Committee (7th Day) (Continued)
Clause 9: Implementing the withdrawal agreement
Debate on Amendment 150 resumed.
My Lords, I support Amendment 150, which, in the somewhat bizarre language that we tend to use when dealing with crucial issues, has come to be known as the “meaningful process amendment”. As we know, this reasonably recent addition to our parliamentary lexicon really means the process by which Parliament deals with the outcome of the Brexit negotiations, an issue that already has quite a long history. Let us start with Article 50. It provides for any deal to be submitted for decision to the European Parliament before it can be finally and formally concluded, so the European Parliament can approve or reject any deal that has been negotiated. It is surely therefore inconceivable that this Parliament should not have the same right, all the more so since the cause in which those who campaigned to leave the EU were speaking was to restore sovereignty and take back control to our own Parliament. The June 2016 referendum has no binding effect and therefore needs to be approved, or not, by Parliament.
Fast-forward, then, to Lancaster House in January 2017, when the Prime Minister committed herself to the fact that any deal would be submitted to both Houses for their decisions—rather oddly, in my view, saying nothing at that stage about the primacy of the House of Commons. So far, so good. Ever since that day at Lancaster House when the Prime Minister gave that commitment, the Government have been taking a series of steps backwards from that step forward, which casts doubt on just how meaningful they intend the process to be. Twice they have attempted to prevent the process being put into statute. On the first occasion, in the context of the Bill triggering Article 50, when this House by a large majority voted to set such a provision in statute, they succeeded. At the time, the Government, it has to be admitted, had a majority in the Commons and therefore this House did not insist. On the second occasion, in the context of the EU (Withdrawal) Bill we are debating today, they were equally determined, but they were defeated, thanks to a cross-party alliance which has provided that statutory provision for a meaningful vote is now not only desirable but necessary. So, the Bill before us provides for that statutory process. The amendment to which I am now speaking is designed not to replace that but to clarify and spell it out, and to say how best the provisions should be applied to give Parliament a genuine and timely say in the matter.
What possible respectable reasons can there be for resisting this provision, this amendment and the clarification being proposed to your Lordships? It is hard, I would suggest, to think of one, although I suspect that the Minister will manage to do his best at the end of this debate. Could it be that the Government’s objective is to ensure that the votes in both Houses to which they are committed will take place only at a moment when it is too late to do very much about things and when the sands of Article 50 are running out? That would be to deprive the whole process of its meaning.
I am very grateful to the noble Lord, for whom I have long respect. Is he not proposing a bee sting, in effect—Parliament stings and then dies? The point of the Bill is to give powers to Parliament, which he would take away from Parliament’s control.
I am sorry but I think the noble Lord has slightly misunderstood the amendment. It is Amendment 150, and if he looks at it, he will see that it gives Parliament more powers than it currently has, or was envisaged. A further look will show that it is not taking anything away from Parliament. It is ensuring that Parliament gets the powers in not only a formal but a meaningful sense, such that it can make use of those powers to direct the outcome.
This is, after all, the most significant decision that Parliament will take in this period—nobody, I should imagine, could dispute that—and it is the need to do so that makes the case for the amendment. No doubt the Minister will conclude his remarks, as he habitually does—I do not criticise him for it—by asking for the amendment to be withdrawn. Might he not consider, as others have suggested, that the best thing to happen now would be for the Government to accept it?
The noble Lord said that the referendum was not binding on Parliament. Can he deal with the point that the then Government spent almost £10 million of taxpayers’ money putting leaflets through every letterbox in the country that said, “Whatever you decide, the Government will implement”?
I will do my best. I was not and am not a supporter of any Government—I am a Cross-Bencher—but the Government the noble Lord is talking about had a majority in the House of Commons at the time; the Government who are negotiating our withdrawal from the European Union do not have a majority of their own in the House of Commons.
May I point out to my noble friend that we are implementing the will of the British people as expressed in the referendum? That is what we have been debating all these many hours and days. The British people voted for us to negotiate a withdrawal from the EU and that is what this Bill is about. It is not about not respecting that, or indeed honouring the promise that was given to the British people.
My Lords, a final answer to the question by the noble Lord, Lord Forsyth, would be that we do not just leave automatically. There is a whole range of choices that have to be made and those choices involve the Government negotiating an agreement and then, I would respectfully submit, Parliament deciding whether it approves of the deal that has been done. As the noble Baroness, Lady Altmann, rightly said, this is not about trying to frustrate the outcome of the referendum, but trying to get to a sensible answer, which Parliament takes responsibility for.
We had a fantastic debate this morning and I invidiously single out the four speeches by my noble friends Lady Hayter and Lord Reid of Cardowan, the noble Lord, Lord Patten of Barnes, and the noble Viscount, Lord Hailsham. They were absolutely terrific in terms of establishing—and re-establishing—the principle of parliamentary sovereignty. I recommend my noble friend Lord Reid’s speech; this is not some abstract principle—it is about Parliament performing its rule and its role in order that there is better governance of our country. There are three particular effects in this respect.
First—and I can say this, having been in government—there is nothing that makes government decisions better than the fact that you will be grilled by Parliament on those decisions; it makes you think them through much more. The more this Government think that they can do Brexit without being grilled by Parliament, the worse the decisions will be.
Secondly, every time I speak to people in the European Union, they ask whether this Government have the authority to do any deal, because of their precarious political position. The more that the people with whom we are negotiating think the Government will have the authority of Parliament, the more they will pay attention to what the Government are doing.
Thirdly, we want a deal that the country has confidence in. People are much more likely to have confidence in a deal that does not appear to be the product of a negotiation between the Prime Minister and Mr Jacob Rees-Mogg but which appears to be something that Parliament as a whole is willing to approve.
For those three reasons, all of which are practical, I think it is really important that Parliament has a meaningful vote. The debate this morning indicated that there was broad consensus around this House that Parliament should have a meaningful vote. I will just draw out three aspects of that meaningful vote—does the Minister agree that these aspects will be covered?
First, the meaningful vote must be in respect of the withdrawal agreement, the transition agreement and the political declaration that it is envisaged will be agreed between the European Union and the United Kingdom on the future trading relationship between the two. I include that because, as the Minister knows, Article 50 says that the withdrawal agreement must have regard to the future relationship.
Secondly, the meaningful vote—in order to be meaningful—must take place at such a time as it can affect the result. That means before the European Parliament has voted, and while there is still time for Her Majesty’s Government to go back and negotiate further, if that be the wish of Parliament, in accordance with any one of the three agreements or political declarations I have identified.
Thirdly, in order to be meaningful, this statute must make provision for Parliament—in practice that means the Commons—to be able to say to the Government what it should do next. To take an extreme example, if the Government came back and said, “We want there to be no deal except a really exiguous deal,” it would be open to Parliament to say, “No, go back and get a free trade agreement with the following indicia in it”. Or, if the Government came back with a free trade agreement only, and no customs arrangement of any sort, it would be open to Parliament—that is, the Commons—to say, “No, seek to negotiate a customs union on the following basis”.
Without those three elements covering the three items—it being the right time, and Parliament being able to say to the Government, “Go back and negotiate along these lines”, the provision would not, in my respectful submission, be meaningful. It is plain, because the Commons passed the amendment to the current Clause 9, that they wanted a meaningful vote. I am sure that all the amendments will come back in a form that has broad agreement throughout the House, and that they will propose to spell out what the Commons can do. I very much hope that in his response to this amendment, the Minister will take more seriously the questions he has been asked—and those that he was asked on the previous group of amendments.
My Lords, together with my noble and learned friend Lord Judge, and the noble Lords, Lord Tyler and Lord Adonis, I tabled notice of intention to oppose Clause 9 standing part of the Bill, in order to ensure a debate on the purport of the clause, not least on the generality of it—and not least because of the extended delegated powers that it contains. It has been a delight that that notion has been part of a debate with such outstanding speeches, including those of the noble Viscount, Lord Hailsham, the noble Lords, Lord Cormack and Lord Reid, and pre-eminently that of the noble Lord, Lord Patten of Barnes. I suggest that his speech should be written in letters of gold and set as a compulsory constitutional text—and after his speech a few moments ago, I would add the noble and learned Lord, Lord Falconer of Thoroton, to that roll of honour.
I was also musing on the effect of the words helpfully inserted in Clause 9(1) by Mr Dominic Grieve’s Amendment 7 in the Commons. If there were no deal, I wondered, would the requirement that the final terms of withdrawal should be approved by statute actually bite? But on reflection, I concluded that even if, at the end of the negotiation, there were nothing but scorched earth, there would have to be some sort of withdrawal agreement, and that in turn would make the proviso effective. In political terms it might, of course, be even more effective if no deal at all cast a different light on the fundamental question of withdrawal.
The area of great concern in Clause 9 is, of course, the powers proposed to be conferred by subsection (2). As I have Amendment 154 to that subsection, and as my noble and learned friend Lord Judge has asked me to move Amendment 153 in his unavoidable absence, I shall reserve any further remarks until we reach that group.
My Lords, my noble friend Lady Kingsmill and I have been trying to get in on this group of amendments since the beginning of the debate. Unfortunately, the noble Baroness had a meeting with the Bank of England at 4 o’clock, and as the chair of a bank, she could not fail to go to it. I sought advice from the Minister, the noble Baroness, Lady Goldie, and she suggested that I should read the noble Baroness’s words into the record. I shall then make my own comments on Amendments 155 and 191.
On behalf of my noble friend Lady Kingsmill, I support Amendment 199. Many noble Lords have spoken eloquently about this amendment, which seeks to preserve our current relationship with the EU should Parliament decide not to approve the withdrawal agreement and ask the Government to go back to the negotiating table. The Brexit process has been characterised by uncertainty. We simply do not know what the final deal will look like, under what circumstances we will do business, be consumers, travel and work. We do not know what our future relationship with Europe will be, and Article 50 sets the clock ticking for when we would need answers to those questions.
This amendment seeks to ensure that the withdrawal deal put to Parliament is not a choice between a poor deal or no deal, whereby the UK would crash out of the EU and revert to WTO terms. Noble Lords have spoken about how that would be hard for our economy and for trade and services. It would, and it would also be hard for people. It is this last point, the rights of EU citizens, which I would like to touch on today. Negotiations are about the balance between what is gained and what is lost. Some of that will be quantifiable in financial terms but it will also be about culture, opportunity and identity.
My children have grown up as proud citizens of the UK and Europe. They do not question that you can be both, or that being one means diminishing the other. They have never had to question that they can travel, study, work and live across borders, and that their qualifications and skills are recognised. For them, Europe is a place of opportunities, not obstacles. When the UK leaves the EU, it is not just that generation which will lose a part of their identity and a sense of belonging, it is the UK as a whole.
I am an immigrant, brought to this country as a child from New Zealand. When I was 18 and a new undergraduate at Cambridge, I applied for a British passport to travel to Switzerland for a walking holiday with friends. I was refused on the grounds that I was not British because neither my father nor my grandfather was born in the UK. I was shocked and felt very insecure. Eventually, I obtained a New Zealand passport. On my return to the UK after my holiday, I was required to go to the purser’s office on the ferry and was questioned about my commitment to the UK by a police officer not much older than myself. I eventually received the stamp in my passport giving me indefinite right to stay. I think I have done pretty well since then.
A week ago, the House heard informed debate on amendments that sought to put the rights of EU citizens into the Bill. I welcome the fact that an agreement was reached in principle in December on EU citizens’ rights as part of the phase 1 agreement. However, as noble Lords raised last week, there remains uncertainty and anxiety for EU citizens about their position, in particular in the event of a failure to reach a withdrawal deal. Even if EU citizens’ rights are clarified in the withdrawal agreement, what if the rest of the withdrawal agreement is not a good deal for the UK and Parliament votes against it? What happens then? In those circumstances, until we are certain and ready and prepared for a successful positive future relationship with the EU, surely we should retain the status quo and relationship we have. Surely, we owe it to the EU citizens here and the generation who will have their British-European identity severed to extend Article 50 until the best deal can be reached. That is what this amendment seeks to ensure.
Speaking for myself, I support Amendments 151 and 199. I find myself in the very unusual and discombobulating circumstances of agreeing with most noble Lords on the other side of the Chamber. If noble Lords were present at this morning’s debate, they would appreciate that we are in danger of breaking out into unity across Benches and parties.
My Lords, the noble Baroness, Lady Kingsmill, wanted to participate earlier but had an inescapable engagement. She and her colleague, the noble Baroness, Lady McDonagh, spoke to me. I felt that, in all the circumstances, it would be in our interests because, as far as I am aware, we have not had a female contribution to this debate. It is appropriate that the noble Baroness, Lady McDonagh, be given the opportunity to express her views and, in these exceptional circumstances, to convey the views of her noble friend Lady Kingsmill.
Far be it for me to argue with my noble friend, but this is not a matter of gender, it is a matter of procedure of the House. If one is able to read out other people’s speeches without limit, it creates a most extraordinary precedent. I hope those in charge of our procedures will consider whether it is something that should be repeated.
We all often enjoy the speeches of the noble Lord, Lord Forsyth. It is not a precedent; it is a convention of this House that if someone unavoidably cannot attend, they may ask someone else to deliver their speech. That was explained at the beginning of my noble friend’s speech, which the noble Lord would have heard had he been listening. It was an unusual discourtesy for the noble Lord to intervene in the way that he has done.
I thank the Minister and say to the whole Committee that I am willing to read out anyone’s speech should they come and ask me to do so. I say to the Minister that the problem is that I would answer the questions that Ministers put before me.
This morning, my noble friend Lord Reid of Cardowan used the word “preposterous”. That is the position we are now getting ourselves into. On one level, it really worries me that Amendments 151 and 199 needed to be tabled. It seemed completely preposterous that Parliament and the Government could get themselves into a position whereby the Government negotiate a deal, take it to the European Parliament, leave the EU and then bring the deal back to Parliament. That seems to involve all the conditions of creating a constitutional crisis. By tabling this range of amendments—specifically Amendments 151 and 199—this House is properly conducting its business of scrutinising the legislation and ensuring that it makes sense.
I do not want to repeat this morning’s speeches by the noble Lords, Lord Cormack, Lord Balfe and Lord Patten, the noble Viscount, Lord Hailsham, and my noble friends Lord Reid and Lord Liddle. Instead, I have a question for the Minister and I still hope he will be able to rise to his feet and say that the Government accept Amendments 151 and 199, but if he is unable to do so, could he please explain how Amendment 7, passed in the other place, can be implemented in a meaningful way?
My Lords, I will speak briefly mainly to Amendment 216, tabled by the noble Viscount, Lord Hailsham, which I also signed, but I will also refer briefly to Clause 9 and its generality.
On the recent exchanges, I may be incorrect, but speaking from a shaky procedural memory, the noble Lord, Lord Forsyth, was probably correct in what he said: the procedure that the noble Baroness opposite engaged in is unusual, although I understand that she had the permission of the House to do so. It was perhaps an exceptional moment, and noble Lords may agree, particularly in Committee rather than the whole House, that it is not necessarily a transgression. However, I think a law somewhere in the procedure book says that what the noble Lord, Lord Forsyth, asserted is correct. Be that as it may, I pass on to the important matters of Clause 9 and Amendment 216.
I thank the noble Viscount, Lord Hailsham, very much for his splendid delivery of the arguments this morning. The amendment is considerably detailed, going into its subject with great care, and it calls on the Government to study it with great care. I hope that the Government will therefore do that justice, because it is necessary. We heard other good speeches this morning—the noble Lord, Lord Patten, has been mentioned several times; I thank him again for what he said, because he said it with great humour. At long last, what I call the “Ian McEwan phenomenon”—total outrage and depression at the nightmare of Brexit—can be replaced with feeling a bit more cheerful about things as events develop. That is now affecting me as well, and I thank the other speakers for what they said.
When we began Committee of this tedious but necessary technical Bill—as I think we described it in the early stages—following the unleashing of Article 50, we anti-Brexiteers felt that we just had to get through it, however miserable we might feel, but that has not happened. The substance is now there, and it has increased much more in material terms. Now, at long last, in Clause 9—which is disturbing in the way it has been drafted by the Government—we come to a serious examination and careful consideration of the deep implications of the abuse of parliamentary freedom and sovereignty which would be engaged if the text remained unchanged. That is therefore much more than just a technical matter; it is a matter of the true sovereignty of Parliament. That is mainly, of course, the House of Commons and the parliamentary decision it will make about approving or not the final outcome of these negotiations—although I use that word in the widest sense, because they are not proper negotiations at all. The Government have been inept, clumsy and maladroit, under an increasingly unpopular Prime Minister, who has no authority after the 8 June election to pursue this course anyway, a dodgy alliance with a dubious political entity in Northern Ireland called the DUP, and a questionable First Minister to add to the gloomy picture. As we go on, we will see the effects of this dubious Bill unless it is resisted. I therefore agree strongly with the noble Lord, Lord Lisvane, in his assertion that we should resist Clause 9 in its entirety and ask the Government to think again.
I also commend very much the speech on Amendment 190 from the noble Lord, Lord Wigley, because it was the one that most clearly mentioned the magic phrase “or stay in the European Union anyway”, or however it is put. That needs to be said more and more as public opinion changes. I do not wish to deprive the public of the will of that referendum decision in any way; none the less I see the change of feeling that is now occurring in this country, with the beginnings of a clear net majority of the population—including the new, young voters who will come in next time—against the idea of leaving the European Union. That also has to be taken into account by the Government. Whatever the final text of the Bill, that must be acknowledged, and the Government might as well start saying things along those lines to get the public ready for transmission of the Bill back to the Commons and its ultimate verdict on this, the worst incident in post-war politics in Britain. I think someone said it was one of the worst decisions since the refusal to keep to the agreement on home rule for the whole of the Irish territory in the previous century. The British Government went back on that with all the trouble that ensued. This is now the worst decision we have seen, with the Government pursuing very dodgy talks and dubious negotiations on an increasingly weak basis. It is time for greater reality to set in when the Bill goes back to the Commons.
May I take up the very generous offer of the noble Lord, Lord Callanan, that someone else read his speech? I am very keen to get hold of it, and I will make suitable amendments, including accepting the amendments moved this afternoon, which are excellent. I am also keen to get hold of the future speeches of my noble friend on the Front Bench. If we have a meeting minds on what I think will be the increasingly important issue facing the House—that of how the meaningful vote is conducted and whether there should be a vote of the people on the withdrawal treaty—and get to the right place on that, I hope we can live up to the injunction of the noble Lord, Lord Patten, that we uphold our democratic traditions. We clearly need to, given the gravity of the issues we face.
The noble Viscount, Lord Hailsham, said he thought that leaving the European Union was the worst decision taken by Parliament since the rejection of the Irish home rule Bills in the 1880s and 1890s. We all have our lists of the worst decisions taken by Parliament, but on Irish home rule I would note that the first home rule Bill was defeated by the House of Commons and the second by the House of Lords. We have not played an honourable part at all in the conduct of Irish affairs over the last 150 years. The second home rule Bill was possibly the last best chance of devolution to the island of Ireland as a whole, on an agreed basis, and was promoted by arguably the best Prime Minister —Churchill aside—this country has had in the last 150 years: Gladstone. That Bill was rejected in this House by 419 to 41 votes—nearly unanimously—on the recommendation of the then leader of the Conservative Party, Lord Salisbury, who said that the Irish were no more fitted to self-government than Hottentots and uncivilised tribes in Africa. We do not always get these decisions right as a Parliament and we need to pay very careful attention—as we seek to do now—to the frame in which we take these momentous decisions at the end of the year.
