House of Lords
Wednesday 21 March 2018
Prayers—read by the Lord Bishop of Leeds.
European Union (Withdrawal) Bill
Committee (9th Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee
Schedule 7: Regulations
242A: Schedule 7, page 52, line 16, leave out “section 7(1), 8 or 9” and insert “this Act”
My Lords, in moving Amendment 242A I shall also speak to Amendment 245A. These amendments aim to rule out the use of delegated powers to amend the protection of equality and human rights provided by EU law.
As a matter of constitutional principle, changes to fundamental rights should be made by Parliament by primary legislation, not by Ministers through secondary legislation. However, as it stands, the Bill does not rule out such changes being made by delegated powers. Delegated powers could be used to change the fundamental rights currently protected by EU law, such as rights to protection of personal data, children’s rights, the rights of disabled people, the right to human dignity and protection from discrimination, as well as workers’ rights, protections for pregnant women and nursing mothers, and rights to maternity leave.
There is a prohibition on changes to the Human Rights Act 1998. This is welcome as evidence of the Government’s commitment to the entrenchment of equality and human rights, but the Bill needs to do more if that commitment is to be reliably delivered. The Human Rights Act safeguards only rights enshrined in the European Convention on Human Rights. Rights underpinned by EU law are different and need separate protection. To ensure this, it is essential that the Bill is amended to guard against excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights are subject to full parliamentary scrutiny.
It is important to be clear that the new scrutiny procedures introduced in another place, though welcome, do not address this concern. They provide a mechanism in the form of a new sifting committee to recommend that the affirmative scrutiny procedure be used. However, this procedure does not allow Parliament to amend secondary legislation. The fact that it does not provide for effective scrutiny is demonstrated by the fact that there have been only 10 occasions since 1950 when delegated legislation has not been approved by Parliament under the affirmative scrutiny procedure. That is equivalent to one every six or seven years.
Stronger safeguards are therefore required in the Bill to exclude changes to equality and human rights from the scope of delegated powers and to require a Minister, when laying secondary legislation before Parliament under the Act, to make a statement that it does not reduce any protection provided under equality and human rights law. A number of amendments have already been debated that would provide these essential safeguards. I refer in particular to Amendments 82 and 82A in the name of the noble Baroness, Lady Hayter, which would prevent the use of secondary legislation under Clause 7 to make changes to the Equality Acts of 2006 and 2010; and Amendments 101A, 133A, 161 and 259 in the name of the noble Lord, Lord Adonis, which would prohibit the use of secondary legislation made under Clauses 7, 8, 9 and 17 to change laws relating to equality or human rights. I support those amendments. However, I wish to speak to two additional amendments, Amendment 242A and 245A, which continue to be necessary.
Amendments 242A and 245A, which emanate from the Equality and Human Rights Commission, give effect to the Government’s commitment that current protections in the Equality Acts of 2006 and 2010 will be maintained once we leave the EU by placing it on the face of the Bill. In their White Paper legislating for the UK’s withdrawal from the European Union, the Government promised that,
“all protections covered in the Equality Act 2006, the Equality Act 2010, and equivalent legislation in Northern Ireland …will continue to apply after we have left the EU”.
That welcome commitment followed the recommendation of the House of Commons Women and Equalities Select Committee that it is important that the Bill,
“explicitly commits to maintaining the current levels of equality protection”.
On the first day in Committee in the House of Commons, the Minister promised to introduce an amendment that would require,
“Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act”.—[Official Report, Commons, 21/11/17; col. 904.]
That was in response to concerns raised in the debate by Maria Miller MP, chair of the Women and Equalities Select Committee. The Government made an amendment on this point in the Commons which is now at paragraph 22 of Schedule 7. However, it fails to fulfil the Government’s commitment to maintain current equality protections and has the potential to undermine understanding of Ministers’ existing statutory duties. The Government’s approach requires Ministers to make an explanatory statement, including in relation to equality issues, when laying secondary legislation made under Clauses 7, 8 or 9 of the Act. However, it does not require a statement that current levels of protection will be maintained. It merely requires the Minister to explain whether and how equality legislation has been changed and that “due regard” has been had to the need to eliminate conduct prohibited by the Equality Act 2010.
There is nothing to stop the Minister having had “due regard” to this need deciding to reduce protections. The duty to have due regard is already a requirement under the public sector equality duty and the Minister’s statement would do no more than confirm that she or he has partially complied with an existing statutory duty. Furthermore, the requirement focuses on the first duty in the public sector equality duty—namely, to have regard to the need to eliminate discrimination, presumably because of the emphasis that parliamentarians placed on ensuring non-regression during debates in the House of Commons. However, the public sector equality duty also includes other duties—to have regard to the need to advance equality of opportunity, and to foster good relations.
The focus on just one aspect of the public sector equality duty rather than the whole risks confusion about whether Ministers are obliged fully to comply with the whole of the public sector equality duty as opposed to just this single limb of the duty. This must be rectified to ensure clarity and compliance with existing statutory duties. Again, the requirement applies only to certain enabling powers in the Bill under Clauses 7(1), 8 or 9. However, changes could still be made, for example, under Clause 17, which provides a very wide power:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”,
without the need for any explanatory statement.
Amendments 242A and 245A would remedy that deficiency by requiring a Minister, when laying secondary legislation before Parliament under any enabling provision in the Act, not just those clauses to which I have just referred, to make a statement that,
“it does not remove or diminish any protection provided by or under equalities legislation”.
I beg to move.
My Lords, I support the amendment moved by the noble Lord, Lord Low of Dalston, and support Amendment 245A, to which he also spoke. He has given a very comprehensive explanation as to the origins of the amendments and why we believe that they are important.
Two weeks ago, when we were debating Amendment 70A and other related amendments, one suggested that there should not be any change to equalities legislation, and the noble Lord, Lord Callanan, in responding indicated that that might not be appropriate. He said:
“For example, the Equality Act refers in several places to EU or to Community law. These references are likely to need to be replaced with the term, ‘retained EU law’. As such, we believe that it is essential that the Clause 7 power is able to address these deficiencies so that we can ensure that the legislation that safeguards these rights and protections can continue to function effectively”.—[Official Report, 7/3/2018; col. 1168.]
The amendment gets around the practical objection that the noble Lord, Lord Callanan, had to previous ones because, if all that was being done was changing terminology from EU law to EU retained law, clearly the test or certification referred to in Amendment 245A that the regulation did not,
“remove or diminish any protection provided by or under equalities legislation”,
would be quite easily met.
The noble Lord, Lord Low, indicated some of the background to this amendment. An amendment was brought forward in the House of Commons in response to concerns expressed by the Women and Equalities Select Committee. He also indicated that what the Government did in their response really did little more than to reiterate a public sector equality duty that was already there under the Equalities Act. One reason why we were concerned that that was an inadequate response was, as the Minister responding to this will be well aware, that the public sector equality duty goes much further than just the one that has been put in this Bill. Given that in bringing forward secondary legislation, Schedule 19 of the Equality Act 2010 indicates that the public sector equalities duty is on Ministers when bringing forward subordinate legislation, on the principle of inclusio unius exclusio alterius—
They talk about nothing else in Harrogate, as my noble friend Lord Willis said. But this proposal is just for clarity’s sake, given that putting one public sector equality duty in the Bill could raise questions as to the status and validity of the other ones.
Another Latin maxim, if I am allowed, is ubi jus ibi remedium. In a number of our debates on equalities and human rights issues, we have heard Ministers talk about rights but say all too little about remedies—and when they do talk about remedies they do so in a way that gives some cause for alarm. The noble Lord, Lord Callanan, time and again, reminds us that the underlying purpose of the Bill is to ensure that there is a smooth transition in law on our departure from the European Union. That entitles us to question what is meant by law.
On 5 March in a slightly different context, the noble and learned Lord, Lord Keen, said in response to an intervention from me:
“They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave”.—[Official Report, 5/3/18; col. 964.]
But is it right to divorce rights from remedies quite so easily? The noble and learned Lord will be familiar with Section 126(9) of the Scotland Act 1998, which states that,
“all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties, are referred to as EU law”.
For the purposes of the Scotland Act, EU law embraces both rights and remedies.
Too often in our debates, we have heard Ministers reassure the House that the Government are committed to retaining rights but they have sidestepped the issue of remedies. I believe that if there is to be a smooth transition from EU law to EU retained law, it must include rights and remedies. The Government have not given us sufficient reassurance on this. That is why these amendments are necessary and I commend them to the House.
My Lords, I shall speak to Amendments 245A and 242A, and I assure your Lordships that you will get no Latin from me—maybe some Cockney rhyming slang, but certainly no Latin. I have added my name to these two amendments, which were so eloquently and powerfully moved and spoken to by the noble Lord, Lord Low of Dalston, and powerfully supported by the noble and learned Lord, Lord Wallace of Tankerness.
Noble Lords will be aware that I spoke at Second Reading on the issue of rights and protections, and have returned to the same during Committee in your Lordships’ House. I make no excuse or apology for repeating what are grave concerns about the continuation of rights and equalities that we currently enjoy in the United Kingdom. As I have said before—it bears repetition—these rights have been hard fought for and, often, hard fought against. That they exist now is due to the hard work, persistence and sacrifices of generations.
These rights have been achieved through either recourse to law, proceeding through the courts to the European Court of Human Rights in Strasbourg or through the Court of Justice of the European Union, or by legislative changes primarily introduced since the election of the Labour Government in 1997. As I have said, there is deep concern that this Bill, and particularly delegated powers contained within it, will ultimately be used to reduce rights and equalities in the United Kingdom—including in Northern Ireland, where consequent problems for the Good Friday agreement will arise. I will not return to the issue of the charter of fundamental rights today but I will on other occasions.
Amendments 242A and 245A seek to bring security of protection and non-regression by ensuring that delegated powers are not used to diminish protections in the Equality Acts of 2006 and 2010. But I and other noble Lords, and people and organisations outside Parliament, also have concerns about other equality and human rights laws. The certification approach adopted in Amendment 245A could be extended to cover such rights, by requiring a Minister to certify that secondary legislation under the Bill does not diminish protection in equality and human rights law generally.
On Wednesday 7 March, we again discussed amendments that would restrict the use of delegated powers from making any changes to equalities and human rights legislation. The Minister, the noble Lord, Lord Callanan, raised an objection to the amendments that we were discussing on the basis that delegated powers would be needed to make technical changes to our laws to reflect exit from the European Union. He went on to state that the Government could not accept the amendments,
“as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit”.—[Official Report, 7/3/18; col. 1168.]
In his reply, the Minister offered examples where the Equality Act refers in several places to EU or community law, as the noble and learned Lord, Lord Wallace of Tankerness, said, and that such references needed to be replaced with the term “retained EU law”. I will not detain the House further by extending the quotation, but I point out that Amendment 245A addresses this concern because it does not prevent a Minister making necessary technical changes to reflect our exit from the European Union, as these technical changes would not diminish existing protections.
In the same debate, the Minister referred to the government amendment tabled in the other place, now paragraph 22 of Schedule 7, saying that it will,
“secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will … flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act”.—[Official Report, 7/3/18; cols. 1167.]
This statement does not answer the concern addressed by Amendment 245A: that the Government’s approach in the Bill does not fulfil their commitment to maintaining our current protections. It merely restates the existing statutory duty to have “due regard”.
In debate, the Minister has reiterated clear commitments that there will be no roll back of rights. Therefore, I say to the Government and to the noble and learned Lord the Minister: put the commitments, and the assurances given in this House and in the other place, in the Bill and end the uncertainty that is so widely shared. I ask your Lordships that, when we return again on Report to the issue of the protection of equality and human rights, as we will, we work together to ensure that the departure from the European Union does not signal the beginning of a departure from the rights and protections that we currently enjoy and which are continuously under threat.
My Lords, I will speak to Amendment 246 in this group—entre nous, I support the amendments from the noble Lord, Lord Low; they are rather good, and I can well understand why colleagues have added their voices in support. My amendment picks up a slightly different point. It emanates from the excellent report from the Constitution Committee, which in its summary, at paragraph 33, recommended that the Government bring forward statements accompanying regulations which modify retained EU law so that they provide an explanation of the intention of the modification to guide the courts.
One of the endearing frustrations of this House, and no doubt the other place, is that we can have very little purchase on statutory instruments. Rightly, I think, they are unamendable, but clearly there has to be a way of improving the understanding of what a statutory instrument does. This legislation is riddled with Henry VIII powers and powers that I think go well beyond what a Minister should properly have access to in making, effectively, law by decree. That is the central concern of a lot of the recommendations in the Constitution Committee’s report. We are asking here for the Minister to ensure that, when a statutory instrument is brought forward, it has to satisfy a test of appropriateness under the relevant sections, state an intention of any proposed modification from the retained EU law that is carried over and provide guidance to courts to assist with interpretation.
Reflecting on some of the more recent debates on statutory instruments in your Lordships’ House—for instance, last night’s debate on free school meals—I wonder whether it would be helpful to your Lordships if we had a better understanding and explanation of those statutory instruments. The thing that always comes across to me when I listen to debates on SIs is this: there is very poor background information. The statistical data that is supposedly there to underpin the argument is often missing, the impact assessments have not been done, and we do not really understand the real effect of what is before us. In my book, that means that there is a lot of scope for the Government to get away with things. I do not think that is right or a product of good lawmaking.
I want to hear the Minister say that the Government will take the issue seriously. that they will consider bringing forward amendments to satisfy these points, because they need to be satisfied and the House will want to hear them being satisfied, and that in the future we will get clear statements of intent when there is a change and a variation through a statutory instrument that relates to EU law that has been carried across. That is important not just for lawmakers in your Lordships’ House, but also for the courts when they come to determine an issue. Given the volume of work they are likely to confront, certainly in the early stages, that is going to be extremely important.
It is a weird world—you wait for several weeks with an EU withdrawal Bill and all your amendments come at once. That seems to be my misfortune this morning. If the noble and learned Lord can give us some reassurances on the sort of information that is likely to be supplied with statutory instruments, I am minded not to debate Clause 17 stand part. In a sense, it is a follow-on, because in that debate I would hope to hear that the Minister would want to consider ensuring that when information is provided as background for statutory instruments, the appropriateness of that statutory instrument is very clearly spelled out. I am looking to hear from the Minister some other words of comfort on that issue. In those circumstances, I will not call for a debate on Clause 17 stand part.
My Lords, we have had Latin from the noble and learned Lord, Lord Wallace of Tankerness, and French from my noble friend Lord Bassam. Later in the day, somebody else might be able to say something in Welsh or Irish, but I cannot do either.
This group of amendments relates to topics that we have already discussed in Committee and no doubt we will do so again: the extent of delegated powers and the extent of protection of rights. When the noble Lord, Lord Low, moved his amendment very cogently, he emphasised points with which I absolutely agree. There is concern that rights should not be removed as a result of what is taking place in the Bill. We have also looked at this topic before in Committee and no doubt we will do so again. I have referred on several occasions to the promise by the Prime Minister that rights after exit will be the same as the day before.
These amendments concern a different aspect— the explanatory statements which are proposed to be used for statutory instruments. The technique of using statements to be laid before the House is a valuable one. I previously referred the Committee to the benefits of the requirements under Section 19 of the Human Rights Act for certificates on the face of the Bill that the provisions are, in the opinion of the Minister, compliant with the Convention rights. The significance of such a statement is that, first, it puts a personal obligation on the Minister to be satisfied that the Bill does what is being certified. What is more, it is a requirement that those conditions are met and not simply that there is an argument that they might be met. I am glad to see the noble and learned Lord, Lord Irvine of Lairg, in his place. I have referred before to the memorandum that resulted in there being a requirement on Ministers when they come to certify under the Human Rights Act to do so on the basis of legal advice provided by government legal officers, or the law officers themselves, and also to be satisfied, at least more probably than not—I paraphrase and hope I have it right—that the requirement will be met in the case of a particular provision. That makes it not an idle requirement that the Minister should so certify but a very valuable requirement.
The idea of the statements is an important one. We have several questions here in relation to them. The first, raised by Amendment 242A, is that the requirement for such explanatory statements should apply to all cases where statutory instruments are being made under the Act and not simply those which are identified. I look forward to hearing from the Minister why the Government do not think, having taken the view that it is necessary, appropriate and right to have such statements in relation to certain statutory instruments, that it should apply to all statutory instruments made under this Act. Bearing in mind that it is not a requirement that stops the instrument being made, such a statement tells this House and the other place what the Government think they are doing—whether they think they are reducing protections or not—and puts both Houses in a position to take the steps that they think appropriate to deal with that in the light of what the Government say. Therefore, I look forward to hearing why the requirement for explanatory statements does not apply to all instruments under the Act.
The second amendment is the important amendment moved by the noble Lord, Lord Low, which asks why it is not right that the words,
“is satisfied that it does not remove or diminish any protection provided by or under the equalities legislation”
should be inserted in place of the much weaker words in the Bill providing that the Minister should have due regard to the need to eliminate discrimination, et cetera. As he rightly pointed out, this, in any case, deals with only one aspect of equalities legislation. I would hope that Ministers always had due regard to that, whatever the circumstances and whether or not the Bill stated it. Something more is needed: a requirement that the Minister is satisfied that this does not in fact reduce the protections currently provided. That amendment should be supported and we look forward to what the Minister has to say.
The third amendment, Amendment 246, has been spoken to by my noble friend Lord Bassam of Brighton. It would be valuable for Parliament—whichever House —to be told what the intention of any proposed modification is and whether it is intended to reduce or change EU law. That is a valuable proposal, though it goes in a slightly different direction to the other amendments, which are concerned with rather more concrete statements as to whether or not rights are being retained.
The noble Lord, Lord Low of Dalston, rightly referred to one aspect of the Bill that has been mentioned in Committee before. While the Government recognise that there needs to be special protection for rights protected by our Human Rights Act, which is drawn from the European Convention on Human Rights, it does not do the same for rights that come from other areas, in particular EU law. Again, we need to understand from the Government why they do not think the same sort of protection is necessary in relation to rights derived from EU retained law. One example is data protection. Nothing could be more pertinent at the moment, as we read today’s newspapers. We see that data is a critical area that needs protection. Very important protection comes from the EU at the moment. This will come into law, but do the Government take the view that it is subject to much easier removal, or should it not be subject to the same degree of protection as rights under the European Convention on Human Rights?
For those reasons, I look forward to the Minister’s response and I hope that it will promise change. I follow my noble friend Lord Bassam in hoping to see an amendment brought forward on Report by the Government to deal with these important points.
My Lords, the Government are committed to transparency before Parliament for the statutory instruments that will come under the Bill. We hope the statements we have already committed to in Schedule 7 will assist Parliament and deliver the due level of scrutiny required for secondary legislation. We have been listening to the debate and, for Report, we are looking closely at where these could be expanded to address some of the concerns raised in Committee.
