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European Union (Withdrawal) Bill

Volume 790: debated on Wednesday 28 March 2018

Committee (11th Day) (Continued)

Amendment 355B

Moved by

355B: Clause 19, page 15, line 18, at end insert “, subject to subsection (2AA)”

My Lords, I shall move Amendment 355B standing in my name and speak to Amendment 357ZA, also in my name, both of which are paving amendments to the substantive Amendment 358B, in my name and that of the noble Lord, Lord Clancarty— I mean the noble Earl—to which I will also speak. I hope that he will also speak to that amendment in a moment.

Amendment 358B states:

“None of the sections of this Act may come into force unless it is an objective of Her Majesty’s Government, in negotiating a withdrawal agreement, to secure continued EU citizenship for UK citizens”.

This amendment comes after our earlier debate on this subject area, but it is none the less worth revisiting the matter in the light of the publication of the withdrawal agreement and subsequent announcements by both the UK Government and the European Union.

The question of the future status of the rights bestowed on UK citizens by EU membership will not disappear; rather, it will grow in both prominence and importance as negotiations progress, and, I suggest, it will assume an increasing urgency. Despite the resolution passed by the European Parliament highlighting the “strong opposition” felt by many UK citizens to the loss of their EU citizenship rights, I was disappointed to see no reference to it in the withdrawal agreement, which, if I interpret it correctly, includes reference only to UK and EU citizens who have exercised their rights or intend to exercise their rights by moving to the UK during the transition phase—no doubt the Minister can correct me if I have misinterpreted that. In successive Answers to Written Questions on the issue put down in the other place by my Plaid Cymru colleagues, the Government claim that EU treaty provisions make clear that only citizens of EU member states are able to hold EU citizenship. The line they take is that,

“when the UK ceases to be a member of the European Union, British nationals will no longer hold EU citizenship, unless they hold dual nationality with another EU Member State”.

A lot has been made of the clarity, or lack of clarity, of EU law on the status of the rights of UK citizens after we leave. However, I will focus on international law. I draw attention to the work of Professor Volker Roeben and others, based in the law department of Swansea University, which has been published. European law and its founding treaties may offer a clear interpretation one way, but the reverse is equally clear in international law, and that should not be ignored. If anything, the 1969 Vienna Convention on the Law of Treaties means that it is incumbent on both the UK and the EU to address this matter of future status urgently. I state this because, even if Article 70(1)(b) of the convention is interpreted in such a way that the withdrawal of a member state from the EU extinguishes the rights of individuals created by the founding treaties, international law would still require that a treaty is agreed on the future status of such rights. Does the Minister agree with that statement?

Associate European citizenship is a model that the UK could adopt and pursue, and I strongly encourage the Government to think along those lines. As well as affording UK citizens the ability to continue to enjoy the rights and freedoms they currently do, it would safeguard the dormant rights of younger generations and, perhaps most importantly, grant generations yet to be born the same opportunities from which those of us present here today have been able to benefit. It is entirely possible to pursue associate EU citizenship for UK citizens, and there are precedents from which such a scheme could draw. Interestingly, Greenland, as part of a European Union member state, left the EU, while the other part of the member state remains. I note that when Greenland left, the withdrawal agreement ensured the rights of EU citizens. EU citizenship is built on such links and is crucial not only to our economy but to the future of our young people.

Noble Lords may also like to consider the interesting situation of citizens of some of the Crown dependencies in the Channel Islands, where there is a bespoke and unique relationship. I make the point that this is all a matter of political will. I seek to know from the Minister whether that political will exists in the Government’s ranks. I raise the question in the hope that, when it comes to negotiations, a way is found to ensure that benefits are afforded equally to people whose citizens’ rights now appear to be threatened. I beg to move.

My Lords, I added my name to an amendment in this group. I spoke at length to a similar amendment, my own Amendment 210, earlier in the Bill, so I will be fairly brief.

I fully support everything the noble Lord, Lord Wigley, has said. It is important that we should understand that the loss of EU citizenship would affect British citizens resident in the UK as well as those living abroad. That is a huge number of individual citizens whom the noble and learned Lord, Lord Keen, avoided referring to in reply to my own amendment but who are aggrieved at that potential loss of individual citizenship. In that same reply, the noble and learned Lord said:

“Let us be clear that EU citizenship is linked directly to citizenship of a member state”. —[Official Report, 7/3/18; col. 1081]

I do not argue with that. The court case begun in Amsterdam is to determine the nature of such linkage and whether a citizenship, once held by a citizen, cannot be taken from them against their will whatever actions are taken at the national level.

It is young people who will feel the loss of EU citizenship most keenly, not just the principle of European citizenship; it is young people who feel most European. Also they will feel the real practical effects of that loss, particularly if we also leave the single market. As others have pointed out, young people have found a strong voice in the group Our Future, Our Choice—one of whose founder members, incidently, was a leaver who changed his mind. We have all learned a lot since the referendum; that is something that, as a country, we should freely admit.

In the EU citizenship debate in the House of Commons on 7 March, the Immigration Minister, Caroline Nokes, said:

“We are content to listen to proposals from the EU on associate citizenship for UK nationals”.—[Official Report, Commons, 7/3/18; col. 351]

So I ask the Minister: has there been any development on that front, bearing in mind that such a citizenship, according to Voelker Roeben, would not depend on revision of the founding treaties? I warmly support the amendment.

