that parts of the Government still seek that crash-out outcome. Leaving this clause in the Bill adds to that suspicion.

Finally, we know that the Prime Minister has found it very difficult to find ditches in this country; it has been very hard to identify ditches. I do not think that we want the Prime Minister to waste any more time roaming the country, seeking that ditch that he just cannot find.

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[Baroness Williams of Trafford]

The noble Lord hits the nail on the head, because one might ask what Section 17 was about in the first instance. I said at the beginning of my speech that Clause 37 could not have existed, and we could have deleted Section 17, but Section 17 is, in most part, as it was originally, and is amended to include the reporting to Parliament and not the seeking to negotiate. It goes above our obligations and commits the Government to lay that Statement to Parliament on our policy regarding future arrangements with the EU for the family reunification of unaccompanied children seeking international protection, providing Parliament the opportunity to scrutinise our progress.

The clause makes it clear that supporting the most vulnerable children remains a priority, along with restoring the traditional division of competences between Parliament and government, as the noble Lords, Lord Howarth and Lord Butler, pointed out. The noble Lord, Lord Howarth, said that Parliament cannot give the Government their marching orders in negotiations. I hope that I have quoted him correctly.

[Lord Howarth of Newport]

As long as the Minister does not suppose that I do not fully support the spirit of the amendment of my noble friend Lord Dubs.

[Baroness Williams of Trafford]

No, I was not making that inference. I was trying to point out both consistency and inconsistency within some of the debates we have been having today, as noble Lords seem to have contradicted themselves depending on what the issue is. On the division of competences between Parliament and Government, noble Lords will have seen, and will continue to see, changes being made across the Bill. It does not undermine our policy intent and rightly ensures that Parliament is informed of our policy intentions in respect of our future arrangements. The noble Lord, Lord Dubs, said that we have already written to the Commission, and that is correct. It shows our intent and commitment in the coming year.

The noble Lord, Lord Kerr, spoke of Clause 37 killing Section 17. It does not; it amends it, as he went on to outline.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Tyler (LD)]

My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.

Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.

Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”


The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.

In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:

“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]


As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.

Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.

[Lord Howarth of Newport (Lab)]

The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.

The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.

I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.

[Baroness Butler-Sloss (CB)]

My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”


That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.

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[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.

As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.

At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.

The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.

Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.

I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.

The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.

The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.

The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.

On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.

The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.

I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.

There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.

I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.

The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.

I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.

[Lord Howarth of Newport]

Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?

[Lord Duncan of Springbank]

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

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[Lord Pannick (CB)]

My Lords, I declare an interest as a practising barrister. I have signed Amendments 12 and 13, tabled in the name of the noble Lord, Lord Beith, but I am very happy to support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern. The reason is that Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply. These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.

Perhaps I may briefly respond to the points made by the noble and learned Lord, Lord Keen, the Minister in Committee, because I anticipate that the noble Lord, Lord Callanan, will make the same points as his substitute today, as we have heard from the noble Lord, Lord Beith. The first point that the noble and learned Lord, Lord Keen, made was that we are not, as he put it, in “novel territory”, because Section 6 of the 2018 Act has already looked at which courts should have this power. The simple answer is that what is novel is a delegated power for Ministers, which I have described.

The noble and learned Lord’s second point was that there are safeguards because Clause 26 requires Ministers to consult the judiciary. That does not reassure me; it is still Ministers who will decide these important matters. His third point was that the power would, as he put it,

“be employed in a way that is consistent with our own constitutional norms and traditions”.—[Official Report, 15/1/20; col. 691.]

I suggest that it is no answer to the conferral of unacceptably broad powers to have Ministers assure us that they will exercise those powers reasonably. The objection is to the powers being conferred on Ministers, because once they are conferred the political and legal constraints if they decide to act unreasonably are limited.

The noble and learned Lord’s fourth point was that there are diverse views on the question of which courts should be able to depart from Court of Justice decisions, but this is not a new issue. We debated it at length on the 2018 legislation. Ministers have had plenty of time to consider whether the solution adopted in 2018 requires amendment. If Ministers want more time, and want to consult, the answer is not for them to take unacceptably broad powers. The answer is to bring a short Bill before Parliament, in a month or so, proposing such amendments—and then Parliament can decide.

These amendments raise issues of considerable constitutional concern and importance. As the noble Lord, Lord Beith, said, they have absolutely nothing to do with the merits of Brexit, the terms on which we leave the EU or the timetable for Brexit. It is, I suggest, our constitutional responsibility, when a Government bring forward a provision as constitutionally objectionable as Clause 26, to ask the House of Commons to think again. That is particularly so when, as the noble Lord mentioned, the Government have been in two minds—to put it politely—on this issue today.