Amendment 242A to Schedule 7, proposed by the noble Lord, Lord Low, would extend the requirement for Ministers making secondary legislation under the Bill to make statements in respect of all the powers in the Bill. With respect, these statements are designed to apply only to the key powers under the Bill, and for good reason. The other powers in the Bill are tightly limited to specific purposes, such as allowing for challenges to the validity of EU law or making provision which is consequential on the Bill. These other powers will not be making the sorts of changes to which these statements are applicable and are designed to be applicable. We will debate these other powers in more detail in due course but I hope that that will reassure the noble Lord as to why we have proceeded in this way on the matter of statements.
The noble Lord, Lord Low, also tabled Amendment 245A, which would adjust the equalities statement in Schedule 7. Let me assure everyone, including the noble Lord, Lord Cashman, that I understand and sympathise with the motivation behind this amendment, which I know is shared by many others on all sides of the Committee. The amendment looks very like the Government’s existing political commitment. However, the language of a political commitment does not necessarily lend itself to the very different context of the equalities statute book.
In the equalities area, it is not always straightforward to determine what is deemed to be “protection”—the term used in the amendment—for one group of people when it may exist in tension or potentially conflict with the protection of other groups. To take a simple example, looking at the operation of domestic violence refuges or rape counselling centres taking account of the provisions in the Equality Act that relate to women, how does that also relate to gender recognition? These are quite complex areas that we have to bear in mind. That is precisely why, for example, the provisions of the Equality Act 2010 are so detailed and granular rather than creating high-level rights that would potentially raise more questions than they answer. I note that the 2010 Act dwarfs the mere 68 pages of the Bill.
In these circumstances, we are concerned about the limits of the statement that would be required. I hear what the noble Lord, Lord Low, and the noble and learned Lord, Lord Wallace, said about the scope of the public sector equality duty and the notion that perhaps only a part of that is expressed in Schedule 7. We will take that away for consideration before Report.
Amendment 246, tabled by the noble Lord, Lord Bassam, raises an interesting point regarding how further clarity can be provided on the effect of regulations made under Clauses 7, 8 and 9. As he observed, the point was mentioned in the recent report by the Constitution Committee. The Government want the Bill to provide certainty and clarity, and I have listened to his observations on this with some interest.
As we discussed on day five of Committee, Clause 6(3) provides that questions on the validity, meaning or effect of unmodified retained EU law are to be interpreted in accordance with retained EU case law. Clause 6(6) goes on to provide that modified retained EU law may still be interpreted under Clause 6(3) if that is consistent with the intention of the modifications. It is this point that the noble Lord’s amendment strikes at. It seeks to impose an obligation on Ministers by adding to the explanatory statement requirements in Schedule 7 to explain the intention of any modification, and how that modified law should be interpreted under Clause 6.
I understand the aim, but we have to be cautious before adding to the explanatory statement requirements in Schedule 7. Requiring a statement for each modification as to its intent and instructions to the courts on whether Clause 6(3) should apply to them could complicate matters. In that context, I merely observe that it is important to bear in mind that courts themselves will already have the text of the modification itself together with a statement explaining the reasons for it, the law before exit day that is relevant, and any effect of the modification on retained EU law. It may be that this could complicate matters.
I have listened carefully to the points raised on that matter and I can confirm that we will reflect on what I appreciate is a constructive suggestion in order to bring further clarity to these parts of the Bill. I hope that with that reassurance, the noble Lord may not have to engage in sequential groups of amendments in Committee this morning.
My Lords, I am very grateful to all those who have spoken in support of my amendments; there has been very heavyweight support, if I may say so, from the noble and learned Lords, Lord Wallace of Tankerness and Lord Goldsmith, and very valued support from the noble Lord, Lord Cashman. I also thank the Minister for his reply. Since he was kind enough to describe my amendments as “constructive”, it would be less than gracious if I did not say that I regarded his response as constructive. The Minister has recognised the need to look further at the scope of the explanatory statements provided for in the Bill, and I welcome that.
There is room for further discussion about the extent of the enabling powers in the Bill, which are underpinned in this legislation. The Minister thinks that my amendments go too far in the enabling powers that we are seeking to include, while I suggest that the Bill does not go far enough, so there may be some scope for meeting in the middle. Since the Minister has kindly undertaken to review the scope of the provisions in the Bill before Report, I hope he might agree that it would be beneficial if we could have further discussion to see whether there is not some common meeting ground in the middle so that we can go forward to Report in a spirit of unanimity. On that basis, I am happy to beg leave to withdraw the amendment.
Amendments 243 to 251 not moved.
Schedule 7 agreed.
Clause 17: Consequential and transitional provision
252: Clause 17, page 14, line 14, leave out subsections (1) to (3)
My Lords, I move this amendment on behalf of my noble friend Lord Adonis. He apologises for his absence this morning. I assure noble Lords that he is not having the well-deserved lie-in that many of us feel that we are entitled to; he is on a trip to Dublin with the noble Lord, Lord Heseltine, and Sir Nick Clegg to see what can be done about the question of the Irish border and how to resolve that particular trilemma.
The purpose of the amendment is to draw the Committee’s attention to what is written in Clause 17. We hear lots of soporific, mellifluous legalese in these discussions, but I draw the Committee’s attention to what Clause 17(1) of the Bill actually says. The Minister can perhaps then give me a little tutorial on why it is necessary and not as dangerous as it appears to be to my eye. The clause states:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”.
That is a sweeping enabling power for the Executive. The aim of the amendment is to establish from the Government the purpose of their having this sweeping power. This Bill is about Britain’s withdrawal from the European Union. It covers, as we have seen in the debate about Brexit since the referendum, many different aspects of our national life, so what is meant by this clause?
To the extent that we have any bedtime these days, for my bedtime reading I am trying to read books that explain the rise of populism in Europe. In a way, Brexit is a general phenomenon of a rise of populism in Europe and the United States. One book that I am reading at the moment is Professor Richard J Evans’s first volume on the rise of the Third Reich. One moment that makes me proud to be a social democrat is that it was the Social Democrats alone who voted against the enabling Act that set up Hitler’s dictatorship. I am not for one moment of course suggesting that there is a parallel, but why do we as a House have to grant the Government this sweeping legislative power? Can the Minister please explain? I beg to move.
My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:
“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.
The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.
I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:
“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.
Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.
I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.
My Lords, with apologies to the Committee, I should have made it clear when the noble Lord, Lord Liddle, moved his amendment that, if it is agreed to, I cannot call Amendments 253 to 256, by reasons of pre-emption.
My Lords, I support strongly what the noble Lords, Lord Liddle and Lord Pannick, said. This is the underlying theme of the Committee stage of this Bill: what we are seeing is a proposed accretion of power to the Executive at the expense of Parliament. We have made this point numerous times over the past several days—it seems like years. It is crucial not only that my noble and learned friend the Minister gives some recognition and assurances today—we can ask for no less—but that the Bill is amended, preferably by government amendment, before Report. I have said this many times, but if taking back control means anything, it means taking back control for Parliament and not for the Executive. The Government have to recognise, in a way that, sadly, my noble friend Lord Callanan, seemed incapable of recognising the other day, that Parliament is supreme and that, in particular, the other place is where the ultimate decision should be made.
I do not want us to be on a collision course with government. I hope that the Government, recognising the fundamental constitutional importance of these issues, will agree to accede to your Lordships’ Constitution Committee and delete this provision in Clause 17. It is incumbent on a Government who are concerned about the supremacy of Parliament to do precisely that and not to leave within the Bill a clause that gives, theoretically, untrammelled powers in many circumstances to Ministers. I hope that my noble and learned friend will be able to give us some comforting words today but, however comforting the words may be, they will not be enough until this provision is removed from the Bill.
My Lords, I shall add to the compelling citation by my noble friend Lord Pannick of the Constitution Committee’s report on what the Delegated Powers and Regulatory Reform Committee said about Clause 17. It pointed out that, unlike the regulation-making powers in Clauses 7 to 9, there is,
“no time-limit on the making of regulations under clause 17”.
It also said that the powers to make consequential provision,
“should be restricted by an objective test of necessity”.
That is the golden thread of appropriateness and necessity that has been running through a number of debates and I hope that a constructive way forward can be found on that before Report.
The Delegated Powers Committee also points out that, although paragraph 100 of the delegated powers memorandum says that the Henry VIII powers are appropriately conferred, and that,
“a large number of ‘fairly straightforward’ changes, including to primary legislation, will be needed in consequence of this Bill … that does not explain why it is appropriate for the negative procedure to apply in all cases including those which are not ‘fairly straightforward’”.
The committee concluded:
“Where regulations under clause 17(1) amend or repeal primary legislation, the affirmative procedure should … apply in accordance with established practice”.
It is a pleasure to follow the noble Lord, Lord Liddle, and others who have spoken. Normally, when something is about consequential and transitional provisions, your eyes glaze over, because what you are talking about is the sort of sweepings from the floor, in the legislative sense. But this is the most extraordinarily broad provision. It basically says that a Minister of the Crown can, by regulations, change virtually any provision in any Act.
As the noble Lord, Lord Liddle, pointed out, and as we have discussed, the effect of our membership of the EU has been like the tide rising across the legislative framework. It has gone into virtually every part of our legislative life. This provision, untrammelled as it is with any qualification at all, enables Ministers to amend by secondary legislation a whole swathe of legislation that is not directly covered by the earlier clauses of the Bill. No doubt the drafters of the Bill thought that this was a sort of belt and braces provision, because it covers everything else that might not have been covered by earlier clauses. However, as other noble Lords have said, it is surely far too broad.
The key definitional question is what the word “consequential” means. On a broad interpretation of it, any legislation that is consequential on our membership of the EU is covered by this provision, which is surely far wider than anybody in your Lordships’ House would wish to see. I hope that the noble Lord will be able to reassure us that, first, that was not the Government’s intention and, secondly, that they are willing to accept the recommendations of the two committees of your Lordships’ House. As this stands, of virtually all the provisions in the Bill, this is the one that gives Ministers the broadest unfettered powers to change primary legislation by secondary legislation and it clearly is not the will of the House that that should be allowable.
I was sort of reassured by some of the Minister’s words when we were dealing with the last group. I had the feeling that at last we have found a Minister on the Front Bench who is actually listening to what noble Lords are saying about some of the delegated powers provisions in the legislation. I hope that he can offer us some reassurance, but I share the concerns of the noble Lords, Lord Newby, Lord Pannick and Lord Lisvane, and my noble friend Lord Liddle.
Ministers are seeking to take an astonishingly wide power. If we start to apply it practically to some of the legislation being carried over from EU to UK law and think of some of the fundamental rights that that involves, and if Ministers then have the sweeping ability to bring forward anything that they think is relevant to change one of those provisions, we are getting into the territory of a statutory instrument that goes far beyond its original intention. The Constitution Committee was absolutely right to raise concerns about this and we need rather more than reassurance this morning on it. I rather share the view of the noble Lord, Lord Cormack: this is one clause that is probably fit to be withdrawn. I think that that would satisfy your Lordships’ House. We obviously have to listen to what the Minister has to say, but this is pretty profound, as I think he and the Government know. I hope that this is a try-on that we have seen off.
My Lords, I had not intended to intervene in this debate—the devolution aspects will come later today—but if one looks at paragraph 17 of Schedule 7, on page 51, and the interplay that it has with Clause 17, on page 14, I read it that the powers exercisable by the Welsh or Scottish Ministers under Schedule 7 are subject to the orders that they can make but that, if they do not make them, they can be over- ruled by the provisions of Clause 17—paragraph 17 on page 51 gives a Minister the right to do that. Am I interpreting this rightly?
My Lords, the provision indeed looks a bit innocuous when one first looks at it. The noble Lord, Lord Newby, is absolutely right. But the more one examines it, as has been demonstrated by speeches from noble Lords in this short debate so far, it is much more than that.
Two ways have been proposed for dealing with this clause. One had been to follow the golden thread of “appropriate” and “necessity” that the noble Lord, Lord Lisvane, referred to. Amendments 253 and 254, which have already been debated, touched on that and we will have to come back to those important proposals in due course. But this amendment goes even further in proposing that the power should be removed. As it stands, the idea that the Minister can, by regulation, make any change that he or she considers appropriate under this Act is extraordinarily wide. I therefore share the hope of other noble Lords that we hear from the Minister—having seen, as I am sure he has, how wide this provision is—that something needs to be done: probably something more radical than simply changing the words “considers” and “appropriate”.
We will listen to what he says. However, the powerful speeches by the noble Lords, Lord Pannick, Lord Cormack and Lord Wigley, and by my noble friends Lord Liddle and Lord Bassam, demonstrate that there is a real risk—as the noble Lord, Lord Cormack, put it—that this is another example of the accretion of power to the Executive at the expense of Parliament. It is our duty to put the brakes on when that sort of provision is put before us. Again, I look forward to what the noble and learned Lord will say; I am sure he has seen the point—in all languages. We need a clear commitment, not just to comfort, but to a change that will satisfy this House that it is not being asked to sanction untrammelled power to the Executive in such an important area.
My Lords, the Government are always listening. The Government are concerned to ensure that we have appropriate powers to deal with the consequences of this Bill: to bring the statute book into line with the consequences of the repeals brought about—or intended to be brought about—by it.
The context is that the European Communities Act has been a central piece of legislation for the past 46 years and is spread throughout our statute book. So much current legislation stems from the ECA. Repealing the 1972 Act, and the other key EU-related Acts listed in Schedule 9, will leave many loose ends that need to be addressed.
The purpose of the consequential power is to deal with the consequences of the widespread changes to the statute book that may arise from the provisions in the Bill itself. I stress “in the Bill itself” in the light of the suggestion by my noble friend Lord Cormack that we are dealing here with “untrammelled powers”. In that context, I understand the expressions of concern about particular provisions—which can sometimes be read out of context—but I stress again that these consequential powers can be used only in consequence of the provisions of the Bill itself, rather than in consequence of our withdrawal from the EU more generally. I see the noble and learned Lord, Lord Goldsmith, frowning, but if he feels that a different interpretation can be placed on this provision I would welcome discussion on it, because that is clearly its intention. If, in his view, it goes further, I would be happy to listen to him on that.
In the light of his invitation, I ask the noble and learned Lord to consider this question. I take his point that the words are “in consequence of the Act”, but the Act includes the repeal of the European Communities Act and all that it has brought with it. He may not want to reply to this question now and I am very happy to have further discussions with him, as they are always useful and constructive, but does he not see that the repeal of the Act and the instruments under it may indeed give rise to very wide opportunities if all that is required is for the Minister to consider it “appropriate” to do something in consequence of that?
May I ask the Minister a further point? I am trying to help him. He seems to be suggesting that this provision is a mere tidying up facility that is available to a Minister as a consequence of this Bill. I understand that point, but will he describe the sort of tidying up that he envisages this power being used for? I think that is what acts as a driver of our concerns. I can understand if it is a practical measure to do with something that is clearly a defect, but I want some reassurance, which perhaps should be placed in the legislation. I want to understand what the provision will be used for and its consequences.
I am obliged to the noble Lord for his assistance, which is always welcome. I do not agree with the point made by the noble and learned Lord, Lord Goldsmith, regarding the breadth of the provision. This is a standard type of power contained in many Acts of Parliament to deal with consequential issues, such as those alluded to by the noble Lord, Lord Bassam. A very similar power can be found in the Scotland Act 1998, in the Northern Ireland Act 1998, in the Government of Wales Act 1998, and in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO. All these statutory provisions have a similar consequential power for the same purpose, so this is not unique, exceptional or unusual.
However, I understand concerns being expressed about the scope of the power and the way it will be used. I notice the reference by the noble Lord, Lord Lisvane, to the use of the term “appropriate”, which some, of course, often consider to be inappropriate in a statutory context. I hear what is said about making clear that this is a consequential power that will be needed to repeal provisions.
The noble Lord, Lord Bassam, asked for examples. If we look at the various statutory provisions for accession of other countries to the EU—the Croatian accession is the most recent—which amend the ECA, it is necessary to address that sort of primary legislation. If we look at the provisions of the European Union (Approvals) Act 2017—
I thank the Minister for giving way. He cited some other examples. I admit that I am not familiar with devolution statutes and the consequential powers in them, but we have to take account of the context in which this legislation is being made and the considerable worries about the potential use to which they could be put, which is surely more than the Croatian accession. The Government cannot ignore the worries that these powers—in the context of the Brexit negotiations, future relationships, trade deals and whatever—could be used in a way which could significantly affect existing rights and remedies.
With respect, it appears to me that some of the fears being expressed are not about the use of these powers, but about their misuse. As the noble Baroness, Lady Ludford, observed, we have to see this provision in context. It is to be applied to the consequences of the Bill becoming law.
The noble Lord, Lord Bassam, asked for further examples. There are many examples in primary legislation of where consequential amendment will be required. I will not elaborate on them at this stage. For example, there are provisions in all the accession Acts that would have to be regarded as necessary to clear up in the context of the statute book. There are provisions in such things as the Legislative and Regulatory Reform Act 2006, which would again have to be addressed in this context as a consequence of our removal when the Bill becomes law.
What will be required is a meaningful indication of the type of change that is needed to keep the statute book in reasonable order after our departure from the EU. In my respectful submission, where there may be concern about the misuse of this consequential power we are of course alive to concerns that are expressed. It may be that it turns largely not on the way Clause 17(1) is presently framed, but on the use of a term such as “appropriate”. We will give further consideration to the use of that language and whether that is the way this consequential—I stress “consequential”—power should be employed in this context.
I hope that gives noble Lords some degree of reassurance about the intention here. I suggest that the removal entirely of the consequential power contained in Clause 17 would have a materially adverse effect on the way the Bill can be properly implemented to bring the statute book into proper order following our exit from the EU. I hope at this stage that the noble Lord will see fit to withdraw the amendment.
The Minister has just used the phrase that it is “not our intention” to use these powers. That is one of the difficulties that the Committee has on many of the issues that we have raised. The Government repeatedly say that it is not their intention to abuse these powers, yet they are taking powers which clearly can be abused in the future.
I do not believe that they would be employed to overrule powers that are legitimately being exercised under the devolved arrangements. That is not their purpose. Their purpose is to make consequential amendments that will bring the statute book into line with our departure from the EU.
When responding to amendments, the Minister has, on a number of occasions, said that the Government will give further consideration to the points made. We are now coming towards the end of Committee and will then be preparing for Report. Could the Minister give us more of an explanation of what further consideration will mean on the very many points that have been made? When we come to Report we will have six days, and, as we all know, a large number of issues have been raised. Will the Government be consulting on these? Will they be able to tell us before we start Report what changes they wish to make or the date by which government amendments might be published? Otherwise, Report stage will be as lengthy and as difficult as Committee stage has proved to be.
