European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Randerson (LD)]

My Lords, this Bill gives UK Ministers powers to make statutory instruments that would include the power to amend the founding Acts of devolution without requiring the consent of the Welsh Assembly, the Northern Ireland Assembly or the Scottish Parliament. These powers could be used in relation to policy areas, as noble Lords have said, that are the responsibility already of Welsh Ministers, Northern Ireland Ministers and Scottish Ministers. The assumption is that the UK Parliament would legislate to alter their powers. Obviously, there may be times when this is pragmatically acceptable, but what is not acceptable or reasonable is that, under the provision as drafted, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly are not required to give their consent.

I wish to speak simply and briefly, referring specifically to my experience as a Wales Office Minister, as a Member of the Welsh Assembly for 12 years, as a Minister in Wales and as a Minister for Northern Ireland in this House. It is safe to say that I have seen it from both ends of the telescope. It has been unthinkable from the start of devolution that UK Ministers would progress in these circumstances without the consent of the devolved Assemblies and Parliament. It has been an early-established principle of devolution that that did not happen. There has on occasion been sabre-rattling but it has not happened because that principle was established.

I am pleased to see the amendments of my noble friend Lady Suttie in relation to Northern Ireland because we are in danger of behaving as if the phase of devolution in Northern Ireland has passed. It is important that the Bill caters for the resumption of devolution in Northern Ireland.

I am pleased to hear from the Minister that the Government are planning changes. However, I know that he has too much respect for devolution to be happy with the situation in which he finds himself today. It is a muddle, a mess, and almost provocative. I certainly would not for one second lay this at the Minister’s door, but it is almost provocative to leave it to the last minute so that, effectively, the opportunity for government amendments in Committee has been lost. I am sad that we are in this situation because it is becoming increasingly negative, when we could go forward in a positive manner. I have tremendous respect for the Minister, his experience and his belief in devolution; I hope his replies will reassure us.

[Viscount Hailsham (Con)]

My Lords, my intervention will be extremely brief. I was entirely persuaded by what the noble and learned Lord, Lord Hope, said. To allow the Westminster Parliament to interfere with the constitutional settlements already agreed without the consent of those constitutional Parliaments or Assemblies is a recipe for disaster. It will stir up nationalist opinion in a way that we would be very well advised to avoid.

The only other point I will make is that the mechanisms for making these changes are unamendable. The Scots Nats in the House of Commons would be active in arguing that it was profoundly wrong to have a regulation before the House—if it was ever before the House, and that is extremely questionable, as we know well— which they could not amend. I can think of few things more calculated to fracture consent and fragment the union.

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[Lord Campbell-Savours (Lab)]

I have not spoken on this Bill at all yet. I have made a point of not speaking because I understand the pressure on the Government, but I want to raise one issue—trusted trader status. The Government have told us that they intend to establish such a system on the border of Northern Ireland and southern Ireland. We are told that an exemption will apply to small and medium-sized enterprises involved in cross-border trade. The Government say that it is possible to manage the allegation that there will be substantial fraud under such a system. First, where can we find a definition of what constitutes a small or medium-sized enterprise? It is very important that we know that in advance. Secondly, do we know what percentage of trade will fall under that description? Thirdly, when they talk about “managing” a system, what kind of management arrangements do they intend to set in place to ensure that fraud does not take place? Finally, what will happen when it comes to customs entries for those firms that are not covered by trusted trader status? Will the clearance and entry arrangements for their goods going over actually be on the border posts? I presume that if some businesses are exempt then there must be some actual control on the border itself. These issues need to be answered at a very early stage in the procedure. I have truncated much of what I wanted to say, but I want to get this on the record this evening.