[Lord Howarth of Newport]

The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.

The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.

[Lord Carlile of Berriew]

My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.

I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.

My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.

The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.

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As the noble Baroness, Lady Hayter, has said, that is what makes this an extremely important issue. It is one of the most significant and important ones in the legislation. It is why I am afraid that the Government have got off on the wrong foot. They have not got very far down the road, but they are on the wrong foot, and they would be well advised to accept the somewhat modified and more modest requirements set out in the amendment now before your Lordships compared with the one tabled for Committee.

[Lord Howarth of Newport]

The noble Lord, Lord Hannay, has remarked on the fact that the ambition and scope of this amendment are quite modest compared to the amendment that we debated last week in Committee. The redrafting has been wise. Gone is the requirement that Parliament should approve the negotiating mandate and stance of the Government and in effect give them their marching orders in the negotiations. The Executive must be allowed to do their job and in turn Parliament should do its job, and we should respect the separation of powers. It is for the Executive to negotiate the future relationship and it is for Parliament to hold the Executive to account. Parliament has numerous means of holding the Executive to account in the form of Questions, debates, Select Committee inquiries and many other procedural resources, and I anticipate that it will use that array of resources very extensively in the months to come.

I would add that I do not think that it is appropriate for parliamentary procedure to be prescribed in statute, and it is particularly inappropriate that this unelected House should make proposals of this nature to the House of Commons, which I suspect will not take very kindly to being told how to do its job.

All in all, I welcome the modification of the approach that is reflected in the amendment and I congratulate my noble friend and her colleagues who have thought it wiser to proceed on this basis rather than the one proposed the other day.

[Lord Wallace of Saltaire (LD)]

My Lords, this is an unusual Bill in a number of ways. We were debating in Committee that it has a clause which restates that parliamentary sovereignty has been established, so we are talking about some fairly fundamental constitutional issues. The relationship between Parliament and the Government is one about which I have heard Ministers make a number of self-contradictory comments in the days and weeks since the election in the rather triumphalist tone they have adopted. One Minister referred during the Committee stage to restoring the “normal relationship” between Parliament and the Government, by which I think he meant a nice safe majority in the Commons so that it does not criticise too much what the Government want to do.

The noble and learned Lord, Lord Keen, talked about the dualist approach to international negotiations whereby treaties, once they have been agreed, have to be transposed into domestic law and thus Parliament comes in, as it were, after the event. Given the importance of this negotiation, if one does believe in the principle of parliamentary sovereignty, the Government need to carry Parliament with them. That is the constitutional set of issues here, and we look forward to further discussions on what the constitution commission the Government are going to set up will be about. If it has the sort of forethought and consideration which was shown in the suggestion thrown out this weekend that the House of Lords might move to York, I have to say that it is not going to be a very good commission because it is quite clear that there was no thought behind that whatever.

It is not just the constitution; it is also about wisdom. Some of us heard the noble Lord, Lord Wilson of Dinton, remark in Committee that in his long career he had noted that it is when Governments are most self-confident and convinced that they can survive criticism that they are most likely to make mistakes. Here we are after an election in which the Government have established a majority on less than 45% of the vote, but it is a majority in the Commons according to our current antiquated rules. The wisdom of carrying the public and Parliament with them as they negotiate—particularly if they are going to negotiate for as hard a break with the European Union as the Chancellor has suggested—seems to me very powerful.

While I was at Chatham House, I was much involved in the various discussions about establishing the single market, and I remember all the talk then about why the Prime Minister was persuaded that the single market was in Britain’s interest and the extent to which we were taking our regulations for a large number of industrial and other standards from the United States extraterritorially. The Government are now suggesting that we will establish our own independent standards. An editorial in the Times this morning said that maybe we should not exclude chlorinated chicken, so we can begin to see that, if we move away from European standards, we will move under American standards, and that will be part of what emerges from the US/UK trade agreement.

I support this amendment on constitutional grounds and on the grounds of political wisdom. Parliament deserves to be carried along with the Government and the Government need to explain and justify their objectives as they proceed.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Report: 2nd sitting (Hansard) & Report stage & Report: 2nd sitting (Hansard): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I fully support the desire expressed by the noble and learned Lord, Lord Thomas, that there should be full consultation between the Government and the devolved Administrations and, indeed, the Assemblies in the devolved countries. I also fully support his plea for mutual courtesy and respect, but I question whether this new clause is appropriate. I doubt whether it is appropriate to lay down in statute the procedures for consultation between the Government and the devolved Administrations—to so formalise, as it were, the agenda that it is placed in a Procrustean bed. That could be too rigid and inflexible. Of course, as he urges, all concerned should seek consensus, which will be extremely important in ensuring that what emerges from the negotiations on the future relationship between the United Kingdom and the EU is viable in each of the devolved territories.