Clearly, when I say that we will give consideration to these matters, I mean that I am making more work for myself in that context. Of course we are going to discuss with officials how best to structure this legislation to meet the concerns that have been expressed. That may lead to amendments, in which case they will be available before Report, and it may not, in which case I will be happy to indicate at Report why such amendments have not been brought forward.
Will the Minister address the concern I expressed that the breadth of Clause 17(1) is such that it could be used by Ministers to evade the restrictions that will be contained in the other powers that Ministers enjoy under Clauses 7 to 9, particularly in the light of paragraph 17 of Schedule 7? Will he consider that point?
Before we conclude this part of our deliberations, I refer back to what my noble friend said. I have every respect for the Minister—I mean that. I am quite sure that he would never, with ministerial responsibility, go against the clear intention of Parliament with these residual powers. But are we absolutely certain, with all the unpredictability and turbulence of politics across the world today, that every possible Administration would act as responsibly as he would?
The Minister’s self-effacing remark draws attention to the other aspect of this clause. It was helpful when he said—and I hope that we will see some concrete results from this—that the Government will look at the word “appropriate” and, I hope, change it to “necessary”, but that is only part of the problem in this and other clauses. There are two elements. One is that the Minister “considers” and the second is what it is that the Minister considers. In this clause, it is “the Minister considers appropriate”. Many of the amendments before the Committee want to see that it is changed to “is necessary”—an objective rather than a subjective test. Sharing, as I do, views as to the good will and intentions of the Minister who sits here at the moment, we need to have, as he says himself, more conviction about what might happen in the future. So will the Minister also consider in those circumstances not just changing the word “appropriate” to “necessary”, but removing the subjective element so that we are satisfied that there has to be a clear objective statement before the Minister can actually exercise these powers?
My Lords, I am not going to draft at the Dispatch Box and I will not give undertakings about any part of this clause at this stage. I am saying that we will look at it in the context of the observations that have been made in Committee, and we will do that responsibly.
My Lords, I welcome that assurance from the Minister. I have been surprised by the passion that this short debate has aroused. It raises many serious issues about what powers the Government are giving themselves as a result of this Bill. The Minister is aware of the concerns of the noble Lord, Lord Pannick, and my noble and learned friend Lord Goldsmith about this power. To my non-legal mind, when my noble and learned friend talks about the power that is in consequence of this Act because it repeals the European Communities Act 1972, the potential scope of what could be done is extremely large. When we come back to this on Report I hope that the Government will be able to provide us with some assurance that the scope will not be impossibly big. On that basis, I beg leave to withdraw the amendment.
Amendment 252 withdrawn.
Amendments 253 and 254 not moved.
255: Clause 17, page 14, line 15, at end insert—
“( ) But the power in subsection (1) does not allow a Minister of the Crown to determine whether particular pieces of EU retained law should be designated as primary or secondary legislation.”
My Lords, this amendment and Amendment 364 follow the previous debate in the sense that they question powers that Ministers seek to take in the Bill which we in the Committee want to quiz and question and understand better. My concern is a simple one. Why do Ministers feel that they should have the right, and seek to have the right, to determine whether a piece of retained EU law should be designated as either, on the one hand, primary legislation or, on the other, secondary legislation?
I understand primary legislation, because it is what we deal with all the time. It is what we debate, consider, seek to amend, improve and all of those things. It is something over which we have much more control. When it comes to secondary legislation, as I said earlier, it is not so easily amendable. You have to either take it or leave it. Sometimes we can regret it, but we cannot do much else with it. The Minister is seeking a power in Clause 17(1) that is extraordinarily helpful to the Government. It says, “Let’s just shove this into secondary legislation. They can’t amend it there or tinker with it. They either have to take it or leave it”.
That is an extraordinarily powerful thing to be able to do if you are a Minister. I have sat in the seat that the noble and learned Lord sits in, and I am quite sure that I would have liked to have had that power from time to time. It would have been extraordinarily convenient and enabled us more speedily to get on with what we were seeking to do. I can think back to several Bills and subsequently Acts that I participated in putting on to the statute book and I can see how pleasant it must be to be able to do something rather more simply with secondary than with primary legislation.
We need to understand better exactly why the Minister feels that that clause is appropriate. The Constitution Committee raised this as an issue. Similarly, Amendment 364 is also in this group and handily co-signed by my noble friend Lord Pannick. That amendment seeks to remove paragraph 19 of Schedule 8, again on the recommendation of the Constitution Committee, because it relates to retained EU law which has been assigned the status of primary legislation.
We are looking for some clarification and transparency from the Minister on this because it seems an extraordinary power. He has helpfully quoted other pieces of legislation in earlier debates in aid of his argument about whether or not the powers that the Government are seeking under this piece of legislation are reasonable. Perhaps he can give some examples and explain to us the circumstances in which this particular power would be of value to this and other Governments. Maybe he can explain to us when it has been used in the past because that would at least enable us to understand the circumstances under which what on the face of it seems extraordinary would be acceptable. I am not happy about the powers sought here and neither was the Constitution Committee. For those reasons, I beg to move.
My Lords, I strongly support the amendment. It is essential that the status of retained EU law in our law should be determined by Parliament as part of this Bill. I supported an amendment that the noble Lord, Lord Pannick, moved earlier to say that retained EU law should be treated as primary legislation. It is so treated by the Bill for the purposes of the Human Rights Act. It is highly desirable that this should be fixed definitely as part of the arrangements and not left to be decided, as it were, ad hoc from time to time by the use of the power to which the noble Lord, Lord Bassam of Brighton, has drawn attention.
Originally, the amendment that the noble Lord, Lord Pannick, proposed covered the whole of this law. I am inclined to think that the Clause 2 provisions, which are already in our law, have the status given by our law already. Some of them are statutes and some are subordinate legislation. Having considered this a little further since we discussed this some long time ago, I am inclined to think it might be wise to restrict the provision that this should be regarded as primary legislation to the Clause 3 provisions.
My Lords, in the previous debate the Committee deliberated on the vice of Clause 17(1). The amendment proposed by the noble Lord, Lord Bassam of Brighton, identifies a specific reason why Clause 17 (1) is so objectionable. When the Constitution Committee put to Ministers our concern, to which the noble and learned Lord, Lord Mackay of Clashfern, has just referred, that the Bill should identify the legal status of retained EU law, the answer from Ministers was that if necessary or appropriate they could use the powers conferred by Clause 17(1) to designate what legal status retained EU law would have, and designate different parts of retained EU law for different purposes. The Constitution Committee made its view very clear in paragraph 69 of its report:
“It is constitutionally unacceptable for Ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.
We debated what legal status should be given to retained EU law earlier in Committee. I respectfully agree with the observations made just now by the noble and learned Lord, Lord Mackay of Clashfern. I emphasise, however, that it is the width of Clause 17 (1) that is so objectionable as it enables Ministers to assert that they could use it to make changes of such constitutional enormity to our legislation. I agree, therefore, with the concerns that the noble Lord, Lord Bassam of Brighton, has expressed.
My Lords, I will briefly add my support. I point out to my noble and learned friend, who gave a very sensitive reply to the previous debate, that a culture has grown up in Parliament in recent years: the proliferation of so-called “Christmas tree Bills”, which include very few specific proposals, allowing Ministers to hang whatever baubles they like on them. Together with the deep suspicion, that we all have, of Henry VIII provisions, I hope that that explains to my noble and learned friend why, with all the far-reaching consequences of this Bill, we are most anxious that the prerogative should remain with Parliament and that it should not be for Ministers to determine what is primary and what is secondary. I hope that building on his sensitive and—I do not want to sound patronising—sensible remarks at the end of the last debate, he will take on board what has been, and is being, said on this point.
My Lords, I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, that one way or another it must be for Parliament to decide the essential ground rules that should apply in the future categorisation of retained EU law, certainly under Clauses 3 and 4, although perhaps not under Clause 2 as it is already domestic law. As I made plain some weeks ago—it seems like months—in an earlier debate, I do not, however, subscribe to the view of the Constitution Committee that all retained EU law should be designated as primary legislation. We discussed all this at the time. If what I may call in shorthand Professor Paul Craig’s suggested solution to this problem is adopted by following the EU’s own categorisation, under both the pre-Lisbon and post-Lisbon arrangements, somebody will have to apply that ground rule to this mass of 10,000, 20,000 or 30,000 instruments—however many they may be.
I suggested in an earlier debate, because this is what Paul Craig had said, that in fact four competent EU lawyers could carry out that whole process in a matter of three days. I may have those figures slightly wrong, but that is about it. But if that is left to be done after the passage of this legislation, some regulating power will have to be available to government to give effect to that process. The ground rules settled its application for regulation. I hold no particular brief for this being done under Clause 17(1); it may be that the better course would be to introduce the ground rules—as I say, Parliament’s specification of how basically the process is to be completed—within the legislation, and have a regulation-making power attached to that for the sole purpose of applying the ground rules. But I would not wish to leave unchallenged the Constitution Committee’s suggestion that the whole shooting match should be primary legislation.
My Lords, to some extent this is a continuation not just of the previous debate today but of previous debates that we have had on earlier days in Committee. That leads me to two observations, before I come to specifics on the amendment. One is on the very pertinent observation of the noble Lord, Lord Wallace of Saltaire, that if we do not advance at all before we get to Report we will have just as much time spent on Report as in Committee. Therefore, we very much hope that the Government respond to his suggestion or injunction to the Minister that we have some greater clarity on what the Government are going to do as a result of the consideration that they have been having for the last few days, when they have had time to consider some of these points. Indeed, I hope that it is not only the noble and learned Lord who is working on this—there are a lot more people in government who should and could be working on it. That is just one observation that demonstrates how much work there is to do, and how we need to move forward, hoping of course to do that in co-operation with the Government.
Secondly, I suppose people outside listening to this debate will wonder what on earth we are talking about. They expect that this Bill is about in or out and when and what the terms are, and the customs union. Those are important issues, too, but this debate illustrates how important some of the provisions in this Bill are. The question of whether something is to be regarded as a piece of primary legislation is fundamentally important; it has consequences for who legislates and how easy it is to amend that legislation, as well as for its effect in relation to other statutes. I draw this as a general view that has been expressed around the House, that it cannot be left simply for a Minister to decide. In previous debates, we have heard how many Ministers that could be. I made the observation—no one has yet contradicted it, although maybe it should be contradicted—that when you say that a Minister does something, under the Karl Turner principle that means that a civil servant can do it. I have the greatest of admiration for civil servants, but that would multiply the number very considerably. If we are talking about important constitutional provisions, about protection of rights and all the other things that the Bill is concerned with, it is not appropriate that decisions on who makes that decision should be left in this way.
I thank the noble Lord, Lord Pannick, for drawing attention to the fact, as others have too, that one consequence of this particular provision that my noble friend Lord Bassam of Brighton has dealt with touches on the question of who decides whether something is primary or secondary. The noble and learned Lord, Lord Mackay of Clashfern, made a very important observation, and so did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Today is not the day to decide which should be primary; what we are talking about is whether it should be simply for a Minister or for his officials to determine whether a particular piece of law should be treated as primary or secondary legislation. That is what the amendment raises, and it is important that we should have clarity on it, I hope before we get to Report.
The summary that is given in paragraph 69 of the Constitution Committee’s report, already referred to by the noble Lord, Lord Pannick, puts it in clear terms, including the last sentence that, as it stands:
“This is a recipe for confusion and legal uncertainty”.
We cannot afford this Bill, when it has completed its passage through this House and the other place, to leave the country in a state of confusion and legal uncertainty.
My Lords, as has been noted, this is in a sense a continuation of a lengthy debate we had in Committee in response to, I think, Amendment 33, tabled by the noble Lord, Lord Pannick. I will not repeat all that was said from the Dispatch Box in the context of that debate but I hope the noble Lord, Lord Bassam, will not think that, because I am taking this amendment relatively briefly, I am taking it relatively lightly. Indications were given at the time of that earlier debate as to our consideration of this matter.
EU law is of course comprised of many things, including domestic primary and secondary legislation, converted EU regulations, decisions and EU legislative and non-legislative provisions. Due to the breadth of retained EU law, it is therefore unique in its nature. That is why the Government deliberately chose to tread carefully and not simply to assign this new category of law, retained EU law, to a single category of domestic legislation. Treating all retained EU law as primary legislation may be possible but such a broad approach will inevitably raise unforeseen and uncertain consequences—the very thing we want to avoid. If one looks at an EU provision that deals with the content of a particular chemical and those contents are to change, are we to address that only by way of primary legislation? I suspect that if that were the case, we would be sitting much later than we have in the last few days of this Committee.
Again, treating it all as secondary legislation may also pose considerable difficulties because of the interaction between retained EU law and other domestic legislation which is in the form of primary legislation. This is not a straightforward exercise, which is why it was thought fit to identify certain areas where it should be treated as primary—for example, in the context of human rights—and other areas where Ministers would be allowed the opportunity to consider how best to deal with the issue, albeit as cases arise.
I notice that there is a concern about how the matter is to be approached but it is not one that identifies a universally approved approach. I noted what my noble and learned friend Lord Mackay said about the treatment of retained EU law in the context of a qualification with regard to what is brought into domestic law by way of Clause 2, for example, and what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said about Professor Paul Craig’s solution, which we discussed previously in Committee in reference to Amendment 33.
We have taken that on board and we believe that at present, the position we have adopted is the correct one for achieving maximum legal certainty after exit day and for ensuring the most appropriate outcome across the domestic statute book. Equally, we recognise the need to look at alternatives in the context of, for example, Professor Paul Craig’s proposals, and perhaps to look at it in a different context altogether: that of outcomes rather than, in the first instance, identification of whether it is primary or secondary. That is what we indicated we would do when this matter came up for debate before in Committee, and what we are doing. In that context, I hope the noble Lord will see fit to withdraw his amendment at this time.
My Lords, I am intrigued by the Minister’s reply. I guess I shall have to look back at the debate on Amendment 33, which he referenced earlier, but I am far from satisfied on this point. While I have been sitting here, I have been thinking of an example of what Ministers can actually do with pieces of primary and secondary legislation, and one comes to mind.
Towards the end of our time in government, an amendment was passed in this House very much against my better judgment; I was rather horrified by it. It basically had the effect of enabling the Secretary of State to bring forward an order to give effect to the particular amendment. I went back to the department and said, “Look, this is terrible. We lost this vote in the House yesterday and it means that you will have to do something that we really do not want to do and that would be quite wrong”. The Secretary of State very simply said to me, “Don’t worry about it: I simply won’t bring forward the order”. That is a powerful position to be in if you are Secretary of State. The order was never forthcoming. I am sure there are many examples of a similar nature that will be adopted by Secretaries of State, not just now but in the future.
That makes me think that we may be giving a Secretary of State—a Minister—far too much by enabling them to decide what is and is not secondary and primary legislation. I do not know whether that was in the mind of the Constitution Committee when it particularly picked this out, but it was right to be alive to that concern. I was grateful for the support for the amendment from the noble and learned Lord, Lord Mackay of Clashfern, because he is long experienced in these matters. He has a very wary and thoughtful eye on legislation and what it is.
I accept that we are in somewhat exceptional circumstances in that we are dealing with EU retained law, but the Minister will have got the message that we are very concerned and the concern is rather broad. In the end, what we put in primary legislation makes a difference and has the effect of changing people’s lives. Giving too much power to Ministers to determine what they can sneak in through secondary legislation, where we can do far less about it and do far less to improve its quality, is a proper constitutional concern that this House might express. For the moment, I beg leave to withdraw my amendment.
Amendment 255 withdrawn.
Amendments 256 to 260 not moved.
Clause 17 agreed.
261: Before Clause 10, insert the following new Clause—
“Northern Ireland: the Belfast principles
(1) In exercising any of the powers under this Act to make any provision affecting Northern Ireland, a Minister of the Crown or any devolved authority must have regard to the requirement to preserve and abide by the principles and obligations contained within the Belfast Agreement and given effect by the Northern Ireland Act 1998 (“the Belfast principles”).(2) The Belfast principles include, but are not limited to—(a) partnership,(b) equality, and(c) mutual respect,as the basis of relationships within Northern Ireland, between the North and South of Ireland, and between the islands of Ireland and Great Britain.(3) In particular, in relation to this Act—(a) a Minister of the Crown must not give consent under paragraph 6 of Schedule 2 to this Act before any provision is made by a Northern Ireland department except where the Secretary State has considered the requirement to preserve and abide by the Belfast principles and considers the provision is necessary only as a direct consequence of the withdrawal of the United Kingdom from the EU, and(b) the powers under paragraph 16(b) of Schedule 7 to this Act to make supplementary, incidental, consequential, transitional, transitory or saving provision (including provision restating any retained EU law in a clearer or more accessible way) may not be exercised to do anything beyond the minimum changes strictly required only as a direct consequence of the withdrawal of the United Kingdom from the EU.(4) Section 11(3) of this Act does not permit the Northern Ireland Assembly to do anything which is not in accordance with the Belfast principles.”
My Lords, this amendment is in my name and that of a number of other noble Lords. For many years, there has been a panel game on Radio 4 in which people are asked to speak about a subject of which they have not been given notice for a minute without deviation or repetition. I have sometimes thought how that would cut short our debates in this House and down the Corridor. I have managed to avoid listening to this programme for the several decades that it has been broadcast, but others may know the one I am talking about.
That may be a relevant point, given that we had an excellent debate on most of the issues that we are covering this morning only a week ago. It was an excellent debate in which we talked about the Northern Ireland border, the relationship between the Northern Ireland border and the Republic border in terms of economics and other issues. We talked about that border and its overall relationship with the European Union and the United Kingdom because it would be the only land border between the EU and the UK. And we talked about that whole issue in relation to the Good Friday agreement, which everybody accepts is one of the coping stones of the peace that has, thank heavens, returned to Northern Ireland for the past few years. There were a couple of notable speeches in that debate. The former most reverend Primate Emeritus of All Ireland made an extremely moving speech. I do not want to ruin his career, but the noble Lord who wound up the debate made an important and interesting speech as well. It reflected what has been said elsewhere. The noble Lord said in replying to that debate: “Let me be frank”. That is not always something that one expects Ministers to say and it sometimes invites the reply, “caveat emptor”. I certainly speak confessionally on that subject. He said “Let me be frank” and then he was. He said that,
“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”.—[Official Report, 14/3/18; col. 1703.]
He pointed out that in the light of that there was a great responsibility on our Government, on the Government in the Republic and on the EU to do all they can to sustain the Good Friday agreement and to find a solution to the question of the border.
In saying that, I am sure that the noble Lord was aware that he was repeating what has been said by Mr Blair, Sir John Major, the former Taoiseach Bertie Ahern, and Senator George Mitchell, all of whom played a very important role in the Good Friday agreement, which is one of the biggest achievements in post-war British politics without any question at all. There are Members of this House who played a role in securing that outcome.