My Lords, I completely understand the motivation of the noble Lord, Lord Wigley, and I am of course entirely with him in wanting to stay in the European Union, but I am at a complete loss to understand how it is possible for British citizens to continue having European citizenship after we have left the European Union. I simply do not understand how it is possible to have citizenship of an organisation of which we are not a member. The specific issue of what happens to European Union residents in Britain, given that the Government have already committed that their rights will be guaranteed for a further seven years, is a completely different point. Assuming that the noble and learned Lord will be replying to the debate, will he tell us what the precise relationship will be between the European Court of Justice, European law and the seven-year guarantee of the rights of EU citizens currently resident in the UK?

The noble Lord understandably challenges the point, and he is right to do so, and I too would much prefer we were not leaving the European Union. But there are precedents—I quoted the example of Greenland—and there is also the parallel question of associate citizenship, which has been raised as a possibility by people with a background in international law as a perfectly viable option.

My Lords, my understanding is that Greenland became independent of Denmark, so the situation was very different from the one we are talking about here.

It is very important that we do not offer people false hope. It is important over the next year that people understand the full gravity and consequences of the decision the Government are proposing to impose on the country. There are no halfway houses. What does this thing called associate citizenship amount to? It amounts to a row of beans. There is no point offering people the prospect that we can somehow have the benefits —it is a classic case of having our cake and eating it. It is important that those who are in favour of staying in the European Union do not somehow think there are all kinds of halfway houses, which might give us all the benefits without staying in the European Union. It seems to me a very simple proposition: if people want to enjoy the benefits and rights of citizenship of the European Union, there is only one way to do it and that is to remain a member of the European Union.

My Lords, I support the noble Lord, Lord Wigley. Like the noble Lord, Lord Adonis, I thought that the founding idea of European Union citizenship in the Maastricht treaty, which goes back to 1993—so I was not sure how it was applicable to the case of Greenland, which left in 1986—was that you had to be a citizen of an EU member state in order to have EU citizenship. However, my new understanding is that, as Article 20 of the Treaty on the Functioning of the European Union reads that,

“citizenship of the Union shall be additional to and not replace national citizenship”,

this might give a little more wriggle room. I agree with the noble Lord, Lord Adonis, that policies of having cake and eating it are not necessarily desirable. However, we are in a debate about the withdrawal Bill. This morning I thought that perhaps we were so keen on having another Second Reading debate and thinking about the referendum all over again that we had lost sight of the Bill.

My noble friend Lord Murphy has just made an ingenious suggestion. Under the Good Friday agreement all residents of Northern Ireland are able to apply for Irish citizenship, which of course also gives them citizenship of the European Union. Perhaps if we allowed all citizens of Britain to apply for Irish citizenship by extending the Good Friday agreement, we could get the benefits that the noble Baroness is seeking to achieve.

My Lords, I was intervened on and had not finished—in fact, I had barely started. The point is that many people feel that we have talked a lot, absolutely rightly, about the rights of EU citizens who are resident in the United Kingdom, and we have talked a bit about the rights of UK nationals who are resident in other European countries, but there has been very little discussion about those people who are not overtly exercising their rights, as the noble Lord, Lord Wigley, said. When we have considered UK nationals resident elsewhere, we have tended to think about people living—retired, working or studying—in other countries. Here I declare an interest: my day job is as a lecturer in European politics. On an almost daily basis I consider that I am exercising my rights as an EU citizen by being able to get on the Eurostar and go to Brussels without having to think about visas or visa waivers. There are all sorts of ways in which we are able to exercise our rights as citizens on a daily basis.

I suspect that the Minister will say, “This is absolutely not possible”, but will he at least say that the Government are thinking about the rights that British citizens might retain? So far, much of the debate on withdrawal has been about regulations and whether we retain laws, but do we also retain rights, and do the Government wish us to retain rights?

My Lords, for the first time in these debates, I am, sadly, going to have to disagree with my greatly respected noble friend Lord Adonis. It is quite a serious matter to deprive people of one of their citizenships. I feel that quite strongly because I feel very European. I feel European, British and English, and even partially Welsh because my ancestors, I am proud to say, came from the Principality. I have never seen any contradiction at all in those different identities and loyalties, and I find it very insulting that someone should suggest that there is such a contradiction or that I have to give up one of those affiliations. That is the suggestion, although of course it will not affect my loyalty or my sense of identity or my sense of who I am.

These things are subjective, and the actions of third parties—even of Governments or parliaments—do not affect them. That is also the verdict of history. One thinks of Poland, which ceased to exist as a country between 1795 and 1918. That did not stop the Poles feeling very Polish. In the case of Ireland, the British tried for about 800 years to stamp out any sense of separate Irish identity and nationality but completely failed. At the end of 800 years I think that the Irish were more patriotic and conscious of their nationality than they were at the beginning. Therefore, I do not think that this will change the psychological or subjective notion of who I am and where I stand; nevertheless, it is offensive.

There is a quite separate matter in my mind, which is the loss of important benefits: the right to work, the right to vote and the right to take part in various programmes, such as educational exchange programmes. We have already debated these things in full. These are very important rights and liberties, which we will give up if we leave the Union. However, I do not see why, in addition, we should be told that we have to give up our sense of citizenship.