[Viscount Hailsham]

My intervention at this stage will be extraordinarily brief. What I say about Amendment 104 also applies to Amendments 105 and 106, which are in the two subsequent groups. There is a great deal of merit in requiring these reports, but there is no reason at all why they should be linked to the initiation of the regulations: that is slightly misconceived. The noble Lords, and my noble friend, who put their names to the amendments are lacking ambition. They should require these reports to be published, in any event, before Brexit day. As the Committee knows, later on in this debate we will come to the issue of parliamentary control. Parliament can only exercise full control if it is in possession of facts, and the facts will be furnished by these reports. Those noble Lords, and my noble friend, are right, thus far, in linking it to the institution of regulations, but they should be ambitious and, on Report, require these reports before Brexit day. If my noble friend does that she will find me with her.

[Baroness Altmann (Con)]

My Lords, given transport’s essential role in supporting the UK economy, transport issues should be given high priority by the Government in this Bill and other legislation relating to Brexit. It does not seem to have had that level of importance attached to it. Amendment 104 requires that no regulations should be laid that would amend UK-EU border transport procedures unless Ministers can demonstrate that the new procedures will not increase delays to freight transport. I appreciate the sentiments of my noble friend Lord Hailsham. I will take his comments under advisement on Report because, as he said, this is such an important issue.

The time sensitivity in modern logistics and UK supply chains means that retaining a seamless supply-chain process is of significant economic importance. Customs clearance, as well as passenger entry mechanisms to the UK from the EU, including on the island of Ireland, should be as seamless as possible. If the UK leaves the EU, the current system whereby all trucks can operate through the EU on the basis of a one-page document, and without requiring specific permits, may well not continue. UK-based road haulage businesses have benefited considerably from the EU principles of free movement, which has meant that UK lorries and their drivers can cross borders and operate within other parts of the EU. The Government’s own statistics suggest that 85% of the lorries operating between Britain and the other 27 EU countries are owned by businesses in the other EU 27 countries rather than the UK. In order for these international commercial arrangements to continue if we leave the EU, specific arrangements will be required that have not yet been negotiated. As far as I am aware, this cannot be achieved through our domestic legal system. It is a separate issue from the customs union and depends on access in some form to the single market. If we leave the EU without proper agreements in place or if we fail to maintain full regulatory alignment, road haulage, especially from the UK and Northern Ireland to Ireland, will face barriers. This does not fit with the aim of frictionless trade and our commitments under the Good Friday agreement, notwithstanding the comments of my noble friend Lord Robathan.

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Moved by

[Viscount Hailsham]

109: Clause 7, page 6, line 27, at end insert “or which have effect after the end of the period of two years beginning with exit day”

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[Viscount Hailsham]

My Lords, I shall speak briefly to the three amendments in my name, Amendments 109, 134 and 188. These are intended as sunset clauses but, as I do not want them to be sunrise clauses, I intend to be extraordinarily brief.

Those of your Lordships who have been in Committee during debates on Clauses 7 to 9 will know that I am very unhappy about the process those clauses attract. For example, the powers within those clauses are very widely drawn, the scope is considerable, the regulations are made by secondary legislation with very limited scrutiny, both parliamentary and ministerial, and they are triggered by a test—the test of appropriateness—which I regard as wholly unsatisfactory. For all those reasons, my view is that the regulations made under the regulation-making powers should die two years after Brexit and should, if necessary, be replaced by primary legislation. That is my suggestion to the Committee, and I hope it commends itself to your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

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[Baroness Goldie]

People are bellowing “End!” in my right ear and I know which side my bread is buttered on.

I have spoken at length but I hope I have addressed noble Lords’ concerns. I urge the noble Viscount to withdraw his amendment.

[Viscount Hailsham]

My Lords, this group of amendments has enabled the Committee to identify matters of considerable importance. I think that the Committee will say to my noble friend that she has tried to be helpful. We do not always agree with her but we are grateful to her for the way in which she has responded. Important issues have been raised with regard to statutory instruments and consultation with stakeholders. These matters will be addressed later on in future sessions of this Committee. The hour is late and, with the consent of the House, I would like to withdraw my amendment.

Amendment 109 withdrawn.