What Gladstone showed so brilliantly is that it is possible to share sovereignty both within your nation and between nations. Gladstone was a great champion of the concept of Europe and, indeed, of international arbitration, which he pioneered to a significant extent.
Does the noble Lord agree that this is the point we are making? The Bill allows the European Parliament to vote on the withdrawal agreement without a meaningful vote necessarily taking place in the UK Parliament—unless there is agreement about the way that will be taken, the timing and the procedure for it. Is that not the case?
I have just a brief point on the previous remark of the noble Lord, Lord Adonis. Does he not agree that the great essence of membership of the European Union is that it is a club of equal sovereign members? Can he briefly explain why he thinks the United Kingdom is the only member that has lost the self-confidence and maturity to deem itself an equal sovereign member, like all of the others?
That is a hypothetical question because I still do not take it as a foregone conclusion that the United Kingdom will leave the European Union. We are engaging in a protracted democratic debate in the country. It is a debate centred on Parliament and which engages the people, and it still has at least a year to go. I think it may end up taking longer than that. I am a profound believer in the wisdom of our democracy if given the time for a proper and full debate, and, as is our duty, we are seeking to ensure that the nation has that full opportunity.
Coming back to the earlier brilliant speeches that we heard from my noble friend Lord Reid, the noble Viscount and the noble Lord, Lord Patten, the reason we need to pay such attention to these issues is that Parliament has so far not covered itself in glory. The decision to have a parliamentary process for the invoking of Article 50 had to be dragged out of the Government by the Supreme Court, with Parliament not exerting itself until the Supreme Court had opined. The debates on the Bill in the other House were grossly inadequate. This is the most important Bill that Parliament will discuss until the withdrawal treaty but large chunks of it were entirely undebated in the House of Commons.
The noble Viscount’s father talked very powerfully and movingly about the elective dictatorship. We have seen the elective dictatorship in full operation in the conduct of the negotiations and the procedures over leaving the European Union. I do not think that this House has covered itself in glory so far either. Speeches on the most important issue facing this country in a generation were guillotined at six or seven minutes at Second Reading, and the Government have had to have additional time dragged out of them day by day for the consideration of the Bill in Committee.
We sat until 2.37 am on Monday because the Government would not provide an additional day. The noble Lord, Lord Callanan, said that I was not here. He is correct. The reason I was not here was that, after eight continuous hours of debate, to be frank, I did not think I should be an agent to prolonging the debate, which I tend to do when I am present, from 2.37 am to what might well have been well after three o’clock in the morning. We were debating the whole of the future of the financial services industry of this country, air traffic control and aviation, and the European Chemicals Agency at 1 am on Monday. That is no way for this House to conduct the business of the nation.
We need these amendments because we simply do not trust the Government to have an adequate parliamentary procedure in place unless Parliament exerts itself in advance. That is why the amendments of the noble Viscount and the noble Lord, Lord Wigley, which discuss time, are so important.
I want to highlight two issues in respect of the procedure that we need to follow when the Prime Minister submits the withdrawal treaty to Parliament. First, there must be adequate time for Parliament to debate it, because there can be no democracy unless there is time to discuss it. We should remember that Clement Attlee famously said that democracy is government by discussion, but this Government are very keen on closing down discussion. Your Lordships and the other place need to put in place arrangements to ensure that there will be adequate time. To my mind, those arrangements are crucial. At the moment in the existing Clause 9, even as amended by Dominic Grieve’s amendment in the House of Commons, there is no requirement in respect of the time that must be given to Parliament to reach these momentously important decisions. That needs to be put right.
The noble Viscount raises a very important issue which has not been debated in either House of Parliament at all so far—whether there should be a Select Committee procedure when the withdrawal treaty is presented. That is exactly the kind of issue we should be discussing, and not at one o’clock in the morning.
The second issue, which goes to the heart of the bona fides of the Government, is the options that Parliament will debate and reach decisions on when the withdrawal treaty is presented. The Prime Minister has said repeatedly—indeed, the Minister has repeated it—that the only option that Parliament will be given when the treaty is presented is between accepting the treaty or rejecting it and leaving without a treaty on World Trade Organization terms. That is a completely false, misleading and unacceptable statement of what the options facing Parliament should be. Parliament, which is sovereign, can and should itself decide what options will be available to it. An absolutely credible option—indeed, in my view it is the most credible option facing the country—is that we simply stay in the European Union. The idea that this sovereign Parliament will not be allowed to consider that as an option is totally unacceptable. There obviously should be an option. The reason why we need to enshrine that as an option, as other noble Lords have said, is precisely that the Government, by executive fiat, are seeking to rule it out. That is unacceptable.
These amendments are vital. They go to the heart of the role of Parliament in our nation’s affairs. As the noble Lord, Lord Patten, said—I entirely agree with him—the ultimate test of Parliament is how it conducts itself on the biggest issues facing the nation at any given time. We may do brilliant work revising legislation—hopefully at more civilised hours, which is of secondary importance—but the thing that everyone in this country will remember about Parliament in our generation is how we conducted ourselves on this big issue of whether we stay in the European Union or leave it.
Noble Lords take inspiration from many great historical figures but I have always taken it on these matters from Churchill. One of his greatest speeches during the war—ironically, made in this Chamber after the House of Commons was bombed and it moved in here—was in October 1943 on a Motion to rebuild the House of Commons on precisely the model that Hitler had destroyed and not to a more modern design. He said:
“We attach immense importance to the survival of Parliamentary democracy. In this country this is one of our war aims … the House of Commons … has earned and captured and held through long generations the imagination and respect of the British nation. It is not free from shortcomings; they mark all human institutions. Nevertheless, I submit … that our House has proved itself capable of adapting itself to every change which the swift pace of modern life has brought upon us”.—[Official Report, Commons, 28/10/1943; cols 404-405.]
If Churchill could say that about the House of Commons in 1943, we are certainly capable of having adequate procedures in place to debate the Prime Minister’s withdrawal treaty at the end of the year.
We are debating these issues precisely because of the referendum. However, the referendum is not the last word on parliamentary democracy; nor is it the last word, crucially, on a treaty which the people did not even see two years ago when they voted. They could not see it because it had not been negotiated.
Would the noble Lord wish to encourage the Minister to comment on the effect on timing if the ECJ makes a ruling in relation to the rights of UK citizens, inasmuch as we will still be citizens of the European Union and that ruling may come during the transition period or the implementation period that will be announced after the agreement has been agreed to?
Perhaps the Minister may say more about this when he replies. Given the complexity and difficulty of these negotiations, it is perfectly possible that the withdrawal treaty will not be submitted until quite late. I would not be surprised if we do not see the withdrawal treaty this side of Christmas, so it will not be a long period. If the withdrawal treaty is presented late, the Government should seek an extension of the Article 50 period so that there is adequate parliamentary scrutiny, debate and opportunity for decision on that treaty. If the Government were serious about respecting the sovereignty of Parliament, the Minister would announce that there will be at least a three-month period between the submission of the withdrawal treaty and the expiration of the date on which we leave the European Union.
I know he will not give that statement because we all know what he seeks to do. He is an ardent Brexiteer and he simply wants us out, come what may, on 29 March next year. He is not worried about parliamentary processes or democracy; he is one of that group of far-right nationalists who simply want us out. Our job is to see that Parliament is respected and that it is the British people and their parliamentary representatives who take this decision, but they cannot do that if they do not have adequate time to debate it.
One point that the noble Lord has made which I do not think has been emphasised enough is that the public are under the impression that Brexit is a done deal and there is no alternative. They do not realise that there is an option to remain, and it is Parliament’s job to put the message out because the Government are brainwashing people the other way.
My Lords, I support Amendment 150 and I have nothing to add to the memorable speeches that were made this morning, save to say to my noble friends on the Front Bench that if an amendment in similar form comes before your Lordships’ House on Report, I will, notwithstanding, vote for it.
I also ask the Minister to address the circumstances set out in Amendment 199, proposed by my noble friend Lord Cormack. Will the Minister tell us how the Government would react to the circumstances set out in that amendment? In particular, can he confirm positively that in those circumstances, the Government will give active consideration to requesting an extension of the period under Article 50? Indeed, I would submit that, given the difficulties which are becoming more apparent every single day, perhaps it would be wise to ask for that extension now and be honest with people by making it clear to them why we are asking for it. We could then reflect upon the wisdom of seeking to maintain the red lines with which we have managed to bind ourselves into an impossible straitjacket.
My Lords, I rise to support this group of amendments and I commend all those noble Lords who have tabled and spoken so eloquently to them. I too deeply regret that they are even necessary. It is hard to believe that in purporting to respect the referendum result, which the Government have portrayed as wanting to take back control, this legislation does not ensure that it is our Parliament rather than one group of Ministers that will have proper control over the future EU relationship. There must be a meaningful vote for Parliament.
We cannot accept a Bill which fails to respect the sovereignty of Parliament on an issue of such magnitude. That is how our democracy works. I support in particular Amendments 199, 216 and 217, tabled in the names of several of my noble friends, which relate to the no-deal position. We are trying to deliver what the British people voted for and they trust us to do that well. Surely, we know that the will of the people is not a no- deal outcome. Indeed, we were given in detail in the debate this morning on the first amendments a snapshot of the many disasters that could befall our country and its citizens if we lose all the benefits of the EU safeguards, protections and agencies on which their daily lives depend, as well as our industrial success.
These amendments are about parliamentary control and guarding against a no-deal outcome—just in case that is the outcome which is envisaged. Enough of the bluster and bravado; enough of those who are still saying that no deal is okay; and enough of seeming to rely on the EU to rescue us from the cliff edge before we jump because they assume that Europe does not want the damage that the no-deal outcome would do. I say this to my noble friend the Minister: please accept these amendments or bring forward an appropriate government version on Report which puts our Parliament properly at the centre and in control of protecting our national interest in this Bill.
Will my noble friend remind my other noble friend that the Bill has gone through all its stages in another place? It is now before us. We have to amend it as and when we think, and the other place has to pronounce on our amendments. It is our duty to say to it, “Please think again”, if we feel that is necessary. At the end of the day, the other place will have the final word.
My Lords, a point was made by several noble Lords as to a delay in the operation of Article 50. If I remember rightly, under Clause 2, there is a period of two years. Can that be invoked unilaterally or does it need the consent of all 27 other members? I would be most grateful if the Minister could reply. If not, I have no doubt that the noble Lord, Lord Kerr, will correct us.
My Lords, I was not intending to speak until the noble Lord, Lord Adonis, spoke. As I understand it, the position of the anti-Brexiteers until recently has been that they accept the verdict of the referendum—we should come out—but that the referendum did not pose the difficult question of how to do so and the whole debate was to make sure that the electorate understood how we will do this very complex thing. The noble Lord, Lord Adonis, put the proposition that the referendum was of no account at all and we had to go back to the question as to whether we stayed in the European Union. I have not heard him say that before, I must say.
If my noble friend will forgive me, I will concentrate on the amendments before us and leave this existential debate for my two noble friends on the Back Benches to conduct among themselves.
The approval of the UK’s final deal with the EU has already been the focus of a great deal of sustained debate during the passage of both the European Union (Notification of Withdrawal) Act and this Bill. The Government have committed to hold a vote on the final deal in Parliament as soon as possible after the negotiations have concluded. Let me say, in direct response to the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady McDonagh, that this vote will take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms of our future relationship. The Government will not implement any parts of the withdrawal agreement until after this vote has taken place.
As we have repeatedly made clear, we fully expect, intend and will make every effort that this vote will take place before the European Parliament votes. However, I hope noble Lords will understand that we do not control the EU’s timeframe for approving the withdrawal agreement and therefore cannot make any statutory assurances where it is concerned. This would be the case with Amendment 150 tabled by the noble Baroness, Lady Hayter, Amendment 151 tabled by my noble friend Lord Cormack and Amendment 216 tabled by my noble friend Lord Hailsham.
A much wiser and older head than me, Merlyn Rees, once told me that, when listening to a Minister’s replies, I should forget everything before the “but”; I include in that everything before the “however”. What follows the “however” gives the Government executive powers to take a course of action completely opposite to the amendments that say that a vote should be done before the European Parliament votes. Of course the Government do not control the timetable for the European Parliament, but they control the timetable for this Parliament. We are asking for the vote to be given substance and time—rather than being a theoretical meaningful vote—as well as an assurance that the decision will be taken by this Parliament before we have to sit and watch the European Parliament voting on the deal. Can the Minister address that issue and explain to us why it is impossible to do that simple thing?
In response to the noble Viscount’s final question, no, there will be no vote in national parliaments on this matter: it is a delegated function to the EU. Only a qualified majority vote in the European Council is required, and then a vote in the European Parliament. I can go no further in answer to the noble Lord, Lord Reid, than to repeat my statement that we expect and intend the vote to take place before the vote in the European Parliament.
Yes, I fear the noble Lord is wrong about that. I think he is referring to the final trade agreement, which we hope will be a mixed agreement and will therefore need approval in national parliaments. The Article 50 process does not require approval in national parliaments.
I respectfully suggest that my noble friend is wrong in saying that it is impossible to guarantee a vote in our national Parliament before one in the European Parliament. If we are taking back control, surely in this of all Bills we can give that assurance.
I can give him the assurance that we intend, we expect, we hope and we want the vote in this Parliament to take place before the European Parliament votes, but we do not know at what stage the European Parliament will vote: it may be, to quote a hypothetical circumstance, that this Parliament will be in recess and that the European Parliament will have a vote immediately thereafter. However, I do not know; I am just saying when we want it to take place and we expect and intend it to do so.
My Lords, the Minister is making pretty heavy weather of this. Has he not noticed that Monsieur Barnier has said that he believes the negotiations need to be completed by October, so as to give the European Parliament time for its processes, which include committee processes and which will thus have six months to take place? Instead of beating about the bush, can he not just say that we are going to do it first?
I thank the noble Lord for telling me about the processes of the European Parliament, but I was a Member of it for 15 years and I am aware of the processes very well. We have, however, made clear that it is our objective to reach an agreement with the EU by October 2018. This objective is shared by the EU and is one which we consider we are on course to deliver. We expect, therefore, that the vote will take place substantially before exit day and ahead of the deadline in Amendment 196 tabled by the noble Lord, Lord Liddle, and Amendment 213 tabled by the noble Lord, Lord Adonis. To insert statutory deadlines into this process, however, would serve no purpose except to weaken our negotiating position, because while an early deal is highly desirable we must balance that with a recognition of the need to achieve the best possible deal.
The decision to hold a referendum was put to the electorate at the 2015 general election—
I do not want to get into precise timings like that: we have said that we hope to have an agreement concluded by October 2018, which accords with the position set out by Monsieur Barnier. That is the timetable that we are working to. If we achieve that timetable, there should be plenty of time for a vote in this House and in another place, followed by the vote in the European Parliament.
My Lords, I am a little confused. Clause 9, as amended in the Commons, refers to Parliament approving the final terms of withdrawal. If I understand the noble Lord correctly, he has suggested that there will be an interim agreement by the end of this year, before we leave, but the final agreement, about our future relationship, et cetera, will come a good deal later. Will he explain why these two are compatible?
If the noble Lord will allow me to make some progress I will come on to the issues of Clause 9 later.
The decision to hold a referendum was endorsed by Parliament, which then consented to the Government acting on the outcome of that referendum through the European Union (Notification of Withdrawal) Act. More than 80% of voters in the 2017 election supported manifestos committed to delivering on that referendum result.
I say this only to underline to noble Lords that amendments which could be perceived as a means to delay or disregard that result carry with them their own risks to people’s faith in their democracy and its institutions. Many noble Lords, including the most respected and convinced of erstwhile supporters of the UK remaining in the EU, said at Second Reading that the Bill is not the parliamentary vehicle to seek to provide for that. The Government have received a clear instruction from the British people. On a turnout higher than at any general election since 1992, 17.4 million people voted to leave the European Union—more than the 13.7 million who voted Conservative at the 2017 general election; more than the 11.3 million who voted Conservative in 2015; more even than the 13.5 million who voted Labour at the 1997 general election, which delivered the party opposite a significant majority in the other place, of which many noble Lords were distinguished members.
My noble friend speaks of a clear instruction from the British people in the referendum but the Bill which was introduced for a referendum, and then debated and voted on in this House, was very clearly for an advisory referendum. It was in no sense an instruction.
That point has been addressed in exchanges earlier. The then Government made a clear commitment, in a leaflet delivered to every household in the country, that the result of the referendum would be respected. The people voted to leave the EU and the Government have committed to deliver on their instructions. Therefore, we will not seek to remain a member of the EU, as Amendment 190 tabled by the noble Lord, Lord Wigley, seeks to achieve. I am sure he will not be surprised to hear me say this.
Before the Minister leaves that point, in the event of there being a no-deal Brexit, the Government would have to come back to Parliament to put it before MPs and this Chamber. In the event of MPs refusing to endorse that, will he confirm that the status quo ante will prevail and we would remain part of a united Europe?
No, I will not endorse that. I will come on to the circumstances in a minute.
Let me say directly to the noble Lord, Lord Adonis, that while there are many possible outcomes for our future relationship, remaining in the EU is clearly not one which can be reconciled with the decision taken in the referendum.
My noble friend and I will just have to disagree on this one.
We have also made our position clear that the notice given by the Prime Minister in accordance with Article 50, and which was approved by both Houses of Parliament, will not be revoked. It will not be extended as Amendment 199 tabled by my noble friend Lord Cormack and Amendment 216 tabled by my noble friend Lord Hailsham seek to do.
If the Minister will forgive me, he is not in any position to make that clear because that is a decision which the House of Commons will take. It is not for the Government to say that there will be no rescinding of the notice under Article 50. If the House of Commons votes to rescind the notice under Article 50, that notice will be revoked. We are a parliamentary democracy.
The Minister has just, perhaps inadvertently, said something of profound constitutional consequence. Is he asserting from that Dispatch Box that parliamentary representative democracy is no longer sovereign if there is a plebiscite? This is an extremely important constitutional issue and he has just made that assertion. Would he like to withdraw the assertion or to reassert that parliamentary democracy is no longer sovereign?
I am asserting that Parliament voted to hold a referendum. The referendum took place, and we all know the result. We believe that that referendum should be respected. I am sorry that noble Lords do not agree with me, but that is the Government’s position.
Am I not right in saying that the Government have taken power to extend the exit day beyond the date in the Article 50 notice? That is contained in Clause 14(4). Why did they take that power if they were determined, as the Minister is saying, never to change the date?
Of course Parliament is allowed to change its mind. It does so on many occasions and no doubt will do so in future on other issues.
It is our view that the question of whether to leave and the process of approving how we leave have been decided. Parliament approved the referendum and has signalled its approval to every step the Government have taken since July 2016. Furthermore the people authorised the Government’s negotiating position as a result of the election last year. Lastly, we have made a solemn promise to seek approval, which I am confident will be granted, from Parliament of the outcome of those negotiations.
I stress that I understand many noble Lords’ deeply and honestly held conviction that the UK should not leave the EU. That has become very clear to me throughout the progress of the Bill, but this is a Bill to provide maximum legal certainty upon exit. I do not think it would be in the interests of either the EU or the UK to open the door to an ever-continuing negotiation process with no certainty that the UK will ever reach a new settled relationship with the EU. I do not believe that that is what the noble Lord intends, but that is what is being risked. The terms of the vote on the final deal are clear: to accept the terms of the agreement or to move forward without a deal. This is fully in line with the terms on which the European Parliament will be voting: a yes or no vote.