I recognise that the Brexiters in this Chamber and in the country as a whole see no virtue in the European Union or in having the rights that come with being in the EU, and they certainly see no virtue in European citizenship; indeed, they may wish positively to give it up for reasons of their own—perhaps the exact mirror image of my own position. However, I hope they will agree, as I hope all rational, liberal people will do, about the Pareto principle—that if you can do something in life that improves the happiness of a number of people without damaging the interests or happiness of anybody else, you should do it. On that basis, I hope that the Government will not want to stand in the way of those of us who want to keep our European citizenship. Of course, it is a matter for the European Union to decide whether to continue to give us European citizenship; it is not a matter for the British Government. However, I am asking the British Government not to impose obstacles but to positively help those of us who wish to achieve that purpose, which I think we can do without causing any damage to our fellow citizens who wish to go in a different direction.

Of course I agree totally with what my noble friend Lord Adonis said about leaving the European Union. That is a disaster. I have made it clear in these debates that that has been my view all along. Much the best solution in all these circumstances and to all the problems we have been airing in the last few weeks would be to stay in the European Union. I agree about that. But I do think that in life if there is going to be a complete disaster, if the ship is going to go down, it is better to get a place in a lifeboat than just going to the bottom. It is on that basis that I appeal to colleagues taking both points of view about the European Union to be generous and to try to help those of us who wish to preserve some physical manifestation and demonstration of our European citizenship, to which most of us—on our side, anyway—attach strong, personal importance.

I have the greatest respect for the noble Lord, Lord Wigley, but my head says that this will not work and that the noble Lord, Lord Adonis, is absolutely right. Citizenship is defined in the treaty as being a citizen of a member state. When we cease to be a member state, we all lose our citizenship, unless we are lucky enough to live in Northern Ireland or to be born in Northern Ireland. I do not think the Greenland precedent works, on the grounds of chronology. It was not actually Greenland seeking independence, and it preceded the concept of citizenship emerging in the European Union in the Maastricht treaty.

Does the noble Lord not accept that although it happened chronologically before the treaty of 1992, the rights continue afterwards and therefore are respected?

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.

It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

My Lords, it might be helpful if I, as a half-Dane, set out the position of Greenland. The noble Lord, Lord Wigley, raised the interesting point of what the status of UK citizens will be when we leave the European Union but continue to benefit in some places from it. Greenland is an autonomous Danish dependent territory, with only limited self-government and its own Parliament. It withdrew from the European Union but nevertheless is now associated with it under the Overseas Associated Decision and is eligible to benefit from funding from the EU’s general budget through the EU-Greenland partnership. That begs the question of whether the Government are minded to apply for such associated status so that citizens from parts of the UK can benefit in the future.

My Lords, I apologise for not being here at the start. I will say very briefly that one aspect has not come under consideration: namely, UK citizens who have their prime residence on the continent. If a UK citizen has restricted access to the country in which they have their residence and the situation arises where the spouse is not allowed to enter the UK—of which I have first-hand knowledge, as my colleague the Minister is aware—that could mean separation for many people and it will further complicate this whole arena.

My Lords, I will intervene very briefly. Since the Maastricht treaty, 18 million people have been born into European citizenship. They have not acquired it—it is their right from birth. What right have we to strip them of this citizenship? I am proud of being Welsh, proud of being British and proud of being a European. A person is usually stripped of citizenship as a penalty for having done wrong and for being an undesirable. How on earth am I going to tell the children—and they are not only children now—who have been born since the Maastricht treaty into European citizenship that they no longer have that right?

My Lords, in the words of those who tabled the amendments and their supporters, we hear the cry of millions who feel the loss of what they believe has been, or has become, their birthright—European Union citizenship.

We see this in many different ways. Half a million holders of UK passports have already applied for Irish passports, often by virtue of their parents’ or grandparents’ status; 30,000 EU citizens—double the number we saw before the referendum—who live here are now applying for British nationality; and many Britons are taking up membership of an EU member state so that they can preserve their EU citizenship. There is an even greater number of people who, like me, would love to continue to hold a purple passport. I have no nostalgia for my old passport—I think it is black rather than blue—and do not want it back; I would like to keep my purple one.

Apart from the emotional attachment, there are pragmatic reasons why people would like to continue with that. As the noble Lord, Lord Kerr, said, even with the withdrawal agreement we are not certain that it will allow Brits who are living abroad to do more than just remain in the country where they find themselves at the moment. It may not guarantee them the right to move or work elsewhere.

I heard recently from a British national, Nick Gammon, who at the moment is living in Holland—he has lived in France and Ireland—whose children absolutely identify as citizens of Europe. He is a translator and even at the moment his work is done not only in Holland but in Belgium, Germany and Britain, and indeed all over the place. But of course, after exit, while he will be able to carry on living in Holland, he will not be able to continue to live and work in one of those other places if it is not included in the final withdrawal agreement—although it would be nice if we could hear that it is going to be.

Of course, Nick is not alone. A few days ago we talked about the designers, architects, performers, sports men and women, nurses and all sorts of people who move around for their career, very often as freelancers, as well as for their personal lives. We heard from our EU committee earlier about how tourists moving abroad now risk losing their European health insurance card, the EHIC. Obviously this does not apply to many noble Lords in the Chamber, but if you happen to be more than 90 years of age or you have a pre-existing ailment, it will become very hard to get health insurance if we lose the EHIC. So there are enormous problems with continuing the movement across Europe that we know.

