European Union (Withdrawal Agreement) Bill

Lord Tunnicliffe Excerpts

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

[Baroness Ludford (LD)]

My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.

When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with

“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”

arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.

In the Explanatory Notes, the Government had said that

“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”

That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.

Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that

“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”

It reminds us that

“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,


as I earlier cited. It concludes:

“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”


That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.

The delegated powers memorandum says about the justification for taking the power:

“These amendments are necessary to allow the power to function in the revised context of the implementation period.”


We were always going to have an implementation period. I simply do not understand this next sentence:

“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”


We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.

I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase

“not clear in its effect as a result of the operation”

gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.

[Lord Tunnicliffe (Lab)]

My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.

During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?

The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?

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

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.

As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.

The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.

Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.

--- Later in debate ---

I apologise to the House for the essentially technical nature of the explanations, but I hope my reassurances and explanations will enable the noble Baroness, Lady Ludford, to withdraw the amendment.

[Lord Tunnicliffe]

Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?

[Lord Callanan]

We certainly have no current plans to extend it any further.

--- Later in debate ---

[Lord Warner]

My Lords, I had not intended to speak on this amendment but, on further reflection, I thought that I should, as someone who has worked in the Home Office and seen how important our easy access to these European systems is for the public’s safety. It is worth us reminding ourselves that a primary purpose of any Government, of whatever political persuasion, is to keep the citizens of its country safe. Clearly there will be challenges for our security services, the police and our criminal justice system if we come out of these systems and do not have comparable or equivalent access to them and their information.

The problem is even more serious than the noble Lord, Lord Paddick, outlined in his extremely comprehensive and well-argued speech. The Government recognise that our criminal justice system faces a lot of challenges and has considerable inadequacies; they want an independent review of it. The Government’s acknowledgement of the system’s weaknesses in keeping our citizens safe makes it even more important that they should be busting a gut—if I may put it that way—to ensure that the UK keeps the kind of access to those systems that it has now, despite the criticisms currently made of how we have used them. It follows that any inability to have that access, or equivalent access, will weaken the Government’s capacity to keep their citizens safe. That will not be a good story to tell the electorate at any future election.

We must treat this area rather differently from how we treat some of the others in the Bill. It is up there as one of the top issues for the Government to tackle in the next six to nine months. The noble Lord, Lord Paddick, and his colleagues deserve much credit for bringing this matter forward now, and I hope that if he is not satisfied he will push this matter to a Division next week. I entirely support Amendment 33.

[Lord Tunnicliffe]

My Lords, I am grateful to the noble Lord, Lord Paddick, for moving Amendment 33, which has provided an opportunity to discuss an aspect of the future relationship that rarely receives the attention it deserves. As my party’s Treasury spokesman in this House, I recognise that our future trading relationship with the EU is of vital importance. However, it is not the only future relationship up for negotiation; nor is it the relationship that will keep British citizens, and our streets, safe.

I agree with the noble Lord, Lord Warner, that this is a vital area, in which we must do well, and which we must all understand. The political declaration includes a commitment to agree a

“broad, comprehensive and balanced security partnership.”

However, we should remind ourselves that although it is referenced in the withdrawal agreement, that declaration is non-binding. As well as lacking legal force, it is short on detail—largely, we understand, at the Government’s request.

Although Mrs May was misguided to threaten the withdrawal of security co-operation if the EU refused to grant us favourable trading terms, her Administration did at least provide an indication of what a future security partnership might look like. We have not had the same indication of what a Johnson-led Government wish to negotiate—and it seems that the Bill, which strips out the original requirement for proper engagement with, and scrutiny by, Parliament, means that we are unlikely to find out any time soon. If we do not know, it is highly doubtful that our police forces or security and intelligence services can be any more confident that the Government will preserve UK participation in the EU agencies and data-sharing protocols that are so important in their day-to-day work.

In the Commons, my Labour colleague Nick Thomas-Symonds outlined the risks that we face from any loss of access to EU databases, such as the Schengen Information System, meaning that

“information that today can be retrieved almost instantaneously could take days or weeks to access.”—[Official Report, Commons, 8/1/20; col. 509.]

Modern crime, whether cyber or terrorist attacks, requires quick decisive responses. As we have seen time and again in recent months, organised crime increasingly takes place across borders, taking advantage of any vulnerabilities that exist. Those vulnerabilities are best identified and addressed by working alongside our neighbours.

To lessen our degree of co-operation with our EU neighbours would be reckless. But, given the Government’s determination to conclude both our economic and our security relationships with the EU in just 11 months, it feels almost inevitable that there will be a diminution of the benefits that this country and its security agencies currently enjoy. I hope the Minister will be able to provide at least some of the detail so sorely lacking to date. I repeat my support for the principle underlying the amendment. If the Minister’s response is lacking, we may return to this issue at a later stage.

[Baroness Williams of Trafford]

I thank noble Lords for their comments. I support them in drawing my and the Government’s attention to the various elements of co-operation that are so crucial in keeping our citizens safe.

It has never been in doubt that it is in everyone’s interest to maintain that strong relationship with the EU in this area. The political declaration provides the framework for the strong relationship, including co-operation on the specific capabilities that the noble Lord, Lord Paddick, has set out in his amendment. However, the precise details that noble Lords seek will be a matter for the next phase of negotiations that will be carried out, I hope with flexibility, in this and other areas. A statutory requirement to negotiate—a matter discussed quite vocally in this Chamber today—is neither necessary nor appropriate.

On the role of Parliament, I refer noble Lords to the strong commitment given by the Prime Minister that Parliament will be kept fully informed of the progress of the negotiations and will have the opportunity to scrutinise any legislation required to enact the future relationship. Therefore, a reporting requirement is not needed.