Amendments 196 and 213 are unnecessary because we have already made a strong commitment to hold this vote as soon as possible after the negotiations have concluded.
I do not control the proceedings of the House of Commons. I can only set out the Government’s position on this matter.
The strength of that commitment and the political and public expectation that accompanies it mean that the Government could not conceivably renege on that commitment.
Perhaps I can help. This is becoming a rather complicated discussion and some of us are trying very hard to follow what the Minister is saying. Perhaps we are not being as intelligent as we should be. In the phrase “a meaningful vote”, what does the word “meaningful” mean?
We have never used the term “a meaningful vote”. We recognise clearly the desirability of maximising as much as possible the time between negotiations concluding and a deal coming into force. Knowing the terms of a deal as early as possible is good for business and the public in being able to prepare.
Pursuant to the earlier question, perhaps I have completely misunderstood what the Prime Minister said, but my understanding was that she promised a meaningful vote. Therefore, it would help if the Minister in summing up the debate we have just had would say what “a meaningful vote” means.
I think there is huge confusion here about the Government wanting to implement the “will of the people”. I do not think the British people who voted to leave said we should leave on any basis. This is not just about rejecting a no deal but about rejecting a bad deal. Parliament will not be doing the people a service if we just accept a bad deal when faced with the option of crashing out with no deal or accepting the Government’s deal. The public would never accept that, and we as Parliament should not accept it either.
We do not intend to put a bad deal to the vote. As we have said, we want to negotiate the best possible deal that we can. Knowing the terms of a deal as early as possible is good for business and the public, in terms of being able to prepare. It gives confidence and certainty.
Perhaps the noble Baroness was not listening to what I said earlier. We fully intend the vote to take place before the European Parliament votes.
As I have said, I remain convinced that we will achieve a deal in the interests of all the nations and people in the UK and that this Parliament will approve it. After Parliament supports the resolution to proceed with the withdrawal agreement and the terms for our future relationship, the Government will bring forward a withdrawal agreement and implementation Bill. That Bill was announced on 13 November 2017 by the Secretary of State and followed on 13 December 2017 by a Written Ministerial Statement committing the Government not to implement any parts of the withdrawal agreement until this vote on the final deal takes place. I hope it is clear how the withdrawal agreement will be implemented and that Parliament will have ample opportunity to scrutinise it before it is given effect in our law.
I reassure noble Lords that the withdrawal agreement itself will be subject to the provisions of the Constitutional Reform and Governance Act 2010 before ratification, in addition to the vote on the final deal that we have already promised and the scrutiny of the implementing legislation. There will therefore be ample opportunity to scrutinise the agreement and its implementation.
I know that many noble Lords have clear concerns about Clause 9 as it is currently drafted—I listened very carefully to the comments from the noble Lord, Lord Lisvane. The Government are listening very carefully to the debate on these concerns and we will take them away to see whether anything can be done ahead of Report to address them.
What is the point of leaving in this Bill the power to make regulations which can now only be brought into effect once the withdrawal agreement Bill has been passed? Should we not just remove those provisions now and ensure that any provisions included in the withdrawal agreement Bill meet the concerns that the Minister has said he would like to meet?
Is it meaningful?
Everything I say is meaningful. Although we can look again at elements of the power, we will not be removing it from the Bill in its entirety, as Amendment 194, tabled by the noble Lord, Lord Adonis, who I am glad to see is still with us, would have it.
It is prudent to keep Clause 9 as part of this Bill. We do not yet know the shape or the outcome of future negotiations. It is crucial that we have the necessary legislative mechanisms available to us to fully implement the withdrawal agreement in time for exit day. There may well be a number of more technical separation issues which will need to be legislated for, depending on the shape of the final agreement. It is long established that where legislation is intended to make smaller, more detailed changes, secondary legislation can be an appropriate vehicle. It is also not uncommon for the principles of an international agreement to be implemented through secondary legislation.
Let me give an example. The Nuclear Installations (Liability for Damage) Order 2016 implements the 2004 protocol to the Convention on Third Party Liability in the Field of Nuclear Energy—a matter with which I am sure noble Lords are fully familiar.
To be clear, however, Clause 9 is not intended to implement major elements of the withdrawal agreement. I understand that this distinction might seem a little abstract so I will demonstrate with a few more illustrative examples, although with the caveat that we cannot know for certain until the withdrawal agreement has been finalised. Clause 9 may be required, for example, to legislate for the position of ongoing administrative proceedings when we leave the EU. This is a broad basket of more technical issues such as proceedings on competition and antitrust under regulation 1/2003 or procedures on the concentration of undertakings/mergers under regulation 139/2004. These are quite complex, technical issues that do not need to be put into any Bill but must be legislated for.
Another area that Clause 9 could be used for relates to the privileges and immunities afforded by the UK to the EU, its institutions, bodies and staff post exit. These are a standard feature of international law and are generally considered necessary for the proper functioning of international organisations. Privileges and immunities for the EU are currently implemented under protocol 7 of the Treaty on the Functioning of the European Union. After exit, the EU will continue to require privileges and immunities to cover any functions that it has during the implementation period or for winding down its existing operations, and our agreement on privileges and immunities will need to be implemented in domestic legislation. If noble Lords would like further detail, I encourage them to consult the Hansard record of Committee in the other place where further details were offered on potential examples.
I do not need to remind noble Lords, particularly the noble Baroness, Lady McDonagh, that the amendment to Clause 9 that was approved in the other place means that the clause can be used only subject to the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the UK from the EU. That is an exceptional check on the power, and of course we stand by that.
I have been left in no doubt of the strength of feeling in the House about Clause 9. As with other contentious areas of the Bill, I look forward to meetings and discussions with noble Lords to see what can be done ahead of Report. With that in mind, I hope noble Lords will not pursue their amendments.
The Minister referred to the CRaG procedure. He may not be aware that the House of Commons put out an Explanatory Note on many of the issues that we are discussing today. I would like to ask his opinion on a line from it:
“Either House could also use the CRAG procedure to object to ratification of the agreement, and in the case of the Commons, indefinitely block it”.
Would he care to comment?
My Lords, the Minister has just said, as he has done several times in Committee, that, first, the Government reject all the amendments but, secondly, they are going to think about it. The clock is ticking and we are not now that far from Report. Saying “I’m going to think about it” may give some noble Lords false hopes that the Minister has it in mind to do something about it. I suggest that in this case, and certainly as we come to future groups, if the Minister seriously has it in mind to produce a government amendment on Report, he says so in terms. Simply saying time after time “We reject this but we’re going to think about it” does the House a disservice because, having listened to most of the Minister’s speeches on the Bill, I have the feeling that thinking about it does not appear to be a prelude in the Minister’s mind to any action whatever.
I and other Ministers have indicated in response to other groupings of amendments where we are definitely going to be bringing back further amendments on Report. However, we have also made it clear, as I hope many noble Lords in the House today will agree, that we are having further discussions with a number of people who have raised valid concerns to see how those concerns may be addressed. While on many occasions we do not want to go as far as some of the amendments, there may be some reassurances that we can give or modifications that we can suggest. I am not going to give any definite commitments at this stage—that is not how this process works—but we are looking at all the issues and, as I have said on numerous occasions, we will do what we can to take into account the concerns of the House.
My Lords, the Minister has got me famously confused now. He said, in a very welcome way just now, that the Government accept that the amendment voted for in the Commons—Amendment 7—provides for the outcome to be subject to a statutory procedure. A little time ago, he said that it was the Prime Minister’s intention to submit the deal to both Houses without a statutory procedure but as a simple resolution. Which comes first, and how do the two relate to each other?
There are two stages: once we have a deal, we will put its terms to both Houses, and if we get approval for that deal, we will submit the withdrawal agreement and implementation Bill to implement those agreements in statute. I am not sure what is so complicated about that.
Perhaps I was not paying enough attention, but can I ask my noble friend: if we are going to end up with primary legislation to implement the agreement, why is it necessary to have Clause 9 at all? He gave some examples of particular regulations, but I could not see the link that justified having Clause 9 itself.
There are some technical provisions that we may want to use Clause 9 to implement, subject to the provisions of Amendment 7. There is also the political imperative that the House of Commons considered this matter closely and decided to keep Clause 9 in the Bill, albeit modified. We want to respect the will of the House of Commons.
My Lords, we have to thank the Minister for his wisdom, his humour, his tolerance—but. One thing with which I agree with the Minister, on which I think I heard him right, is that he appreciates, which I have certainly felt, that there is clear support in Committee for a meaningful vote on the withdrawal deal, or indeed, on no deal. I do not know whether that will be the scorched earth, referred to by the noble Lord, Lord Lisvane, or the absence of a package, suggested by the noble Lord, Lord Wallace, but I think we know what we mean by “no deal”.
The question is: what is meaningful? If it is, as I said earlier, a mere Motion, with no statutory force, that surely is not meaningful. But it is not meaningful if it is not timely; in other words, if we do not have it early enough for it to make a difference. I think the noble Lord, Lord Wigley, asked whether it would be a case of like it or lump it. If so, I do not think that would work in either House. Indeed, I was quite concerned at one point when the Minister seemed to say that, if Parliament voted no to the deal, then we would come out without a deal. That is not what some of the amendments in this group want, and we do not want the outcome that if we vote down what there is, we will get the worst of all worlds. We want to put power back into the Commons, so if the decision is that the withdrawal deal will not do, it would be for the Commons to decide what to do about that. Also, the vote needs to be meaningful in that it should influence the choices that the Government will be making, as my noble and learned friend Lord Falconer said. That is the point. Knowing they have to come here for a deal will affect what happens in the negotiations, so the outcome will be influenced by a vote here.
It is absolutely clear from what everyone has said that it is for Parliament to endorse, or otherwise, the outcome, which is why I am not tempted by my noble friend Lord Adonis’s desire for a referendum. I remind him that it was a referendum that got us into this mess in the first place, but that is not the reason. The reason is that, like other speakers, I want to reassert parliamentary sovereignty. That is why we will try to bring back an amendment on Report that will ensure that, if Parliament gives the thumbs-down to the deal, it would be the Commons and not the Government that decides what happens next.
I am surrounded on this side, obviously, by people from the Labour Party. They are, on the whole, experienced at what we call compositing—it may also happen in the other parties. We have compositing meetings where a whole lot of amendments are put together—I see that we are not alone in this—and I say to the Committee and to the Government that I hope it will be possible to devise a single redrafted amendment, building on what we have heard today and on the wording of different amendments in this group, around which we can all rally. There is clearly a meeting of minds on this: there should be a timely and meaningful vote; it should be on the deal or, in the case of no deal, it should decide what happens next.
My Lords, I am grateful to the noble Baroness. If she is minded to bring forward such a composite amendment, if we have established that the CRaG rules apply—this is clearly an international treaty that we are discussing—would she add that the meaningful vote in Parliament should be before votes in the national parliaments as well? That is missing from the current drafts.
My understanding is that this will not go to them. We are talking about the withdrawal deal, which will be a deal between the UK Government and the European Union. It is not a mixed agreement; it will not need to go to the parliaments and it is not a treaty. That is what all the legal advice I have had says, but I am happy to be put right. This will not go through that process. We are dealing with two things. The first is how we come out, which is the withdrawal deal. The second, quite separate thing is what will then be our relationship as a third party with the European Union, which will be the treaty. That is what will need to go through the parliaments—sadly not the Welsh Parliament, but there you are. I had understood that this is what CRaG would cover; I had not heard that quote until now.
This amendment focuses on the withdrawal deal, and it is this that should—indeed, must—be taken through Parliament in advance of the European Parliament and, even more importantly, in advance of where the Government finally get to, so that if it has gone the wrong way, we have the chance to put it right. That is what I hope we will be able to bring back on Report, but in the meantime I beg leave to withdraw the amendment.
Amendment 150 withdrawn.
Amendments 151 and 152 not moved.
153: Clause 9, page 7, line 10, leave out subsection (2)
My Lords, I must convey to the Committee the sincere apologies of my noble and learned friend Lord Judge, who has a long-standing and unbreakable engagement outside the House and who has asked me to move Amendment 153 on his behalf. I will also speak to Amendment 154 in my name.
Both the Constitution Committee, in its ninth report, and the Delegated Powers Committee, in its 12th report, expressed grave doubts about the breadth of the powers contained in Clause 9. They also suggest—as has been touched on by a number of noble Lords in the previous debate—that, as a further Bill is required by the amended Clause 9(1), Clause 9 as a whole is unnecessary, as any regulation-making powers can be included in the Bill that is now contemplated by Clause 9(1). That is a persuasive case, and perhaps it would indeed be better—despite what the Minister said in reply to the previous debate—if Clause 9 were in effect to be deferred to that later Bill.
However, whether it is here or whether it is there, the real mischief at the heart of Clause 9 needs to be cured. Clause 9(2) is a whacking great Henry VIII power, allowing Ministers to make in regulations any provision that could be made by an Act of Parliament—something of which my noble and learned friend Lord Judge has been such a trenchant critic. In a piece of legislative pulling oneself up by one’s own bootstraps, it would also allow Ministers to modify the Act which will result from this Bill itself.
The rather measured phrases—“make any provision” and “modifying”—should not mask the extent of the powers. Clause 9(2) would allow Ministers to make regulations that would amend or repeal any Act of Parliament whenever passed. And the power relating to the Act resulting from this Bill would allow Ministers to amend or even repeal it, setting at naught a number of weary hours that your Lordships have spent on this text.
The Delegated Powers Committee set out some ways in which Ministers would be empowered to use SIs, among other things to,
“alter the scope of ‘retained EU law’ so that … it includes EU legislation passed after exit day”,
to keep the supremacy of EU law for certain purposes, with the supervision of the ECJ, or to change the whole basis of the regulation-making powers elsewhere in the Bill so that “necessary or appropriate”—the subject of our argument last Wednesday—would become irrelevant, and the powers could be used for major policy change without restriction.
The Minister rightly said in reply to the previous debate that these powers would have to be used in the terms in which Clause 9 is framed, so they would be about provision relating to the withdrawal. Of course, a parliamentary vote on the withdrawal deal would, or could, in effect be a constraining factor. But the extent of that constraint is wholly dependent on another factor, which is how much detail is contained in whatever document or test becomes the subject of that meaningful vote.
The power could also be used to remove the Bill’s time limits on the regulation-making power, which at the moment provide at least some reassurance. As with other delegated powers, Ministers have sought to say as the noble Lord, Lord Callanan, did in reply to the previous debate. He gave a number of examples—not frightening or alarming ones—of the way in which the powers could be used. I do not for a moment question the good faith in which Ministers give us these examples, but once again one has to emphasise that what matters is what is in the Act. If current Ministers do not use those powers in the ways authorised by the Act, other Ministers may do so.
The Constitution Committee concluded that giving Ministers the powers in Clause 9(2) would require “the strongest of justifications”. The Delegated Powers Committee went further, calling the power, despite its exercise being subject to the affirmative procedure, “wholly unacceptable”.
I have never felt that Henry VIII is an entirely welcome dinner guest—if I may put it like that. But his presence can be made just about tolerable by observing what I would like to call the rule of the three “S”s. The first “S” is scope: the exercise of such a power must be subject to tight constraints. Merely what might be thought “appropriate”—we are back to that again—for the purposes of implementing the withdrawal agreement does not qualify. The second “S” is scrutiny. Even though the affirmative procedure will apply to Clause 9(2) regulations by virtue of paragraph 7(1) of Schedule 7, the opportunities for effective scrutiny are likely to be limited, and the luxury of time for that scrutiny is unlikely to be available. The third “S” to bear in mind when his majesty comes to dinner is sunset. It would generally be better if Henry VIII powers were not on the statute book, but if they are, they should not linger there. Clause 9 provides that,
“No regulations may be made under this section after exit day”.
But as Ministers would have the power to alter exit day, this does not really give the reassurance it suggests. In my submission, therefore, Clause 9 fails those three tests of scope, scrutiny and sunset. It needs major surgery. I beg to move.
My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.
We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.
There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.
I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:
“No regulations may be made under this section after exit day”.
However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?
At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.
My Lords, I follow my noble friend on her specific point and reiterate the question. On the specific point, we are in even more of an Alice in Wonderland world than she and the noble Lord, Lord Lisvane, indicated because under subsection (2) it might be possible to make regulations that delete the provisions of Amendment 7—that is, to remove the words,
“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal”.
That might be something that was thought appropriate by Ministers because they felt they had to get on with something before Parliament had got to the stage of considering withdrawal. It is possible under this provision. It seems clear from all those who have looked carefully at it that the way Clause 9 is worded really needs drastic surgery, if I may use the words of the noble Lord, Lord Lisvane.
This brings me back to the question that I have tried, by brief intervention on two occasions so far, to get an answer to: why do the Government want to persist in including in the Bill the first half of Clause 9(1) and the remaining subsections? Following the inclusion of the Amendment 7 provisions, the proper place for whatever powers are needed for statutory instruments arising from the withdrawal agreement is the withdrawal agreement Bill. We would have plenty of time between now and then to make sure that they are expressed in terms not open to the abuses that several of us have pointed out. Why do the Government still want these words in the Bill?
My Lords, I support Amendments 153 and 154—so eloquently introduced by the noble Lord, Lord Lisvane—particularly on the issue of providing Ministers with those broad-ranging Henry VIII powers. As the noble Lord pointed out, the range of the powers covered, includes repealing Acts of Parliament and statutory instruments, and extends to most areas of law—the whole caboodle, basically, will be under the control of Ministers. It really shows why these powers go to the heart of the sovereignty of Parliament. We have heard some amazing speeches today about the importance of retaining the integrity of Parliament. If we really want to take back control for Parliament, we have to concentrate on making sure that we do not give Ministers unlimited powers.
Noble Lords will know that I spend a lot of time working overseas and consequently it is quite uncommon for me to find myself discussing amendments to Bills going through the House. I am not here often enough to be so involved. However, in this House and the other place, I, like many other noble Lords, have escorted constituents, visiting parliamentarians and guests on tours of the Palace of Westminster. Like many other noble Lords, I found that invariably, one of the party will say how important it is to them to visit the mother of Parliaments, by which they mean the heart of democracy and the modern democratic process: the Westminster model where the Executive are accountable to Parliament through a transparent balance.
I spent well over a decade here, in the other place and in dozens of foreign locations working with parliamentarians in or from developing countries. I worked with counterparts, often in the process of discovering the power of parliaments to hold their Executives to account and what transparency and accountability in a parliamentary process should mean. As we debate this Brexit Bill, the world is watching. The nations of the Commonwealth are watching. Only this morning, a group of Kenyan MPs on a Select Committee in their Parliament came to have coffee with me to talk about what Brexit would mean for them as well as for us.
These amendments help to ensure that, in passing this Bill, Henry VIII powers to bypass parliamentary scrutiny are not introduced and the principles of transparency and democracy, on which this mother of Parliaments was founded—and is therefore admired and imitated throughout the world—are protected.
Another issue that comes to mind straightaway is that we are on the verge of holding a Commonwealth Heads of Government meeting in London, for the first time in around 20 years. The United Kingdom Parliament will be fundamental to that process. After that finishes in a week or so, the United Kingdom will become the chair in office of the Commonwealth for the next two years. It will be a tremendous opportunity for us to reinforce—perhaps to absorb completely into the Commonwealth process—the principles and ideals on which we believe our democracy is founded. The world is watching the way we deal with Brexit.