However, the achievement of consensus must be a matter of culture. I do not think that you can legislate for consensus. If you legislate and there is still not the good will and the willingness to give and take, along with the willingness to achieve mutual understanding, it will not work. So, strongly as I support the noble and learned Lord’s objectives in this amendment, the means that he proposes to achieve what we all desire may not be the right ones.

[Lord Morris of Aberavon (Lab)]

My Lords, I support the amendment moved by the noble and learned Lord. I do not know from whom I am quoting, but the Joint Ministerial Committee is a “poor thing, but our own.” It has not worked very well, because it has not met very frequently. There has been no programme, its membership has varied, and it has not been a particularly effective arrangement so far. Hence, in my view, it is important that it should be put on to a statutory basis, in which case a report would be made to both Houses of Parliament and we would know where we stood. So far, we do not know.

The devolved Administrations never know when the current Joint Ministerial Committee will meet. It is important, for the sake of the union, to achieve a consensus where possible. In our discussion yesterday on another amendment in the name of the noble and learned Lord, it was obvious that there had been no discussion with the Welsh Assembly. I fear that the Minister’s reply to our debate was less than persuasive. There is an alternative arrangement that could have been used under Section 109 for an Order in Council that would result in a consensual as opposed to an imposed change. Hence, I very much support the amendment in the hope that there will be a change of heart in Westminster.

I fear that there is still a denial in the Westminster establishment that devolution has taken place at all. It has been there for a long time now and it is part of our establishment. Legislators, particularly those who draft Bills for the Government, should recognise that the devolved Administrations have been set up within the United Kingdom and are there to further the union. I would hope that if this amendment is accepted, it would strengthen the union and put the committee on a proper basis, and then there would be an expectation of regular, frequent meetings with serious and senior representation of the Westminster Government.

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[Earl Howe (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, and indeed all noble Lords who have spoken on the amendment. I feel that it is appropriate for me to start by saying something with a degree of emphasis about the Joint Ministerial Committee, which, I have to say, has received an undeservedly negative press from some noble Lords, both in Committee and today.

The Government have a high regard for the Joint Ministerial Committee structure and have engaged with the devolved Administrations through it, and indeed through numerous other means, throughout the EU exit process. The Joint Ministerial Committee on EU Negotiations, which I will call the JMC (EN), was established in the months following the UK’s decision to leave the EU, and it has met 21 times since November 2016. From the Government’s point of view—and, I hope, from everyone’s—it has proved an invaluable forum for the exchange of information and views between the UK and the devolved Administrations.

Proposals for intergovernmental engagement on the next stage of negotiations formed a large part of the most recent meeting of the Joint Ministerial Committee on EU Negotiations earlier this month, and are due to be discussed again at the next meeting of the JMC (EN) next week—chaired, if my memory serves me right, by the Welsh Government.

I hope that I can give a sense of how effective a forum the JMC (EN) has been for discussions on the Bill. The Bill was first discussed at the JMC (EN) in the summer of 2018, when we gave the devolved Administrations the opportunity to feed into the White Paper. We then used the forum to share our thinking on policy development through the autumn and winter of 2018, sharing iterative drafting on the Bill. It was through these discussions that we made changes to the Bill to address the concerns of the devolved Administrations. This included providing them with an important role in appointments to the board of the IMA, both in the Bill itself and through ministerial commitments.

I therefore do not accept that the JMC (EN) has been either inactive or ineffectual. On the contrary, it has contributed significantly to both ministerial and official engagement between the UK Government and the devolved Administrations, and that is exactly the way we mean to continue.

The amendment seeks essentially to set the joint ministerial arrangements in concrete. It remains the Government’s firm view that it is not in the interests of the UK Government or the devolved Administrations to place the terms of reference of the JMC (EN), or the memorandum of understanding on devolution, on a statutory footing. The noble Lord, Lord Howarth, and my noble friend Lord Hamilton of Epsom were absolutely right in what they said.

[Lord Howarth of Newport]

The noble Lord has heard serious warnings about the potentially dangerous consequences of a failure by the Government to consult adequately and work closely with the devolved Administrations. He will know that, in Wales, his rather upbeat assessment of the achievements and benefits of the Joint Ministerial Committee is not widely shared. If he will commit the Government, on their honour, to consult and work closely with the devolved institutions, along the lines laid out in this amendment, that would do a very great deal to improve trust and confidence and ensure good, practical outcomes. Will he do that?

