European Union (Withdrawal Agreement) Bill

Lord Newby Excerpts

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

[Lord Newby (LD)]

As your Lordships’ House knows, I and my colleagues on these Benches have spent the last three and a half years arguing that Brexit was not in the best interests of the British people and that they should have the opportunity to have a further say, in the light of the evidence available, on whether they really wished to leave the EU. We reluctantly came to the conclusion last October that, the withdrawal agreement Bill having secured its Second Reading, and in the absence of a majority in the Commons for a confirmatory referendum, a general election was the last and only way in which Brexit by Christmas could be avoided. We knew that this was a second-best way forward—from our perspective, a referendum would have been far preferable—and we knew that it was a risk. We took the risk, but we did not succeed.

I realise that there are many people who fervently believe that we should remain in the EU who would now try to undermine the legitimacy of the current Bill by saying either that the original referendum result itself was flawed or that, given that all the polling shows that the majority of the British people would still like to remain in the EU, there is not a proper democratic mandate for Brexit. I am afraid I disagree. Everybody who voted last month knew that the election was, in reality, a proxy referendum on Brexit. There were of course other factors, notably the quality of the leadership of the Labour Party, but having fought the election on the slogan “Get Brexit done” and having won that election, the Prime Minister has the mandate and the votes in the Commons to take Britain out of the EU.

This does not change my belief that there is no such thing as a good or sensible Brexit. We on these Benches continue to believe that it will damage our economy, our security and our international reputation, but we are now faced with this Bill, which will indeed take us out of the EU. It does not, of course, get Brexit done, but it starts the process—a process which the Prime Minister will oversee with a solid Commons majority behind him. It is his Brexit. He owns it, and he will be judged by its successes and failures. The fact that the Government have a large majority and have indicated that they have no intention of accepting any changes whatever to the Bill is no excuse for your Lordships’ House to fail to scrutinise and challenge its detailed provisions, nor to vote to secure changes which we believe are in the interests of individuals or the country as a whole. This is what we will seek to do.

This is, of course, the second withdrawal agreement Bill presented to Parliament. The first version got its Second Reading in October but was superseded by the election. At that point, the Government lacked a secure majority and were prepared to make sensible concessions to get that Bill through. Now, free from such a constraint, they have removed all these concessions, however sensible or uncontentious they were. They have in their place inserted some new and contentious provisions. Amendments to reverse some of these changes are the principal area in which we will seek to improve the Bill. We will also seek to consider elements of the Government’s negotiating mandate which we believe the Bill should cover.

The removed concessions are, first, the so-called Dubs amendment on allowing unaccompanied refugee children to join family members in the UK. The Bill simply requires the Government to report on their policy in this area and undermines the substance of their earlier commitment. The Government may say, as the Minister has this afternoon, that this will make no practical difference. But if that is so, there is no reason for changing the original provision and we will support the noble Lord, Lord Dubs, in trying to reinsert it.

Secondly, the original Bill had sensible and detailed provisions for parliamentary oversight of the negotiating process. These have been deleted. They provided for Parliament to consider and approve the Government’s negotiating objectives, to report back to Parliament on the progress made in the negotiations and to require Parliament to approve any negotiated future relationship treaty. The only possible reason for the Government to delete these provisions is that they wish to avoid being held to account by Parliament, and to conduct and conclude negotiations with the EU with as little parliamentary scrutiny as they deem fit. We know that in practice this means as little scrutiny as they can possibly get away with. The original provisions should be reinserted.

Thirdly, the original WAB had provisions to protect workers’ rights. This Bill does not, and they should also be inserted.

Of the new provisions in the Bill compared to its predecessor, the most politically significant is Clause 33, which prohibits any extension of the implementation period beyond the end of 2020. This provision means either that the Government are relaxed about the possibility of having no trade agreement in place and operating on WTO terms from next January, or that the provision is a negotiating ploy which will be ditched if and when it proves impossible to reach a quick agreement. Your Lordships’ House has expressed its view on the undesirability of leaving with no deal on numerous occasions. The Prime Minister’s breezy self-confidence will not make such a course any less damaging. Putting a clause in a Bill as a negotiating ploy is simply not what legislation is for. The clause should be deleted.

A second series of new provisions relates to the ongoing rights of EU citizens in the UK. The Government have put in place a system under which all EU citizens currently resident in the UK can apply for and receive new permanent residence status. This is welcome and uncontroversial. Concerns remain, however, about how the system will be managed; for example, on how to avoid EU citizens being deprived of their current rights by default if they do not register in time and on the provisions for appeals. There remain great concerns among EU citizens in the UK on these and other points, and we should take this opportunity to ease them.