Finally, the term “mother of Parliaments” is often misapplied. Many noble Lords will know that it was first coined by John Bright MP in the 19th century during his fight for the repeal of the corn laws, which has already been mentioned today. One of the great orators of his day, Bright was referring to England and its people as the mother of Parliaments, not Westminster. If we truly want to take back control, we must ensure that the power of Parliament remains in the hands of the people’s representatives: their MPs, not Ministers. I confirm my support for these amendments.
My Lords, I completely agree with what the noble Lord, Lord Chidgey, just said. Noble Lords might be forgiven for thinking that in the exhaustive debate on the previous group of amendments the cause of democracy was well and truly vindicated. However, the defects these amendments seek to rectify are just as much of an onslaught on democracy, for the reasons so well set out by the noble Lord, Lord Lisvane, and the noble Baroness, Lady Smith of Newnham. I therefore hope that the Government will take them into account in a total redraft of Clause 9.
My Lords, first, I hope that “appropriate” will disappear in any event, and that it will be replaced with “necessary”. This clause appears to be drafted especially to deal with a situation where, once the withdrawal Bill is passed, a number of important things have to be done before exit day. I hope that the House of Commons will have the opportunity to consider these. The reference here is quite clearly to something that is required in implementing the withdrawal agreement. We have only to listen to the amendments that were dealt with this morning to know the tremendous complexity that this withdrawal Bill is bound to have—I only hope that it will have it and that we will have an agreement that will be incorporated in a withdrawal agreement Bill, which will deal with these complications. However, if they are dealt with, it is quite obvious that quite a number of things will have to be dealt with speedily that will be brought into effect on exit day. For example, where the authority controlling a particular line of business is no longer effective because of the withdrawal agreement, it may be necessary, to preserve that, to have some form of regulation that sets up an alternative, so that there is a control; for example, with regard to the things that were mentioned this morning, food safety.
It is therefore possible that in some situations the regulations will require modification of existing Acts of Parliament. The substance of this clause is therefore of importance, and we may have to consider it in a bit more detail. I hope that the Minister, when she comes to reply, will be able to give us some examples of the kind of thing that can happen. However, it would be dangerous not to make provision in case that kind of thing happens. The withdrawal agreement Bill will be complicated enough, so if we can make some preparation for it, that would be of benefit.
I am sure the noble and learned Lord is right, but the Government cannot do any of these things until the withdrawal agreement Bill has been passed; therefore the kind of provision he is talking about might more appropriately be made in that Bill than this one.
I can see that. On the other hand, it is sometimes wise to be prepared if you can foresee a thing that is required and have it ready. We also have the scope to discuss it in this Bill, whereas I imagine the discussions on the withdrawal agreement Bill will be pretty complicated—I assume the latter will be a good deal more complicated than this Bill, and if it is going to require the sort of consideration that this Bill has had it will take some time. There is something to be said for trying to prepare, but of course it is necessary to ensure that the preparations are adequate—that is what the amendment of the noble Lord, Lord Lisvane, deals with.
I am conscious that we may be trying to regulate the House of Commons a bit. I have never had the honour of being a Member of the House of Commons, as so many of your Lordships have, but my impression is that the House of Commons has plenty of powers to control what the Government do. Of course, if necessary, it has a very extreme power in that connection.
My Lords, I mentioned on Monday that an aspect of Clause 9(2) is of concern to the devolved Administrations. How does the Sewel convention fit into the scheme which Clause 9(2) sets out? If one were making the amendments which are being contemplated by an Act of Parliament it would be plain that the Sewel convention, with its effects, would apply to that statute—and the Government have always shown their willingness to follow the convention according to its terms. But if a Minister makes a provision by delegated legislation then, as I understand it, the Sewel convention does not apply, because Sewel was talking about primary legislation. Is the Minister prepared to undertake that the principle of the Sewel convention will apply to an order made with reference to Clause 9(2), which makes a provision that would otherwise be made by an Act of Parliament?
The importance of this question has been highlighted, if I may say so, by the point made by the noble and learned Lord, Lord Mackay of Clashfern, because by necessity this would have to deal with legislation which affects the devolved Administrations in areas devolved to them. The ordinary rule is that that would not be done without their consent. Clarification is needed. The Minister may feel that she cannot give me a clear answer today. If she cannot give the undertaking that I am looking for, I would be very grateful if she would write, because this affects the way I would view any vote on this issue. It may also affect what we talk about on Report.
This is a very important matter. The issue has really been thrown up by the way in which the clause has been drafted—and it has no doubt been drafted in this way for good reasons, as the noble and learned Lord, Lord Mackay of Clashfern, has explained. If one is to have this clause, clarification is required.
My Lords, I support both these amendments. I appreciate what the noble and learned Lord, Lord Mackay, with all his experience, has said to us to try to explain why these particular clauses exist and the intention behind them. But from my experience in business, whenever I have had any problems with a contract it is because there have been grey areas or clauses have not been clearly drafted, leaving scope for different interpretations. Here we are beyond grey areas or a badly drafted clause in a contract—this Bill gives unfettered powers to the Government. We have to realise that the Prime Minister using these powers may not be Theresa May—it could be Boris Johnson or Jacob Rees-Mogg.
How many thousands of statutory instruments are the Government expecting to implement as a result of this Bill? It is important to note that it is very difficult for the House of Lords to challenge statutory instruments. With primary legislation, we have the role of challenging what the Commons has done—as we are doing now. Quite often what the Commons does is nowhere near good enough. That is why this House has hundreds of amendments to this Bill and had over 500 amendments to the higher education Bill. That is our job. But when it comes to statutory instruments, we were warned very clearly in 2015, “Don’t go too far. It’s not your job to challenge them too much”. The noble Lord, Lord Lisvane, in his excellent introduction to his amendment, spoke of the three “S”s, one of which is scrutiny, but we will be deprived of that scrutiny by these unlimited powers.
Going one step further, this issue goes back to the constitution and the delicate balance between not only the Executive and the legislature but the Executive and the judiciary. Will the Minister acknowledge that statutory instruments can be challenged by the judiciary? Do we want to have non-stop challenge by the judiciary, overriding Parliament, when we should have the power and take back control? Do we want that to happen? It is much better that things are absolutely clear. Therefore, these amendments are crucial, because it is too dangerous and, quite frankly, irresponsible to give any Government such unfettered powers.
My Lords, I support the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, in this regard. My question goes to the comment of the noble Lord, Lord Lisvane, about scrutiny. Of course, he is the living expert on the level of scrutiny that an Act of Parliament enjoys in each House at every stage of parliamentary procedure. If the Government are seeking by regulation to achieve the equivalent of what has previously been achieved by an Act of Parliament, do the Minister and the Government have in mind what the level of scrutiny will be? Will it be the usual statutory instrument procedure, and will it be by affirmative or negative resolution?
My Lords, we strongly support these amendments, Amendment 153 having been co-signed by my noble friend Lady Hayter. It would remove Clause 9(2) from the Bill entirely, and the more limited Amendment 154 would remove what are probably the most damaging words from it but not the whole of it.
This is the widest of the Henry VIII powers that the Government want to take in this Bill. It would permit regulations to do anything that an Act of Parliament could do, including even amending this Bill, when an Act. Those are the words that Amendment 154, in particular, focuses on. Therefore, as has been said, we could find that, after lengthy debate and a vote in this House and in the other place, the resulting provisions so painfully and lengthily resolved could simply be removed by the decision of a Minister.
The noble Lord, Lord Lisvane, gave some examples and the noble Lord, Lord Beith, gave more dramatic examples, but the critical question is: why is this needed? First, as the noble Lord, Lord Lisvane, rightly said, nobody should be misled by the words that are used. The word “modifying” might suggest at first blush that the provision is doing something less substantial, but in fact the definition of “modify” in Clause 14(1) makes it clear that it,
“includes amend, repeal or revoke”,
so the modification in question could take whole provisions away altogether.
The second point to underline—again, the noble Lords, Lord Lisvane and Lord Bilimoria, made this clear—is that what matters is not good intentions expressed at the moment by the Ministers in charge but what the Act actually provides. As parliamentarians, we would be failing in our job of scrutinising and controlling the Executive if we left Ministers with untrammelled powers simply on the basis that we would expect or hope that they would use them in a particular way or on the basis of them saying that they would not intend to use them in a particular way. That is not what we should do at all.
Therefore, it is no wonder that your Lordships’ Delegated Powers and Regulatory Reform Committee, in paragraph 23 of its report, described this power as “wholly unacceptable”, and that the Constitution Committee, in paragraph 197 of its report, described it as one for which it “cannot see any justification”. I know that the Government’s argument will be that they do not know what will be in the withdrawal agreement and therefore they do not yet know what changes will need to be made, including to primary legislation—for example, to the Immigration Act. However, there is neither a need to take these powers, nor is it right to do so, for two reasons.
First, it is clear that our withdrawal must be subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal—that is what Clause 9 will provide. So if the withdrawal agreement requires changes which cannot be effected by other powers—such as the power to deal with deficiencies under Clause 7—such changes can be incorporated into the statute approving the terms of withdrawal. Not only can such changes be included in that statute; they ought to be, because then they could be subject to a degree of parliamentary scrutiny. I agree with what the noble Lord, Lord Lisvane, and the noble Baroness, Lady McIntosh, said about the significance of scrutiny in this context. They could be subject to the degree of parliamentary scrutiny and approval which important changes to primary legislation should require.
The Delegated Powers Committee noted:
“The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable—
we all have experience of this—
“of passing urgent Bills with extraordinary expedition”.
Paragraph 197 of the Constitution Committee’s report, to similar effect, said
“As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill”—
which is what the Minister told us in a previous debate—
“we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known”.
The committee recommended removal of that clause.
That is the answer I give to the noble and learned Lord, Lord Mackay of Clashfern. I hope he knows the high regard in which I and the House hold him, but in circumstances where there is to be an Act, where there are other powers to remove and make changes, this particular wide, untrammelled power is not necessary.
In addition to the strong constitutional reasons why this extraordinary power should not be left to be used by one of the many Ministers who have the power to issue regulations is the reason that it is remarkably widely drawn. We have debated in previous amendments that the formula used here—such provision as the Minister considers appropriate—suffers from the defect that it is both subjective and open ended. As I ventured to advise your Lordships in a previous debate, speaking from my own experience as a former Minister, adviser to Ministers and a practising lawyer, the exercise of a power so broadly expressed would be difficult, if not impossible, to challenge. The noble Lord, Lord Wilson of Dinton, put it memorably in the debate last week as another example of Ministers being given plump pillows of legal protection. That is an additional reason to object to this provision.
However, the primary constitutional reason that I have tried to identify still remains. I hope therefore that, in addition to answering the questions that have been put—including the question put by the noble Lord, Lord Beith, and others as to why the power is needed, and the question raised by the noble and learned Lord, Lord Hope of Craighead, as to the application of the Sewel convention—the Minister, when he replies, will indicate why the Government, in these circumstances, consider the power necessary; and whether they can now see, in the light of the changes made to Clause 9 and the other powers that exist, that they do not need it.
My Lords, this has turned into a clause stand part debate by any other name and I have been listening to it very carefully. The second amendment in this group would remove the words in Clause 9(2), “(including modifying this Act)”. This is rather curious because I know that many of your Lordships voted against Brexit in the referendum and in their heart of hearts still believe and hope that Brexit will never happen. That applies not only to noble Lords but also to Members of another place. But those words, of course, would include exactly what they want; namely, the repeal of the European Communities Act 1972.
My Lords, I thank the noble Lord, Lord Lisvane, for his contribution and other noble Lords for their comments. This has been a genuinely interesting debate on a very important issue. When I was asked to respond to this group of amendments, I suspected that I had drawn the short straw. I realise that there are various parts of this Bill which for your Lordships are indigestible, but I think that what tops the list of gastric turbulence is the deployment of Henry VIII powers. Let me start by saying that if, when I have finished speaking, it remains the view of this Committee that subsection (2) of Clause 9 is a constitutional abomination, I shall faithfully reflect that view to my colleagues in the other place who ultimately determine the Government’s position. Having given that undertaking, I hope that noble Lords will permit me the opportunity to attempt to persuade them that subsection (2) is in fact a proportionate approach to the position in which we find ourselves, a question which has been very legitimately posed by the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Goldsmith. For the benefit of them both, here I go.
It all starts from the Government’s commitment, which I hope is welcomed by all noble Lords, to ensuring that the outcome of the negotiations under Article 50 can be implemented in time for day one of our exit from the European Union. This Bill is designed to provide the essential legislative mechanisms to ensure that the UK statute book can continue to function once we have left the European Union. It would be wrong to pre-empt the outcome of the negotiations, and it is crucial that we have sufficient flexibility to make changes to the Bill to ensure that its provisions do not ultimately contradict the agreement that we have reached as to the terms of our withdrawal.
It is not unprecedented to create powers that are able to amend the very Bill in which they are created. Of course, we would expect the exercise of such powers to be subject to parliamentary control, as is the case within this Bill. Your Lordships may ask with some justification whether there are any precedents for this. I can point noble Lords to the Enterprise Act 2002 and the Third Parties (Rights against Insurers) Act 2010, which also confer powers to amend their own Acts. Noble Lords will note that these Acts were passed when those opposite me were sitting on the Government Benches. Arguably, we are being transparent in that we have made it explicit that this particular power might need to be used to amend the Bill once it is enacted. By doing so, we are also making it clear that the other powers in the Bill cannot be used to do so, and of course, as with all the other uses of Clause 9, it could be used only to make provisions to implement a withdrawal agreement on which Parliament would already have voted.
In the present circumstances and given the inherent uncertainty of what the withdrawal agreement will contain at the detailed level, it is vital that we are prepared for scenarios where we need to modify any Act to give effect to the withdrawal agreement in domestic legislation. It is recognised by both the Opposition and the Government that in our preferred negotiated outcome, some amendments may have to be made to the EU withdrawal Act—for example, to facilitate an implementation period. This is an inevitable consequence of the uncertainty that arises from the ongoing negotiation.
My noble friend is referring to a situation that presumably would take place under the next Bill, when we have agreed the deal and then lay out the ground rules of the transitional arrangements and our future relationship. I am confused by what the timeframe for these regulations under Clause 9(2) will be, because subsection (4) clearly states:
“No regulations may be made under this section after exit day”.
If the Bill reaches Royal Assent by June this year, for example, how will we have enough time to scrutinise—under subsection (2)—any regulations adopted before that time? It is all very confusing.
Before the Minister resumes—without wishing to interrupt her further—can I just take her back to the point she made about the Enterprise Act and the Third Parties (Rights against Insurers) Act? I do not have them in front of me, but does she agree that they are Acts of a very different nature to the constitutional Act that this Bill—and the surrounding legislation—gives rise to and were not subject to the same degree of scrutiny as the current legislation is being subjected to?
I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.
There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.
It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.
Under the provisions of Clause 9, that could not be done before the passage of the withdrawal agreement Act. Therefore, should it be necessary, that can be done in that Act, either by specific provisions in the Act—which most of us would prefer—or by statutory instruments provided for under the Act. Nothing can happen before the withdrawal agreement Act is passed, so the idea that this will help with situations in the meantime is not valid.
I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.
To take that slightly further, following the question from the noble Lord, Lord Beith, if the withdrawal agreement provides that, after exit, there will be some continuing cases that can be decided by the CJEU, that is what the withdrawal agreement will say, and that, therefore, can easily be provided for in the implementation of the withdrawal agreement legislation, can it not?
No one is saying that it could not be; it is just that there may be advantage in anticipating that and trying to introduce an earlier and swifter procedure to deal with it. I suppose that that, in essence, is the justification or argument that the Government are advancing: we want both flexibility and, if necessary, rapidity in responding to whatever situations are there.
If, as the noble Baroness’s answer suggests, it does not need to be done in this way but can be done in the other way we are suggesting, that really answers the question that has been posed to the Government: why do you need this wide-ranging, constitutionally unacceptable power? The answer appears to be that the Government do not need it, because it can be done in the way that others have indicated.
I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.
A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.
I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.
The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.
I am very grateful to the Minister for that answer but my point really is: what happens if the Minister of State decides to exercise the power? Obviously, the question in the first instance is whether the devolved legislatures would give consent to what is in the Bill, but my question is directed to the next stage, which is the exercise of the power, which the Minister has quite rightly said is not covered expressly by the Sewel convention. The question is whether the principle that underlies it would apply to the exercise of the power when it is exercised by a Minister of State. It may be that Ministers would like to think about that before giving a definitive answer, because it is a very important question and relates to something we may have to come back to on Report.
I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.
I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.
I thank the Minister for responding to the debate with her customary courtesy, precision and humour. She invited us to consider some precedents. It called to mind the occasion in 1881 when Speaker Brand introduced into the House of Commons, on his own initiative and without any consultation, the concept of the closure. He came under a great deal of fire rather quickly for this so he asked my learned predecessor, Sir Thomas Erskine May, to find him a reason for having done it. May, after a rapid and I think somewhat fevered search, discovered a precedent in 1603. He said later that he had discovered something that convinced the House of Commons better than any argument: “I have found a precedent”. In this case I have to say with great respect to the Minister that I did not find her precedents particularly compelling. If one identifies something which in legislative terms is rebarbative and not particularly acceptable, the fact that it has been done once is a very poor argument for repeating the offence.
I agreed with I think everything that the noble and learned Lord, Lord Mackay of Clashfern, said. Indeed, in my short time in your Lordships’ House I do not believe that I have been guilty of disagreeing with anything he has said. He made a point about timing which I think is very important. It may well be that, in contemplation of the withdrawal arrangements, provision can be made under Clauses 7 and 8, according to the restricted purposes set out in those clauses—although not particularly restricted—in which case the solution would be to make SIs, and I would hope that they would be subject to the affirmative procedure. Although the noble Baroness invited us to think that the affirmative procedure is a simply wonderful thing, it is not even half a loaf in legislative terms; it is a great deal less. However, it could be done by those means with delayed commencement dates. I agree entirely with the noble and learned Lord, Lord Goldsmith, that if these requirements are known, the best course is to find a way of putting them in primary legislation, with all the controls and scrutiny that would attract.
I do not know how sensitive my radar is but I think I detect some serious doubts, still, around the Chamber about Clause 9(2), and certainly about the last part of Clause 9(2), so I think it may be that the noble Baroness will be taken up on her very generous offer to reflect those doubts in the appropriate quarter before we take these provisions forward. In that spirit I beg leave to withdraw the amendment.
Amendment 153 withdrawn.
Amendments 154 to 161 not moved.
161A: Clause 9, page 7, line 17, at end insert—
“( ) amend or vary the provisions of the Immigration Act 1971 relating to passport control procedures on journeys within the Common Travel Area.”
My Lords, I am very grateful to my noble friend Lady Kennedy of The Shaws for enabling me to speak to this amendment on the common travel area and to Amendment 198 in my name and those of the noble Baronesses, Lady Altmann and Lady Suttie, and the noble Lord, Lord Kerslake. It seeks to deliver into statute what the Government agreed with the EU on 8 December:
“The Good Friday or Belfast Agreement reached on 10th April, 1998 by the United Kingdom Government, the Irish Government and the other participants in the multi-party negotiations (the ‘1998 Agreement’) must be protected in all its parts, and that this extends to the practical application of the 1998 Agreement on the island of Ireland and to the totality of the relationships set out in the Agreement.”