[Earl Howe]

My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.

Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.

I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to

“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”

This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.

The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I offer the Green group’s support for this amendment. Noble Lords will have noticed that your Lordships’ House is not quite as crowded as it was when we were debating the amendment in the name of the noble Lord, Lord Dubs. I invite your Lordships to consider all the people who are not here—the people in our supermarkets, streets, workplaces and wilderness areas. We have been talking about EU standards, but I would call them the people’s standards. These standards were won by campaigns and struggles—by people in the UK and across the EU who stood up against the lobbyists and corporate interests. They stood up against those who had so much power in deciding what kinds of standards there should be in places such as the United States of America. They stood up for something better.

The Government keep saying that they want to have higher standards than the people’s standards that we have had to fight so hard to get. I entirely accept the need for much higher standards. In this hugely nature-depleted country, each year we are collectively consuming the resources of our share of three planets—although we have only one. We are pumping out so much greenhouse gas. As the noble Lord, Lord Hendy, so eloquently outlined, we have people in really desperate workplace situations. We need better standards, but these people’s standards are a foundation.

I am sure that we will hear from the Benches opposite about the UK’s crucial place in the UN climate talks as part of COP 26 this year. If the Government do not incorporate this amendment into the withdrawal agreement Bill, what kind of message will this send about us as the chair of COP 26?

[Lord Howarth of Newport (Lab)]

My Lords, this amendment proposes that we should not regress from the existing EU-derived rights and practices in relation to the protected matters specified in the amendment. I see no difficulty in principle about that. There may be much merit in it in terms of continuity of public policy and of reassuring the public that we will maintain the standards that have so far been established by the EU and continue to conform with them.

But it is surely essential that we retain the right to diverge. The noble Lord, Lord Howell, gave some very important reasons for this. The world is changing, and our country and economy need to be alert to all the changes that will provide opportunity for us in the future, as we seek our fortune in a wider world. The eurozone economy is a relatively inert and sluggish region of the global economy. While much has been achieved and very important protections have been established for workers’ rights and environmental issues, as the noble Baroness has just mentioned, and we do not want to lose that acquis—those achievements and benefits—we have got to be flexible and be able to be innovative.

The essential principle of Brexit is that we take back control of our laws. It is an entirely reasonable proposition that this Parliament should legislate to perpetuate our conformance with certain particular laws that have already been enacted. It is a very different proposition that we should commit ourselves to the proverbial level playing field and the principle of non-divergence following the end of the implementation period. That is not what is envisaged in the amendment, but it seems to have been contemplated by a number of noble Lords in their speeches. If taking back control of our laws means anything, it means that we must reserve the right to diverge. Indeed, we will need to have the right to diverge even from what has already been established and achieved when it proves in some sense obsolescent, as new reasons and new horizons emerge for the kind of changes and developments that we would seek to achieve in our economy.

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

I thank all noble Lords who took part in this debate. I thank the noble and learned Lord, Lord Goldsmith, for so eloquently introducing the subject. The amendment is very much like proposed new Clause 31, tabled by the noble Baroness, Lady Jones of Whitchurch, in Committee. I am grateful to the noble Baroness and the other noble Lords who took part in the debate on that amendment as well. Noble Lords will be completely unsurprised to discover that the Government’s position on this matter remains unchanged.

The amendment fundamentally mistakes the nature of the Bill before us. The amendment is about our domestic policy post exit in a number of extremely important areas. However, by contrast, the Bill is about implementing the withdrawal agreement into domestic law. It is not about our post-exit domestic policy, important though that is. Therefore, we believe that the amendment is wholly inappropriate for this Bill. However, since the amendment has drawn us into a debate, even though it is beyond the scope and purpose of the Bill, it might be useful for me to reiterate how we will take decisions about issues such as environmental standards and other matters once we have left the EU.

As I set out in Committee, these matters were debated extensively during the passage of the 2018 EU withdrawal Act. I remember replying to that debate; I think that many of the same noble Lords who contributed today took part in that debate as well. Noble Lords will remember that, back then, the concern raised was that the Section 8 power in that Act would be used to regress from EU standards. I reiterate that the Section 8 power can be used only for the purposes of correcting deficiencies that arise as a consequence of the UK’s withdrawal. That is what we said then, and I think that our record has proven that to be the case.