So there is undoubtedly an ache for the EU passport, with its ongoing residence and other rights. Perhaps I may briefly tell one more story. In my husband’s family, his cousin’s husband will I think be known to many: Nick Ross, whose Jewish grandmother and father arrived here from Germany in the 1930s. Nick has just taken German nationality. He has done so for a number of reasons, including how Germany has changed—although he does not necessarily want to go and work there. Following his lead, his sons, nieces and nephews have also applied for German passports, which says quite a lot. I gather that it is taking the youngsters rather longer because there is now a long queue of people doing just that.

That is a reflection of the world in which the current generation lives. Young people have more in common with friends, colleagues and partners across the continent than our parents would ever have imagined. It is the world that EU citizens residing here have also come to assume. Some are still in shock after the June 2016 decision, which will bar their automatic right to stay here, work and bring their family over. Even with all the promises we have been given, we know that there are great worries about how the system for settled status will continue.

I return to the amendment. Of course we cannot acquire stand-alone EU citizenship. It does not exist but is an add-on, even in the words which we have just heard quoted. It is an add-on for the nationals of EU member states. The EU 27 nations are no more going to give passports to all 65 million of us than we would give British passports to the 500 million citizens across the European Union—so I am afraid that we are not likely to get passports from another EU member state, and therefore, sadly, we will lose our EU citizenship.

But what we can do is ask the Government to ensure that at every stage of the negotiation they prioritise the movement of people around the continent in the way that a generation has learned to enjoy and value. Whether it is over the negotiations on staying and working with Euratom, Erasmus or the medical or other agencies, everything we do should help to preserve the free movement across the continent which youngsters in particular have come to expect. I think that we would like to see, if I may use the phrase, a continental Brexit, and I hope that Ministers will press for it so that people will be kept at the centre of all the negotiations, which will help them to continue to feel European—even if we revert to the old black passports.

I detect an elegiac and rather defeatist note in what the noble Baroness is saying. Has she read the report by Professor Volker Roeben? If so, what is her response to it?

Not only have I looked at that report and a number of other documents, but the noble Earl will have observed that I have one of the major legal advisers sitting on my right, from whom I take great strength.

I would love to believe the noble Lord but, alas, I also believe what it says in the treaty: EU citizenship is an add-on for citizens of a member state. That is why noble Lords have heard me say before that I was born in Germany but, sadly, in a British hospital, so I was born British. For a long time, I thanked my parents for getting me into a British hospital so that there were no complications. They are long dead, but I am now really cross with them for not having me in a German hospital so that I could have a German passport and keep it. My wish is there, but my brain tells me that it is just not possible.

My Lords, at one stage I thought that, for the first time in many days, I was going to agree with the noble Lord, Lord Adonis, but then he went and spoiled it.

Many people—today, yesterday, a year ago—wanted to remain EU citizens, but more people decided that they did not. That is where we find ourselves today. I do not seek to elaborate on that. I understand the strength of feeling from many people who did not want to see us leave the EU, but the reality is that we will. The consequence of that is clear and has been made clear by the noble Baroness, Lady Hayter, and the noble Lords, Lord Adonis and Lord Kerr: pursuant to Article 20, EU citizenship is an addition to the citizenship of a member state.

I apologise for interrupting at this juncture because the Minister has only just begun his interesting speech. He asserted that people voted decisively in favour of Brexit and therefore also against being European citizens. As far as I recall, that did not really come up in the campaign, so how many of those people would have known about EU citizenship arising from the Maastricht treaty a long time ago?

It is so utterly basic to the issue that it is difficult to conceive of many, if any, people who did not understand the nature and consequences of Brexit, so I will not elaborate on that.

I want to come back to remarks made by the noble Lord, Lord Adonis, as well as the noble Lord, Lord Wigley, in an earlier debate. We have debated this already in Committee in the context of another amendment. The noble Lord, Lord Adonis, mentioned Northern Ireland. Clearly, where one meets certain residency tests in Northern Ireland, one is eligible to apply for a passport from the Republic of Ireland Government. By that means, membership of an EU state can be retained and one can remain an EU citizen. As I indicated in an earlier debate, there are two areas of opinion in Northern Ireland: there are people who are perfectly happy—indeed, anxious—to secure a passport from Dublin and people who have no desire to do so.

I am afraid I must disappoint the noble and learned Lord because I think we are continuing to agree. However, I asked him why he will not extend the right to apply for an Irish passport to those of us on the mainland.

It is not in my gift. It would be a matter for international treaty negotiation between the United Kingdom and the Republic of Ireland. It is for Ireland to decide who it will admit as citizens of the Republic; it is not for us to demand. That is the answer to the noble Lord’s point.

As a point of interest, perhaps one should recommend to all pregnant mothers in Great Britain that they might consider going over to Northern Ireland to have their babies.

I am not going to indulge in an issue regarding maternity at this stage. Let us try to keep focus on the amendment, shall we?