My noble friend Lord Browne of Ladyton will also address this specifically on Amendment 215, an important amendment that he has tabled with the support of other noble Lords—and noble Baronesses.
We scarcely need to remind ourselves that the Good Friday agreement, which my noble friend Lord Murphy of Torfaen negotiated, was a triumph of politics over violence in post-conflict Northern Ireland. When I spoke in this place over a year ago, I said that a hard Brexit and the hard border that would inevitably follow it would test the delicate balance of the three strands of the Good Friday agreement—relationships within Northern Ireland, between Belfast and Dublin and between London and Dublin—on which the peace settlement is based. That, sadly, is coming to pass.
The Good Friday agreement was a good-faith effort to take the toxin out of identity politics in Northern Ireland, where those who identified themselves as Irish could live with those who identified themselves as British and with those who see themselves as Northern Irish. There is no doubt that since Brexit, which the majority of people in Northern Ireland voted against, the divisive politics of identity is coming increasingly to the fore again. That is profoundly disturbing. Meanwhile, there has not been a local Administration for over a year—an equally profound government failure. Relations north and south are also deteriorating, to the extent that a senior member of the party propping up the Government can publicly call the Taoiseach a “nutcase”, and “not Indian” but a cowboy. To get the full flavour of that particular witticism, noble Lords need to know that Leo Varadkar’s father was born in Mumbai.
The tensions between the UK leaving the EU and Ireland remaining in it are clear. Following the phase 1 joint report on Article 50 on 8 December, the EU produced a 120-page document setting out the legal framework for fallback positions in the absence of agreement between the UK and the EU on the way forward. There were howls of protest and the Prime Minister rejected it out of hand, but where is the Government’s legal framework setting out what they think they signed up to on 8 December? Presumably, it sits alongside the Brexit Secretary’s impact assessments.
We are still desperately unprepared for Brexit and this is no more evident than on Northern Ireland. The UK Government, having agreed with the EU three months ago in the phase 1 agreement to maintain a frictionless border to preserve the Good Friday agreement, continue to fail completely to demonstrate how they can combine an open Irish border with the UK remaining outside both the single market and the customs union with the European Union. There is a simple reason for that—they cannot. Yet in her desperate attempt to keep her Cabinet—never mind her party—together, the Prime Minister continues to spin platitudes and delusion. Just last week, she was still maintaining that the United States/Canada border could be a model for an open border in Ireland. This is just nonsense. There are armed guards patrolling that border; there are flags on it; there is infrastructure on it—all the things that were specifically promised would not be on the border between Northern Ireland and the Irish Republic. If they were, they would be recruiting sergeants for mayhem, civil disobedience and attack.
Ministers still maintain the fiction that technology is the answer. All technological solutions require resources, infrastructure and preparation to implement. They do not substitute for the need for checks and inspections but merely aid the efficiency in crossing the border legitimately and identifying potential breaches of compliance or false declarations. As the former Permanent Secretary at the Department for International Trade, Martin Donnelly, has made clear, on the Northern Ireland border there is absolutely no evidence, and no serious expert in the customs field, who thinks that there can be an invisible technological border. He said that it does not exist anywhere in the world.
I am most interested but I wonder whether the noble Lord has looked at the evidence given to the Select Committee on Exiting the European Union in the House of Commons by the head of Customs and Excise, who said that whatever the outcome of the talks, there would be no need for infrastructure on the Irish border.
I know that evidence has been given but I simply stick to what I have argued, supported by the former Permanent Secretary at the Department for International Trade, who is an authority on these matters.
I remind your Lordships of the report of the Public Accounts Committee in the other place, published last December. It said:
“Government departments’ poor track record of delivering critical border programmes, such as e-borders, leaves us sceptical that they are up to the challenges of planning for the border post-Brexit”.
The Foreign Secretary compares it all to the congestion charge between council areas in London. Sadly, he knows little about the issues and cares even less.
The single market and customs union are not political deals but rules-based legal entities. As an EU member state, the UK has rightly insisted on the strict and consistent enforcement of these rules. Brexiteers, no doubt including the noble Lord, Lord Lamont, pretend that the EU can pick and choose to satisfy the UK that we can have all the benefits of being in the customs union and single market with none of the obligations, and that we can have an open Irish border while rejecting all the rules for keeping it open. That is like saying, “I want my country to play in the World Cup but I won’t recognise the offside rule”.
The success of the Good Friday agreement was that it made the border between the two parts of Ireland virtually uncontentious, both to nationalists, because it had to be completely open, and to unionists, because any constitutional change in Northern Ireland’s status could occur only with a referendum. The threat to it which Brexit poses was eminently foreseeable. It is important also to note that the 1998 agreement is not a domestic contract or statement of intent; it is an international treaty between two states. The British and Irish Governments are bound in international law to implement the terms of this agreement. Its legal precedent is the 1985 Anglo-Irish Agreement, signed by Margaret Thatcher, which gave the Irish Government a right of consultation in the affairs of Northern Ireland. The 1998 agreement makes formal recognition of the Irish Government’s,
“special interest in Northern Ireland and … the extent to which issues of mutual concern arise in relation to Northern Ireland”.
The agreement expressed the British Government’s wish to “develop still further” close co-operation with Ireland.
Strands 2 and 3 of the 1998 agreement, the cross-border and British-Irish strands, are international by nature and their future cannot be determined solely by the will of this Parliament. The British Government are legally bound, in partnership with the Irish Government, to ensure that the functions and objectives of this co-operation are unimpeded by withdrawal from the European Union.
My Lords, on the question of the Good Friday agreement, did my noble friend notice the significant exchange that took place in the House on Monday between my noble friend Lord Judd and the Minister, the noble Lord, Lord Bourne of Aberystwyth? When my noble friend Lord Judd said,
“could the noble Lord confirm that the amendments to be brought forward by the Government will make absolutely sacrosanct the principle of the preservation of the Good Friday agreement?”,
the noble Lord, Lord Bourne, replied,
“My Lords, I certainly can confirm that”.—[Official Report, 12/3/18; col. 1397.]
So the Government appear to have committed themselves to bringing forward amendments, I assume on Report, to enshrine their obligation to observe the Good Friday agreement.
If that is the case, as my noble friend has reminded us, then the Government should be supporting this amendment and putting it into statute.
During the referendum campaign in 2016 two former Prime Ministers, Sir John Major and Tony Blair, both of whom made significant contributions to the peace process, gave speeches in Derry/Londonderry, in which they stressed that imposing a hard border between the north and the south of the island of Ireland would threaten the very basis of the peace process and the stability that the island of Ireland has enjoyed. Both have cogently reinforced their case in recent weeks and are as alarmed as any of us privileged to have served as Ministers in Northern Ireland.
There are more crossing points along this 310-mile border than there are along the whole of the EU’s eastern frontier: 257 compared with 137. The border crosses family farms and separates towns and villages from their natural hinterlands. It is both invisible and ever present, both unremarkable and deeply contested. Even the younger generation on both sides of the border associates the very idea of border controls with conflict and collective trauma. As well as the formal movement of goods, there are many services from cross-border medical and pharmaceutical transactions to people and data movements between supply chains north and south and the infrastructure issues: energy, telecoms, air and rail travel, environmental standards and so on. If, as the Prime Minister insists, Brexit means the UK leaving the customs union and the single market—a rules-based legal entity, not just a political agreement—then Brexit would unavoidably mean the introduction of a hard Irish border.
Is my noble friend aware that the European Parliament has today voted by 554 votes to 110 for a framework agreement that supports seeking UK associate status but that the necessary frictionless trade can be guaranteed only by membership of both the customs union and the single market? That underlines the point he is making.
I understood that this was a proposal being put by, I think, the leader of the European Parliament, Guy Verhofstadt. I am grateful that my noble friend has brought it to the attention of the Committee.
A hard border is one that consists of layers of barriers to movement—that is, tariffs, quotas, bans and regulations—and requires strict conditions and evidence of compliance to cross: declarations, inspections, authorisations, visas and permits. However, while harder borders require greater means of control and management by states, it is not the visibility of a border that determines how hard it is. The experience of a harder border is felt away from the border line in the obstacles faced by an individual or business when seeking to cross it legally to work, trade or operate on the other side. Hard border arrangements therefore threaten the evolution of a successful all-island economy, which is essential to the economic development and long-term prosperity of Northern Ireland.
A combination of the conditions of EU membership and the operation of the 1998 agreement has enabled cross-border economies of scale, supply chains, public service delivery and practical co-operation to flourish. These are particularly essential in areas, such as those in the central border region, which have suffered the consequences of multiple deprivation and conflict.
It is estimated that 30,000 people commute across the border every day. Around 1 million HGVs, more than 1 million vans and 12 million cars move between Northern Ireland and the Republic every year. Northern Ireland is also a vital route to market for goods from the Republic, with the UK acting as a land bridge to markets in the EU 27—some of the goods going through Wales, I might add. Approximately 40% of container movements to or from the island of Ireland go through Northern Ireland.
Also threatened are 142 areas of north-south co-operation that have developed as a result of the implementation of the 1998 agreement. These range from an all-island regime for animal health and welfare to shared infrastructure and emergency healthcare planning and provision. They bring direct benefits to people on both sides of the border, and much of this co-operation relies on regulatory alignment across it. For example, Dublin Airport is the main entry and exit point for air travel for Northern Ireland, around half of whose residents use it for holiday travel. Brexit will also require a new aviation agreement between the UK and EU member states if there is not to be disruption to flights to and from Ireland to the UK.
One of the most tangible successes in economic co-operation post the Good Friday agreement is the single wholesale electricity market, known as the SEM. A report by the House of Lords European Union Sub-Committee on Energy and Environment, published on 29 January 2018, stated:
“The Single Electricity Market (SEM) on the island of Ireland has been a key dividend of the peace process, reducing energy prices in both Northern Ireland and the Republic of Ireland, and helping to achieve decarbonisation targets. It is therefore vital that the SEM is able to continue post-Brexit. Given that its functioning requires the implementation of EU energy laws in Northern Ireland, the mechanics of maintaining the SEM will require careful consideration and new arrangements, particularly if the UK were to leave the Internal Energy Market”.
Food and agribusiness, worth more than £4.5 billion, form the largest cross-border trading sector, relying hugely on EU membership for everything from farmer payments to tariff-free exports. The sector operates on a de facto all-island basis. Examples include the 594 million litres of milk that are imported from Northern Ireland for processing in Ireland. If import tariffs or even non-tariff barriers were put in place, that could decimate the Irish milk-processing sector. Nearly all the wheat grown in Ireland is sent north for milling and then re-imported back to Ireland. Nearly 40% of Northern Irish lamb is processed in the Republic, while a significant volume of pigs and cattle from the south are processed in Northern Ireland. The Bushmills distillery, the oldest working brewery in Northern Ireland, which claims to have invented single malt before the Scots and is located on the beautiful coast of County Antrim, has trucks making 13,000 border crossings each year.
The 1998 agreement was drawn up in the context of shared UK and Irish membership of the EU, and its practical implementation centres on continued regulatory alignment. UK withdrawal from the EU means that the trajectories of the UK and Ireland will now diverge. The divergence will be wide-ranging and will happen in law, trade, security, rights, policies and politics. Brexit therefore risks deep fissures between the UK and Ireland and thus puts the Good Friday agreement at risk. Brexit, with its re-emergence of exclusivist definitions of sovereignty, nationalism and state borders, threatens to destabilise the fragile equilibrium in Northern Ireland. There are those in the Cabinet and in the ranks of the ideological hard right who see the Good Friday agreement as a tedious encumbrance to their form of Brexit, rather than as the cornerstone of a hard-won peace process that is not yet complete. They cannot be allowed to put that at risk. That is why this amendment is necessary and why I hope it will be voted on on Report.
My Lords, Amendment 161A is tabled in my name and leads this group of amendments. I felt it was right that my noble friend Lord Hain opened the debate because he roamed much more widely that I intend to. Noble Lords will see that Amendment 161A looks at the common travel area and how we might proceed in future with regard to it.
I want to remind the Committee of the background to the common travel area. It is largely a passport-free zone between the UK and Ireland and the Isle of Man and the Channel Islands, which are not in the EU. Save for a decade-long period of suspension around World War II, a form of common travel area has existed since partition and was maintained throughout the Troubles. The arrangement is complex and its existence is already recognised in the EU context. It is a changing context and is not copper-fastened, but rather left to politics, convention and legislative reference.
In the United Kingdom, Section 1(3) of the Immigration Act 1971 provides that arrival in and departure from the UK from or to elsewhere in the common travel area cannot be subject to passport or border control. Although the common travel area predates and is separate to EU freedom of movement, a post-Brexit scenario presents novel challenges as well as an opportunity for us to rethink and codify the common travel area on a more effective and principled basis.
I wanted to raise the fact that, at the moment, there really seems very little that is solid around the movement of people. I am talking here not about the movement of trading goods but about the movement of people. As we know, the Government have a policy to create a hostile environment for migrants who end up with irregular status. On current plans, that would in future include migrants from elsewhere in the European Union, with the probable exception of Irish citizens. The question then turns to how the Government will enforce their desire for such significantly increased migration control while maintaining an open border. If the Government are sincere in saying they do not want a hard border, where will the checking of papers take place and how will it be done? It seems to me and to many that this has been largely overlooked in detailed discussions so far. The position paper is limited to setting out that future UK immigration arrangements will maintain the common travel area free from “routine” border controls.
It looks like an indication that the Government may be considering reviving plans for selective mobile checks on people not perceived to be British or Irish citizens. I want to just think about that. Not that long ago in this House, in 2009, there was a moment when it looked as though the common travel area was endangered. The Government at that time intended having “ad hoc” checks on the land border, because of concerns about illegal immigration, that would target non-British and non-Irish citizens. The suggestion was that there should be passport checks between Northern Ireland and Great Britain. The policy was defeated in this House by an amendment tabled by the noble Lord, Lord Glentoran, following concerns raised by Peers in debate and by the Northern Ireland Human Rights Commission about both racial profiling and internal immigration controls within the United Kingdom. There was very real concern about it.
The proposal envisaged non-common travel area nationals—persons who were neither Irish nor British citizens—having to carry identity documents to cross the land border, with British and Irish citizens not having to do so. But of course unionists in Northern Ireland were very concerned about what this would mean for them. Were they going to have to prove their position as they travelled within their own nation? This prompted the clear question as to the basis on which examining officers would distinguish between the two groups of citizens—people who were entitled to travel and those who were not. In a post-Brexit context, under current plans, there would also be the question of distinguishing between EU citizens who had acquired rights by virtue of residence prior to Brexit, and those EU nationals arriving subsequently who may remain non-visa nationals but will be subject to restrictions. How would this be done? I have been drawing on research by lawyers from both Queen’s University and the University of Ulster, as well as human rights organisations in Northern Ireland, who are concerned about this.
As for potential solutions in a post-Brexit context which would avoid the need for a hard border and the risks of widespread profiling—pulling out people who they think look like foreigners—you would have to make some special arrangement. Members of the negotiation team would have to explore models that would somehow create special circumstances to deal with the Northern Ireland situation. It may have to be that we talk about continued EU freedom of movement into Northern Ireland in an agreement with the European Union to ensure that British citizens in Northern Ireland continue to enjoy equivalent rights to Irish citizens in the jurisdiction—a core principle, as we have heard, of the Belfast/Good Friday agreement.
I tabled the amendment, and raise these issues, to tease this out. To some extent, it flies in the face of some of the policing matters that the noble Lord, Lord Patten, who I see in his place, sought to put in place under the bilateral treaty agreement to avoid problems of this kind in policing and border control. It would not be compatible with the treaty that we have entered into with the Good Friday agreement to require a dual Irish-British citizen, or someone identifying as British, to rely on their British citizenship alone to access entitlements or equal treatment in Northern Ireland. It just comes back to this question: how is it to be done? Are we to have mobile units that will stop people?
Recently there was rather a high-profile litigation case against the Home Office, supported by the equality commission, involving a British woman who was stopped at Belfast City Airport by an immigration officer. The victim, who was not even a passenger but was dropping off a relative at the airport, gave her account of events, which was upheld. She was told by the immigration officer that she had been singled out as she,
“looked foreign and obviously not from here”.
She was black. It is not an isolated case, so there are concerns about that, at one end, but also about what it will mean across the board. How is this to be done? We look forward to hearing, in this testing set of amendments, how this is to be done in a way that will not involve having controls, even mobile ones, that are discriminatory.
My Lords, my reason for putting down Amendment 187A was to ensure that if we are to leave the EU, we do so in a way that does least damage to all the communities that we, as parliamentarians, represent.
Northern Ireland is in some ways a microcosm of the challenges that the UK faces in pursuing Brexit. But Northern Ireland adds further complexities, with delicate issues stemming from the Troubles and the peace process. These have been added to by the current political difficulties following the collapse of the Executive some 15 months ago. Since the signing of the Good Friday agreement nearly 20 years ago, there has been an enormous change in attitudes in Ireland that could not even have been imagined when I was a young girl growing up in Dublin. I am one of many of my generation who grew up in the Republic and who thought of the north as almost a foreign country. When I was a child, I had an uncle who manufactured children’s clothing. When he won a contract to make school uniforms in Northern Ireland, the family greeted this news with as much excitement and awe as if he had been invited to China to make uniforms. That was how alien Northern Ireland was to us: a mere 60 miles away—the same distance as London to Oxford—but light years apart.
Contrast that reaction to how young people today see the border—or rather, do not see it at all: people who have reached adulthood without ever having to experience, first-hand, stops and checks as they travel from one part of Ireland to the other. I did not even visit Northern Ireland until I was living in London and had to go to Belfast on business. I am not sure what I expected, but I was completely bowled over by how absolutely beautiful it was and the amazing people who live there. Today, 35,000 people cross the border every day for work, leisure, education and pleasure. No borders should be erected that will undo this progress.
The purpose of the amendment is to put into concrete legal terms what the Prime Minister and her Government are already committed to. The joint report on phase one of the Brexit negotiations that was published last December included a commitment to no physical border on the island of Ireland as a result of the Brexit vote, and the Prime Minister repeated that promise earlier this month. That commitment is clear and unambiguous, but how is it to be achieved?
The Prime Minister referred in her Mansion House speech to the Smart Border 2.0 report. It is not an EU report, as some have said, but was commissioned by one of the EU committees and has been submitted to the European Parliament for consideration. The report examines how technology could be used to avoid a hard border between the Republic of Ireland and Northern Ireland. It uses examples of “smart” borders currently operating between Norway and Sweden and the US and Canada to demonstrate how technology can significantly speed up border controls. However, it makes clear that, despite all this technology, there are still 14 manned customs posts between Norway and Sweden and 39 between the US and Canada. In the US, so-called trusted traders—those who have preregistered with the Government—wait an average of 15 minutes to cross the border, while those who have not preregistered wait an average of 81 minutes. So the report demonstrates that, despite technology, even “smart” borders require manned border points, barriers and electronic surveillance including CCTV and number-plate recognition systems. This is very different from the current border between the north and the south and contradicts the Prime Minister’s statement on 2 March:
“We have ruled out any physical infrastructure at the border, or any related checks and controls”.