Why is there a problem as we move down this path, like the chorus in “Fidelio”, into the sunlit realm of post-EU global Britain? There is a problem, for reasons which were explained very clearly. Some noble Lords used this quotation in the previous debate—quite simply, it is because of the challenge which the then Home Secretary referred to two days before the referendum when she said in reply to a question:
“Just think about it. If we are out of the European Union with tariffs on exporting goods into the EU there’d have 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 has access to free movement?”
I could not have put it better myself. Others have put it on both sides of the European referendum. It is the problem that the Government now have to address with some difficulty, because after the referendum result it was decided—I have read this in a book by the political editor of the Sunday Times, so it must be true—without any discussion or debate in Cabinet that whatever happened we would leave the single market and the customs union. So here we are, facing this very difficult problem.
Some people have said, “Well, you can deal with it quite easily because there’s no need for a border”. We have been told that there are technological solutions. They do not yet exist. They are somewhere down the road. Most of the people who suggest them have never been to Northern Ireland and have no idea what Fermanagh, South Armagh and that borderland are actually like. They point to other countries that they say manage without borders or any of the infrastructure of borders, or customs controls. Curiously, they sometimes mention America and its borders. Tell that to President Trump. It does not feel border-free if you are building walls or trying to get goods from Canada into America or from America into Canada. They talk about Sweden and Norway. We know what the Swedish Minister said about that the other day when she said that it was easier to get to the moon than to get goods into Norway.
Most experts have said very much the same thing, underlining the fact that borders, as we said during the earlier debate, are not principally about geography; they are partly about identity but they are also about the difference between legal regimes and regulatory regimes. I have to be careful about bringing a Frenchman into this debate, but somebody who perhaps knows more about trade negotiations than almost anybody—even more than Mr Fox—and who was Secretary-General of the WTO and before that a European Commissioner is Pascal Lamy. In giving evidence in this House and in the House down the street, he said that,
“at the moment the UK exits the customs union, there has to be a border”.
He went on to say that “frictionless, invisible borders” are a “fairy tale”, and that a virtual border does not exist anywhere in the world.
So we have an issue, and it is an issue that the British Government have not so far managed to resolve in our discussions with the European Union. Last week, we signed up to a backstop agreement on regulatory alignment, which we had signed up to in December and then denounced between when the European Union tried to put it into legal language earlier this week and the “consensus”—I think that is the word used by one of the Ministers for these things—in December.
There is a real issue about this, and perhaps it is worth recalling why the Minister thinks that this is relevant to the Good Friday agreement. It is not because anybody seriously believes that, if we do not resolve this, we will go straight back to the Troubles and see the sort of violence that some of us experienced in the 1960s, 1970s, 1980s and 1990s. However, the chief constable of the Northern Ireland Police Service does think that if there is a hard border of any sort and there are customs officers, they will become a target for violence. That is not condoning that, it is just pointing out reality in the context of Northern Ireland and the Republic. Of course any sort of border would have an impact on the trade between Northern Ireland and the Republic, and we know what the Good Friday agreement says about the importance of that economic relationship.
There is another area in which a border would have a profound effect on the continued integrity of the Good Friday agreement: the question of identity. As was said in our last debate, at the heart of the Good Friday agreement is a proposition that is difficult to put into practice—and it says a great deal for the negotiators of the Good Friday agreement that they managed it. People who had previously condoned and taken part in violence to try to change the constitutional arrangements in Northern Ireland accepted that, from now on, those arrangements could be changed only through the ballot box by constitutional means and with democratic accountability. In return for that, they were assured that their own sense of identity and loyalties could be expressed with the encouragement and endorsement of the authorities. For example, if they were republican, they no longer had to sign up to all the manifestations and symbols of a unionist state. They could be Irish or British, or they could be Irish, British and European, and they would not have a border as a symbol between the Republic of Ireland and Northern Ireland or between Britain and the Republic of Ireland. The Good Friday agreement is profoundly affected by what happens to the border.
Presumably recognising that, the Secretary of State for Brexit said after the negotiations the other day that it is,
“our intention to achieve a partnership that is so close as to not require specific measures in relation to Northern Ireland”.
Well, I can help him. There is a partnership that is available straightaway: go back to the customs union; join the single market. That will solve the question of the Northern Ireland border.
I am rather nervous about predictions. My favourite English footballer was Paul Gascoigne, who, having been asked on one occasion at half time to say what the result of the match would be, said, “I never make predictions, and I never will”. But one prediction I make is this: before this political jihad is over, before we have finished with this, we will be back in the customs union. We will get back into the customs union partly because I think that is what we will vote for in this House, but, even more so, because that is what enough people will have the courage to vote for down the Corridor.
But let us suppose that that does not happen, solving the problem of the border, as they say, at a stroke. Then there is a very strong case for belt and braces. If you are the emperor with no clothes, belt and braces may seem a little curious. But there is a very strong argument—just in case we do not find other ways of solving the border, the technology is not available or the blue skies are a little clouded—to write into the Bill the terms, provisions, values and objectives of the Good Friday agreement. What is not to like? It would not damage anything or anybody. It is an assertion of what, apparently, we all believe—that the Good Friday agreement has to be kept at all costs—unless you are a former Conservative Secretary of State and think that the Good Friday agreement could be changed, thrown out or forgotten about, which I do not think is the view of this House, even it is the view of a couple of Brexiteer former Secretaries of State. It should be easy for the Minister, who was so frank and helpful in his last intervention, to simply say that we will write the Good Friday agreement, as Amendment 261 suggests, into the Bill.
There may be some reason why the Minister does not have the authority to do that this morning. I was going to say that we have not had any of the duty privy counsellor Bench of Brexiteers here today, but I can see one. I am glad that they still do morning shifts. Even with just one here, he may have some difficulty in giving us the sort of assurance that we might like. But I very much hope that, if that is the case, the majority of Members of the House will come back on Report and make absolutely certain that we write the terms of the Good Friday agreement into the Bill if, by then, we have not had a satisfactory response on the border. I beg to move.
My Lords, I will speak to Amendment 308ZA in my name and that of my noble friends Lord Judd and Lord Cashman. I also express my support for the other amendments in this group and for everything that has just been said in the thoughtful and amusing speech by the noble Lord, Lord Patten of Barnes. My amendment would alter the existing limitations on the powers of the Northern Ireland Assembly, departments and Ministers to act incompatibly with EU law so as to include restrictions that protect the linkages between the rights, safeguards and equality of opportunity protections within the Belfast/Good Friday agreement and the human rights and equality protections of EU law as they apply in Northern Ireland.
I tabled the amendment at the request of the Northern Ireland Human Rights Consortium—I am grateful for its helpful briefing—because it felt that we needed something more specific than the more generalised commitments in other amendments on the agreement, valuable as those amendments are. My amendment, in contrast, focuses specifically on the protections of existing EU-derived human rights safeguards that link to the agreement and peace process. It seeks more precisely to ensure that a key element of that peace process agreement continues to be protected, specifically that the human rights safeguards that exist in EU law, including the Charter of Fundamental Rights, continue to bind Northern Ireland institutions.
The amendment reflects the grave concerns of human rights bodies in Northern Ireland, both civil society organisations and the Northern Ireland Human Rights Commission. Indeed, the commission published a joint statement last week with the Irish Human Rights and Equality Commission under the auspices of a joint committee established under the Belfast/Good Friday agreement, which voiced their concerns about the impact of the loss of the Charter of Fundamental Rights. The statement underlines:
“The equivalence of rights, on a North-South basis, is a defining feature of the … Agreement”.
It warns of a “diminution of rights” within Northern Ireland and a potential,
“divergence in rights protections on a North-South basis”.
It therefore calls for the safeguarding of,
“North-South equivalence of rights on an ongoing basis”.
At the risk of sounding like a broken record and being thrown off the panel show to which the noble Lord, Lord Patten of Barnes, referred, I ask for the fourth time how the Government will ensure that equivalence in the absence of the Charter of Fundamental Human Rights. I have yet to receive a satisfactory reply. I believe that this amendment would do the job, which was why I was pleased to table it on behalf of the consortium.
In its briefing, the consortium makes the point that the complex web of EU-derived human rights and equality safeguards has had an important function in ensuring that people in Northern Ireland have access to remedies that would otherwise not be available in Northern Ireland law. This amendment is about shoring up those safeguards in the face of an unprecedented threat from the Brexit process. In addition, it reminds us that, unlike in the rest of the UK, the Equality Act does not extend to Northern Ireland and gives an example of how EU human rights law has provided alternative protection. For example, it ensures that carers for disabled people are not discriminated against in terms of how they are treated. In a recent local case, McKeith versus Ardoyne Association, a woman’s manager sent her home and denied her the opportunity to work because of her ongoing caring responsibilities for her disabled daughter. The tribunal stated that, in her manager’s mind,
“because the claimant had a disabled child, her position was not properly in the workplace. Her daughter was ‘her priority’”.
As there was no other satisfactory explanation for the dismissal, the tribunal concluded that Ms McKeith was dismissed specifically because she was the primary carer of her disabled daughter and that, therefore, she had been subjected to discrimination.
The consortium also reminds us that, under the terms of the Belfast/Good Friday agreement and subsequent agreements, there was a commitment to a Bill of Rights for Northern Ireland. It writes that,
“the purpose of this was to build on the ECHR to create a strong and inclusive rights framework to build confidence in our institutions. In the absence of a Northern Ireland Bill of Rights binding our Assembly and our Ministers, EU human rights law has provided both an important limitation on power and a point of access for an extended set of rights. Those rights will not be available to the same extent under the current draft of the Bill (removal of the Charter etc) and the devolved competencies and restrictions will also be weakened (Henry VIII powers and Clause 11 changes etc)”.
When we discussed Northern Ireland issues on 14 March, I referred to how a number of organisations, including the Northern Ireland Human Rights Commission, are arguing that, in the light of the risks to the human rights framework, now is a key moment to renew discussions on a Bill of Rights for Northern Ireland. I asked the Minister whether he would undertake to consider that. I know that he did not have time to deal with all the questions raised that evening—time was getting on—but I would be grateful for a response now.
The amendment reflects key elements of the phase 1 joint report of the EU and UK and the draft withdrawal agreement text as it applies to human rights in Northern Ireland. The approach that it takes is compatible with the principles of protecting the Belfast/Good Friday agreement “in all its parts”, to quote from the phase 1 joint report, including its “practical application”, protecting,
“subsequent implementation agreements and arrangements, and … the effective operation of each of the institutions and bodies established under them”,
as well as the commitment to non-diminution of rights.
I am sure that the Minister is aware of the deep anxiety felt by human rights organisations in Northern Ireland in the face of withdrawal from the EU while the rest of the island of Ireland continues as a member. Indeed, some members of civil society groups in Northern Ireland are coming over on Tuesday to meet us to discuss those concerns. We have heard nothing yet to quieten those anxieties. I urge the Minister to undertake to consider these concerns and, failing a more general change of heart on the charter, either to take away the amendment or to come forward with other proposals to protect the equivalence of rights—identified, as I said, as a defining feature of the Belfast/Good Friday agreement. As the noble Lord, Lord Patten of Barnes, reminded us, the Minister told us that the agreement remains the cornerstone of the United Kingdom Government’s policy as we approach Brexit.
My Lords, I very much support the points made by my noble friend Lady Lister with regard to human rights issues. Before I speak about those, however, I congratulate the noble Lord, Lord Patten, on an outstanding and powerful speech this morning.
We discussed much of this last week: the relationship between the Good Friday agreement and the European Union and how the membership of both Ireland and the United Kingdom underpinned everything in the agreement. I will concentrate on a couple of points on how equality and human rights affect this Bill and the Good Friday agreement and the relationship between the two.
The Good Friday agreement, and the negotiations leading up to it, concentrated heavily on the issues of equality and human rights. When I took the 1998 Northern Ireland Bill through the House of Commons, a great part of it dealt with them. As your Lordships will know, the current impasse or deadlock between the parties in Northern Ireland rests partly on disagreements about human rights and equality issues. This is, however, no academic matter; it is central to the progress of the talks in Northern Ireland and the integrity of the Good Friday agreement.
My noble friend Lady Lister referred to the joint committee between the Republic and Northern Ireland on human rights and equality issues. Indeed, she referred to the European Union Charter of Fundamental Rights, which is common to both parts of the island of Ireland. It does not take a genius to work out that, if we leave the European Union, what happens to the relationship between a country that remains in the European Union and one that has left is a considerable problem.
There is also the issue of the equality of citizens in Northern Ireland. This really is a difficult one. For many years, anyone born in Northern Ireland, or whose parents or grandparents were, has been entitled to an Irish passport. Under the new arrangements, they would still be entitled to an Irish passport but, in gaining it, would also be entitled to citizenship of the European Union. What about the unionist who is British? It is said that perhaps 35% or 40% of the unionist community in Northern Ireland voted to remain in the European Union. Would someone want to become a citizen of the European Union while regarding themselves as British? They will certainly not identify themselves as Irish.
This goes against a fundamental principle of the Good Friday agreement: parity of esteem between the parties in the northern part of Ireland. It means, for example, that many people in Northern Ireland are entitled to citizenship but—effectively—many people are not. That goes fundamentally against the principle that the noble Lord, Lord Patten, referred to when he talked, quite rightly, about the issue of identity.
Again, what about the relationship between the north and the south in criminal justice and policing? The big issue is that 75% of those people who flee Northern Ireland because they are criminals end up in the south. What happens to the European arrest warrant? What happens to the remarkable co-ordination and co-operation between the two police forces on the island of Ireland? Special arrangements have to be made.
Those are particular points that we did not touch on in our debate last week. I know that the Minister, a firm supporter of the Good Friday agreement who understands its significance in bringing about peace in Northern Ireland over the past two decades, will take these issues away and come back to us on Report, at which point we will have reached the 20th anniversary of the agreement. I hope that that anniversary will be commemorated by recognition of these amendments.
My Lords, I will speak to Amendment 308ZA, to which I added my name to those of my noble friends Lady Lister of Burtersett and Lord Judd. I am extremely pleased to follow the other noble Lords who have spoken, particularly the noble Lords, Lord Patten and Lord Murphy.
The amendment is concerned with the equivalence of rights between Northern Ireland and the Republic of Ireland. The approach outlined would allow for continued institutional alignment in Northern Ireland with the EU-derived safeguards and frameworks that underpin the Belfast/Good Friday agreement. The protection of the Good Friday agreement needs to be considered in its detailed implementation as well as in its broad principles.
As I said, the amendment focuses on the protection of existing EU-derived human rights—safeguards that link to the Good Friday agreement. The equivalence of rights on a north-south basis is a defining feature of the Good Friday agreement. A further signal of the expectation of long-term north-south equivalence is seen in the duty of the joint committee established under the agreement to consider,
“human rights issues in the island of Ireland”,
as well as,
“the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland”.
The joint committee welcomed the commitment in the draft withdrawal agreement that the UK,
“shall ensure that no diminution of rights, safeguards and equality of opportunity … results from its withdrawal from the Union”.
However, it stated that the Government’s approach would only ensure equivalence of rights on exit day from the European Union and said:
“There is a risk that … a growing discrepancy between UK and EU law will emerge, thus eroding the North-South equivalence of rights in Ireland”.
That would be as a consequence of either the UK or the EU adopting higher standards. The joint committee called for the withdrawal agreement to provide for continuing north-south equivalence of rights post Brexit, as established under the 1998 Good Friday agreement.
Furthermore, the joint committee is concerned that the failure to retain the European Charter of Fundamental Rights and EU equality legislation within the United Kingdom will result in a diminution of rights in Northern Ireland and potentially cause a divergence of rights on a north-south basis. The joint committee—it is worth restating this—calls for,
“the text of the Withdrawal Agreement to commit the UK to retaining in UK law the Charter of Fundamental Rights of the EU and to enable the UK to keep pace with its evolving protections over time”.
For that reason and for so many more, I support the amendment and the other amendments in the group.
I support Amendment 261 in the name of the noble Lord, Lord Patten. I regret that I was unable to take part in the Second Reading debate, because I was with your Lordships’ EU Committee in Dublin, Belfast and Londonderry and on the border between Northern Ireland and Ireland. Just a little while ago, I was standing on a bridge across the border with traffic thundering past in both directions—EU lorries, Irish lorries and British lorries. It seemed to me inconceivable then and it seems to me inconceivable now that any kind of barriers could be put in the way of traffic moving freely across that lengthy and complicated border. It is extremely hard to see how we can avoid such controls if we are outside the customs union; that seems an extraordinarily powerful and logical reason why the right course for us to take is to stay within the customs union. It is equally clear that the continuing process of peace in Ireland—north and south—depends on the Good Friday/Belfast agreement, and that the strength of that agreement will be greater if it is included in the Bill. For that reason, I support the amendment proposed by the noble Lord, Lord Patten.
My Lords, the temperature of our debate this afternoon reflects again the emotions expressed so recently in this House by those of us who live, work and have our being in Northern Ireland. We are sensitive as a people to the fact that your Lordships’ House is hearing on repeated occasions references to “our” problems and “our” difficulties. But this is taking on a different dimension, because what was traditionally our problem is becoming a problem on a much wider scale, for it is becoming the crux of the debate on the withdrawal of the United Kingdom as a nation from the EU.
The problems to which the Good Friday/Belfast agreement has done so much to provide an ongoing solution are so often taken to be not just a matter for the people of Northern Ireland but now central to what people are considering. The difficulty of the border, community relations, human rights—all that long list of human problems was once contained within the borders of Northern Ireland but, as the noble Lord, Lord Patten, so rightly reminded us a few minutes ago, it is becoming crucial to the debate on the future of our withdrawal. None of us wants to apologise to this House for the fact that our local problems now take on international significance. When we listen once more to the experience of former Secretaries of State for Northern Ireland, we are reminded that the problems to which I have referred have taken on a dimension that we never envisaged, even at the height of the Troubles.
For that reason, when I read Amendment 261 in the name of the noble Lord, Lord Patten, I began to wonder whether we were stating the obvious yet again. Are we stating the fact that the importance of the Belfast agreement is such that it is welcome to see it suggested as a part of the Bill? I began to wonder whether other issues deteriorate the importance of reference to the Belfast principles, et cetera. Then I listened a few minutes ago to a debate on another amendment, when we concentrated on giving what someone said were excessive powers to Ministers to look at secondary legislation and have wide-ranging powers to alter the details of policy without addressing the power and supremacy of Parliament. I began to wonder: whether it is possible to visualise the situation in years to come when something as sensitive as the Belfast agreement—something as sensitive as all that the agreement has achieved—could possibly be affected by what we listened to in that previous discussion.
At the back of all the detail we are looking at are the fundamental questions of what a devolved Administration is and what should be the relationship between the mother of Parliaments and the devolved Administrations. For that reason, I found I had sympathy for the wording of this amendment, for it is a safeguard to the sensitivities mentioned by the noble Lords, Lord Patten and Lord Murphy, which are very close to my heart having been through the whole process of the peace movement in Northern Ireland.