The 2018 Act does not provide a power to change laws simply because the Government did not like them before exit, and the Government cannot use the powers for the purposes of rolling back standards and protections merely because we wish to do so. Instead, where we seek to depart substantively from retained EU law, separate legislation will be brought forward, as indeed it already has been in certain areas. At that point, Parliament will, as normal, have its opportunity to scrutinise the Government’s actions. This would allow for tailored and intense scrutiny. I have no doubt whatever that this House and the other place will fulfil their duties in this regard with great vigour. Once again, I reiterate our view that these debates are for that future legislation.

In any case, I can reassure noble Lords that the Government have no plans to introduce legislation that would have a regressive effect. We will not weaken protections in these areas when we leave the European Union; rather, we will maintain and enhance our already high standards.

We spoke at length in Committee about the Government’s record on the environment, chemicals, food standards and animal welfare. For the sake of clarity, I will again set out some of our commitments. First, the UK has a long and proud history with regard to the environment and it is of the utmost importance that this is maintained when we leave the EU. There are areas where we are already planning to go further than EU legislation permits, such as single-use plastics. The Government will shortly be introducing the environment Bill, which we promised during the 2018 debates. It will strengthen environmental protections and enshrine environmental principles in law.

I will take this opportunity to reply to the point made by my noble friend Lady McIntosh on the subject of sow stalls, a debate which I remember well from my time in the European Parliament. That is an example of the UK going beyond EU rules in the full knowledge of the likely consequences. We chose to go further. We may decide—I am not committing us—to go further on live animal exports and in other areas, enhancing what protections are currently provided under EU law. If we do, we should consider the consequences. However, as the noble Lord, Lord Howarth, correctly pointed out, the whole point of Brexit is to take back control. These are decisions which we can make for ourselves in this Parliament in future. We do not need an external power dictating what we do in these regards.

On employment rights, I reassure the noble and learned Lord, Lord Goldsmith, that we are committed to ensuring that workers’ rights are protected as the UK leaves the EU. We are legislating in areas where the EU is only just starting to catch up. It is the UK that has been shaping the agenda on tackling abuses in the gig economy, a point well made by my noble friend Lord Howell of Guildford. As we announced in the Queen’s Speech, we will be bringing forward legislation to continue delivering and building on the Good Work Plan. This will give workers in the UK the protections they need in a changing world of work. Much as I greatly enjoyed the entertaining vignette from the noble Lord, Lord Hendy, I remind him that in a number of these areas—including holiday pay and maternity pay—the UK already goes much further than EU minimum standards permit. That is something that we should be proud of, and it is something that we are going to build on.

I have set out the Government’s view that this amendment is not appropriate for this Bill. I have also, I hope, provided some reassurance about the Government’s intentions regarding some of the issues raised by the amendment. I will close by noting that the effect of the amendment is unclear. The proposed new clause before us makes government action with a “regressive effect” unlawful, but it leaves many of the key terms unworkably vague. It is somewhat surprising that the noble and learned Lord, Lord Goldsmith, does not appreciate the poor wording of the amendment. First, the failure to define “protected matters” makes the scope of the amendment unclear. Secondly, the uncertainties in the definition of a “regressive effect” would create a great deal of legal uncertainty. Perhaps he is hoping for some legal uncertainties, as they would provide more work for lawyers. That was a joke, by the way. “Regressive effect” is defined as an effect that

“reduces a minimum technical standard … or … weakens governance processes associated with that standard or protection.”

The meaning of a reduction or a weakening, in this context, is not at all straightforward. Making this regressive effect unlawful without a clear definition carries significant legal risks, and may restrict policy with a progressive design, as the Government may avoid making policy changes for fear of acting unlawfully. This could impede delivery of post-Brexit government policy intended to deliver improvements in these areas.

To give an example, the waste framework directive sets targets for preparing for reuse and recycling of waste to achieve the EU’s ambition to move to a circular economy. I think that we would all support that. The targets are set on weight, so the directive obliges member states to ensure that a minimum of 55% by weight of municipal waste is reused and recycled by 2025, 60% by 2030 and 65% by 2035. However, weight-based targets may not lead to the optimal environmental outcome. If the UK were to remove this target and replace it with a target set on a different metric—on carbon, for example—while the UK could have improved standards, we could still be held to have regressed on environmental protections, were this amendment to become law. This kind of legal uncertainty has been decried in other debates.