The report makes no mention at all of agriculture, including the issues of animal welfare and checks to ensure that shipments are free from harmful pests and plant diseases, but that is a key element of cross-border trade, with food and live animals accounting for one-third of Northern Irish exports to the Republic in 2016. In addition, intra-company supply chains are highly dependent on cross-border movement; lamb and wheat are just two examples. These checks need to be made at borders and will be mandatory if the north diverges on regulation. Saying there is a technological solution is just a fanciful claim that is not backed up in reality either in Europe or around the world. Casually adopting the word “technology” as an easy solution does not address how to deal with the many crossing points between the Republic of Ireland and Northern Ireland. It is clear, particularly in the report, that technology cannot make a hard border soft and that regulatory alignment is the key to solving the problem.
It is essential that the Government honour their commitments because the inevitable result of border controls will be more smuggling, and we know from bitter experience that that is how the men of violence get back into business. The peace that was so hard-won in the Anglo-Irish agreement remains extremely fragile. It would be tragic if we were to tiptoe back into that quagmire because the Government found that they could not, after all, honour their promise. I very much hope that noble Lords will support this amendment on Report.
My Lords, I will be speaking in particular to Amendment 215 in this group, which is in my name. I am grateful to the noble Baronesses, Lady Suttie and Lady Wheatcroft, and the noble Lord, Lord Kerr of Kinlochard, who have added their names to it.
I am extremely grateful to my noble friend Lord Hain for the way in which he introduced this group. He and the other speakers so far have set the scene in factual terms regarding the importance of the Good Friday agreement for the nature of the integration of the island of Ireland and the codependence that is significant for its economy, not just at the border but throughout the island, and the level of disturbance that they are anticipating as a result of Brexit and the level of commitment that the Government have to dealing with these issues, in anticipation and in reality, should Brexit occur. I support and adopt all the arguments that are before your Lordships. Noble Lords will be pleased to learn that I do not intend to repeat any of them, although towards the end of my remarks I intend to draw on the experiences of some young people in Northern Ireland that have been reported to me and others here, and which I think teach us a valuable lesson about the importance of the issues that are before the House.
I want to make a small personal contribution about my experience of Her Majesty’s Revenue & Customs trying to do a relatively simple thing in a digital environment in relation to customs—in particular, VAT. Some noble Lords may have experience of this process. It is known as the transfer of residence. For the past three years, I have been living and working in the USA. When my wife and I returned to the UK, we had acquired some things that needed to be shipped back to the UK. This process requires what is known as a transfer of residence form, simply for VAT purposes. For many years—up until last year, in fact—this was done by a simple piece of paper that was completed by the person returning to set out what was coming back, when it was purchased and what value it had. If the form satisfied Her Majesty’s Customs that no VAT was chargeable, permission was given to the carrier to bring this particular sealed box into the country without charging any customs on it, and it therefore avoided being held up at the port.
In 2016, the Government decided to digitalise this process. It was a disaster. The process had to be put off time and again, simply because Her Majesty’s Revenue & Customs could not translate the simple two-page form into a digitalised form on the web that reflected the actual experience that people had in the process. The reason why it impacted on me was that it was just at the point at which we were returning to the UK, after I had committed our modest goods to a carrier to transfer them across the Atlantic Ocean, that the system kicked in. I was faced with the situation that HMRC was so overwhelmed by its inability to cope with this simple online system of a form that had to be completed, printed out and then sent to it by email that I was facing the prospect of these goods, which were not very valuable at all, being put into storage at my expense at such a rate that the storage would have been more expensive than the actual goods themselves. I was in the unfortunate position that I could not even ask the carrier to destroy them because, in order to do so, I had to bring them into the country, and to bring them into the country you needed to be able to calculate whether VAT was chargeable on them.
I admit—I probably should not—that I asked the carrier for the addresses of all the HMRC officers that had been dealt with on any of these issues by him or by the association that he was a member of. I sent one email to all these people saying, “When is a decision going to be made about my application?”. Twenty-four hours later, I sent another one saying, “When am I going to get an answer to my email, or even an acknowledgment of it? If I do not get an answer, the next email is going to the Minister who has responsibility for HMRC and will also be copied to all of you”. Needless to say, within a matter of an hour I got the information that I needed and the authority to bring my goods into the country.
We are told that the system is now working, but it does not work on a digitalised basis; it works simply on the basis of a form which is filled in, printed and sent to them. In any event, my own experience confirms that it is highly improbable that, between now and a date in March next year, we will see anything approximating to an electronic border between us and the European Union—on any part of our border with the European Union, never mind the complexity of what is happening in Ireland.
Amendment 215 would give legal effect to paragraphs 49 and 50 of the December 2017 UK-EU joint report on regulatory alignment and the responsibility of the UK to propose,
“solutions to address the unique circumstances of the island of Ireland”.
On Monday 5 March, in her parliamentary Statement, the Prime Minister Theresa May, in the very first sentence of her Statement, said:
“In December we agreed the key elements of our departure from the EU, and we are turning that agreement into draft legal text ... no one should doubt our commitment to the entirety of the joint report”.—[Official Report, Commons, 5/3/18; col. 25.]
That was just last week.
In respect of paragraphs 49 and 50, the Government are presently doing exactly what my noble friend Lord Rooker, in the debate on Amendment 144 earlier today, suggested should have been done some time ago, which was to translate the joint report—or at least the United Kingdom’s commitments—into legal text, and not have left that for the EU to do. That process is going on, and maybe the Minister will indicate exactly where we are with the process of drafting a legal text. If, by any chance, we could get to the point where it could be adopted into the Bill on Report, he and I could probably have an interesting conversation. In seeking to give effect to these paragraphs, in a sense your Lordships’ House would be taking the Prime Minister at her word. We would not be doubting her commitment to the,
“entirety of the joint report”,
and seeking to translate the UK’s commitment into a legal text.
I commend the whole part of the report under the heading “Ireland and Northern Ireland”, which begins at paragraph 42. In the earlier paragraphs before 49 and 50, which I shall come to in detail in a moment, the agreement sets out that both the EU and UK agree that the Good Friday agreement,
“must be protected in all its parts”,
“the practical application of the 1998 Agreement on the island”.
Our amendment seeks to test the commitment to paragraphs 49 and 50, which, with the leave of the House, I shall read. I do so for two reasons: the terms meet the case much better than I could on why we should legislate for this commitment; and because I sense a reluctance on the Government’s part to read these paragraphs in full. People are cherry-picking these paragraphs at this stage, but they need to be read in full to get the full extent of the commitment made by the Government.
Paragraph 49 states:
“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”.
Paragraph 50 reads:
“In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market”.
The Prime Minister was right to use the word “commitment” when referring to this document, particularly so with reference to these two paragraphs.
Paragraph 46 states—and this is important:
“The commitments and principles outlined in this joint report ... are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom”.
The text says, “irrespective”, so it meets the test that the noble Lord, Lord Callanan, repeatedly tells us the Bill meets; they are agnostic about negotiation. The test is that, irrespective of what happens between the European Union and the United Kingdom, the Government have committed themselves to these paragraphs in the report. They are solemn commitments to the people of Northern Ireland and the island of Ireland. Certainly for the majority of people who live on that island—not just those who live in the border area, which will be most affected—these solemn commitments are being treated as commitments which the Government will maintain and live up to.
On Tuesday 6 March, the noble Baroness, Lady Suttie, and I—like other noble Lords had done before—met a delegation of young people from Northern Ireland and from the Republic of Ireland who, with the support of the Irish Ombudsman for Children and the Northern Ireland Commissioner for Children and Young people visited Parliament to convey to us the key messages from a conference of around 120 young people that took place in Newry in November last year. The conference was convened to offer young people from across the island of Ireland the opportunity to articulate their experiences of living near or on this border and to voice their views, hopes and fears. As a consequence of my exposure to these impressive young people, I shall restrict my contribution of experiences or challenges to what they said. I have the executive summary of their discussions and key messages, which reflect their experiences, hopes and fears. There is a longer version of this, which reports the conference more fully, but I do not intend to read either in any detail.
These young people want us to know their key messages, and I shall repeat some of them. Key message 3 states:
“We have come too far from the violence and divisions of the past. We don’t want to see regression to a hard border and conflict”.
A hard border means conflict in their minds. Key message 4 states:
“Protect all aspects of the Good Friday Agreement throughout the Brexit process and protect the right of young people in Northern Ireland to consider ourselves British, Irish or both”.
The second part of key message 6 states:
“Protect our freedom of movement across the border”.
Key message 7 states:
“We are very concerned that Brexit could limit our opportunities in the future for work, travel and study. Protect these opportunities and support us to avail of potential new opportunities”.
Key message 9 states:
“Allow children, young people and their families to continue to access services and facilities on either side of border, for example in relation to health, education, sports and cultural activities. The UK government should also commit to continuing membership of the EEA to ensure retention of the EHIC card”.
These are all reflections of their actual experiences. They tell us that 2,000 of them travel one way or another across the border just for their school education, every day. For these young people, we cannot live up to the objective of this Bill to ensure that the same laws will apply to persons in the UK the day after exit as before, unless there is a settlement covering the whole of the United Kingdom that commits us either to continued membership of the customs union or to something similar to a customs union and to regulatory alignment. There is one way of doing that, and that is to accept as a statutory obligation the obligations set out in these two paragraphs.
My Lords, I thank the noble Lord for giving way. Paragraph 4.36 of the Companion suggests that:
“In debates where there are no formal time limits, members opening or winding up, from either side, are expected to keep within 20 minutes. Other speakers are expected to keep within 15 minutes”.
The noble Lord has spoken for 18 minutes. I wonder whether he would consider the tolerance of the House and wind up his speech.
I am grateful to the noble Countess. As it happens, I had a one-sentence paragraph left at the point at which I took her intervention. I just say that these young people deserve a few minutes of our time, because it is their future and their life that we are discussing.
I wind up by saying that these young people reported to us that, the day before we met them, they had met with Shailesh Vara, Member of Parliament and Parliamentary Under-Secretary of State for Northern Ireland. They conveyed these same messages to him and asked how he was going to deal with the challenges of the border. They reported to us that they were told that there was, “going to be some creative thinking”. I invite the Minister to share that creative thinking with us, so that we can tell them how they can look forward to a future that is as rosy as the one they thought they had.
My Lords, a year ago, I ventured to suggest to the House that, as the programme for the negotiation of our withdrawal from the European Union gathered momentum, the people of Northern Ireland would slowly but surely realise that they would be at the most vulnerable limits of what we were talking about in this House and in the other place. Tonight, I suggest to noble Lords that my prediction was true. That is the reason why I welcome much of the substance of what the noble Lord, Lord Hain, has said to us in support of his amendment. He and I would have a slightly different emphasis on parts of it, but the basis of what he said is, I believe, of vital importance at this stage of our negotiation.
I speak about this amendment not from a party-political stance, but from more than 22 years as the Anglican Primate, not of Northern Ireland, but of all Ireland. In that time, I was able to see, day to day and night to night, some of the consequences of the turmoil that had divided Ireland and divided the communities of Northern Ireland. As the noble Lord, Lord Hain, other Members of your Lordships’ House who have served as Secretaries of State and those who have sacrificed a great deal as politicians in the cause of a lasting peace in Northern Ireland will know, we do not choose our words idly at this stage. The noble Lord, Lord Browne, referred to the young people. Those young people are but part of the segment of a community that is listening to what we are saying and, most importantly—I say this to the Government—listening to what will be the ultimate outcome of the negotiations for our withdrawal.
Beyond the technicalities of any discussions in your Lordships’ House over what will happen to the border and the island of Ireland, there is an emphasis tonight that, from living in Northern Ireland itself, I am conscious of: the growing important feature of public opinion. First, there is dismay at the continuing absence of local government in the devolved Administration. This has been debated long and hard, and there are many theories about the way forward, but it is a fact. Allied to that is the frustration among all age groups about the fact that there is no local voice to represent the people—young and old—of Northern Ireland as we reach this critical stage of the EU withdrawal process. So it is incumbent on those of us who know the day-to-day conditions to say something about it in your Lordships’ House.
The element that I want to emphasise is the human one. What we decide ultimately in the negotiations for our withdrawal will depend locally, to a large extent, on the sensitivity to what the ordinary people on the streets of Northern Ireland believe, want and are concerned about. I put the concern to which I referred as clearly as I can: we have received assurance after assurance, verbal and written, that there will be sensitivity to the position of Northern Ireland within the United Kingdom—with all the changes and challenges from a Northern Ireland perspective that have already been mentioned tonight—but the fear is that, in the high-powered negotiations to draw up the final agreement, it will be very easy for certain details to be watered down, or for us not to receive the concrete assurance that is given continually to our Province and the people of Northern Ireland, simply because negotiation means compromise and means setting what the important priorities are that ought to be met and underlined to get that agreement.
The awful fear of so many people is that the assurances given, and mentioned again in the amendment of the noble Lord, Lord Hain, will be part of the casualty to that process. That is why I welcome the attention that he and his colleagues have drawn tonight to these important assurances. I use the opportunity to urge Her Majesty’s Government to remember that those assurances are not just a party-political issue. They are an issue to the people who have come through the darkness of the Troubles, who have sought the light of a partial peace, yet who live with the traditional divisions between orange and green and between those who see membership of the UK as vital and those who seek constantly to look further afield.
Finally, my mind goes back not to the Belfast agreement or anything else of that nature, but way back to the Downing Street declaration, which started the whole process, in my opinion. We had to look very carefully, under the guidance of John Major and, on the other side of the Irish Sea, Albert Reynolds, at the element of consent. That element has to be protected if we want a lasting peace in a divided community, and it is that which I believe gives me the—dare I say—moral authority to remind the House of the non-party-political aspects of this amendment, and the fact that we are dealing with ordinary people who have hopes and fears, and who deserve the fullest possible attention.
My Lords, it is always a pleasure to listen to the wisdom and experience of the noble and right reverend Lord, Lord Eames. He helps put all this back into perspective for us. I shall speak to Amendments 215, 198 and 187A, to which I have added my name. All three tackle the issue of avoiding a hard border and of upholding the progress made in the last 20 years since the Good Friday Belfast agreement.
Whereas there is virtually universal consensus about those aims, as the debate this evening has shown, there is still scarily little consensus about how they can be achieved in reality, especially given the timescale we are now talking about. Various options are being floated for the Irish border issue, but every one of them is considered utterly unacceptable to at least one section of society on the island of Ireland. This has all been further complicated by the confidence and supply arrangement that the Government have found themselves in since last summer, and the hard-line position on Brexit taken by the DUP.
In the absence of a credible policy from the Government and the current policy vacuum, various myths and assumptions have started to take hold. The first and most popular myth is, as my noble friend Lady Doocey has so clearly spelled out, that this problem can somehow magically be solved through “technological solutions”. The proponents of this myth have somewhat ironically given enormous credence to a paper written by one researcher for the Constitutional Affairs Committee in the European Parliament. As my noble friend said, and as the disclaimer in the document makes clear, that paper has no official status. People have perhaps been so keen to promote it because it is more than the Government themselves have been able to produce.
But even if such technological solutions were indeed feasible, as the noble Lord, Lord Browne, said, it is highly unlikely that they could be fully implemented within the next decade, never mind by next March. We just need to look at the track record across Whitehall to know how long it takes to introduce new technological systems, and how often there are severe technical and teething problems. On giving evidence to our EU Committee, a senior Swiss customs official acknowledged that on the 120 border crossings between Switzerland and the EU, even with technology some hardware has to be installed, with CCTV cameras, number plate recognition, drone technology and so on. Any such hardware could be very vulnerable to vandalism, so people on the ground would be required to protect it. It is not hard to see how this could quickly be ratcheted up to become a physical border. The chief constable of the PSNI, George Hamilton, has expressed publicly his concerns and warned that border posts and security installations created as a result of a hard Brexit would be seen as fair game for attack by violent dissident republicans.
The second dangerous assumption is that because the Irish have the most to lose economically as a result of Brexit, they will have to sort out the problem and fix it in Brussels. There are even those who say that the inevitable consequence is that Ireland too will have to leave the European Union. But Ireland is a sovereign state and the Irish people overwhelmingly continue to support membership of the European Union. This is particularly true among young people. They did not have a say in the Brexit referendum in 2016, so it is deeply unreasonable to say that it is now down to them to sort it all out.
The third key area of debate is that somehow or other the issue of the border has been exaggerated; some have even used the word “weaponised”. However, just two days before the EU referendum the Prime Minister, Theresa May, said:
“if we were out of the European Union with tariffs on exporting goods into the EU, there would have to be something to recognise that between Northern Ireland and the Republic of Ireland. And if you pulled out of the EU and came out of free movement, then how could you have a situation where there was an open border with a country that was in the EU and had access to free movement?”
On this I agree with the Prime Minister.
During an EU Select Committee visit to Ireland and Northern Ireland in January, we heard many people voicing concern about the differences in interpretation in London and in Dublin on the joint agreement reached between the EU and the UK on 8 December. In Dublin there is understandably a firm belief that it was an agreement that was to be honoured by both sides.
The purpose of Amendment 215 is to give effect to paragraphs 49 and 50 of the joint report agreed on 8 December. Paragraph 49 of the joint agreement envisages three different scenarios for finding a solution to the Irish border issue. The second scenario envisages,
“specific solutions to address the unique circumstances of the island of Ireland”.
The noble Lord, Lord Browne, has already read out the details of paragraph 49, so I ask the Minister when the Government intend to come forward with these specific solutions, and why they have not yet come forward with proposals. I am sure the Minister will agree that this is becoming increasingly urgent, given the imminent European Council where these issues will be examined on 23 March.
I shall conclude by saying a few words about some of the unseen consequences of leaving the European Union, and the impact on the Good Friday Belfast agreement. Since we both joined the European Economic Community in 1973, Irish and UK Ministers have had the opportunity to sit around the table in Brussels on a monthly basis. They have sat around that table as equals. These meetings have provided an unseen but vital opportunity to discuss the issues of the day and to work around problems. This has provided a vital information flow which has had a not inconsiderable influence on the peace process. In his concluding remarks, can the Minister say what thought the Government have given to enhancing UK-Ireland relations in the absence of these hugely valuable diplomatic channels? On this, as with so many other issues surrounding Brexit, the full consequences are not yet fully understood, but we must do all we can to avoid any reversal of the hard-won peace and progress achieved over the last 20 years.
My Lords, I support the amendment so eloquently spoken to by my noble friend Lord Hain. I remind the House that we are three weeks away from the 20th anniversary of the Good Friday agreement. Those two decades ago it was my privilege, as the political development Minister at the time, to chair a good part of those negotiations—but in 1997 I had been appointed by the Prime Minister to be the European Minister as well. There is a link between the two, which is why I wanted to speak to this amendment.
The committee of your Lordships’ House that looked at this matter some months ago concluded that common European Union membership had laid the groundwork for the development of the peace process. Indeed, the preamble to the Good Friday agreement says that the two Governments wished,
“to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union”.
There can be no doubt that throughout the whole of that agreement the three strands—strand 1, which dealt with the internal arrangements within Northern Ireland; strand 2, which dealt with the relations between the north and the south of the island of Ireland; and strand 3, which dealt with east-west relations between the two countries of Ireland and the United Kingdom—and all the other elements of the Good Friday agreement were underpinned by that common membership of the European Union.
In strand 1, much of the success of the last 20 years has been based upon the European funding in Northern Ireland, not least of which was the actual peace money itself, which helped to produce peace, stability and prosperity in Northern Ireland. In strand 2, where these bodies north and south come together, much of what they did relied upon the common membership of the European Union, again with regard to funding but other issues as well. Strand 3 set up the British-Irish Council and the British-Irish Intergovernmental Conference, both of which deal with matters affecting the European Union. In the paragraphs cited by my noble friend Lord Browne a few minutes ago, the Government themselves accept that the Good Friday agreement must be kept intact when Brexit occurs.