The noble Lord, Lord Patten, attributed me as an “emeritus” this morning—a new description. Many things have been said about me in the past, but I thank him for this new honour. Emeritus I may be, but I am also speaking from my heart and from my experience of a lifetime working, I hope, in the building of bridges in Northern Ireland. For that reason, I find myself supporting the thrust of what this amendment seeks to do. I urge sensitive expression and appreciation of the amendment by your Lordships’ House.
My Lords, I am delighted, and privileged, to be able to follow the noble and right reverend Lord, Lord Eames. I had the great good fortune of chairing the Northern Ireland Affairs Committee in another place between 2005 and 2010, working very closely with the noble Lord, Lord Hain, when he was Secretary of State, and with his successor. I saw at first hand the invaluable work that the noble and right reverend Lord, Lord Eames, did, particularly on the commission which he jointly chaired with Mr Denis Bradley.
An enormous amount of work was put into making the Belfast agreement work. It is one of the significant achievements of post-war British politics, as my noble friend Lord Patten said in his magnificent speech. I will always remember private meetings that I had with the late Lord Bannside—better known as Ian Paisley—who, together with Martin McGuinness, breathed new life into the agreement. It would be a tragedy—I use the word deliberately—if we put the agreement at risk, because it would also have the effect of shattering the integrity of the United Kingdom itself.
The noble Lord, Lord Murphy, for whom I have great respect, talked about the co-operation between the two police forces. One saw that at first hand with my committee, travelling throughout Northern Ireland and in the Republic. Many things have been said recently about the fact that the border issue can be easily solved. However, talking as I did last night with a group of colleagues and with two Norwegians, one realises that it is not as simple as that. A proclamation that it is simple never makes anything simple. We really must be extremely cautious about dismissing on the basis of a slogan the one thing that can guarantee the continuance of the Belfast agreement and the integrity of the United Kingdom. That is some sort of customs union, be it the present one or another, because that alone can preserve a border that is soft and the opportunity for people to travel from one part of the island of Ireland to the other without impediment.
My noble friend Lord Patten did a great service to the Committee and to your Lordships’ House, not only in tabling his amendment but by what he said in moving it. I believe that nothing is at risk if we in effect, as he has suggested, write the principles of the Belfast agreement into the Bill. My noble friend the Minister will of course proclaim his firm allegiance to the Belfast agreement, and we will all be delighted when he does so because we know that, as he did last week, he will do that with total commitment and integrity. We know also that he will say he speaks for Her Majesty’s Government. So if that is the position of Her Majesty’s Government—and we all believe that it is—and there is no difference in this House between any party on this issue, why cannot it be put on the face of the Bill, as my noble friend Lord Patten so powerfully and movingly argued?
The noble and right reverend Lord, Lord Eames—who is definitely emeritus—said that this was the crux of the problem that we face; I fear that he is right. It is therefore crucial that there is flexibility in government to allow an arrangement that preserves the agreement by ensuring that the border remains as it is. In my view, that can only be in a guaranteeable form if we have a customs arrangement. I hope that when my noble friend Lord Duncan comes to reply, he will accept the logic of that argument and once again proclaim the Government’s commitment to the Belfast agreement. I hope he will also agree to commend to his colleagues, since we cannot expect him to do it on the Floor of the House this morning, that the Patten formula—there have been good Patten formulas in the past—that the agreement should be in the Bill is adopted by government.
I agree with everything the noble Lord, Lord Cormack, has said, particularly about the customs union. However, would he reflect on the fact that the customs union deals with the visible border but the invisible border of services can only really be dealt with by a common single-market arrangement? That is of course the majority of both economies on the island of Ireland. If we are genuinely to have an open border, visible and invisible, to put it in that language, then the single market has to apply across that border as well.
Tempted as I am by the noble Lord’s seductive words, we must realise what is achievable and what is not achievable. With both major political parties proclaiming that the single market cannot remain, we have to concentrate on what can remain or can be replaced by something essentially similar—a customs union. As I said, I am tempted. I am not unsympathetic, but we have to be realistic.
My Lords, who wills the ends wills the means. The Government committed themselves to an open border, to my knowledge, some 20 months ago. I was very happy to hear a previous Secretary of State make that commitment quite explicit in a public space. I then asked: how? We are still waiting for any answers as to how, and cynicism is growing. It does not seem that the Government are thinking about the answer to that question.
It is, of course, a number of questions. Borders do different things for the movement of goods, the movement of people, the movement of animals and many other things. But I point to three things that are important. First, on goods, the Government have suggested that there may be a technological solution by which tariffs do not require a hard border—meaning installations at the particular line of demarcation—but are dealt with, quite handily, by electronic means and previous preparation of detailed dossiers on the content of each, in this case, lorry rather than container. It is a seductive view, but it is radically incomplete.
The Government have also on occasion suggested that they would be happy to see small traders, as it were, fall below the radar for enforcement. In the island of Ireland we are quite good at subcontracting the movement of things to small traders if that is advantageous. It has been done for various commodities. One need only think of diesel for a good example. It has also been done to my knowledge for various other things such as getting double subsidies on animals—I will come back to animals in a moment—by having the headage payment both north and south of the border. We have to expect that, as we get divergence of legislation and regulation north and south of the border, the incentives for what I believe are these days called “imaginative arrangements” will grow and will be a matter of subcontracting to the small traders. I do not believe that the electronic fantasy is more than part of the solution to the movement of goods, which speaks directly to whether we expect a customs union or the customs union to continue or whether it does not. I suppose these small traders might be looking forward to the latter solution, but I do not think they really are.
The movement of peoples seems very important. We have entirely free movement of peoples on the island of Ireland. That has not always been so, but we have it again. It is fundamental to life. But if people enter from the European Union into the Republic of Ireland, where they will have freedom of movement, they can then go to the north—to the UK—and come over here without passports. I find that quite a lot of my noble friends are not really aware of that, probably because, when they go to Ireland, they go by air and have to show a passport. It is not necessary, however, to show a passport when crossing the Irish Sea. That is one of the meanings of the phrase “common travel area” and has been with us since the 1920s. It is, incidentally, much stronger than the Schengen arrangements because, in the common travel area, when we move across from one jurisdiction, the UK, to another, the Republic of Ireland, we can vote and we can serve in the armed services. These are real differences. This is a deep and long-standing arrangement. However, it means that people will have to identify themselves—for example, when taking a job or when going to a National Health Service hospital for an operation—to be sure that they are entitled. That is what that one word, “passport”, meant.
Passports are quite expensive, but we have to accept that these days they will have to be biometrically enabled. I think, however, of all the families who live in cities on either side of the Irish Sea and who travel to and fro, often with quite a large number of children. It is a non-negligible matter to think about the movement of people. There is another factor here. It is not only people who live in the north and in the Republic who will have to have passports or ID; it is all our fellow citizens on this island, because you cannot enforce entitlements unless the good guys as well as the bad guys are checked. That means passports for everyone. That means ID cards.
I am not against ID cards, and I think I even have a suggestion about how it might be done, taking a leaf out of the arrangements in a number of states in the United States, where they have invented a delicious document called the non-driving driving licence. The non-driving driving licence enables people who are non-drivers in, say, the state of Connecticut to get an equivalent licence in another state, which does not entitle them to drive but enables them to have a drink—so it is really important. One of our better bureaucracies is the DVLA, and it might perhaps be able to think out how a system of non-driving driving licences could be a model for the driving licence that has served as an ID card over here.
One obstacle to this is that many, but not all, on the Conservative Benches have a thing about ID cards. But one has to get real and get up to date. Many of my friends on the Conservative Benches carry smartphones, which give away far more details about what they are up to at any given moment than any driving licence, passport or ID document does. We need to start talking about these things and not just making gestures towards passports or electronic tariffs.
Finally, I want to talk about the movement of beasts. When I speak on this topic, I always come back to beasts because they are notably mobile. Much more importantly, plant health does not recognise borders. We must have arrangements for plant and animal health that will not depend on the enforcement of a border. I hear no discussion of this. For example, have the Government considered delegating what Brussels likes to call phytosecurity, and we prefer to call biosecurity, to Stormont—let us hope it is up and running—with the proviso that it may not go below EU or UK standards? That would put, as it were, a double lock on animal and plant safety and standards in Northern Ireland, which would not be the worst of worlds.
These are the sort of problems that need addressing soon and urgently if people are to have confidence in the Government’s commitment to the Belfast agreement and the principles that underpin it. I do not wish to be alarmist, but I do not think we should take for granted anything that might happen if we do not address these questions. Recently, I have been reading about events just before and during the First World War, when we saw the Home Rule debacle, the Easter Rising, the Irish war of independence and the Irish civil war—possibly the most terrible of them all. We are playing with fire. I hope the Government are listening and I hope they will take the principles of the Good Friday agreement as setting a demand for action and not just for rhetoric.
My Lords, I am very privileged to have had the insights of those who really are part of the Irish community and to hear how they see things. That is invaluable. It has also been powerful to hear the words of the noble Lord, Lord Patten, with all his experience and integrity.
I emphasise one point: those of us associated with the amendment brought forward by my noble friend Lady Lister of Burtersett are very struck by how deeply perturbed those who are standing for, working in and developing the concept of human rights in Northern Ireland are about the absence of equivalence in the legislation, as things stand. The people of the Republic will have the reassurance of the charter. We are told that the charter is impossible in our future. What will be the equivalence of protection for the people in Northern Ireland—those who belong to the minority and are currently confident, having the concept of the charter behind them? We really must have an answer to this question. My noble friend has pursued it on at least three occasions in Committee without getting any convincing response whatsoever.
I do not mind saying that I was very moved by the words today of the noble and right reverend Lord, Lord Eames. I will never forget him standing at the Cross Benches last Wednesday, when he implored all of us involved in legislation, and the Government, to remember that we were dealing with the most sensitive issues—ones that went right to the hearts of ordinary people as they went about their lives. It is not just a fix—a management arrangement—that we are about, it is about being able to relate to people, their fears and anxieties, their hopes and aspirations.
In that context—I do not want to overplay it, but it is true—since Wednesday last week I have been thinking of the two words that the noble and right reverend Lord emphasised in his peroration. He spoke of the indispensability of consent and trust. We cannot build a future worth having in Northern Ireland—and in the Irish Republic—if something has been foisted on the people as part of a solution to a very complex political issue. It has to give them the feeling that they can develop their lives together in confidence. It has been very exciting for those of us outside Ireland to witness the amount of good work between the different communities in the context of the Good Friday agreement. I ask the Government to take these points seriously and I hope we will get an answer to my noble friend’s question.
My Lords, I am very grateful to the noble Lord, Lord Patten of Barnes, not only for the passionate and articulate way in which he introduced the debate on this group of amendments—particularly Amendment 261—but also for the lifetime of commitment that he has given to the issues of Northern Ireland. That length of commitment speaks a great deal to me, as someone from that part of the United Kingdom.
As the fourth musketeer, as it were, I want to say something slightly different about why I think this amendment is not just important but critical. On 6 December last year, on the fifth day in Committee, Lady Hermon, the honourable Member for North Down, spoke about the key principles of the Belfast agreement in an amendment almost identical to this one. When the Parliamentary Under-Secretary of State for Exiting the EU, Mr Robin Walker, responded, he kept talking about the agreement, the commitment to the agreement, and the way the agreement was backed up. Lady Hermon came back to him saying that the issue was not the agreement but the principles, and he really did not seem to get it, because he kept coming back to saying that they were committed to the agreement and would ensure that the agreement was there.
I want to say why I would go even further than the noble Lord, Lord Patten of Barnes, in saying that it is not just a question of whether this would be a problem or harmful but why this is absolutely essential not that the precise wording of all the amendment is included, but that the principles of the Belfast agreement are included. I shall explain why.
We have had many decades of trying to get agreements in Northern Ireland. We have had them before, and they did not work as a peace process because they did not address the key disturbed historic relationships in these islands. In many ways, this was the understanding that the European project stepped out with, with Monnet, Schuman, Adenauer and so on. They understood that it was the relationships between the different countries and communities that were essential—and, as we know, the whole complicated edifice was created in which there could be co-operation.
One frustration for me is that colleagues who, like myself, are committed to remain, have failed to address the question of why, after 40 years, one of the parties is seeking divorce and many others are very uncertain about whether they want to stick with it. My own view is that, as time went on and we moved from the first generation of those who were committed to those who were there later, we moved from the things that were put in place as the instruments to ensure the fundamental purpose of the project, which was to stop war and build relationships. The instruments were things such as the market, the common currency, and the opportunity for European political leaders to be at the top table of global affairs. Those instruments became the purpose of the exercise for many of those who were involved. When in any set of relationships the instruments of the relationship become a substitute for the purpose of the relationship, the relationship is already beginning to fail.
My concern is about the commitment to the Belfast agreement, a legislative agreement with a commitment to certain kinds of constitutional and institutional matters and a commitment, as the noble Lord, Lord Patten, knows well, to changes in the administration of justice and changing policing—all the important things, including the things that are mentioned in the other amendment about human rights. Those things will not keep the relationships alive if we forget that the relationships are the key issue. That is why I want to see the principles written into the Bill.
When I was involved in the process, we came to a point of understanding this in a very long and painful way. Most of those with whom I was involved are no longer involved politically, or even around at all. As I look around, I see those political leaders who represent the three key relationships not understanding what it was about—the relationship between political leaders in Northern Ireland. We are a long way from the relationships between David Trimble and Seamus Mallon, never mind those between Ian Paisley and Martin McGuinness. Let us not forget that Dr Paisley was not too keen about the Belfast agreement when it came out in the first instance. But the relationship between the political leaders in Northern Ireland does not have the same constructive engagement now. In the relationship between north and south, we are being pulled apart—sometimes by those who say that they want to unite the island. What about the relationship between London and Dublin, between the British and Irish Prime Ministers? Think back to the kind of relationship there was between John Major and Albert Reynolds, or between Tony Blair and Bertie Ahern. We do not have that kind of relationship in either direction.
The European Union itself was the model and the inspiration; it was the container for the relationships that kept the British and Irish Governments together and working, so that when John Major and Albert Reynolds became Prime Ministers, they had already been Finance Ministers and worked together, and they said, “We know it’s impossible but we’re going to have a go”.
Another thing is that, if many of those in Brussels, and indeed in London and Dublin, who are saying that this and that is impossible had been around in Belfast 20 years ago, there would have been no Good Friday agreement, because they would have said, “It doesn’t fit in with our understandings of sovereignty”. Even on the rule of law, think of the people who would never have been let out of prison if others had simply stuck with the understanding of the rule of law as it was then. We had to be more adventurous and creative, just like you have to be in any relationship if it is to evolve, change, develop and, frankly, survive. When a Minister says, “But we are committed to the Belfast agreement”, I do not doubt that. Even when he or she says, “It’s implied in the legislation”, I do not disagree with that. But I do disagree with the idea that we do not have to put it in black and white, firmly and clearly, that the principles of the Belfast agreement and the relationship approach are critical and they need to be in the Bill.
I have spent a lot of my life going to other parts of the world. I am not long back from Colombia, where they have a peace process; just before that I was in India, and in a week or so’s time I will be out in Peru. In all those places, they are not looking to the Northern Ireland arrangements and the Irish peace process because they want our particular constitution or institutions, or our way of dealing with policing and the administration of justice. They are looking at the underlying fundamental principle, which was our discovery that these problems were ones of relationships—historic, disturbed relationships between communities of people—and that we had to find ways of addressing that creatively. Whatever kind of mechanisms we used, that was what it was about.
As I look around at home, coming up to the 20th anniversary, I see a whole generation of young political leaders who do not get that. They think it is all just about doing politics, like people do everywhere, and it is not. We need to put this into the Bill to make it absolutely clear to anyone who comes back to the question that, in the absence of that containing environment of the EU, which made it possible for us—I say that because it is very doubtful that we would have got the Belfast agreement without the context of the EU—we have to emphasise with even greater clarity than before the fundamental basis on which that agreement was reached. We have to hope and pray that we can work to find a way of maintaining those relationships and developing them through the stormy waters which undoubtedly lie ahead.
My Lords, I had not intended to intervene in this debate, partly because I was not present at Second Reading. I apologise to your Lordships for that but there were certain problems that I had at home. But I am impelled to do so by what has been said so very eloquently by many of your Lordships today.
I have lived the whole of my life in Belfast and been through a considerable amount in that time. I have lived there even longer than my noble and right reverend friend Lord Eames, whom I have known, liked, respected and admired—no less so today—for many years of that time. I have known the noble Lord, Lord Alderdice, and I like and respect what he has had to say. I am very happy to support the principles of what they have both said. I will come back to what I mean by “the principles” in a moment.
I was very close, personally and professionally, to what we have referred to by the usual euphemism of the Troubles. It was a dreadful time and I would hate with every fibre of my being to think that we might go back to that. The fact that we have had peace—maybe not perfect, but a great deal better than what we had before—for 20 years now has been of great importance in the life of the Province. That it should continue is also of great importance, not merely because it gives a better approach to normal life in the Province but because it conditions people to feel that that is the proper way to conduct their lives, which of course it is. If the continuance of the Belfast agreement helps in that, then I am emphatically on the side of those who say that it should be taken account of.
The only caveat I have is on the wording. The Belfast principles include certain things, uncontestably, but what else? A great deal of my professional life, both at the Bar and on the Bench, was spent in interpreting statutory wording and attempting to find its proper and expressed meaning—the way in which statutes should be approached—while trying to see either loopholes or where other people would look for loopholes. That is the great problem in drafting anything, particularly something as important as this. Therefore, that is the only reason I issue a note of warning. I would be perfectly happy to see a clause of the nature proposed on the statute book. But if it is to be done, I simply warn that defining the Belfast principles, or leaving them undefined, could allow the wording to be put to purposes which we might not think of today but which some other people will think of at some time. I leave this thought with the Minister who is replying and with your Lordships.
My Lords, I have not spoken on this subject but today I am moved to do so: first, because I had the honour of serving in government with my noble friend Lord Patten of Barnes before he was a Member of this House; and, secondly, because I held the responsibility for most of the justice arrangements in Northern Ireland for about 10 years in the middle of the Troubles. Therefore, I am extremely conscious of the difficulties of Northern Ireland and of the immense privilege of it having had a great degree of peace since the Belfast agreement and since John Major initiated the first talks, which was quite difficult to do, during my term of office.
I am convinced that the only real solution for the Northern Irish and Irish border is in some form of treaty to deal with customs matters and with trade. At the moment, we have a law under the jurisdiction of the European Union for these two matters. The Government have said, and I understand this, that we are leaving both arrangements. But it is possible to make similar arrangements under a treaty: we would not be part of the EU but part of a treaty arrangement with the EU, which would reflect that. I believe something of that kind is absolutely essential. The Belfast agreement did a terrific amount for the peace of Northern Ireland and long may it continue.
