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.