This Bill is the vehicle to implement the withdrawal agreement in domestic law; it is not to legislate for our post-exit domestic policy in these areas. That is for separate debates in separate fora. We will no doubt have them with great vigour, as we do in all these policy areas. The amendment is neither necessary nor appropriate for the Bill. The Bill will ensure that we move forward and focus on our domestic priorities. Noble Lords can already scrutinise any changes that regulations might make to retained EU law under the Section 8 power. As I said earlier, and say again for the benefit of clarity, the Government are committed to maintaining and enhancing our already high standards, including through legislation where appropriate. I hope, given the reassurances I have provided, that the noble and learned Lord is able to withdraw his amendment.

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Moved by

[Lord Howarth of Newport]

29: Schedule 4, page 68, line 9, leave out from “41(1)” to end of line 10 and insert “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

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[Lord Howarth of Newport]

My Lords, this is the grand finale of Report stage. If the Chamber is not packed then I am not personally dismayed because we prefer quality to quantity in our debates, do we not?

Subsections (1) and (2) of Clause 41, as the noble Baroness, Lady Jolly, explained just now in the preceding debate, contain “breathtaking” powers, to use her word. The very valuable report of the Delegated Powers and Regulatory Reform Committee says that

“clause 41 … contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.”

That provision for the negative procedure is set out in Schedule 4 on page 68, line 9. It is that point of the Bill that I seek to amend.

Clause 41 and Schedule 4 provide a portmanteau Henry VIII power. It is the ultimate set of Henry VIII powers; you can go no further with such powers than the Government seek to go with these. The Government might seek to defend themselves on the basis that these powers are provided in the context of consequential and transitional provisions, but if the Minister seeks, in the pursuit of the policy set out in the Bill as a whole, to amend primary legislation there is nothing at all in the legislation to inhibit him in any way from doing so.

The Government might also seek to defend themselves on the basis that the courts in practice would construe pretty strictly what powers the Government sought to exercise under these provisions, but we do not want these matters going to the courts. If they do, it takes the courts and judges into political terrain that it would be much better they kept out of.

The Government take powers in Clause 41 to amend or, indeed, repeal any previous enactment up until the end of this year. The noble and learned Lord, Lord Judge, pointed out to us yesterday that a certain provision of Magna Carta was vulnerable under the policy adumbrated in the Bill. I am sure that when he comes to respond, the Minister will explain that he has no intention of repealing Magna Carta. Indeed, we have already been reassured in previous debates that the Government do not intend to use the Henry VIII powers with which they have peppered the Bill to undo the devolution settlements or to pursue other draconian purposes.

However, the Government really have written a constitutional monstrosity into the Bill. As the noble Baroness, Lady Kramer, said just now, this is a bad and improper precedent. Unless the Government can produce a justification, which I find unimaginable, for the taking of these extravagant powers they should not write them into the Bill at all. As the noble Baroness suggested, in an age of populism it is particularly undesirable that extreme powers be taken casually. It is a proper responsibility of your Lordships’ House to keep an eye on what is going on and, where legislative practice becomes unacceptable, to point it out to the other place.

If Members of Parliament perused the Bill and informed themselves in close detail about it, they might consider that they had been rather insulted. We should certainly give them the opportunity to consider that possibility. Members of Parliament on the Conservative side of the House of Commons might be uneasy about what appears to be in conflict with the Conservative Party’s manifesto. I have taken the precaution of looking at it. In the section entitled “Protect our democracy”, it is asserted:

“As Conservatives, we stand for democracy and the rule of law.”


It goes on to say:

“Once we get Brexit done, Britain will take back control of its laws.”


I do not think that, when voters studied the Conservative Party’s manifesto and Conservative parliamentary candidates took it as their oath of prospective office, they actually thought that taking back control of our laws following Brexit would mean a power grab on the part of the Executive, which is potentially happening.

Ministers have already sought to reassure us. In the debates we held on Clauses 21 and 26, it was insisted that there were no such malign intentions as the legislation would make possible. They wanted to reassure us by pointing out that the regulation-making powers so extensively set out in Clauses 21 and 26 could be exercised only under the affirmative resolution procedure. That is a mitigating circumstance, but it by no means undoes the mischief of taking the Henry VIII powers in the first place.

However, in the letter that he wrote to us, the noble Lord, Lord Duncan of Springbank, acknowledged that the regulation-making powers it is proposed that the Government should have under Clause 41 would be exercisable under the negative resolution procedure. He gave no explanation or justification for that. I do not know whether this inconsistency in approach and resort to extensive regulation-making powers under the negative procedure at Clause 41 is the result of a drafting error and a mistake, but if it was there will be an opportunity for the Government to amend it.