My Lords, I have a few words to add to what has been a hugely interesting and entertaining debate, led off by the eloquent and entertaining noble Lord, Lord Patten of Barnes, who speaks with great knowledge and experience on this, as do many others. My amendment was stimulated by anger at those former Ministers who decided that it was worth the price of Brexit to suggest that we should rethink the Belfast agreement, which has brought so much peace, tranquillity and good order to governance in Ireland, and the north of Ireland in particular.
Amendment 316 seeks simply to ensure that, when this Bill passes, there should be some further thought because I do not think that much thought has yet been given. This is one of those debates that happen simply because of the unintended consequences of Brexit, and not enough was thought of by the Brexiteers in the run-up to the leave vote on 23 June 2016. That is why that amendment is there, although the one proposed by the noble Lord, Lord Patten, is far superior, because it takes us to the principles that are fundamental and lie behind it.
I can see that both Front Benches want to get on, so I shall speak only briefly to my amendment, but it is right that we have these things at the forefront of our minds. Perhaps when we come back at Report, we will have something there enabling us to focus on this and give it further thought, as well as enabling the Minister to say something better than what has been said before—that instead of the Bill being merely about transposing one set of legislative rules into a new set, we recognise what has happened before and the impact of the Belfast agreement on the future governance of our country post-Brexit.
My Lords, as my noble friend Lord Bassam said, this has been an immensely interesting debate. I know that other noble Lords have referred to this as the second debate that we have had on Northern Ireland, but all the amendments in this group reflect the concerns that we have had, the degree of concern around the issue and the fact that we have not really had the answers to satisfy those concerns yet. The impact of Brexit on the Good Friday or Belfast agreement is profound. I understand that the Minister has a weariness about saying the same things as last time, but I hope that he will understand, from comments that I shall make now and that other noble Lords have made, why there is a need to return to these issues.
My noble friend Lord Bassam sums up in his amendment—which is entirely reasonable, and I hope that the Minister can accept it—that this is about the Government assessing the impact and publishing that. I go back to the speech made by the noble Lord, Lord Patten of Barnes, and his amendment, to which I have added my name. He referred to the radio programme “Just a Minute”, and I think that that is quite apt: this issue deserves “repetition”, and the Government should show “hesitation” and reflect, and perhaps come back with some “deviation”, moving from their current position and giving us some answers as to how the issue can be addressed.
There has been some journey from the Government to clarify the status of the December joint report on the progress of phase 1. Where the Government stand on regulatory alignment has been almost like a political hokey-cokey, and the current position, which is a backstop for what could happen, is probably fair. But the impact of a hard border in Northern Ireland would be profound and deep and have implications for the peace process. It is not just about the physical border—it is also about the psychological impact that it would have, and I think all noble Lords who have spoken today have understood that. The noble Lord, Lord Patten, referred to the security implications, as I did last week, of what would physically happen if there were a hard border and how those border points would be guarded.
Look at the logic of the issue of trade and the hard border. The Government accept that there should be regulatory alignment between the Republic of Ireland and Northern Ireland. However, if you move on from that, the Republic of Ireland obviously has regulatory alignment with the EU, and Northern Ireland has regulatory alignment with the rest of Great Britain, so, surely, that means that there has to be regulatory alignment throughout the whole of that area, which to my mind sounds something like a customs union. I really do not understand why the Government have set their face against this and made it one of their red lines.
I discussed this with a senior government Minister recently and said that the lack of detail on this issue to your Lordship’s House and generally is why it has become such an issue. His view was that the statements made by the Minister and the Prime Minister about the need for a soft border, the absolute commitment from the Government to the Good Friday agreement, and the total rejection of a hard border are clear. I agree, but the noble Baroness, Lady O’Neill, hit the nail on the head with exactly the point that I made to that Minister at the time—how will it be done? Until the Government can say how, we remain in a sort of no-man’s land or Alice in Wonderland situation as to how it will happen. I was told that the Government could not say how they would do it until negotiations take place. But if it is a matter for negotiation, how are the Government able to make that commitment? I must say to the Minister that it is an unacceptable position to be in.
This may not satisfy all noble Lords, but to remain in a customs union would be part of the solution to this. The Government reject that and say that it is a red line that they cannot go beyond, but if they maintain that red line, I still cannot understand—trust me, I have tried really hard to—how the Government can achieve their objectives alongside it. We heard suggestions in the debates last week and from other noble Lords this morning about how that can be done, but I say to the Minister that it is the Government’s responsibility to tell us how it can be achieved. We need clarity and detail and to move beyond the warm words. We want something to happen and we have to make it happen.
The Minister and the Prime Minister have been clear and I do not doubt their sincerity in the statements they have made, but why are we having this debate? It is because saying something does not make it true or make it happen. There has to be legislative certainty around this issue. It is that legislative certainty that we are still waiting for and need to see. The amendment in the name of the noble Lord, Lord Patten of Barnes, is one way forward. If the Minister has a better suggestion and wants to bring forward a government amendment to address the issue, I shall be very happy to see it. But in the absence of that, we will have to press this through our own amendment.
My noble friends Lady Lister, Lord Judd and Lord Cashman raise in their Amendment 308ZA the issue of the equivalence of rights on a north-south basis as being a defining feature of this agreement, and they referred to the essential nature of the Charter of Fundamental Rights. Again, we have a government red line about that charter. I fail to understand that. Some red lines, such as the one about the agencies and the involvement of the ECJ, have been smudged a little pink now. Is this another red line that needs to be smudged pink? The Charter of Fundamental Rights is, bizarrely, the only specific exclusion in terms of the existing rights of citizens. That has a huge impact on those in Northern Ireland. My noble friend Lady Lister has raised this question before, but how can the Government ensure equivalence of rights without that charter? She gave examples of real people, problems and issues. Unless we can give real answers to those people, we will find ourselves again in a vacuum of being able to give assurances.
My noble friend Lord Murphy of Torfaen brought to his comments not only his knowledge and experience but the great affinity he has with Northern Ireland through his service, both as Minister of State and—I would say this as one of his junior Ministers—a first-rate Secretary of State. He focused on the equality and human rights issues and backed up entirely what my noble friend Lady Lister was saying. These are central to the integrity of the agreement. We cannot fudge that or move away from it. We have to respect that integrity. The agreement was hard-fought, as those who were there at the time and involved would say. The Government have to respond to the details that he provided and the specific points around the fundamental principles. If the Minister cannot respond, there has to be discussion so that we get to a point that is in the right place.
I finish on the comments of the noble and right reverend Lord, Lord Eames, on Amendment 261. As always, he brings to these debates both his life experience and a passionate commitment. I recall—as did the noble Lord, Lord Cormack—the Eames-Bradley report, by the noble and right reverend Lord, Lord Eames, and the great Dennis Bradley. Both of them, in taking it through, were prepared to think the unthinkable, to do the right thing and to take on those challenging and difficult issues for the greater good. At times that was uncomfortable and not easy, but he did it. He is due the respect of this House: it should heed his words on these issues today.
The Minister has been clear on his commitment—which I do not doubt—to the Good Friday agreement, but I doubt that we have what the House and the legislation needs: the legislative certainty on the issue that gives us the confidence that the commitment will be not just in words but in deeds and legislation.
My Lords, this has been a wide-ranging debate and I begin by thanking the noble Lord, Lord Patten of Barnes, for facilitating it. It will be almost impossible for me to respond without some form of repetition, I am afraid, and I am nearly certain that I cannot do it within one minute—I am very aware of that. Last week, too, we had a wide-ranging debate that touched on a number of issues and I hope that noble Lords will have an opportunity to examine some of the answers and discussions. I will try to be as focused as I can in the time available.
One of my first repetitions—one that I cannot make often enough—is that the Belfast agreement is the cornerstone of the UK Government’s policy and so it will remain. It is important to stress that the United Kingdom Government and the Ministers in the devolved Administration are already bound in statute and treaty under international law as an obligation of that Belfast agreement. That binds not just the United Kingdom Government but also the Irish Government, so this matter rests comfortably in that space.
Amendment 261, in the name of the noble Lord, Lord Patten of Barnes, would require both Ministers and Northern Ireland departments to have regard to the Belfast agreement and the wider principles when making any provision under this Bill that affects Northern Ireland. Those wider principles have been mentioned a number of times, not least by the noble Lord, Lord Alderdice.
Subsection (3) would require the Secretary of State to refuse consent to reserved provisions under devolved legislations unless the provision was necessary only as a direct consequence of the UK’s exit from the EU. This would place a much greater constraint on a provision that could be made for Northern Ireland compared to the rest of the UK, even in circumstances where there was no impact whatever on the Belfast agreement. In the same vein, the Secretary of State would be prevented from making any consequential provision affecting Northern Ireland beyond the minimum strictly required only as a direct consequence of exit. That would substantially constrain what could be done to update the statute book in Northern Ireland, putting the jurisdiction at a disadvantage compared to the rest of the UK. That is why we would not be able to move forward on the amendment as it has been tabled.
I am conscious as we approach the 20th anniversary—the noble Lord, Lord Murphy, stressed this—that we wish to see major progress, not least in the formation of an Executive. However, the noble Lord and other noble Lords raised wider issues, not least criminal proceedings and the European arrest warrant. In this context, I am conscious of the “beasts” of the noble Baroness, Lady O’Neill. Each of these elements will form part of the ongoing sector-specific elements which we will be discussing and which will come before your Lordships’ House for that thorough examination.
Amendment 316, tabled by the noble Lord, Lord Bassam, relates to an issue that has also been raised by your Lordships’ Constitution Committee. I say to the noble Lord that we will take on board his thoughts and give due consideration both to the committee’s report and to the issues that he has raised. We are conscious of that as a factor.
As to the Charter of Fundamental Rights, the noble Baroness, Lady Lister, has raised this wider issue on a number of occasions, as she reminded us, and I feel ill-equipped compared to those who responded to the point in the past. I will make two statements in direct response. The noble Baroness mentioned that next week there will be a delegation from Northern Ireland. I will be very happy to meet them, if that can be facilitated. I also give a commitment that I will take away her remarks from today and give them due consideration.
I could be repetitious at this point and say the lines that noble Lords have previously been given in response. I can give them again, but I think that noble Lords will appreciate that they will broadly stand where they did in the past. However, I am happy to engage directly with the noble Baroness and the noble Lord, Lord Cashman, on these matters going forward. I hope that that will give some comfort, if not contentment, on this matter.
I am always aware of what the noble and right reverend Lord, Lord Eames, brings to the debate. I think that he has captured the mood of the Committee as I do not doubt he has captured the mood of the entire island of Ireland in the past. His points are none the less correct. There is no doubt that the issues that we are facing now on Ireland will be the crux of the ongoing discussion. It is right that the noble Baroness, Lady Smith, should have raised these points again in her remarks. She is absolutely correct when she says that we have a responsibility to tell this House what we will be moving forward. We will fulfil that responsibility. It will not be in the withdrawal Bill per se. The purpose of the withdrawal Bill is to create a functional statute book for day one after Brexit. However, for each of the elements that has been raised, not least those that are sector-specific, we will come back to the House with clear statements, which all noble Lords will have the opportunity to address. I hope that we can make that point going forward as best we can.
I am aware that a number of other noble Lords have raised important issues, not least my noble friend Lord Cormack, the noble Lord, Lord Jay of Ewelme, and the noble Baroness, Lady O’Neill of Bengarve. This has been a wide-ranging debate. I hope that there will be some comfort in my words, but I appreciate that they may not be as comfortable as the Committee would like them to be. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
The Minister began his remarks last time by speaking from the heart. He spoke on that occasion without doing what I fear he did on this occasion, which was to deal as rapidly as possible with the “it says here” part of his brief. I commend the Brexit department for producing it, although I did not agree with the argument, which seemed to be more or less that if we accepted the amendment we would be treating Northern Ireland differently from the rest of the country. What does he think the Good Friday agreement is? The Good Friday agreement is about the fact that Northern Ireland unfortunately has been a casualty and a victim of our inability to share these islands peacefully together for centuries. I assure the Minister, whom I much admire, having seen him at the Dispatch Box being charming and on the last occasion reasonably convincing, though I think not on this occasion, that when we get to Report, Deo volente, if we are here, many of us will want to come back to this subject and, I hope, take it as far as a vote. I beg leave to withdraw the amendment.
Amendment 261 withdrawn.
Amendment 262 not moved.
Clause 10 agreed.
Amendment 263 not moved.
Schedule 2: Corresponding powers involving devolved authorities
Amendments 264 and 265 not moved.
Police: Undercover Officers
My Lords, as part of its terms of reference the undercover policing inquiry is investigating the state of awareness of undercover police operations of Her Majesty’s Government since 1968. The Home Office is a core participant in that inquiry and is in the process of making disclosure to the inquiry of material relevant to the terms of reference. The inquiry will report its findings once all the evidence has been reviewed.
I thank the noble Baroness for her response, which of course was not an answer to my Question. Is she aware that, over a period of 24 years from 1985 to 2009, almost every single year there was a state-sponsored sexual relationship between a police officer and a woman who at no point was accused of doing anything illegal—not arrested, not accused? I just do not understand how the Minister can think that this is all right. This strikes at the heart of the ethics and integrity of our police forces and our security services. I stress that the cases we know about are only the ones we have heard about: those are the only police names in the public realm. Until we know all the names of the undercover police we will not know how many victims there were. I am also concerned about the inquiry. The Minister may know that there was a walkout today by the whole legal team of the women involved and the women themselves. How will the Government restore the credibility of that inquiry?
The noble Baroness says “state-sponsored”. I refer her to the terms of reference of the inquiry, which state that it will,
“ascertain the state of awareness of undercover police operations in Her Majesty’s Government”.
That is precisely what the inquiry was set up to do. As for the walkout today, I have been made aware of that and I am aware that the hearings are still ongoing. I encourage all core participants—indeed, anyone impacted by undercover policing—to participate fully in the inquiry so that we can learn the lessons and get to the truth.
My Lords, will the Minister confirm that this is a very serious matter? Notwithstanding anything that comes out of the inquiry and the recommendations that follow, can she confirm that she is absolutely confident that robust procedures are now in place and that it can never happen again?
My Lords, I would love to stand at the Dispatch Box and say that certain things could never happen again, but nobody can legislate for the odd rogue undertaking or the malicious intent of people. Therefore, one cannot be absolutely certain that it could never happen again. What one can do is put measures in place to ensure, as far as possible, that it never happens again.
My Lords, does the Minister agree that undercover policing is an essential tool in the fight against terrorism and crime and that, provided it is properly regulated and standards are adhered to, we should not judge the majority of very brave police officers who go undercover by the misdeeds of a few?
I completely concur with the noble Lord. He is absolutely right; much crime has been unearthed by the use of undercover policing. As I say, there are now strict rules in place to prevent unacceptable behaviour going on and I could not agree more with him.
My Lords, we know that this inquiry has already taken three years, and it is expected that it will take another year before the victims get answers—campaigners walking out in protest today notwithstanding. We also know that the Special Demonstration Squad has been disbanded. But it would be naive to think that all embedded undercover work has ceased. What assurances can the Minister give that the culture, practice, instructions to and supervision of undercover officers have already changed to ensure that, as far as is humanly possible, no man or woman will ever be subjected to these practices again?
The noble Baroness makes a very helpful point, because the policing Code of Ethics makes it clear that police officers should not use their professional position to,
“establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work”.
The Regulation of Investigatory Powers Act 2000 provides the legal framework for the lawful deployment of undercover officers as covert human intelligence sources. We also have the 2014 CHIS codes of practice.
In relation to the length of time that the inquiry has taken, the slight extension to that is purely due to the sheer number of pieces of information it has to look at.
My Lords, I understand that the walkout from the inquiry was because of a sense that it was important that the individual police officers were identified by name. Will the Minister confirm that, by definition, undercover police officers have a cover name, and that, whatever the importance of getting to the bottom of what went on in this inquiry, it is important that they retain anonymity, because that is a pre-eminent part of what they do?
Will the Minister also confirm that this is not just a matter of rules and regulations? If it went on for so long, there must have been a serious management failure, because the relationship between a senior officer and the person doing the job is crucial in terms of keeping a check on their behaviour. That seems to me—as an outsider—not to have happened, and it is what we ought to focus on.
My Lords, in the walkout today, the leading QC representing the victims said that it was due to the legal teams not being able to participate in a meaningful way. How have we got to a position where this has been going on for three years and cost £9 million but senior QCs feel they cannot participate in a meaningful way?
Commonwealth Summit: Human Rights
My Lords, Commonwealth member states are meeting, as I speak, in London to negotiate the communiqué. While it would be inappropriate to comment on those negotiations or speculate on specific outcomes, the UK believes that the promotion and protection of human rights should be of central importance. Encouraging member states to uphold the values enshrined in the Commonwealth charter, which include democracy, freedom of expression, the rule of law, and opposition to all forms of discrimination, will be an important part of April’s summit.
My Lords, on 28 February of last year the Prime Minister stated:
“We must reaffirm our determination to stand up for the freedom of people of all religions to practice their beliefs in peace and safety. And I hope to take further measures as a government to support this”.
That commitment, of course, is also outlined in the Commonwealth charter. While I am grateful for the Minister’s Answer, could he please provide details on how the Prime Minister’s commitment will be manifested in practical terms during the UK’s period of chair-in-office of the Commonwealth?
First, I acknowledge the formidable work my noble friend does, along with other noble Lords across this House, in the area of freedom of religion and belief. It remains a key priority for Her Majesty’s Government to focus on freedom of religion and belief in the context of the Commonwealth summit. During the summit week, various fora will be held, including the Commonwealth People’s Forum, where civil society groups will have an opportunity to directly raise issues, including freedom of religion and belief, and there will be an opportunity for Foreign Ministers and leaders to hear about the outcomes of those fora. The UK will be chair-in-office for two years. I assure my noble friend that we have received various bids and we will certainly be focusing on all elements of human rights, including—
I want to ask the Minister about two groups of people whose human rights are sadly violated. The first is LGBT people in many African countries, who are treated most shamefully, and the second is the Dalits and Adivasi or tribal peoples in India and other south Asian countries, who by every indicator are discriminated against most cruelly.
On the latter group, I totally agree with the noble and right reverend Lord. We continue to raise these issues in the context of the Commonwealth but also bilaterally where those groups are discriminated against. On LGBT rights, I assure noble Lords that the Prime Minister herself has committed to raising issues around LGBT rights during Commonwealth Week. As I have also made clear on a number of occasions, we continue to raise these issues, particularly with those nations across the Commonwealth which still criminalise homosexuality. We continue to raise this both in the context of the Commonwealth and bilaterally.
Does the Minister agree that the Commonwealth has been strong on declaration —Harare and the charter—but less strong in practice? For example, of the 58 countries in the world where capital punishment is legal, 36 are in the Commonwealth. The recent report of Open Doors shows that, of those 50 countries in the world where it is difficult to be a Christian, seven are in the Commonwealth. Is this a priority of the Government?