Another issue, perhaps not so legal but very important, is the fact that in my view the agreement would not have been successful if the Republic of Ireland and the United Kingdom had not entered the European Union together in 1973. That meant that time after time, day after day, even hour after hour, in Brussels and elsewhere, the two Governments could talk at ministerial and official level. That talking meant that the old bad relations between the two countries faded away, as, of course, did the border itself. The blurring of the border as a result of the events of the last 20 years has been hugely significant in not just economic and security terms but in psychological terms, because that border has gone in the minds of both nationalists and unionists. Its resurrection would be an absolute disaster. Whatever one’s views on Brexit, the idea of returning to what had been there before would be extremely backward looking.
The other issue to which my noble friend referred was that the Good Friday agreement is an international treaty. The two Governments of Britain and the Republic of Ireland are joint guarantors of the Good Friday agreement. The responsibility rests upon our shoulders to ensure that all the aspects of that agreement, which are as fresh today in my mind as they were 20 years ago, are guaranteed by the two Governments.
Senator George Mitchell, who will come over to Northern Ireland in a couple of weeks’ time to commemorate the Good Friday agreement, said a couple of days ago that there were 700 days of failure and one day of success in the talks which led to the Good Friday agreement. If we do not ensure that we deal with the border and respect all the aspects of the Good Friday agreement, we cannot allow the Brexit negotiations to put at risk the great worth and good that has come to Northern Ireland and, indeed, to Ireland and the United Kingdom, as a consequence of what we did two decades ago.
My Lords, I cannot claim the knowledge of Northern Ireland of many other noble Lords who have spoken. However, I wanted to contribute to this debate and have added my name to Amendment 218 because 25 years ago I was privileged to be a member of the Opsahl commission, an independent commission or citizens’ inquiry into the future of Northern Ireland. I have also been very much influenced by the Northern Ireland Women’s Coalition; it practises what I called in my academic work the politics of solidarity in difference, and had an influence on the wording of the Good Friday agreement which I do not think is always sufficiently recognised.
Earlier in Committee, I repeated a question that I asked at Second Reading: how is the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic to be maintained if the citizens of the former could no longer look to the European Charter of Fundamental Rights? I noted that in his helpful letter to Peers, the noble Lord, Lord Callanan, pointed out that the agreement preceded the charter and, as the charter is not referenced in the agreement, the Bill should not affect our obligations to it. However, the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, how, I asked again, will that equivalence be maintained? But answer came there none, so I would very much appreciate it if the Minister could give an answer to that today, especially as, since then, I have read of the concerns of the Northern Ireland Human Rights Commission on this score, and that of a number of human rights organisations and academics in a recent letter to the Irish Times. That letter argued that we need greater clarity on how the restated commitment in the European Commission’s draft protocol to no diminution of rights in Northern Ireland will be achieved in the absence of the charter. Can the Minister explain that?
By the same token, while the,
“total, steadfast commitment to the Belfast agreement”—[Official Report, 12/3/18; col. 1414.]
given by the noble Lord, Lord Bourne of Aberystwyth, on Monday, was very welcome, it is difficult to see how that agreement will not be undermined if the charter is removed and nothing is put in its place. As a briefing by the Northern Ireland Human Rights Commission underlines, equality and rights provisions are central to the agreement. It is no wonder that people in Northern Ireland are not worried about its future. A number of organisations, including the Northern Ireland Human Rights Commission, are now arguing, in the light of these risks to the human rights framework, that this is a key moment to renew discussions on a Bill of Rights for Northern Ireland. Will the Minister undertake to consider that?
Like my noble friend Lord Browne of Ladyton, I am particularly concerned about the implications of withdrawal for children and young people in Northern Ireland, which I mentioned briefly when we debated the protection of children and their rights at an earlier stage in Committee. The Children’s Law Centre in Belfast—this links in with what the noble Baroness, Lady Suttie, said—consulted children and young people and found that they were angry and frustrated that they had no influence on a decision which has particular implications for them in terms of their childhood and their future. The report of the conference to which my noble friend referred, which was organised by children and young people themselves, details their concerns. Has the Minister read that report? If not, will he undertake to do so?
Some of us attended a recent meeting with some of the children and young people held in your Lordships’ House. Talking to them really brought home to me what a hard border means in terms of everyday life. It is about not just goods and lorries but about how everyday lives are lived across the border. For example, what happens when separated parents live either side of the border? What happens when your school is the other side of the border? When this question was put at the conference to the Secretary-General of the Department of Children and Youth Affairs, he responded, “I can confidently say I don’t know, one of many areas that we don’t know yet and have to work out”. That was not very reassuring. What happens if you need specialist health treatment on the other side of the border, or if the nearest emergency health treatment is the other side? These are the kinds of concerns the young people raised with us and they point to a real threat to their social right of access to services and to their right to family life.
The Government have not yet managed to convince anyone that they have a realistic answer to the problem of the border between Northern Ireland outside the EU and the Republic inside it. Talking to these children brought home to me the damage this could inflict on their rights and well-being. This amendment would address some of those concerns. What reassurances can the Minister give to these children, because they are listening?
I support the amendment of the noble Lord, Lord Hain, and that of the noble Lord, Lord Browne, to which I have added my name. I do not need to say very much in support of the amendment of the noble Lord, Lord Hain, because he introduced it so clearly and fully, except to say that I agree with the noble Baroness, Lady Doocey: I cannot see any reason why the Government cannot accept the amendment of the noble Lord, Lord Hain, tonight. It seems to me that it sets out very clearly the commitments made by the UK Government, which we all agree are very important. In its second paragraph, it provides for the possibility that there might be something in the magic solutions to the border. If there were, that would be taken into account in the wording of the amendment of the noble Lord, Lord Hain. I therefore hope that the Government will accept it.
Turning to the amendment of the noble Lord, Lord Browne, my only point is that the extraordinary linguistic fudge in December is very hard for the lawyers to construe. It has been construed by the Commission lawyers in the 118-page draft withdrawal treaty, which was published on 28 February. It has been construed as requiring “a common regulatory area” in Northern Ireland and including Northern Ireland in the EU’s customs territory. Many in London have denounced these solutions; many in London and some in Northern Ireland find them unacceptable. However, they have at least tried; they have produced a draft treaty with draft clauses explaining how they think that fudge could be construed and turned into treaty language. We have not done so: all we have done is make another speech, including the same two suggestions that were made last summer, one of which the Secretary of State for Exiting the EU immediately dismissed the day after as blue-skies thinking. We still seem to be at the stage of blue-skies thinking, but next week in the European Council, we will be confronted by a draft treaty that provides a solution acceptable to some in this country but not acceptable, perhaps, to all in this country. It is half way there. I really worry that if we stick to speeches and do not produce drafts, it is very hard to see how this negotiation will reach a conclusion.
I very much support the amendment of the noble Lord, Lord Browne, and it is in the spirit of that amendment that the Government should be thinking very hard of producing the legal language that they want, and then a real negotiation could start in Brussels. Personally, I do not think that it is possible to find the legal language that matches the Mansion House speech. I believe that the only solution that is likely to be acceptable to all parties in Ireland and in this country is continuing membership of a customs union for the United Kingdom as a whole, which is, of course, what the CBI, the TUC and manufacturing industry want, and we all want for other reasons as well. We do not all want it, but on my side, we do all want it. I think that that is where it will end up. But if the Government think there is another way to go, they really need to produce the language and put it on the table in Brussels quickly.
Is there not a more sinister potential interpretation of the Government’s behaviour—that they have looked into the customs partnership paper that they published in August and decided that nothing can really be made to work out of it? Therefore, their hope at the moment is that the EU 26 will force Ireland to accept some form of hard border because it is in the trade interests of the EU 26 to make sure that there is a smooth exit for Britain. Is this not an extremely dangerous situation for us in the United Kingdom and in the Republic of Ireland, in which we might end up in a situation where the EU 26 agrees to some form of hard border that then leads ultimately to a further outbreak of the Troubles?
I would not want to attribute sinister motives to the Government—I think that somebody managed to get the word “cock-up” into Hansard the other night. Conspiracies are very rare. It is possible—and there are some who believe—that the 26 will lean on Dublin; that is perfectly possible. It is unlikely, and it is of course the case that the European Council decides by unanimity, so if one were looking for a settlement in the European Council which meant that the 26 leaned on Mr Varadkar, Mr Varadkar would have his vote and could say that he did not agree. However, I have seen no signs of the 26 leaning on the Irish. It looks to me from what Mr Tusk said when he went to Dublin the other day that we are heading for another European Council where the Irish position on the hard border and our position on the hard border are recognised by everybody. Nobody wants a hard border.
My Lords, I was very moved by the speech of the noble and right reverend Lord, the former Primate of All Ireland. I hope I can say without causing too much offence that I wish all the leaders of Christian denominations in Northern Ireland and Ireland as a whole had behaved over the years with his generosity of spirit. In saying that, I include the members of the Church of which I am a member. In his remarks, he reminded us of the terrible collateral damage we can do to things that really matter if we simply blunder forward, motivated in some cases by dogma in what is, after all, very largely a faith-based project. I am sorry to use that expression after referring to the noble and right reverend Lord, but that is what it amounts to.
I do not want to go through all of the arguments that have been so persuasively used or all the evidence that has been stacked up. I spoke about this issue briefly at Second Reading because I feel passionately about it. As an addendum to the Good Friday agreement, I chaired the Independent Commission on Policing for Northern Ireland. The report was denounced at the time by some Members of this House and by some present members of the Government. I remember one calling that policing report “a moral stain”, but it has stood the test of time. I am delighted that we have not had the same number of police officers killed in the last 20 years that we had in the preceding 25 or 30 years, when 300 died. I therefore feel very strongly about this and I entirely endorse what the noble Lord said earlier about the relationship between the United Kingdom and the European Union in taking these things forward.
I remember when I was a junior Minister in Northern Ireland—a destination, according to the Prime Minister’s friends, that she regarded as a Siberian power station. I remember how important it was to meet Ministers from the Republic in Brussels. Very often, they were meeting representatives of Northern Ireland or the Northern Ireland Government for the first time in serious official discussions, so all of that matters. I want to point out the dangers involved when you wrap up together the border.
There is a wonderful book about the border by Colm Tóibín, called Bad Blood. That is not the sort of place for which you can provide easy technological solutions. We have heard a lot about that Smart Border report, which was a consultant’s report to the European Parliament. I thought I had to take it seriously, because I heard it advocated on the “Today” programme by one of the self-titled “Brains for Brexit”, who gave a whole interview about the importance and the value of this report. So I read it, and the first thing he says is that he does not know very much about Northern Ireland. You can say that again. He goes on to point out that the report does not cover agrifood or things such as phytosanitary standards, and says that while he talks about how you can speed up customs arrangements, he does not remotely suggest that you can do without a border or customs arrangements between Northern Ireland and the Republic.
We can go through all those arguments about whether it is possible to do without a hard border. As was pointed out earlier, the Prime Minister—before the Brexit referendum—made her position absolutely clear as the then Home Secretary. At the same time, the then Secretary of State for Northern Ireland said that it was scaremongering to suggest that we would need a hard border. I think I am right in saying that the noble Lord, Lord Lawson, the former Chancellor, said that we would need a hard border, and she had to correct him. It was a brave thing to correct the noble Lord, Lord Lawson, about anything, but she did so. But in fact, he was right, because you do have to have a hard border. Borders are not just about geography or the identity that people want. They are about different regulations and rules.
When Pascal Lamy said recently—but no, this is dangerous. He knows what he is talking about, and on top of that, he is French and knows what he is talking about, so we clearly should not take any notice of what he says. He said the other day that he could not think of any example, anywhere in the world, of a virtual border where there were different customs arrangements. You cannot. People have talked about the United States-Canada border. President Trump will be very interested to hear that there is no hard border between Canada and the United States. We have talked about Sweden and Norway. I noted that when the Swedish Trade Minister was here the other day and was asked about this, she said, “It’s as easy for Swedes to export to Norway as it is to land a man on the moon”. So that does not seem a good example to make the case that there is an easy answer to the question the Prime Minister addressed in the negotiations that led up to the December agreement—or rather the consensus, as we have to call it now, or the December proposal. She said then that we were absolutely against a hard agreement or border controls.
We have to ask these legitimate questions, because we are talking about a difficult border, the economic relationship between Northern Ireland and the Republic, and the relationship between the United Kingdom and the European Union. How we resolve those issues, and without doing damage as well to the Good Friday agreement, is an unresolved puzzle—one of the consequences of this faith-based project.
Some people have said that we should not bother too much—the Good Friday agreement is not really a problem, and it has been made up by the Irish and the Europeans to try to put pressure on us. That is not the position taken by Tony Blair, Sir John Major, Bertie Ahern or Senator George Mitchell. They all think that there is a problem in maintaining the Good Friday agreement because of what has been happening. One has to take that seriously. If it was not a problem, why did the British Government make so much of it in the agreement—the consensus—with the European Commission in December? There is paragraph after paragraph about the paramount importance of the Good Friday agreement and not damaging it in anyway. If this is just a notional agreement, for the birds, why did British negotiators spend so much time arguing and talking about it, and committing themselves to doing everything in their power to defend it?
It is also important to remember that the Good Friday agreement and the border are not just about customs controls and surveillance cameras. This is also a question of identity. At the heart of the Good Friday agreement was a difficult but fairly straightforward deal. In return for the republican nationalist community saying that they would not argue for any change in the constitutional status of Northern Ireland, except through democracy and the ballot box, they were told in return that they could demonstrate their identity—British, Irish, European—as they wished. They could be both British and Irish. I cannot think of many things that go to the heart of identity more strongly than borders. The border is absolutely fundamental to what the Good Friday agreement was all about.
There is one further point that some noble Lords made which has made me less generous-spirited than the noble and right reverend Primate would want me to be. That is the suggestion that this is all made up by the Republic. It is not an issue for Northern Ireland or us but a problem for the Republic. Is it not an issue for us? Are we going to break our word in a treaty we signed, or turn back on what we promised in December? If we break our word like that, who in future will be prepared to have any sort of agreement with us? Is it not an issue for us? Let us be honest—it is not something I am particularly proud about—the Government are propped up by the DUP, with a very expensive crutch. To keep things moving, we even have to cover up—this comes back to something we were discussing with my noble friend Lord Young at the Dispatch Box: political funding—where the DUP gets its money from to ensure that this crutch does not collapse from underneath us. So do not let anybody tell me that this is not a profound issue in British politics as well as an important issue because of the collateral damage that will be done to the Republic of Ireland as well as Northern Ireland if we get this wrong.
There is a danger here of our behaving in a reckless and shameful way. It is easy for people from this side of the water to go over to Northern Ireland and give their little lectures about generosity of spirit, healing and hope. I remember how, after a meeting in Northern Ireland, when I had made a pretty speech along these lines, a woman said, “It’s all very well for you. You go back afterwards. We have to live with the consequences of what goes wrong”. In this House, with so many former Secretaries of State for Northern Ireland, and so many others who have dedicated a good part of their lives to Northern Ireland, we should think about our responsibility for trying to ensure that this extraordinarily rickety construction we have put together, which has kept the peace in Northern Ireland for some time, is not blown apart. There is a danger of that happening unless we show statesmanship and have the courage to stand up for things that should matter to us more than I sometimes think is suggested.
My Lords, the difficulty with contributing late to a debate is that all the effective arguments have been deployed, so I shall be brief.
I very much agree with what the noble Lord, Lord Patten, just said. I remember meeting him when I was serving as a Minister there, when he was doing his magnificent job on the future of policing. I support very much what my noble friends Lord Hain, Lord Browne and Lord Murphy said in deploying the arguments.
Just after the Brexit vote took place, I said to an intelligent and thoughtful businesswoman, “You know, there’s a real problem here. We’ve got an insoluble difficulty, which is Northern Ireland”, and I explained why. She said, “But nobody ever told us”. That may just be one person, but it is my feeling listening to the debate that none of those who were pro-Brexit have given this a thought—I have no sense that they have. I have argued with people about this. I was at a dinner and was sitting one seat away from an individual—I will not name him—who leads a very important Conservative-supporting think tank. I said to him, “You lead a think tank; you may have some ideas. What are you going to do about Northern Ireland?” He said, “Oh, it can be solved”. I said, “Give me a hint of how”. He replied, “It can be done”. “Well, how?” I asked. He said, “With will”. I said, “You haven’t got a clue, have you?”, and there was silence. I am afraid that is the position we are in. I would like to feel that the Government have some control over this but I have no sense that they have.
Somebody mentioned Senator George Mitchell. I was reflecting just the other day that I was at the opening of the Senator George Mitchell Peace Bridge, connecting the north and the south, and I thought, “There was a symbol of communication and unity, and of Ireland working as one economy”. Are we going to put all of that away and have some sort of border there?
I had for parliamentary reasons to go to Andorra last autumn. I had never been before, and there was a conference there. Andorra is not in the EU, and going in, all the heavy goods vehicles were lined up to be checked by customs, and there were border controls and so on. They let people go through—there were just spot checks on us—but there was the whole paraphernalia of a border. I thought to myself, “Are we going to have that in Northern Ireland at its 250 border crossings?” For heaven’s sake, I hope not.
Somebody said that technology is the answer. I know that has been mentioned before this evening, but if there was a technological solution that required no border controls, surely somewhere in the world, somebody would have already found it. There is not a single example of that anywhere, so to the people who say, “It can be done by technology; we can be clever”, and so on, I say, “Give me a hint of where it is being done”. Because if it is so useful and effective, surely somebody, somewhere, would already have put it in—whether at the border between Sweden and Norway, Canada and the United States, or wherever. There is no sign of that, so I challenge the people who say that technology is the answer to give us a hint.
I feel quite strongly and emotionally about this because I, along with colleagues, was at Castle Buildings when the Good Friday agreement was finalised. It was such an achievement. We all felt so happy and that it was a real success, and that there would be peace and we were moving forward. Now, we are in danger of turning the clock back for no good reason.
My heart sinks when I hear the Government say, “We are against the customs union and we will have nothing to do with the single market”, because surely the only answer, as has been said before this evening, is to be a member of the customs union and to have membership of the single market or a close association with it. There is no other answer; otherwise, we will have a hard border.
My Lords, naively, I thought we were discussing the relevance of the amendment to the Bill but I am afraid we have moved on to another Second Reading debate.
There a few specific items I want to mention about the amendment. I do not know how “hard border” is defined on the face of the Bill. There is disagreement as to what a hard or a soft border is, and they are not terms that I particularly identify with.
Subsection (2) of the proposed new clause says:
“Subsection (1)(c) applies unless Her Majesty’s Government, the Government of the Republic of Ireland and the EU agree alternative specific solutions”.
I believe that those three parties should sit down to agree specific solutions. But unfortunately last week the Irish Prime Minister rejected that suggestion. Ultimately, that is one avenue of discussion that should not be closed.
Having listened for an hour and three-quarters to this debate, I sincerely appeal to Members to moderate their language. If you link the decision of the United Kingdom to leave the European Union, and whatever border arrangements might exist on the island of Ireland as a result, with the return of violence, people will listen to that and pick it up as a justification. I appeal to Members to be very careful with what they say. The noble Lord, Lord Patten, talked about people getting in the boat and going home—but we have to stay there. We know how much damage language can do in this situation, and things are being linked that should not be.