We are all aware of the issue and we are also aware of the agreement that has been entered into to protect the rights of EU citizens and their family members living in the UK and of UK nationals living in the EU until the end of the implementation period, set at 31 December 2020. During the implementation period, individuals will still be fully covered by the EU acquis. UK nationals will be able to continue to move around the EU 27 member states and will have the freedom to move to another member state to live and work, as long as they do so before the end of the implementation period.

That reminds me of the point made by the noble Lord, Lord Kerr, about Article 32 of the withdrawal agreement. The position is this: what was proposed in Article 32 was removed as there was no actual agreement on that point. Therefore, there was no reason to have a legal text covering a point that was not the subject of agreement. The United Kingdom pushed strongly for the inclusion of ongoing movement rights during the first phase of the negotiations, but the European Union was not yet ready to include them. Of course, it remains an issue that we wish to pursue. We have already made that clear.

To come back to the amendment itself, it is simply not feasible for us to set upon a course of negotiation that is doomed to failure. We cannot secure EU citizenship for citizens of the United Kingdom after we leave the EU. That is the short point to be made. Therefore, the amendment would set the Government on a course of negotiation that would effectively prevent the present Bill—

I shall just finish the sentence, so will the noble Lord please sit down? It would effectively prevent the present Bill getting on to the statute book and achieving its intended purpose: to ensure legal certainty at the point at which we leave the European Union.

I am very sorry to hear that this would prevent the Bill reaching the statute book. Notwithstanding those feelings, I ask the noble and learned Lord to address the point I raised in my earlier comment about the 1969 Vienna Convention on the Law of Treaties that that convention,

“will be binding on all remaining Member States, the UK, and the EU itself post Brexit”.

Does he accept that the convention,

“ensures that the status and rights of those EU citizens resident in the territory of the Union and those resident in the UK will continue”,

after Brexit?

I hope the noble Lord did not pay good money for that opinion. He will perhaps elaborate on the position in due course, but I do not accept that proposition.

I will not come back after this intervention, but has he read the document to which I referred, or have experts in his department done so?

I have not read the opinion in question, but I am not unfamiliar with the terms of the Vienna convention on treaties.

If between now and Report he or his advisers have an opportunity to read that opinion and, having done so, feel that what has been said in a Chamber does not fully reflect the situation, will he be prepared to come back at a later stage?

I will take up a point that the noble and learned Lord was making before he took the very sensible and helpful intervention from the noble Lord, Lord Wigley. We all accept—I explicitly accepted it in my remarks—that EU citizenship is not within the Government’s gift. I accept, too, that there is no practical possibility of the Government negotiating it in foreseeable circumstances with the EU. What I am asking for and what I hope the noble and learned Lord can offer on behalf of the Government is that they will place no obstacle in the way and will do anything that appears possible to facilitate and support any move by any of us to try to achieve from the European Union some recognition of the fact that we are European citizens and we will continue to feel that way even after Brexit, if Brexit, unfortunately, takes place.

My Lords, I am very grateful to everyone who has participated in this short debate, particularly to the noble Earl, Lord Clancarty, who I am sorry I relegated in my earlier reference. I also thank the noble Lord, Lord Adonis, with whom I usually fully agree on these matters, although it was encouraging to hear that there may be alternatives by not pursuing this Bill. I thank the noble Baronesses, Lady Smith, Lady McIntosh and Lady Hayter, and the noble Lords, Lord Davies, Lord Kerr and Lord Roberts of Llandudno, for their comments. I think I have got as far as I am likely to get on this. I was grateful to the Minister for saying that he is prepared to look at the opinion to which I have been referring. I can ask no more than that, and on that basis, I beg leave to withdraw the amendment.

Amendment 355B withdrawn.

Amendments 355C to 357A not moved.

Amendment 358

Moved by

358: Clause 19, page 15, line 21, at end insert—

“( ) If the United Kingdom agrees transitional arrangements with the European Union, a Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of those transitional arrangements.”

My Lords, the purpose of this amendment is to prevent Section 6 coming into force until after the expiration of any transitional arrangements agreed with the Union. Clause 6, somewhat innocently and perhaps misleadingly named “Interpretation of retained EU law”, does more than simply offer canons of interpretation for retained EU law. Its apparent purpose is to bring to an end in a number of respects the role of the European court, the CJEU. Once Section 6 is in force no court or tribunal would be bound by any principles laid down or any decision made on or after exit day by the CJEU. Moreover, it would bring to an end the ability to refer matters to the European Court. As the Committee will be well aware, one of the ways in which the uniformity of Union law is preserved is through the ability of national courts to refer questions of interpretation and so forth to the European Court for decision. That means that our courts can get authoritative rulings on European law from the top European court to help our courts make their decisions. Moreover, of course, while we are members of the Union we are bound by Union law as interpreted and laid down by the European Court.

Of course, because certain law will be retained as EU law after exit, if the Bill goes through, the shutters cannot and should not come down completely even after exit. Subsections (3) to (7) of Clause 6 provide how the courts and tribunals are to interpret retained EU law after exit. As one would expect, even after exit day retained EU law will need to be interpreted in the light of decisions of the CJEU on those very provisions, although at that time our most senior courts—the Supreme Court in England and Wales and the High Court of Justiciary in Scotland, in its appellate role—would have the power to depart from those decisions. It is not, however, that aspect of continuing arrangements that this amendment primarily concerns. This amendment is concerned to ensure that, so long as we remain bound to follow EU law under transitional arrangements, the judicial arrangements, including the role of the CJEU, will continue to apply. That makes sense because, until the transitional arrangements have come to an end, EU law will continue to apply.