Thirdly, in respect of the powers given to Ministers, there are several respects in which the spectre of Henry VIII hovers over this Bill. For example, in Clause 27, it is proposed that Ministers should be able to amend retained EU legislation by secondary legislation under a worryingly broader definition of what constitutes a deficiency in the legislation in the first place. There are also the new proposed powers in Clause 26, which allow Ministers to direct an unspecified range of courts and tribunals on which aspects of EU retained case law they must follow. This is a most extraordinary and unsatisfactory power, and we will support the amendment in the names of the noble Lords, Lord Pannick and Lord Anderson, and indeed my noble friend Lord Beith, to delete it.

Moving on from the changes to the previous withdrawal agreement Bill, there are issues relating to the Government’s negotiating mandate which need to be considered and inserted in this Bill. When we debated the withdrawal Bill in 2018, we sought to include provisions which related to the Government’s negotiating mandate—issues which were covered by the political declaration but which we thought so fundamental that they should be included in that legislation. We will want to discuss some of these issues again and try to include them in this legislation. They include participation in EU programmes including Erasmus and Horizon and the European medicines regulatory framework. They include maintenance of environmental and animal welfare standards. They include the nature of a security partnership. This Bill should cover them all.

We at least have somewhat longer to scrutinise the Bill than was the case in another place. We need to make sure that we use this time wisely to limit the damage which Brexit could do to our economy, our constitution and our values as a liberal democracy.

European Union (Withdrawal Agreement) Bill

Lord Newby Excerpts

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

[Lord Keen of Elie]

No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

[Lord Newby (LD)]

Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?

[Lord Keen of Elie]

My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

European Union (Withdrawal Agreement) Bill

Lord Newby Excerpts

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

Removing this Clause would prevent the prohibition on extending the implementation period.

[Lord Newby (LD)]

My Lords, Clause 33 amends the withdrawal Bill to debar any Minister from agreeing to an extension of the implementation period beyond 31 December this year. Such a possible extension is provided for in article 132 of the withdrawal agreement, which says that

“the Joint Committee may, before 1 July 2020, adopt a single decision extending the”

implementation,

“period for up to 1 or 2 years.”

My co-signatories and I object to this clause standing part because we believe that ruling out an extension of the implementation period in all circumstances is impractical and against the national interest. We do not believe that it will be possible to negotiate a comprehensive agreement covering trade, security and the other issues covered by the political declaration by the end of the year and, this being so, the logical and sensible thing to do is to allow for the possibility of an extension.

Why do we believe that such an extension will be necessary? I will concentrate on trade, although reaching agreement on other matters such as security will be equally contentious and time-consuming. What is the evidence that it will be impossible to conclude an agreement on time? Let us first be clear about what we mean by “on time”. The EU will decide on its negotiating mandate next month, so no talks will be possible at all until towards the end of February. The withdrawal agreement makes it clear in article 184 not only that the negotiations have to be concluded by the end of December but that ratification has to take place before the end of the year, so that the negotiated agreement can come into force, as far as practically possible, by 1 January next year.

Any comprehensive agreement will be a so-called mixed agreement, which will require it to be ratified not only by the EU Council and the European Parliament but by all national Parliaments and a number of regional assemblies. In the case of the Canadian trade agreement, the one we are told is closest to what the Government now have in mind, ratification itself took over five years. But to be very generous, let us assume that it might be possible within two months. This would mean that the agreement must be concluded by mid-October, giving a maximum of eight months for the negotiations.

It is well known that all trade negotiations, so far in human history, normally take years to complete. The Canadian agreement took more than five years, for example. The Government rightly claim that these negotiations will be different because we are already in full trade and regulatory alignment with the EU, so it will be easier than starting from scratch. While this may be true, it is absolutely clear that the negotiations will not be straightforward.

The head of the Commission, Ursula von der Leyen, said last week in London that it would be impossible to reach a comprehensive deal within the timetable. Even the Prime Minister yesterday said that, while he thought reaching a deal would be “epically likely”, he did not rule out the possibility of a failure to do so because of, as he put it, a possible

“complete failure of common sense.”

I looked up “epically” because, when I first read it, I thought it was a spelling mistake—it is a word that I have neither seen nor used before. It does not mean what the Prime Minister thinks it means. It means

“in a lengthy, grand or important way”.

He is in fact more correct than he probably realises, because this will definitely be done “in a lengthy way”.