I think the most explicit reference to the dangers of a hard border—of border crossings and customs officials being re-established—and the most serious warning about those has come from the chief constable of the Northern Ireland police service. He was very explicit on this subject, and I think he was much more explicit about the dangers than anybody has been in this House. I do not want to question the importance of what the noble Lord is saying, but it is worth recalling that the most outspoken remarks have come from the chief constable.
I am grateful to the noble Lord for that. I have to say that the chief constable was using as an example the erection of customs posts and things that used to exist in the 1950s and 1960s, as well as all sorts of other concrete establishments and so on which we are not going to have. In many respects, the United Kingdom Government have committed themselves not to produce that material at the border. Whether Brussels wants or would insist on the Irish Government doing so, no Irish Government I can conceive of would do anything of the sort. I just do not believe they would—it would be politically impossible for them to do it. Brussels may have its own objectives and determinations to protect the single market—we understand that—but when push comes to shove. I do not believe it is possible.
I understand what the noble Lord is saying perfectly well. To put this into context, my party supported remain in the referendum, on a free vote. We cited two things: Scotland and the border. I have had this discussion with the noble Lord, Lord Cormack. I am not a Europhile at all—I never have been, even though I spent eight years in Brussels on the Committee of the Regions, very minor body that it is. I have some sense of the EU. But a vote has taken place, and we accept the outworkings of that vote. We are trying to get on with it and to find a solution that works for all of us.
When we talk about “the” border we must remember that it is not confined to the island of Ireland. The primary bit of the border between the United Kingdom and the Republic of Ireland is actually between Dublin and Holyhead, Rosslare and Fishguard—it is in Wales. That is where the vast majority of the problem lies, and where the bulk of the goods go in order to use Great Britain as a land bridge. The noble Lord, Lord Hain, mentioned that a very large percentage of goods that travel via Northern Ireland go to Great Britain. These are goods in transit.
Noble Lords need to appreciate what we are talking about in terms of scale. In this amendment we use the phrase, “all-island economy”. I was privileged to serve as Trade Minister and Energy Minister, and I was the Northern Ireland Minister who established InterTradeIreland, which is designed to promote trade. On taking office, I discovered that neither the United Kingdom nor the Irish Republic could agree on the amount of trade that they do, and that is still the case. In 2015, the Central Statistics Office in Dublin produced a report on goods exports classified by commodity, listing where the goods were going. Exports from the Republic of Ireland to Northern Ireland accounted for 1.6% of the Irish Republic’s total exports. The CSO also produced a report setting out the percentage of imports to the Irish Republic from Northern Ireland, including live animals and food products, and that was also 1.6%.
I had to deal with these matters for years. I set up a cross-border body and implemented the outworkings of the agreement. I think that the noble Lord, Lord Murphy, and I are the only two Members still in the Chamber tonight who were involved in the agreement. He will know the heavy lifting that had to be done by the noble Lord, Lord Trimble, who is not in his place, the noble Lord, Lord Alderdice, and others to get the agreement approved. It was approved by 71.2% in a referendum in Northern Ireland. We are talking about a referendum of 52%, but we had a majority vote of 71.2%. It was a hard slog and he knows that.
I agreed with the earlier remark of the noble Lord, Lord Kerr, that the Government have not produced sufficient hardcore copy to match the proposals put forward by Brussels. He makes a fair point. Brussels has put forward 118 or so pages. I am not asking for that but I think that we have to have a counterproposal on paper. If that happens to involve technology, so be it. I have no difficulty with that and nor does the European Union. A report was recently published in Brussels by the EU’s Policy Department for Citizens’ Rights and Constitutional Affairs, which comes under the Directorate-General for Internal Policies. It sets out what are thought to be feasible proposals involving technology and other things. We already have a currency border—Northern Ireland and the Republic have different currencies—and we have different taxes, so we are not dealing simply with a one-dimensional problem.
My Lords, I have noticed that the discussions have concentrated on trade, and I understand the good reasons for that. However, the matter that I raised concerns the movement of people. The noble Lord, Lord Empey, is very knowledgeable about Northern Ireland and the south and so forth, so I would like to ask him how we deal with the fact that the Republic will remain part of the European Union and have free movement of people, whereas the north will not if we leave completely and are not part of the single market. How do we deal with that in the context of immigration policy? Technology cannot deal with this. Where will people’s documents be examined to see whether they have an entitlement to make the passage? Where will that happen?
I was not responding to that part of the amendment but I am quite happy to give my opinion on it. I think that a number of measures can be achieved. First, the Republic is not in Schengen, and that is helpful. Clearly, there has to be co-operation between the relevant authorities, which there already is. Regarding immigration controls, cars are often stopped by the authorities on both sides. The guards recently arrested people who had entered the Republic from Northern Ireland whom they believed were illegal immigrants. Therefore, that works.
There is a series of measures that the United Kingdom and the Republic should take to create a disincentive. People have to have a reason for coming, and very often that reason is work. First, we should make it much more difficult to get national insurance numbers and have a much better system for that. Secondly, employers should face greater penalties if they employ people who are not there legally, and that should be done on both sides of the border. Thirdly, we should have much more detailed intelligence sharing to create a disincentive throughout the United Kingdom and the Republic of Ireland. That is something that I think we should do anyway, but it would certainly act as a disincentive.
However, if people are saying that we can put structures in place, the point is that we do not even have them today. Reference was made to smuggling. Smuggling is rife and has been for years. One has only to look at fuel smuggling—the paramilitaries have been making an absolute fortune out of it. As for the common travel area, citizens of both countries have the right to move freely between the two and that will continue. However, the noble Baroness mentioned people who would somehow be in the middle, saying that there would be a difference between EU citizens who have a right and EU citizens who do not. To get on to the island, they have to come through a port and the immigration system of the Republic of Ireland or they have to come through the United Kingdom. How many people are we talking about? I would have thought that creating disincentives for people to enter the jurisdiction illegally would be as good as anything rather than having to look at every individual who appears. I do not see that that will be a huge problem and, quite frankly, I do not think that it will affect many people.
Perhaps I may return to the amendment. We are obviously very grateful for the great support there has been for the Good Friday agreement, and it was painful to hear Members in the other place saying that the time had come to get rid of it. I have said to several people that I cannot think of a worse proposal. I cannot begin to think where we would start in trying to put things together again—I cannot even contemplate that. We have achieved something that generations failed to achieve. I make a point of repeating that and I regret the comments that have been made. However, the agreement that we are talking about and defending—the noble Lord, Lord Hain, knows my views on this—is not the agreement that we negotiated and it is not the agreement that was voted on in the referendum in 1998. It has been changed. The noble Lord, Lord Hain, did his best in 2006 to try to get things going again, and I understand why he did so, but there was a substantial change at the core of the agreement which in my opinion has led to the present impasse. However, that is for another day. Let us concentrate on the common ground, of which there is quite a lot here.
We want to solve this problem and I think that the Government have an obligation to be more precise. Quite frankly, the document of 8 December is contradictory—in my opinion, it does not really add up. People are saying that there will be the same regulations and that that will be the default position after Brexit but that, at the same time, there will be no difference in the regulations between Northern Ireland and the rest of the United Kingdom. The only logical outworking of that is that you remain in the single market, but we are not going to do that and I do not think that it is what Brexit means.
But does the noble Lord not also see that he does not have to take account of the Government’s position? He can express his own view freely in this House. Does he not think that remaining in the single market and the customs union would be best for Northern Ireland?
It is an incompatibility. There is no point in replacing one incompatibility with another. I am simply saying that if you are in the customs union and the single market, you are in the European Union. If you are out of the European Union, you are not in the single market or the customs union. It is an inevitable consequence. We are arguing for two different things.
Let me point out the scale of the problem we face. The border is not confined to the land border; it is also between the Republic and Great Britain. That side of it is ignored because if you have separate arrangements between Dublin, Holyhead, Fishguard, Rosslare and so on, and you have separate arrangements for us, that is incompatible with the core element of the Good Friday agreement—the principle of consent.
Let us follow the concept in the amendment. In addition to the negotiations with the 27, I see no good reason why we should not have negotiations involving the European Union, ourselves and the Irish Republic, in parallel with or as part of the process. With the European Union as an integral part, in that way we could perhaps narrow down and explore some of the solutions, which I hope and pray exist. I will leave it at that and thank Members for listening to me.
My Lords, I support Amendment 198, so excellently spoken to by the noble Lord, Lord Hain, to which I have added my name. I also support Amendments 215, 218 and 219. I commend the many excellent speeches made in this debate.
The Good Friday agreement was premised on a balanced approach to healing and rebuilding three sets of broken relationships. The noble Lord, Lord Murphy of Torfaen, and my noble friend Lord Patten have outlined these three groups: first, the communities within Northern Ireland; secondly, the north-south relationship; and thirdly, east-west. These three groups of relationships are intertwined and the reality is that it is a whole. If you impact one part you affect the balance of the whole thing.
There is of course an economic dimension to this but it also has an important social dimension. We have signed an international agreement committed to repairing, rebuilding and protecting the people on the island of Ireland, and to co-operation among the communities, north and south. The open, frictionless border is a crucial part of this and it simply cannot be squared with leaving the single market and the customs union unless there is full regulatory alignment.
Protecting the Good Friday agreement should be the reddest of the Government’s red lines. The Good Friday agreement is essentially about co-operation and partnership. As the noble Lord, Lord Empey, said, it has developed over time—it is not exactly the same—but that was always the aim of that agreement, and those developments need to be protected if our Government are to continue to honour our commitments and obligations to the people of Northern Ireland.
The common regulatory standards mean that business in goods and services can operate freely on the whole island. Six areas of co-operation are identified: education, agriculture, environment, health, transport and tourism. This covers pretty much everything. EU regulations govern north-south co-operation, and the noble Lord, Lord Hain, mentioned the 142 areas of co-operation which would be impacted if there were not regulatory alignment or belonging still to the single market and the customs union. When summing up, can the Minister confirm to the Committee whether this is the final number of areas identified, and how many of those have the Government identified solutions for if we leave the single market and customs union and do not have full regulatory alignment?
This is an Achilles heel of Brexit. The Prime Minister has already committed to full regulatory alignment. We have heard that the opportunity to remain, for example, in the European Economic Area would solve the east-west issue as well as helping the north-south. As we have already committed, and the Prime Minister’s words reflected, that there should be no hard border, and to reassure the people of Northern Ireland and Ireland that we are a country which upholds its commitments to international agreements, I hope my noble friend will support the amendment or bring back an equivalent on Report.
My Lords, this has been an interesting debate. I hope it has been helpful for the Minister.
I made a comment at Second Reading that in preparing for Brexit we should look at the detail—that the fine print was too important to be left to those who had no doubt—and I expressed the hope that Ministers would recognise the expertise in your Lordships’ House. Indeed, Members in the other House said exactly the same.
At Second Reading, the response of the noble Lord, Lord Callanan, expressed optimism in that regard. If ever there was a time to listen to the expertise in your Lordships’ House, it has been tonight in this debate. We have heard from a former Secretary of State, the noble Lord, Lord Hain, the noble Lord, Lord Murphy, the noble Lord, Lord Patten, with his vast experience of Northern Ireland, and the noble and right reverend Lord, Lord Eames, who made a powerful speech. We heard from my own colleagues, including my noble friends Lord Browne—he and I were Ministers together—and Lord Dubs. I feel somewhat nervous seeing my two former Secretaries of State for Northern Ireland sitting together, watching over me and looking at my back.
Noble Lords have raised pertinent issues tonight that go to the heart of what Brexit is about. The Northern Ireland Good Friday agreement was hard fought and hard won and no one in the House should doubt the importance of how well it has served us. We have had a long debate and issues have been raised tonight purely through people’s knowledge and their concern for what could happen if there is a hard border. I appreciate the points made by the Government about the protection of the Good Friday agreement. I welcome to his place the Minister who is responding tonight but at Second Reading the response of the noble Lord, Lord Callanan, did not refer once to Northern Ireland although the issue was raised several times. Clearly that was an error, a mistake, because there were a great deal of issues which had to be talked about. However, I am sure the Minister will understand the frustration at the lack of detail from the Government on what happens next.
The point was made earlier that these amendments should not be necessary. My noble friend Lord Browne of Ladyton said that we were holding the Government to account for the solemn commitment they have made and to do what they have promised to do. The Government and the noble Lord at the Dispatch Box have been clear on Northern Ireland: they support frictionless trade, they want a soft border and they support the Good Friday agreement. The noble Lord has been clear that that is the Government’s objective. What has never been clear, and has led to the debate tonight, is how that is to happen.
We heard from my noble friend Lord Hain, when he opened the debate, that there is over 300 miles of border. My noble friend Lady Kennedy said that 30,000 commuters cross the border daily—including for schools and hospital visits—over 400 commercial vehicles cross each month, and 40% of container movements to the Republic of Ireland go through Northern Ireland. There is a huge issue to address and a commitment is required—not, “We want this to happen” or “We believe this will happen”; it has to be an explanation of how we can make it happen.
My noble friend Lord Browne and the noble Baroness, Lady Suttie, referred to paragraphs 49 and 50 of the joint report produced in December, which are quite clear about why there should be no hard border, but that contradicts government commitments. The Prime Minister has referred several times to her red lines—no single market and no customs union—yet here we are talking about full regulatory alignment. The two are contradictory and that is why some of these concerns have arisen.
Most of the points have been covered in the debate and there is little of great substance that I can add, but I would like to make two points. I do not know if the Minister is aware of the follow-up letter to Karen Bradley signed by noble Lord, Lord Boswell, chairman of the House of Lords European Union Committee, on UK-Irish relations. In paragraph 52 the noble Lord accepts that,
“a degree of constructive ambiguity can be helpful during negotiations”.
He understands that, but he goes on to indicate that we need clarification from the Government of their understanding of what is involved in that December agreement. The European Union has come forward but we have not seen what the Government’s understanding is of how it will work. What does “full regulatory alignment” mean? I think I understand what it means, but the Government seem to believe something different.
The letter also refers to technology. The Government have said several times that they can deal with the border issue by using technology. There are grave doubts about that, as we have heard from other noble Lords in this debate. The letter from the EU Committee reminds the Secretary of State that,
“there is a need for realism … There is also a distinction between identifying solutions that are theoretically possible and applying them to a 300-mile border with hundreds of formal and informal crossings”—
a situation similar to that between Sweden and Norway—
“and the existence of which is politically divisive. Any physical infrastructure at the border would be politically contentious and, in the view of the PSNI, a security risk”.
In our long debate today we have not talked about the security issues, but the Minister who is to respond has to understand that unless he can provide a solution to how there will not be a hard border in Northern Ireland, there remains a security risk to those who fought the hardest to secure peace, a point made very powerfully by the noble and right reverend Lord, Lord Eames.
Finally, the ideological position on Brexit must be put to one side. In the Mansion House speech made by the Prime Minister just a couple of weeks ago, she showed that she is prepared to take what I suppose is a pragmatic eraser to some of those red lines and smudge them a bit—make them slightly pink—as she has done on the agencies. The time has come when I hope the noble Lord can give the Committee some confidence that the Government understand why these concerns have been raised. It is not good enough simply to say that this is what the Government want; they have to show the intent of how it can be achieved.
There is a lot to be going on with this evening. I thank all noble Lords for their wide-ranging contributions. I hope that I will be able to do justice to the amendments before us, but let me begin by making a few general observations. We have in this Chamber tonight a number of the architects of the Belfast agreement. The word “architect” is often used. Architects create edifices which we may gaze at, but in truth the noble Lords present in this Chamber were not so much architects as mechanics. They created an engine that needs to be maintained and taken care of. It cannot be left alone in perpetuity; it requires tender loving care on every occasion. That is why a number of the points which have been raised go back to the Belfast agreement.
Let me be frank: the Belfast agreement remains the cornerstone of the United Kingdom Government’s policy as they approach Brexit. Further, the Belfast agreement is enshrined in international law, so it has a basis that is broader than simply membership of the EU. A number of noble Lords have made the point that it is our membership of the EU which was a factor in the agreement, and I do not think that that logic can be faulted. Equally, however, a great responsibility now rests with each of the partners as we address the reality of Brexit. That responsibility rests equally with the Government of Ireland, the Government of the United Kingdom and the European Union. That is why when we look at the joint report which was published in December, we see that at its heart is a recognition of each of the elements that we have talked about in this debate.
The noble Lord, Lord Kerr of Kinlochard, talked about the response of the EU to that report going forward. If I were being very frank, I would express a degree of disappointment in that for one simple reason. Of the three options that were set out in that joint report, the EU lawyers and negotiators have chosen to take forward only one into the text that we are confronting today. I believe that that is unhelpful.
Perhaps I may make some progress but I will return to the noble Lord if he will allow me. We have had a very wide-ranging discussion and we will come back to his point.
As we go forward, I want to stress again that the key thing which the Government must achieve in the negotiations is an equitable, sensible and sustainable solution. A number of noble Lords have referred to certain elements which must and will appear in subsequent Bills, whether they are questions about agriculture, fisheries, broader trade or electricity. All these will fit in sensibly to those parts and the withdrawal agreement and implementation Bill will afford an opportunity for noble Lords to address all these particular points. We as a Government are determined to ensure that all the commitments on Northern Ireland and the Republic of Ireland set out in the joint report are turned into legally binding text—not just one of them. Each of them has to be a component part. All the parties involved must recognise that, to ensure that it is indeed the case. Further, we have been clear that in all circumstances we will protect the UK internal market. The noble Lord, Lord Empey, was very persuasive in the way that he set out the reality of the market as it affects the Province of Northern Ireland, and we cannot lose sight of that. Nor can we see a border suddenly appear down the middle of the Celtic or Irish Sea; that in itself would be wrong. We therefore need to find, along with the EU, an approach that works.
I turn now to the remarks made by the noble Baroness, Lady Kennedy of The Shaws. In some ways the points I am going to make echo those of the noble Lord, Lord Empey, because in certain respects the key thing will be for the two respective Governments to ensure that they create a situation in which there is a disincentive to abuse the border. That will be the first step. On the points raised by the noble Baroness about the physicality of checks and the reality of what they might look like, I wanted to be very clear about what I would say in my response, so I scribbled a note for my officials in the Box in order that I would not in any way stray on to thin ice. To be clear: there will be no impediment at the land border to the movement of people—no checks and no profiling, full stop. That is the ambition and the policy of the United Kingdom Government.
Going forward from that, I shall address the points made by the noble Baroness, Lady Smith of Basildon. She raised the question of regulatory alignment, which was covered in the joint report. It is important to recognise that alignment is about pursuing the same objectives. As my right honourable friend the Prime Minister stated in her Florence speech, it is about achieving the same goals by the same means or achieving the same goals by different means. In many respects, as a former Member of the European Parliament, I am familiar with that approach. It is like the difference between producing a regulation and producing a directive. A directive sets out clearly what the ambition should be but gives greater latitude to those to reach the particular ambition. A regulation does none of that. It is set in stone and in law and it must be followed. The noble Baroness will recognise that in the negotiations it will be necessary for both sides to achieve an understanding of what that will mean. That is because, in truth, it will affect both sides and it will disproportionately affect Ireland over the United Kingdom. That is why the negotiations will be conducted on a very sensitive and sensible footing. I do not impute the sinister motives raised earlier by the noble Lord, Lord Liddle.