Following the amendments made by your Lordships’ House, the Bill will go back to the House of Commons. It would be quite easy for the Government to amend it in this regard, and they could do so with no loss of face or dignity. When Governments are flush with electoral success, they have a tendency to swagger. The bigger the majority and the higher the euphoria of electoral success that they feel, the more important it is that they act soberly when legislating and proceed with humility and magnanimity in their dealings with Parliament. Magnanimity is a Latinate word, which I hope will appeal to the Prime Minister, but if humility and magnanimity are too difficult, the Government should at least conduct themselves in relation to Parliament with respect and courtesy. Macho attitudes to legislation make for bad law.

The manifesto goes on to say that

“we… need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”.

Indeed, our scrutiny of the Bill thus far has indicated that there is a great deal for the Government—and the commission it proposes—to consider in the relationship between the Government, Parliament and the courts.

The manifesto then goes on to say that the new Government and their commission will want to look at the role of the House of Lords. I hope that Ministers in the other place and Members of Parliament will understand that the traditional constitutional role of your Lordships’ House is to act as an advisory and revising Chamber. The principal way in which the House of Lords offers its advice and proffers its revisions is by way of amendments to legislation. In doing so, your Lordships’ House poses no threat to the Government. There is no lese-majesty. In all the debates we have had on this Bill, it is clear that this House accepts that the Government have a mandate for Brexit. There is no attempt by your Lordships to subvert Brexit and thwart the Government in their purpose of enacting this withdrawal legislation.

[Lord Hamilton of Epsom]

It is probably true that since the election and the outstanding victory of the Prime Minister, this House has finally accepted that a Government are in power who want to deliver Brexit. However, that certainly was not true before the election; a very large number of amendments passed by your Lordships’ House then were intended precisely to stop us leaving the EU. They were wrecking amendments which went completely in the face of the decision taken by the people in the referendum.

[Lord Howarth of Newport]

As the noble Lord knows, I shared some of his frustrations about the last Parliament. However, in the last Parliament this House did not subvert the authority of the elected House but sought to be in consonance with its wishes. I therefore do not think that Members of Parliament need to be concerned —nor did they need to be concerned during the last Parliament—that the House of Lords is a threat to the House of Commons. That plainly is not the case in this Parliament.

Amendment 29 is a moderate amendment. There are two issues. One is the Government’s propensity to take excessive Henry VIII powers. The other is procedure—the manner in which Parliament should approve the regulation-making powers that would be brought forward under this legislation. My amendment does not seek to remove the Henry VIII powers. It does not say that Clause 41 should not stand part. I do not know what the consequences would be for the proper functioning of the legislation if I had sought to achieve that. I have sought to amend the aspect of the Bill dealing with the procedure for adopting regulation-making powers. I hope that the Government accept that it would be appropriate to substitute the affirmative resolution procedure for the negative one. Even then the amendment would not be ideal, because if your Lordships’ House rejected regulation-making powers under the affirmative procedure, there would be howls of protest, as my noble friend Lady Hayter observed earlier in our debates. It would be regarded as a constitutional outrage on the part of your Lordships’ House. At any rate, if the Government are willing to accept this amendment, it will enable Parliament as a whole—both Houses—to express its view on the legislation and, if necessary, for either House to reject any attempt that the Government might make, by way of regulations, to alter the principles of law or to rewrite primary legislation. I beg to move.

--- Later in debate ---

[Lord Callanan]

My Lords, we have reached the final amendment. I thank the noble Lord, Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, for their comments and for setting out their positions. I understand the concern of noble Lords about the parliamentary procedure attached to the consequential power in Clause 41. We have already noted these concerns; noble Lords in other debates have raised them and we all read closely the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I addressed many of these points last week, when I spoke to the amendment in the name of the noble Lord, Lord Tope. I hope today to provide similar reassurances to the noble Lord, Lord Howarth. I agree with so many of his points on EU withdrawal, although perhaps not this one.

As noble Lords are aware, consequential powers are standard provisions in legislation, even legislation of great constitutional significance, such as the Scotland Act. If noble Lords look at Schedule 5 to the Bill, they will see that we have already included many of the consequential amendments required as a result of the Act. However, we also believe that we need a power to make further consequential provisions to the statute book.

I am aware that the noble Lord, Lord Howarth, yesterday asked for assurance about why the consequential power in Clause 41 is subject to the negative procedure. I understand the noble Lord’s concern but reiterate that the power is limited to making amendments that are consequential to the contents of the Act. Its scope is very different from the powers discussed over the last 10 days by my noble friends Lady Williams and Lord Duncan, which will be used to implement the withdrawal agreement. It is in everyone’s interest that the statute book functions effectively. Moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make the necessary consequential changes before exit day and could lead to legal uncertainty. I hope noble Lords agree with me that this is not the appropriate course of action.