What evidence is there to support the Commission’s view and to doubt the Prime Minister’s breezy optimism? It is worth looking at the Canadian deal to get some clues. First, despite the fact that that deal took many years of negotiation, it does not even give full tariff and quota-free access, something that the Government say is absolutely the first building block of what they are looking for. In the case of Canada, there remain quotas on poultry, eggs and meat and tariffs on beef, pork and wheat. This difficulty over agriculture is before we get to the even more difficult issue of fishing rights. The idea that we can easily reach agreement is simply false.

Secondly, on services, according to the Government’s own estimate produced in the document that we were allowed to read only by submitting our phones and going into a windowless room in January 2018, the Canada deal includes over 550 individual restrictions on the trade in services. Yet the Prime Minister says he wants the deal to cover all services. It might be possible in some areas, but the idea that there is a possibility of agreeing 550 concessions that were impossible to reach with Canada within the period that he is discussing is wholly implausible.

More generally, the Government want to minimise the cost of trading with the EU. This assumes a particular importance, because it applies not only to trade between the UK and the EU but also, now, to trade between Great Britain and Northern Ireland. We had a fascinating debate last night on the amendment of the noble Lord, Lord Hain, in which he sought assurance that there would be no restrictions on trade between Northern Ireland and the rest of the UK— restrictions, incidentally, that are envisaged, and indeed set out, in the Northern Ireland protocol. The Minister, the noble Lord, Lord Duncan, made a valiant attempt to argue, in line with the Conservative election manifesto, that there will be unfettered trade, but could not give a definition of “unfettered” consistent with the terms of the Northern Ireland protocol, which clearly provides for customs and other checks. Incidentally, “unfettered” is now the word when it comes to trade. For how many years, and how many hundreds of times, have we heard the Minister talk about “frictionless” trade? How much of a tactical retreat “unfettered” is from “frictionless” is an interesting semantic issue. There is something in it, but the fact that the Government are not even pretending that they are trying to seek frictionless trade says something.

The noble Lord, Lord Duncan, who was masterful—as was his Sir Humphrey-inspired brief—had to admit that achieving even unfettered trade across the Irish Sea would not be straightforward. This means that it will take time. If noble Lords wonder whether the kind of checks that may well be necessary in future between Northern Ireland and Great Britain and between Great Britain and the EU matter, I would direct them to the impact assessment produced by the Government on 21 October last year to coincide with the publication of the withdrawal agreement Bill. On customs declarations alone, HMRC produced estimates of administrative costs—nothing to do with tariffs—of between £15 and £56 per declaration for goods going from the UK to the rest of the world.

--- Later in debate ---

[Lord Bridges of Headley (Con)]

My Lords, just before the noble Lord sits down, I quickly ask him something on a point of information. He spoke for 10 minutes and did not mention two words: “Salisbury convention”. I am sure he knows that, on page 5 of the Conservative Party manifesto, there is a clear commitment not to extend the implementation period. Does he agree that this amendment is in contradiction to the Salisbury convention?

[Lord Newby]

No, because it does not require the period to be extended at all. If the Prime Minister is correct and we pass this amendment, there is absolutely no let or hindrance to the Tory party manifesto being adhered to. Deleting this clause will, I fear, make the Prime Minister’s life easier. He should welcome it.

[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.

--- Later in debate ---

[Lord Callanan]

No. As I have just said, we very much hope that both sides will be able to reach an agreement. Both sides have committed to do so. I quoted the section in the political declaration whereby we and the EU have committed to getting the negotiations finalised and coming into force by the end of 2020.

[Lord Newby]

My Lords, the Minister has in a sense just given the game away. They “hope” to reach an agreement. The Commission has said that it is impossible. The Prime Minister said yesterday that it was not inevitable. The key question which this amendment seeks to address is what happens if you cannot get to that point. When asked whether this could mean we leave without a deal, the Minister said no. So what happens if there is no deal? Is he accepting a bare-bones deal? I do not remember seeing that in the Conservative Party manifesto.

The Minister has done nothing to reassure me that there is anything in the Government’s approach that makes reaching a deal in this timetable even vaguely possible. In those circumstances, as I said in my speech, I do not believe that it is in the interests of anyone—neither economically nor in terms of the national interest, given the security and other issues covered by the political declaration—for the Government’s hands to be tied by law in this way. Therefore, I am wholly unpersuaded by the Minister. For today we will not put this issue to a vote, but we will return to it.

Clause 33 agreed.