I assure the noble Lord that, on all issues of human rights and opposing the death penalty, the Government remain very clear and firm, including in the context of Commonwealth visits. For example, most recently I visited the Gambia and raised LGBT rights and the death penalty directly with the appropriate Ministers. We will continue to do so. I agree with the noble Lord that declarations from the Commonwealth are always strong but the actions have perhaps not delivered on those declarations. Together, working with the Secretary-General, it is our aim to revitalise and re-energise the Commonwealth.
My Lords, the Commonwealth Human Rights Initiative’s latest report will be launched in London by the Secretary-General of the Commonwealth a week before the Commonwealth summit. The ambition is to make human rights, including modern slavery, a core concern of the summit by leading the international efforts to try to achieve this. I note the Minister has already pointed out that he cannot comment on the outcomes of the Committee of the Whole, currently meeting in London, but can he tell us whether he supports the work of the Human Rights Initiative and whether he will raise this issue with the Committee of the Whole to make sure that it does go forward into CHOGM?
I welcome what the Minister said in relation to the fora, and the voices in the fora actually being heard by the leaders. But can we do more to ensure that voices on human rights are not simply the British Government’s but that we work with other allies, particularly in Africa? For example, we will have the new President of South Africa—and I have raised this point with the Minister before—who wrote the constitution of South Africa, ensuring that LGBT rights were guaranteed in the constitution. Can we not do more to ensure that other voices are heard?
The noble Lord is of course quite right to remind me that he has raised this with me before. We have followed up on this, and I assure him that, although there is always more to do, we will continue to do so on LGBT rights, and more broadly across the human rights spectrum.
My Lords, my noble friend Lady Berridge is quite right to focus on the promotion of human rights, as are the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Chidgey. But can we make sure that promotion is done more by example than by lecturing—let alone by hectoring—which does not achieve the results we want at all? My noble friend has played a leading part in this forthcoming summit, which is full of opportunities. Would he not agree that prosperity and security are the best gifts we can contribute to the gigantic Commonwealth system across the world? In return, they can contribute to our welfare and our finding a role in the world.
The noble Lord speaks from vast experience in this respect, and I agree with him. I would add that we can learn from the valuable experience of all 53 nations. The approach of Her Majesty’s Government, and indeed mine as a Minister on human rights, has never been one of pointing fingers. It is about learning from experience. Our own journey on gender equality, LGBT rights and the broader spectrum of human rights has been one where we have learned from example and through sharing experiences, whether we do it with other countries or countries do it with us. That is the value of the Commonwealth network.
Health: Medical Respite for Children
My Lords, although there is no specific statutory duty on clinical commissioning groups to offer respite care, under provisions in the National Health Service Act 2006, CCGs must ensure that they secure health services to meet the needs of disabled children to a reasonable extent. Furthermore, the statutory framework introduced in the Children and Families Act 2014 requires CCGs and local authorities to work together to support all the needs of children with a special educational need or disability.
I thank the Minister for his Answer. Despite the High Court judgment in the case being brought by the amazing Nascot Lawn parents, which made it absolutely clear that the very disabled children involved are entitled to individualised NHS support, it has now emerged that the Herts Valleys CCG’s so-called assessment for each case was a five-minute pre-assessment box-ticking and that the child was not even present. The CCG is still trying to dictate its contribution to the county for the care and is not consulting the families. Can the Minister explain what steps the Government and NHS England can take to ensure that Herts Valleys CCG makes appropriate provision for each of these children, when it appears it remains determined not to?
I congratulate the noble Baroness on her tenacity in raising the issue and thank her for giving me the opportunity to meet parents whose children use these services. First, it is incredibly important to be clear that there are rules for how the consultations that the judicial review said should be held should take place, and they must be abided by. More importantly, as I have just set out, there are legal obligations under the 2014 Act for joint commissioning between the CCG and the local authority. That is not one telling the other what to do; it is joint commissioning. Most important of all—the point that the noble Baroness makes—is that whenever these bodies are planning for the future, they have to keep the needs of the children in mind. That is what we, whether it is NHS England or the department, are imploring them to do through this process. Indeed, they are obliged to do that.
My Lords, legal obligations are all fine, and of course the Government and everybody else have to comply with them, but unless there is adequate funding for local authorities, health services and commissioning groups, it is impossible for these authorities to comply with the legislation. What are the Government going to do to ensure that enough money is available to provide respite care for these children?
The noble Baroness makes an important point. That is the reason we are providing more funding, both through social care budgets and through the NHS itself. More money was found at the Budget as well, but I do not think in this case the issue is necessarily funding. It is a case of the parties involved working together, as they are obliged to do, to find the right outcome and the right solution for these children.
My Lords, I join the noble Baroness, Lady Brinton, in this case and declare my interest as the chair of Helen & Douglas House in Oxford, which was the first children’s hospice in the world. It covers a vast area of the Thames Valley and provides end-of-life care and respite care for children with life-limiting diseases, but the Oxfordshire CCG has completely refused to supply any funds to it. Would the Minister meet with me to discuss that situation?
Yes, I would be happy to do so. I am disturbed by the picture that the noble Lord has painted. He will know, I am sure, that the Government have set out our commitment to end the variation in end-of-life care, and of course this is a co-commissioned service. I would be very pleased to meet him to investigate that.
My Lords, what measures are being taken by the NHS to check that CCGs have the range of specialist expertise available to be able to make assessments individual by individual? These children’s needs are complex. From my experience, often the assessors may be expert in one area but not necessarily that of the case they are assessing.
The noble Baroness is quite right. Many of the children we are talking about are receiving continuing care to meet all their needs, and delivering that is very complex. A national framework for continuing care is being revised at the moment, and it will provide the picture for the skills mix that is needed at local level to ensure that these children are properly served.
My Lords, my question is on the specific issue of parent carers, for whom funded respite care is vital to both themselves and the children they care for. The Minister mentioned the continuing healthcare framework guidance coming into force in October, which makes clear CCGs’ responsibilities to fund respite care for parent carers and breaks for families of severely disabled children. The High Court judgment clarifies the law and makes this duty clear now. What action have the Government taken to ensure that CCGs act on the Nascot Lawn judgment now?
The noble Baroness is quite right. Local authorities and CCGs have a number of responsibilities. We are applying pressure and making clear to all bodies that they have those responsibilities. We have of course provided funding through local authorities and CCGs for that to happen, and we expect it to.
My Lords, further to the question from my noble friend Lady Royall, I have great respect for the Minister but how can we believe what he says about enough money being available when health authority after health authority throughout the country says that not enough money is available and some of them are forecasting deficits? Who is right, the Minister or those who are running our health service?
I do not deny for a minute that the health sector is under pressure—I have never once pretended that that is not the case. There is growing demand in all areas, whether that is children, adults or older people. We have provided more funding year on year during a difficult time of fiscal retrenchment, and indeed the Budget provided more money. Of course there is more to do, but I think that what I have said shows our commitment to funding the NHS as much as we can.
Gender Equality: Pay
My Lords, the Prime Minister has made clear that tackling injustices such as the gender pay gap is part of building a country that works for everyone. In 2017 the Government introduced ground-breaking regulations requiring large employers to publish the differences between what they pay their male and female staff in average salaries and bonuses. Greater transparency will help to identify barriers to achieving gender equality in the workplace so that employers can take action to address them.
I welcome the Minister’s reference to greater transparency. Is it not time to be bold on this issue? If we are really going to tackle such inequalities as the gender pay gap, should we not do what is done in some Scandinavian countries and put all income tax returns into the public domain?
My Lords, certainly Norway has done this. The unintended consequence of doing so was that it was seen as a snooper’s charter, a way for people to snoop into the information of people that they did not like. I think publishing the gender pay gap will give employees a greater sense of the company that they are going to work for and whether there is gender equality across pay, as opposed to a huge database that cannot have the granular detail that the gender pay gap reporting will have but can perhaps be used with other intent from how it was designed.
My Lords, transparency is of course very important, and the reporting of gender pay gaps by organisations and companies is going to be valuable. However, what comes after that? Once we know the disparity between pay in these organisations, when can we expect the gender pay gap to be closed, and when can women expect to reach pay parity with men once we know what the problem is?
The noble Baroness asks an interesting question about what comes next. What will come next is that this will shine a light on which companies take their gender pay obligations seriously and which simply do not. If I were a graduate going to a company with a huge gender pay gap, I would start to think about what that company would mean for me as a woman. I think it will draw into sharp focus those companies that take their obligations seriously and shame those companies and public sector organisations that do not.
Will my noble friend undertake to look into the position at the BBC, where sick pay and maternity leave are being eradicated by the move to freelance contracts? Is that right? Surely employers should not be able to sidestep their employer obligations in such a radical fashion.
I think what my noble friend refers to with sick pay—I am going slightly beyond my brief here—is the practice whereby people are not employees but freelance, more often than not, for companies. Given the press reporting that there has been on this, I am sure that this issue will be drawn into sharp focus.
My Lords, what does the noble Baroness think needs to be done on legislation on other matters to deal with this issue? The Equal Pay Act came on to the statute book 47 years ago. The gender pay gap is 14.1% and there is little evidence to suggest that it will close. I note what she said about shining some light on these issues, but I am conscious that with the statements under the Modern Slavery Act, many companies had a light shone on their activities but have done very little about the issue.
My Lords, the full-time gender pay gap is 9.1%; I would like it to be nought. The noble Lord talks about the Equal Pay Act. Yes, it has been on the statute book for decades now— 47 years. I recall as leader of a council that many councils at the time had to sort out the issue of women doing the same jobs for less money than men. I think most local authorities have got to grips with that and, as I say, I look forward to the day when the gender pay gap is nought.
My Lords, where does the Minister suggest that we look for the next steps and action to be taken in those areas where equal pay still does not exist? Returning to our backyard, the public service—she just mentioned local government—is it not true that there are still significant elements of unequal pay within the Civil Service, the public service and local government? This is an area where we have control. What do the Government intend to do there?
I am almost certain that most local authorities will have settled equal pay claims with their employees—mine certainly did. On what more is there to do on equal pay, if women think that they are not being paid the same as men for the same job, they are perfectly entitled to—and should—bring claims forward.
My Lords, when I joined the Civil Service in 1959 as a clerical officer, we had equal pay, and I was horrified to read that this no longer persists in Whitehall. Can the Minister explain why, given that the Act came in in 1970, Her Majesty’s Government and previous Governments have not done something about it?
As I explained, Her Majesty’s Government have done something about it and encourage people who feel that they have equal pay claims to come forward. That certainly happens at local authority level, and in the Civil Service, we are looking closely at and continue to monitor people whose pay is not equal across the sexes.
My Lords, we are encouraged by the number of companies that have so far registered for gender pay gap data: 90% in the public sector and 70% in the private sector. There are remedies if companies have not complied. If London is seen to have a particular problem then that will be thrown into focus when the figures are published.
My Lords, does the Minister agree that the issue is not so much about the difference at the individual job level as about the fact that, relatively speaking, so few women get to senior positions in those organisations? That is where we need to put the main emphasis, to help women to be confident enough, and to be mentored and supported to get into the most senior positions in those organisations.
I totally agree with the noble Lord, which is why the Government—through Women on Boards, moved by the noble Lord, Lord Davies of Abersoch—have managed to increase the proportion of women on boards of the FTSE 100 from just over 10%, which was pitiful, to 28% now. I am pleased to report that there are no FTSE 100 boards without female representation. Of course, we have much further to go. We need BME representation on boards, and women need to see role models that encourage them to go for jobs for which they are capable and to get to the top if they can.
Northern Ireland Budget (Anticipation and Adjustments) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
European Union (Withdrawal) Bill
Committee (9th Day) (Continued)
266: Schedule 2, page 17, line 32, at end insert—
“( ) Sub-paragraph (4)(b) does not apply to regulations made under this Part by the Scottish Ministers or by the Welsh Ministers with regard to matters that are within their devolved competence.”
My Lords, Amendment 266, which is in my name, is in a series of groups dealing with devolution. It is in the first of five groups dealing with rather technical points arising out of Schedules 2 and 8. They precede a lot of government amendments which are in the group following my groups. I suggest that the main discussion about devolution and its consequences is best reserved for the government amendments which are focused on Clause 11 and other clauses. I am afraid my groups are rather boring, because I am dealing with a whole series of little technical points which need adjustment to some extent in the light of progress that is being made in discussions with the devolved authorities, among other points.
The theme that runs through all my amendments is the need to respect the devolution settlements in Scotland and Wales. I am confident that the Government share that sentiment. It is all a question of how the matter is worked out in points of detail. The basic rule following our withdrawal from the EU, I suggest, is that returned EU competencies in the devolved areas should be distributed among the devolved authorities in accordance with the devolution statutes. That means that what falls within devolved competence should be treated as devolved, with all that that means, and what falls within reserved matters should be treated as reserved, with all that that means.
The statutes that form the foundation for the devolution settlements—the Scotland Act 1998 and Government of Wales Acts, the latest of which was in 2017—were all built on the foundation of our membership of the EU. In each of these statutes, it was taken as accepted that it would not be within the competence of the devolved Administrations to legislate on matters relating to EU law or indeed to take executive action in relation to these matters either.
What we have in the Bill, in place of EU law, is a new creature called “retained” EU law, which is the law that comes back to us either because it is already present in the United Kingdom or is direct EU law that is coming back to us and is not yet built into our laws but requires being built in using the mechanisms described in the Bill. In the original drafting of the Bill, retained EU law is treated as simply a mirror image of EU law, so that in that original drafting—which can be seen in Clauses 11(1) and (2)—the same restriction on competence which applied in relation to EU law is applied to retained EU law. I am delighted to see that, in developing their thinking on this matter, the Government recognise that this really is not acceptable within the devolved arrangements. A much more nuanced approach to that topic can be seen in the government amendments that we will come to later this afternoon.
What I seek to do in the preliminary groups is to draw attention to various other passages in the Bill that need to be corrected in order to be compatible with the devolution settlements. In some of the groups—but not in the first—it is already clear from the government amendments that they are in almost the same position as I am as to what needs to be done.
I turn to Amendment 266, in the first of these groups, and also mention amendments 278 and 292, which raise exactly the same point in relation to different parts of the Bill. Amendment 266 deals with the power to deal by regulation with deficiencies arising from the withdrawal from the EU, which is the subject of Clause 7. It appears in Part 1 of Schedule 2 in the form that is appropriate for the activities of the devolved institutions in carrying out the exercise to which Clause 7 refers.
Amendment 278 deals with the power by regulation to prevent breaches of international obligations, which is the subject of Clause 8. The devolution mechanism for this is dealt with in paragraph 13 of Schedule 2. Amendment 292 relates to the power by regulation to implement the withdrawal agreement and the mechanism for the devolved Administrations is set out in paragraph 21 of Schedule 2.
The point to which these three amendments draw attention is a qualification that is to be found in each of these contexts on the power of the devolved authority to make provision by regulations regarding these three matters. The particular provision that I am concerned about is found in paragraph 1(4) of Schedule 2:
“Regulations under this Part, so far as made by a devolved authority … (b) may not confer a power to legislate (other than a power to make rules of procedure for a court or tribunal)”.
At first sight that qualification cuts across the concept of devolution, the effect of which is that if a matter is within devolved competence, it is for the devolved authority to take its own decisions as to how to deal with that matter, in whatever way it regards as appropriate. Under the devolution statutes, the qualification that we find in this provision and its equivalents in paragraphs 13 and 21 is new: in my experience it has not been encountered before. To an extent, therefore, these three amendments are probing, to enable the Minister to explain why this qualification has been inserted in these paragraphs and, if no reasonable explanation is given, to suggest to her that maybe the qualification should be removed, on the ground that when it comes to exercising powers within the devolved area, it should not be there.
It is right to add that Part 1 of Schedule 2, for perfectly understandable reasons, contains qualifications. For example, paragraph 2 states that:
“No regulations may be made under this Part by a devolved authority unless every provision of them is within the devolved competence of the devolved authority”.
That is a perfectly sensible provision, and consistent with the devolution scheme. What troubles me is why the qualification that I have mentioned should be there. My question is: should it be there at all? And if it should not be there, should it not be taken out? I beg to move.
My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.
My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.
My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.
My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.
My Lords, this debate will be an easy one for the Minister to respond to. I entirely agree with what has been said, and all I want to add is that although these are technical changes, they need to be dealt with in the spirit that we shall move on to later. Our worry, particularly at the beginning, was that it took some time for the Government to recognise that the expectation that not everything retained was devolved was a legitimate one from the devolved Administrations. Perhaps now there is that willingness to engage. We may regret that it took a little time but we seem to have got there. Perhaps one of the issues was that the Joint Ministerial Committee has not worked in the way we might have expected in the past. Brexit showed that up in a sense, but this is bigger than a Brexit issue. Therefore, any changes to the status of that body are probably not for this Bill to deal with. However, I hope that at some point the Government can revisit whether it needs to be given either statutory authority or some greater authority in the future. Although these amendments may be technical in the words of the noble and learned Lord, Lord Hope, with his, as ever, diplomatic use of the phrase, “They need adjustments”, I think he means that we want the Government to move on them. I hope the spirit that I think is now abroad will enable us to do that.
My Lords, I do not agree that these are simply technical amendments. The issues arise from Clause 7, headed, “Dealing with deficiencies arising from withdrawal”, which gives a Minister of the Crown power to,
“make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,
deficiencies. Clause 8 of the Bill that we have discussed at such length deals with a Minister of the Crown making regulations as he considers appropriate,
“to prevent or remedy any breach, arising from the withdrawal of the United Kingdom … of the international obligations of the United Kingdom”.
Clause 9 is headed, “Implementing the withdrawal agreement”, and similar powers are given to a Minister of the Crown. Schedule 2 is headed, “Corresponding powers involving devolved authorities”. Part 1 of that schedule deals with deficiencies and Part 2 with international obligations. Part 3 is headed, “Implementing the withdrawal agreement”. One would have expected corresponding powers for Welsh Ministers and Scottish Ministers in those areas within their own competences, but each of those parts of Schedule 2 says that regulations may not,
“confer a power to legislate”.
Therefore, unlike the powers granted to a Minister of the Crown in the UK Parliament, the powers to legislate are withheld from Ministers in the devolved Assemblies. That is the critical issue, which is a matter of principle and not at all technical.
My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.
With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.
I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.
If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.
My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.
As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.
Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.
It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.
It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.
I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.
I accept the distinction drawn by the noble and learned Lord. I am trying to address the amendments of the noble and learned Lord, Lord Hope, in the context of what the provisions do and his concern that they appear to cut off what he considers an entitlement of the devolved Administrations. I have tried to explain why, inevitably, these aspects are interlinked with the wider debate we will have on Clause 11.
The Government are prepared to listen to what has been said. I have indicated that we are prepared to look again at these provisions. I thank the noble and learned Lord for bringing forward his amendment, but in the circumstances I urge him to withdraw it.