This procedure is limited to giving Ministers the power to make regulations that are in consequence of the Act, like consequential powers in many other pieces of primary legislation. This power will be construed strictly by the courts. It can be used only to make amendments that are appropriate to legislation in consequence of something that the Act does. I am sure noble Lords agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members of this House will still have the opportunity to pray against regulations, should they consider them inappropriate, as is usual for regulations of this kind. I hope I have provided the necessary reassurances to the noble Lord and that, as a consequence, he is able to withdraw his amendment.

[Lord Howarth of Newport]

The noble Lord, Lord Callanan, has not provided me with the reassurance I seek. In my earlier remarks, I anticipated the arguments that he would offer about why we can be relaxed about these powers being taken and believe him when he says that the scope would be minimal. That is not the case. I am extremely grateful to the noble and learned Baroness, Lady Butler-Sloss, for speaking as a most distinguished lawyer. She encourages me, in my legal amateurism, to believe that I am on the right track. I think I am. I hope that, even overnight, the Minister may be willing to reflect further on this, and that the Government will accept the amendment. It would be in earnest to the magnanimity on the part of the Government that I venture to hope might manifest.

[Lord Callanan]

For the avoidance of doubt, this is not a matter that we will reflect on further. Therefore, if the noble Lord wishes to pursue his amendment, he needs to test the opinion of the House.

[Lord Howarth of Newport]

I also hoped that the Government might want to demonstrate their good intentions towards their future constitutional behaviour, but there it is; we cannot win every battle. Maybe, in the watches of the night, the Minister will repent and reconsider. On that basis, I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Cormack (Con)]

My Lords, we should take an example from the noble Lord, Lord Dubs, who replied with great graciousness this afternoon, and move forward, jettisoning wherever we can the words “Brexit”, “remain” and “leave”. Wherever we stood in the past, we are now moving forward. I am very glad that there has been no contesting of the will of the elected House, which represents the will of the people. Let us now try to have some unity and some real healing across both Houses.

[Lord Howarth of Newport (Lab)]

My Lords, I would like to express my personal appreciation for the way in which the noble Lord, Lord Callanan, has handled his responsibilities at the Dispatch Box. Although I am somewhat anomalous on this side of the House in being—if the noble Lord Cormack, will allow me to say—in favour of leaving the European Union, none the less, I am sure that many of my colleagues have also respected the hard work and the gracious spirit in which the Minister has presented the case on behalf of the Government.

However, I cannot agree with his commendation of these so-called Commons reasons. It is disappointing for this House that the Commons has dismissed the amendments that your Lordships’ House sent to them, with no serious consideration whatever. That represents a failure to recognise and respect the proper constitutional role of this House. In the proceedings on this Bill, this House has not sought to obstruct the Government’s purpose in passing the withdrawal legislation. Everybody in this House accepts that the Government have a mandate to do so, and everybody understands the time constraints. None the less, this House sought to improve the legislation in important respects.

My noble friend Lord Dubs, and the noble Baroness, Lady Deech, have made the case very well indeed in respect of the issue raised in the Dubs amendment, but there were also important constitutional issues that arose from the Bill, and they are not negligible. They concern, for example, the formal processes and the spirit in which the Government seek to relate to the devolved institutions as we withdraw from the European Union and develop the new relationship. They concern the excessive Henry VIII powers that the Government have chosen to take in this Bill—one of them, very importantly, providing for the Government to take powers, by regulation, to intervene in the realm of the judges in determining how they should handle European retained law.

There are other areas, including Clause 41, which has provided a very large, very extravagant opportunity for the Government, by regulations, to abolish or amend, in substantial respects, primary legislation. It is not just legitimate but our duty to have considered these matters, and it is disappointing that in the other place, the Government, Ministers and Members of Parliament have not thought it worthwhile to give any significant consideration to these issues. Taking back control of our laws should represent a full restoration of parliamentary government, and a full restoration of parliamentary government should mean a proper working relationship between your Lordships’ House and the other place. It should not mean a new excrescence of, to use that memorable term coined by a very distinguished Conservative, Lord Hailsham, the “elective dictatorship.”

[Baroness Hamwee (LD)]

My Lords, I simply have one request for the Government. What will shortly become Section 37 provides for a statement of policy within two months. The Minister talked about reassuring noble Lords. Those who need reassurance are EU citizens—those covered by my noble friend’s amendment—and those affected by the child refugee situation. I hope that the Government, who have told us that they have been negotiating, can bring forward a statement of policy well before the end of the two months.