I have looked, as many noble Lords will have done, at the colourful draft agreement for withdrawal published recently. I say “colourful” because we can see the green parts that show what has been agreed at negotiator level and the yellow parts showing what has been agreed as policy objectives. As for the proposals for judicial procedures, none of that is green or indeed yellow; it is white at the moment so, as I understand it—the noble and learned Lord or the noble Baroness, whoever is replying, will explain—the current position is that we simply have, in this text, the negotiating position that the European Union wants to put forward. That is dealt with in Title X and Articles 82 to 92, particularly Articles 82 and 83. As I understand them—again, this could be confirmed or otherwise—the current proposal of the European Union is as follows.

First, the European Court will continue to have jurisdiction in any proceedings brought before it by or against the United Kingdom before the end of the transition period. So in one case its jurisdiction would remain, if that proposal were ultimately accepted.

Secondly, the European court would continue to have jurisdiction to give references or preliminary rulings from our courts referred to it before the end of the transition period. In any case, if the current draft of Article 85 from the European Union is accepted, the judgments and orders of the Court of Justice handed down before the end of the transition period, as well as those handed down in proceedings by or against the United Kingdom, will have,

“binding force in their entirety on and in the United Kingdom”.

I believe, although it would be helpful to have confirmation, that the European Union intends that, if this negotiating position is ultimately accepted, rulings and preliminary references brought before the end of the transition period will also be binding.

I apologise for the length of that introduction. What it amounts to is this: as long as transition arrangements are in place, the European court will have a role to play and its rulings will need to be respected and observed. That is obviously right, so it seems to me, because the transition period will be one in which we will to all intents be following the rules of the European Union though we will not be members of it. If the ultimate withdrawal agreement is in the terms currently proposed by the Union, as they appear from the negotiating document, Clause 6 as it stands would be in direct contradiction to the withdrawal agreement. The possibility for references, for example, would no longer exist.

I suggest that, in any event, it is sensible that the provisions of Clause 6, which would change the effect of European court judgments, should not come into effect until the end of the transition. That is the purpose behind this amendment. I anticipate that the Government will recognise that, if they eventually agree with the current negotiating position of the European Union, they will have to agree that Clause 6 cannot come into force until after the end of the transition period. If that is not the position, I have misunderstood the current position that is being put forward by the European Union. I question what would happen even if we do not agree that negotiating position. Whatever it is, I suggest that it cannot simply be that the shutters come down in this way, before the transition period has run its course. I do not see what the alternative is, because the rules and principles of the European Union will have to continue to apply during the transition period. That must include being subject to the jurisdiction of the European court.

I hope this amendment is helpful to the Government, because it draws attention to something that will need to be fixed in the light of the withdrawal agreement taking place. In those circumstances, I look forward to hearing what the Minister has to say and beg to move.

My name is to this amendment, but I have little to say because the case for the amendment has been brilliantly put forward by a lawyer, and I am no lawyer. It seems to be a common-sense amendment. If, as I think will be the case, the European Union side in the negotiation continues to insist that, if we want a standstill period in which we act as if we were members of the customs unions and the single market until January 2020, the jurisdiction of the Court of Justice as the umpire of the single market must continue. It seems to me we have to accept that if, as I expect, the European Union insists on taking the position it is now taking. In that case, as explained by the noble and learned, Lord Goldsmith, Clause 6 would have to be struck out. Clause 6 is in flat contradiction to what is going to be agreed on the standstill agreement. Therefore, it seems sensible to avoid having to repeal part of the law that we would have passed for us instead to introduce this small amendment that simply says that Clause 6 does not come into effect until the end of the transition period.

The concept of a standstill transition is extremely unsatisfactory. It is necessary but it is insufficient to deal with the huge problems that British industry and business will face. It is inconceivable that by January 2020 we will have negotiated a full agreement with the European Union covering the full gamut of our future relationship, including trade. That is just not feasible. Even if we had done that—if we had achieved the impossible—we would have a mixed agreement which would require national ratification in all capitals. All the standstill agreement does is give us the position for 21 months that we will accept and operate under laws that we have not written, on which we have had no votes; with no judge in the court but the court having jurisdiction; with no Members in the European Parliament but the European Parliament writing our laws, with the Council; and with no one in the Commission. I find that ignominious and insufficient because all it has done is move the cliff edge out to 1 January 2021. We will not have the long-term, permanent successor relationship defined in treaty form in a ratified treaty at the end of this period.

Moreover, it is my judgment that for legal reasons it will not be possible to extend the period. It seems to me that one cannot use Article 50, which is about withdrawal, to produce an extended period of future relationship. There are other articles in the treaty which define association agreements and relationships with third countries. I do not think the lawyers will allow us to use the withdrawal agreement as a treaty base for an extended period of new relationship. Therefore, although it is absolutely necessary to have a standstill because otherwise the cliff edge is very close, it does not solve the problem of the cliff edge but merely postpones it for a bit. But the amendment moved by the noble and learned Lord, Lord Goldsmith, must surely be right. It does not make sense to have a lengthy Clause 6 explaining a relationship which will not actually be the relationship we follow during the standstill period.