My Lords, I am grateful to the Minister for her remarks. The use of the expression “sub-delegation” gives some insight into the thinking of the Government. As was pointed out, “delegation” is not an appropriate word to use where matters have already been devolved—by the statutes to which I referred earlier—to both Wales and Scotland. “Sub-delegation” is a very odd word to use. We are talking about a power within the devolved competencies for the devolved authorities to legislate, or confer a power to legislate, by whatever means they think appropriate. So I am encouraged by the fact that the Minister is prepared to look at this again. I think that she will agree with me that much of what we will be discussing in this little group of amendments is work in progress, as we try to work through the detail of the scheme that the Bill sets out. I am encouraged by her reply.
I also thank all those who have contributed to this brief debate. On the word “adjustment”, I refer to what the noble Baroness, Lady Hayter, was saying. The Minister will remember, from her early days in the law in Scotland, that the word “adjustment” is sometimes used to take things out as well as to put things in. It is a word that came naturally to me as a means of dealing with bits in the statute that require to be trimmed, perhaps by removal, as well as by refining the language. I am grateful to the noble Lords, Lord Thomas of Gresford and Lord Hennessy of Nympsfield, for their emphasis that we are dealing with matters of great significance and importance. When I said that these were just technical points, I did not mean to suggest otherwise; rather, I was suggesting that the main thrust of our argument will be reserved for when we come to look at the Government’s amendments.
Lastly, on the contribution of the noble Baroness, Lady Finlay of Llandaff, I join in her tribute to the efforts that the noble Lord, Lord Bourne, is making to discuss matters with us and to reach as much common ground as possible. I, too, have had useful meetings with him and I am grateful to him and to his team for the attention they have given to the points I have been raising. As I have said, this is work in progress; I am encouraged by what the Minister said and, in the light of that, I beg leave to withdraw my amendment.
Amendment 266 withdrawn.
Amendment 267 had been withdrawn from the Marshalled List.
268: Schedule 2, page 18, line 39, at end insert—
“( ) This paragraph does not apply to regulations made under this Part by the Scottish Ministers or by the Welsh Ministers with regard to matters that are within their devolved competence.”
My Lords, this is the first of another group of amendments, all of which are in my name. Amendment 268 refers to a provision in paragraph 4 of Part 1 of the schedule, which states that no regulations made under that part by a devolved authority prevent it from conferring functions that correspond to functions under EU tertiary legislation. Amendment 296 relates to the same restriction which we find in paragraph 24. Amendments 280 and 294 deal with another restriction—that no regulations may be made under that part by a devolved authority which modify any retained direct EU legislation or anything which is retained law by virtue of Clause 4.
These are rather complicated matters to explain, but they are all examples of restrictions on the power of the devolved authorities to do what they are supposed to do under Part 1 of the schedule in the two respects mentioned in these passages. The whole point is the same one I mentioned before in regard to the previous group—that these are restrictions on actions which otherwise would be taken within devolved competence. The fact that there are restrictions at all is contrary to the philosophy on which the devolution system has been based. It is a given—as we have seen already in the passage I read out earlier—that, if the powers are exercised, they can be exercised only within the devolved area. There is no question of their moving into the reserved areas as that is not within their competence; if the matter is within their competence, the argument is that they should not be inhibited from doing what they consider to be right.
Tertiary legislation is an animal that has not been referred to much in our debates in this Committee. A fairly lengthy definition of it is to be found on page 10 of the Bill, but it is not obvious to me why the devolved authorities should not be able to deal with tertiary EU legislation in the same way as any other EU retained legislation. So, with that rather brief introduction, directed particularly to Amendment 268, I beg to move.
My Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.
Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.
When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.
It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.
Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.
My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.
The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.
Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.
Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies. If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.
I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.
My Lords, I want to add to what my noble friend just said by making reference to the politics of all this. The reality is that powers that came from Europe were seen as politically very neutral, in a party-political sense; but once those powers and restraints are placed with Westminster, raw party politics immediately become a key issue. The tension therefore increases. The Minister will be aware of this from her own experience. Whereas a power that was passed from or constrained by Europe is seen on a pan-European basis—where party politics could not possibly be applied in a local sense—when it becomes a decision by Westminster, party politics are inevitably written into it, whether in favour or against. I am sure the Minister will understand the point I am making from the Scottish experience; it certainly applies to my Welsh experience.
My Lords, I thank the noble and learned Lord, Lord Hope, for tabling these amendments. They would have a significant effect because they seek to remove the restrictions on the ability of these powers to modify direct retained EU legislation and to confer functions that correspond to the making of what is termed EU tertiary legislation. I am grateful for the thoughtful and considered contributions that have emanated from a wide range of experience, not least of the devolved Administrations. As noble Lords have noted in their speeches, this issue is again closely tied to the final policy position on Clause 11.
These amendments concern the question of parity, as the noble Baroness, Lady Randerson, has just pointed out, between Ministers in the devolved Administrations and UK Ministers. They also address the matter of who should be responsible for fixing EU legislation in areas that intersect with areas of devolved competence which currently have uniform application across the UK. I apologise again for emphasising the point, but we need to consider how all of this will work in relation to the wider changes we have tabled in Clause 11. It is important to recognise that the answer we reach on that question in the subsequent debate will necessarily inform the answer to the questions posed in this one.
The Government have been clear that the powers are conferred on the devolved Administrations so as to ensure that we do not disrupt the common frameworks currently provided for by EU law in areas where a framework will need to be retained. That might be to protect our internal UK market, our common resources or any of the other criteria that we have agreed with the devolved Administrations and published in the Joint Ministerial Committee communiqué in October last year. These are laws that apply directly, exactly as written, across every part of the UK, and indeed at the moment across every part of every member state. As such, these are by their nature laws that the devolved institutions currently have no power to modify or to diverge from. As we consider where we shall and shall not need frameworks, it is clear that in many of these areas, competence will pass to the devolved Administrations on exit day.
However, I would suggest to noble Lords that before we get to that point, we have to ensure that these laws function properly. We owe that to our communities and businesses and to individuals—that there can be certainty as to the laws that will apply to all those groups on the day we leave the EU. Carving up the effect of these laws in different parts of the UK or expecting to have different laws to achieve the same effect for different parts of the UK might undermine that certainty. It is the Government’s view that where in the first instance these laws apply at the UK level, we should also consider the corrections to those laws at the UK level. But let there be no doubt that the devolved Administrations will be an integral part of this process. We shall consult them on any and every change to retained direct EU legislation in an otherwise devolved area made under the powers in this Bill. We shall need to reflect on this alongside the debate on Clause 11.
Whatever the outcome in relation to devolved competence more widely after exit day, at a minimum we must retain this limit in those areas where, working with the devolved Administrations, we have identified that we need to retain a framework. Otherwise, we put at risk some of the issues to which I have referred, such as the internal market, the management of our common resources and even our ability to strike the best possible trade deals.
I hope that this provides some reassurance to the noble and learned Lord, Lord Hope, that we are alive to the interaction of this policy with Clause 11. We are considering it in parallel as our discussions continue with the devolved Administrations. The end result must be that both Clauses 10 and 11 dovetail and that they are not in conflict. On that basis, I commit to continuing to keep the noble and learned Lord and this House up to speed on how our policy thinking is developing in these areas. In those circumstances, I would ask him to withdraw his amendment.
My Lords, I am grateful to the Minister for her very helpful reply. Perhaps this is an example of another kind of adjustment—to return to the noble Baroness, Lady Hayter, picking up my use of that word. Rather than taking out or adding in, it is a case of refinement. I appreciate exactly what the noble Baroness meant in her reference to frameworks. In regard to tertiary legislation, it might be that a slightly less blanket provision could be used; that is, replacing the blanket restriction on competence with something more targeted to the particular needs to create and preserve the internal market that we are all looking forward to within the UK. What I take from what the Minister has said is that she will look carefully at this and consider to what extent she can come back on Report with something which meets the points that I have been making.
The noble Lords, Lord Thomas and Lord McConnell, referred to the reasoning behind the reference to EU law in the original statutes. EU law shared something in common with rights under the European Convention on Human Rights. In both cases, when the Scotland Act was being designed, it was appreciated that the obligations which gave rise to convention rights and rights and obligations under EU law were based on treaties. So far as those treaties were concerned, in the framing of the Scotland Act and the Wales Act it was thought necessary to preserve the obligations that the United Kingdom had under the treaties and make sure that they were protected in the way that we found in the statute as originally framed; in other words, there was no competence to deal with matters which were the subject of those important treaties. The point made by the noble Lord, Lord Thomas, was that once we leave the EU, that treaty fetter disappears completely; what we have is retained EU law, which is a completely different creature from EU law as we know it today. That is why it is important to appreciate that retained EU law is not a mirror image of EU law, although the subject matter and the detail are no doubt exactly the same.
I shall come back to that in the next group of amendments, to which I shall speak in a moment, because they raise the same issue. For the time being, I beg leave to withdraw the amendment.
Amendment 268 withdrawn.
Amendment 269 had been withdrawn from the Marshalled List.
Amendment 270 not moved.
Amendment 271 had been withdrawn from the Marshalled List.
Amendment 272 not moved.
Amendment 273 had been withdrawn from the Marshalled List.
274: Schedule 2, page 21, line 29, leave out “and retained EU law”
My Lords, this is the first amendment in a very much larger group, not all of which is composed of amendments in my name. Although the matter is lengthy and rather complicated, I can deal with it comparatively briefly and, I hope, in a way that is intelligible to your Lordships and in particular to the Minister.
Amendments 274 and 275 are related to paragraphs 9 and 10 in part 1 of Schedule 2, the former dealing with Scotland and the latter with Wales. I am concerned about the provision which states:
“A provision is within the devolved competence of the Scottish Ministers for the purposes of this Part if … (a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament (ignoring section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law and retained EU law)”.
As I understand that provision, it excludes from competence provisions relating to retained EU law. That is a theme that runs through most of the amendments in this group. It is exactly the same point as we have been discussing in the earlier groups, the question being whether it can possibly be right that the devolved institutions should be prohibited from dealing with retained EU law when they work through the exercises with which part 1 of Schedule 2 is concerned. All the amendments in this group that are in my name raise that issue, except Amendment 363, which I will come back to in a moment. Some of them will require to be superseded in light of the Government’s amended version of Clause 11. I would have thought it was a fairly simple exercise for the Minister and her team to go through these various amendments, which I need not enumerate, just to be sure that the various passages to which I have drawn attention are corrected in light of the revised version of Clause 11.
Amendment 363 relates to the right of the Advocate-General to take part as a party in criminal proceedings so far as they relate to an issue as to whether legislation or an act of a Scottish Minister is incompatible with convention rights or EU law. Of course, the interest of the Advocate-General, if he wishes to enter the proceedings, is to ensure that the devolved institutions act within their competence in relation to these matters. What we have in paragraph 18 is a simple substitution of a reference to “retained EU law” for the reference that is in the statute at the moment to “EU law”. The competence restriction on EU law will of course be removed when we leave the EU, but once again I make the point that simply to substitute a reference to “retained EU law” is not the right thing to do: it is not a mirror image of EU law. Indeed, the fetter that applied to EU law should not apply to retained EU law. The amendment is simply designed to delete from the relevant section of the Criminal Procedure (Scotland) Act 1995, which would no longer have any relevance. I leave that point with the Minister to look at along with all the others.
I have been listening very carefully. Can the noble and learned Lord explain again, in simple terms, why retained EU law on a particular area, such as agricultural support, is different from current EU law? I do not understand why he says it is different.
In a sense, retained EU law is simply repeating what is to be found in EU law. The point is that the treatment of it, from the point of view of the competence of the Parliament and the Ministers, is different. Under the Scotland Act as it is, Ministers have no power to legislate or deal with EU law, because that is subject to the restriction in Section 29 of the Scotland Act, and also in Section 53, so far as Ministers are concerned. My point is that that restriction disappears because we are no longer bound by the treaty arrangements that gave rise to the restriction in the first place. I think the noble Lord is pointing out that much of retained EU law is already part of our law because it has already been built in to our legal system. The point is that I am suggesting that the Parliament and the Ministers should be able to deal with retained EU law in the same way as they can deal with any other domestic law, as long as it is not reserved.
I understand that—these debates are very useful. However, I am getting worried: as the noble and learned Lord knows, I am a strong devolutionist and a former Member of the Scottish Parliament, but in the last hour I have come to understand and sympathise with what the UK Government are arguing, which is a bit worrying.
No, it is a serious matter. Surely there are areas that are dealt with now by the European Union because we have all thought that it was right to have standards for the European Union Common Market. Are the UK Government not arguing that if we have a UK common market—which we will in certain areas—it is sensible to have the same standards throughout the United Kingdom? Is that not a valid argument?
If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.
Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.
My Lords, I will strike a different note as I put forward what are perhaps the substantive arguments—as we see them—in relation to these issues.
Amendment 304 has for some reason been grouped with these amendments, which does not make an awful lot of sense. It stands in my name and that of my noble friend Lord Hain, and is based on one of the key amendments drafted by the Welsh and Scottish Governments ahead of the Bill’s passage through the other place. That amendment is also covered by part of Amendment 303, which surprisingly will not arise until very late tonight. None the less, Amendment 304 goes to the heart of the widespread criticism of Clause 11 as it currently stands—I am aware that amendments may come forward later—and lifts the restriction it places on the devolved parliaments in relation to EU retained law.
My fear—and that of all parties in the National Assembly—is that giving UK Ministers control in the EU withdrawal Bill over areas of retained EU law relating to matters which fall under devolved competences will, in effect, tend to normalise direct rule from Westminster in these areas. Given the powers under this and other recent legislation which enable Ministers at Westminster to amend devolved legislation by order, this will, in effect, undermine Welsh sovereignty in areas which are devolved to Wales and blur the responsibility of the National Assembly. Furthermore, there is a fear that this will set a precedent for this and future UK Governments, who may well be tempted when a devolved Government act in a way with which they disagree, to find a justification to intervene. This would be particularly galling if it were on issues where Welsh interests were seen to be in conflict with England’s perceived interests—perhaps validly so. The Prime Minister has, of course, pledged never again to “devolve and forget”. That can be interpreted in more than one way, and in this context it has generated quite a few ripples of unease.
In order to persuade the devolved parliaments to agree to legislative consent orders—which are currently not forthcoming from either the Scottish Parliament or Welsh Assembly—the UK Government have tabled a set of amendments to Clause 11 which we will consider later. The Government’s proposals would provide a power to make regulations in certain devolved areas currently subject to EU law, and would prevent the devolved legislatures from taking action in the areas covered by those regulations. Whether noble Lords in this Chamber like it or not, this is regarded by members of all parties in the National Assembly as reflecting a growing approach by the UK Government—namely, in areas where devolution may be a nuisance or a hindrance to the UK Government’s agenda—to roll back devolution, or at the very least to attenuate it, and to centralise certain powers in London. The Welsh and Scottish Governments share this fear. That is why, in the Senedd—thanks largely to the lead of my inspirational colleague Steffan Lewis AM—the Welsh Government have introduced a continuity Bill to safeguard Welsh devolution. That Bill is currently progressing through its legislative steps with all-party support. Assembly Members are taking such a step not as a threat but as a safeguard: they still hope that there may be a meeting of minds between them and Westminster, and I understand they have even drafted a sunset clause which could be triggered if such an agreement were achieved. They look to this Chamber today to take a stand in facilitating that meeting of minds and to ensure that the centralist direction to which they feel they are being subject is brought to an end.
Alongside the amendments which the UK Government have tabled, they have published a list of 158 areas of intersection of devolved competences with EU law, noting that they envisage regulations temporarily restricting devolved legislatures’ competence—in advance of more substantive arrangements in primary legislation —in up to 24 of those areas. Taking such steps is, rightly or wrongly, widely perceived as a power grab. These 24 areas, all of which apply to both Wales and Scotland, cover a significant part of devolved responsibilities, including agricultural support, fisheries management, environmental policy, public procurement and food standards. These areas are vital for industries and businesses in Wales, and for the Welsh economy. The amendments would allow the UK Government to make regulations in any or all of these devolved areas.
I wholeheartedly agree that common frameworks are appropriate in some cases, given the current role of EU law in regulating action in all parts of the UK—
Indeed—the very point that the noble Lord, Lord Foulkes, was making earlier; I agree. Given the current role of EU law regulating action in all parts of the UK in such subjects, partly to facilitate a single market with a level playing field—the point that the noble Lord was making—and partly to ensure that in matters which by their nature cannot be constrained by political borders, there is a coherent common approach. I accept this. Indeed, last week I proposed an amendment to provide a framework agreement for environmental policy—which, quite amazingly, the Government rejected. However, if there are to be such frameworks, the devolved Administrations and the devolved legislatures, whose legislative competence is being constrained by such frameworks, must surely agree the proposed steps jointly with the UK Government. I have tabled an amendment to an amendment in the name of the noble and learned Lord, Lord Mackay, providing a mechanism to this end. That will be debated later so I will not anticipate that debate now.
Let us be clear: unless there is agreement between Westminster and the devolved Governments on these matters, the continuity Bill will be enacted by the Assembly and will take precedence in Wales. Surely it is time for the UK Government to reconsider what is seen as an obdurate stance and agree a sensible, balanced and respectful way forward.
My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.
As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:
“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.
Article 82 says:
“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.
We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?
My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.
No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.
My Lords, I am obliged for all the contributions at this stage of the debate. I appreciate, as do other Members of the House, that when I move the government amendment to Clause 11, we will embrace a debate about the consequences of that amended clause and the significant change it makes to the way in which we are going to deal with, among other things, devolved competences. But as the noble and learned Lord, Lord Hope, observed, his amendments are consequential in a sense on what is going to happen with regard to Clause 11. In that context, I point out that we had already indicated our intention to move the amendment to Clause 11 and then withdraw it, in order that the consequences for the schedules to the Bill can be addressed more properly when we reach Report. However, there is a more fundamental issue underlying this, which has been highlighted by the use of the terms “consult” and “consent”. It is really rather fundamental. Because these are probing amendments, I will just outline the Government’s thinking with regard to this area of the Bill and how it will work. I am sorry if I am going to appear somewhat repetitive about some matters of history that have been touched upon already, but perhaps your Lordships could bear with me, if but for a moment.
In 1972, the UK Parliament of course transferred certain competences to the EU. Having done so, it limited its competence to legislate for the United Kingdom. When it came to the Scotland Act 1998 and the Government of Wales Act 2006, that Brussels competence, as I will term it, had already gone. When it came to considering the scope of the divorce settlement, the matter of the powers held by the European Union in Brussels was not in scope for consideration as part of devolution. They had gone, by virtue of an international treaty implemented in domestic law pursuant to the ECA 1972. The devolved settlement was determined by reference to the competence that remained in Westminster in 1998 and in 2006.