The noble Lord, Lord Paddick, made a point about Norway and Iceland and their extradition agreement with the EU. Apparently, it is now in force as of 1 November last year.

I am sorry that I cannot fill in any detail but no detail is yet forthcoming. However, I hope the noble Lord will feel happy to withdraw his amendment.

European Union (Withdrawal Agreement) Bill

Lord Tunnicliffe Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Noakes (Con)]

My Lords, like the noble Baroness, Lady Randerson, I served on the EU sub-committee, led very ably by the noble Lord, Lord Whitty, and took part in the preparation of the report to which the noble Lord referred.

It was very clear from the evidence we received in that committee that some serious issues remain to be resolved. In particular, I single out road haulage, with the issue of permitting. Not all the other sectors present the same degree of difficulty. However, in that committee we took evidence from the Minister in the Department for Transport. While there were no definitive answers, because at that time last year there was a range of possible Brexit outcomes, it is fair to say that the Minister demonstrated a full grasp of the issues involved. I have confidence that the Government are aware of the issues and know what needs to be addressed in order for there to be a successful outcome for all aspects of transport post Brexit: that is, post the implementation period, in effect, so this is not a burning-platform issue.

I cannot support the amendment in the name of the noble Lord, Lord Whitty, because I do not think that reports to Parliament are a particularly useful mechanism, especially in the context of what I believe was relatively clear evidence at the time that the Government were aware of the issues and determined to address them. I look forward to hearing my noble friend the Minister’s response and hope that she will be able to demonstrate to the House that the Government are indeed aware of the issues and committed to finding practical solutions to them.

[Lord Tunnicliffe (Lab)]

I do not normally have sympathy for the Government Front Bench, but I, like the noble Baroness, Lady Sugg, took part in many hours of, broadly speaking, good-natured debates preparing for a no-deal exit. That very action revealed to us the sheer complexity required to make international transport systems work effectively. We were dependent on what we could do for ourselves, because we were in no way able to demand reciprocal action from the EU. Indeed, the EU saw the sheer risks of a no-deal exit and in fact came some way towards providing interim arrangements. Those interim arrangements do not now exist. It is possible that they will emerge between now and the end of December, but given the sheer effort required to do these complex deals, where somehow it is subtly acceptable with our European friends but is not actually like Europe—roughly speaking, that is what the Government are saying—I fear it is impossible.

I do not want to leave the European Union. Most of the House before the election did not want to leave the European Union and probably does not now, but with the odd exception there is virtually acceptance in this House that we have to get Brexit done. We may not like it, but we accept it. However, the sheer practical difficulties the Government face are terrifying.

It also happens that they have picked the worst date of the year. I had a crisis when a permit to operate ran out on 31 December; the alternative was to stop London on 1 January. It was pretty terrifying, because Christmas happens all over the place. Frankly, the end of December is the 22nd if you are lucky. The problem is that everybody else thinks the end of December is the 31st. It turns out that it is not. People are not there—senior people to make decisions and last-minute scrambles, which are what deadlines produce. It becomes utterly chaotic. Anyway, we survived and London did not stop, but it got incredibly close.

During consideration of the Haulage Permits and Trailer Registration Act, we debated the concerns of the freight industry at length. That industry is key to our trading with the EU 27, with millions of road goods vehicles travelling from Britain to the European mainland each year.

Since the passage of the Act, as part of its preparations for a no-deal exit, the Department for Transport began allocating permits via a lottery system, a system that was to be a fallback. Inevitably, because it is so overwhelmed, that became the main allocator. Figures show that less than 1,000 of more than 11,000 HGV operators' applications for annual permits were successful. With a deal now in place and a time-limited transition period running to the end of December, hauliers, drivers and users of other transport modes will be able to continue largely as normal.

However, as with other topics debated in recent days, there is no certainty about the post-December 2020 picture. Indeed, with the Government imposing hard deadlines for a new trade deal, transport operators face a renewed threat of suboptimal contingency measures. I lived in the transport industry. The lead time simply to have the right people in the right places to load the trains, drive the trains, fly the aeroplanes takes weeks and months. If you do not know what you are going to do in an industry that is so integrated, chaos reigns.

I welcome my noble friend Lord Whitty’s amendment and look forward to the Minister providing more up-to-date information. We have had precious little detail from the Government on their plans for future UK-EU transport arrangements, and while we accept that this will be subject to negotiation, I hope the Minister can indicate the type of arrangements that we will be seeking, and that the Government are successful.

--- Later in debate ---

[Baroness Miller of Chilthorne Domer (LD)]

My Lords, I thank the noble Lord, Lord Whitty, for his dogged persistence in pursuing this matter. There is no doubt that, as we move beyond the end of this year, we will start to lose out on all the joint research on the issues around novel foods, scientific research into diseases and threats, pollution, climate change and so on—all the things that scientists are working on—unless we move ahead in the way that the noble Lord has described. It would be criminal if at a time when we are all facing so many common threats, particularly from climate change, we started reinventing the wheel. We do not have the scientific capacity to reproduce the sort of work that goes on at the Joint Research Centre in Ispra in Italy, for example, which is the combined research of the cutting-edge scientists of so many countries.

I doubt that it will be in the lifetime of this Government that we will be able to measure their failure to do the sort of work that the noble Lord is suggesting but, unless a solution is reached along the lines that his amendment suggests, we will certainly suffer in five, seven or 10 years’ time.

[Lord Tunnicliffe (Lab)]

My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.

We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.

Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.

As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.

In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.

I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.

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

My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.

It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.

It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.

The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.

The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.

I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.