My Lords, I am mystified as to why there is any controversy at all on this matter and why the Government have come forward with a Bill that includes Clause 6 in its present form. After all, it is us who have asked for some withdrawal or transitional arrangement, and very necessarily so—I quite agree with the noble Lord, Lord Kerr; the whole matter is extremely unsatisfactory from many points of view.

Although our position will change constitutionally in March next year if we go ahead with Brexit, and we will not have been involved in the legislative process and so forth, the whole purpose of the transitional arrangement as I and I think everybody has understood it—that is the way the European Union has understood it, because after all, it is our request—is that the regime affecting all economic agents, traders and so forth, will be completely unchanged. They will carry on after March next year until January 2021 in exactly the same way. The rules they operate under will be the same. Their contracts will be interpreted in the same way as before. Their obligations to the state and so forth will be interpreted in the same way and therefore they will know exactly where they stand. They will not need to have any new regime introduced during that period. If that is the case, surely the legal regime must not be subject to any change—quite obviously so —because if it is going to continue as it presently is, the judgments of the courts which oversee that must be the same as they otherwise would have been.

Therefore, I am completely mystified as to why the Government have proposed that Clause 6 should come into effect on Brexit rather than at the end of the transitional period. I just hope that we will have a satisfactory and credible explanation from the Government. They might even admit that they have made a slight slip on this occasion and accept the amendment which is now before them.

My Lords, I rise in the absence of my noble and learned friend Lord Wallace of Tankerness, who has also put his name to this amendment. I want to raise a point that he has already raised with the noble and learned Lord, Lord Keen, and a couple of my own.

First, my noble and learned friend asked how EU law will take effect, given that under Clause 1, the European Communities Act 1972 will be repealed. It may be that ensuring Clause 6 has effect only after the transition period gets around that, but there is a real question about the United Kingdom implementing EU law from the day we leave—30 March next year—through to the end of December 2020. During that period, we will be subject to the European Court of Justice but, in principle, will have no representation—that is the point the noble Lord, Lord Kerr, made in passing: we will not have a judge. The noble Baroness the Leader of the House was asked whether the United Kingdom will still have a judge on the Monday. We assume it will not, but is that the case? Have the Government discussed it? In addition, will we have an Advocate-General? My understanding is that the current Advocate-General believes she is in an ad-hominem position.

I think it was the noble Lord, Lord Thomas of Gresford, who pressed this point. The answer we received was that this would be a matter for negotiation, the suggestion being that we would somehow negotiate the presence of a UK judge on the court. Rather like the point about nationality, having looked at the treaties, I think it is almost impossible to see how this could be arranged. I think we have to accept that we will not have any representation on the court because we will have no Members of the European Parliament.

I am most grateful to the noble and learned Lord. In a sense, that puts us in an even more difficult position. Surely, one idea was that by taking back control we would be able to legislate and use our own courts. We will have 21 months in which we do what the European Union requests without having a say. What are the Government doing to ensure we have at least some sort of seat at the table?

I had a son who worked in the European court. As far as I understand it, if an issue comes up which is relevant to the United Kingdom, it is unlikely that a United Kingdom judge would be part of the panel asked to rule on it.

There will be no United Kingdom judge: when we are not members of the European Union, we will not be entitled to have a judge at the European Court of Justice. The noble and learned Lord, Lord Hope, is absolutely right, I am afraid.

My Lords, the ECJ works at a snail’s pace. There will be a massive amount of undigested legislation one way or the other at the end of the transition period—how does this affect the issue?

My Lords, I support this amendment. One of the primary purposes of the Bill is to promote legal certainty: I cannot understand how it can be anything other than destructive to legal certainty for Parliament to enact a Bill that includes Clause 6, which removes the jurisdiction of the Court of Justice of the European Union from exit day—defined as 29 March 2019—when the Government’s own intention, and that of the European Union, is that there should be a transitional period during which the Court of Justice will retain jurisdiction, and during which we will agree to that jurisdiction.

My Lords, I too support this amendment. I will be very brief. It seems that if the Government try to maintain the text as it is they are basically marching Parliament up to the top of the hill in order to march it down again—they are also marching Parliament to the top of the hill to defend a position on which they themselves ran up the white flag some weeks ago. Frankly, this is not a sensible way of proceeding. It will make a mockery of Parliament if it is asked to legislate something which it knows not even the British Government want to happen. Surely, the right answer is to remove Clause 6, as the amendment proposes.

If by any chance everything collapses or changes, or the Government somehow persuade the European Commission to draft the text in a different way, it will be perfectly possible for the Government to put it in the withdrawal and implementation Bill that will come forward after the conclusion of negotiations. Meanwhile, we should start with the standstill as it has been agreed and without this provision.

My Lords, I am obliged to the noble and learned Lord, Lord Goldsmith, for raising the issue of Clause 6 in the context of the implementation period that is referred to in his amendment. Reference is made repeatedly to the transition period; yes, we recognise that there is to be an implementation period, as it is termed, if that and everything else is agreed. But nothing is agreed until everything is agreed, so we do not yet have that implementation period. We desire it and recognise that the EU also sees its significance. That is why we were able to express matters as we have in the March text—the multi-coloured text to which the noble and learned Lord referred. I agree with his reference to Articles 82 to 85 in that context and the point that they are on white, because they express a proposal and not a concluded agreement on those points. That is what I want to underline at this stage.

As I have said during Committee on a number of occasions, this Bill is to ensure that there is a functioning UK statute book on day one, regardless of the outcome of negotiations. In his speech on the implementation period, the Secretary of State was clear that it will allow—if it is finally agreed—a strictly time-limited role for the European Court of Justice, in keeping with the EU’s existing structures.

I am sensitive to the fact that unlike some other amendments, the provisions of this amendment are conditional upon the implementation period being part of the withdrawal agreement. Accordingly, they do not fully prejudge the outcome of negotiations and I acknowledge the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, in that respect. However, that does not change what we have asserted consistently: that the details of the implementation period will be legislated for in the withdrawal agreement and the implementation Bill. We have always been clear that the major elements of the withdrawal agreement will be implemented in that Bill and not in this Bill.

Presumably that means, too, that because there are so many gigantic individual subjects to be agreed in the implementation period, it would be perfectly feasible for the Union and the United Kingdom in further negotiations to agree on a longer period in order to get through all the complicated material, which the Government still say will be easy to do but will be extremely difficult.

The Government’s objective is to conclude a withdrawal agreement by October of this year. That has been stated on a number of occasions and it is in that context that we intend that the present Bill should deal with the situation, whether or not there is a withdrawal agreement or an implementation period. As and when a withdrawal agreement is concluded, it will be dealt with in the withdrawal agreement and implementation Bill. Clearly, if we enter into an international treaty with the EU 27 in respect of these matters, we will respect that international treaty and our obligations inherent in it and, in accordance with the duality principle, draw down those obligations into our domestic law, using the withdrawal agreement and implementation Bill. I suggest that it is inconceivable that we would not seek to do that.

The noble and learned Lord has been quite clear that it will be the withdrawal Bill that is the mechanism. Is he saying that it will be that Bill and not the use of the statutory instrument powers to be found elsewhere in this Bill which will enable him to modify or repeal its sections when it is an Act?

We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

The Minister has just been paying tribute to the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, whose language in this amendment copes with both eventualities. It sets out the contingency that there is a transitional agreement. I do not see the difficulty.

It is not a question of difficulty; it is a question of how we have decided to approach dealing with this in a legislative manner. The intention is that the present Bill will legislate for legal certainty whether there is or is not a withdrawal agreement. In the event of a withdrawal agreement, we will legislate to ensure that in the withdrawal agreement and implementation Bill the terms of the present Bill will be brought into line with the terms of the withdrawal agreement in order that we can discharge our international legal obligations. We have consistently pointed out that that is the approach being taken to legislation in this context. It is really quite inconceivable to suppose that the Government are going to enter into a withdrawal agreement and then not implement that international legal obligation in our domestic law. That is the intention. It is simply a question of the order in which these things are being done, and it has always been maintained, and will be maintained, that it is not for this Bill to deal with the eventuality or the prospect of the implementation period.

Does the Minister not appreciate the absurdity some of us feel? As the noble Lord, Lord Hannay, pointed out, we are being marched to the top of a hill that the Government have already abandoned. We are being asked to legislate in terms that are contrary to government policy and strategy in the Brexit negotiations, which leaves one feeling in a somewhat surreal position.

I sympathise with the idea of being left in a somewhat surreal position. As I said at the outset of my remarks, nothing is agreed until everything is agreed, so while we have the anticipation and desire to secure an implementation period, nothing is agreed until everything is agreed.

I find it rather hard from the Cross Benches and as a non-politician to make this point, but I wonder whether the Minister has considered what the Government are proposing to do. They are proposing to offer in an Act of Parliament signed into law by the Queen something which they know is not going to happen. They have offered that up; their supporters will, no doubt, rise cheering to their feet; and then, three or six months later, they will repeal that part of the Act, at which point there will be cries of betrayal and perfidy—and those are probably rather mild words compared with the ones that will be used by the Daily Mail and others. Have the Minister and his colleagues not given any thought to that? Is not the simple thing to do to accept the amendment, and then there will be no betrayal and no perfidy, or if there is it will have been done already?

There is no betrayal and no perfidy, but I feel misrepresented by the noble Lord because he said “knowing that there will be an agreement”. We do not know for certain that there will be an agreement. Nothing is agreed until everything is agreed. Of course, we have an aspiration; we seek to secure the implementation period, and when we do we will then legislate for that in the withdrawal agreement and implementation Bill. Meanwhile, this Bill is designed and intended to accommodate the situation in which there may not be such an agreement.

I hate to add to the surreal nature of this, but the formula “Nothing is agreed until everything is agreed” seems incompatible with negotiating a transitional agreement during which we recognise we will agree only a small number of things and carry on negotiating. It seems to me that the Government should now drop the mantra that nothing is agreed until everything is agreed, because we are actively pursuing, if I understand the Government’s case, a transitional partial agreement, during which a number of commitments will be made but a number of the fundamental issues of our future relationship with the European Union will remain entirely unclear and will be negotiated in the two or perhaps three or more years afterwards.

My Lords, we are engaged in a bilateral negotiation; it has not yet concluded. This Bill is designed to accommodate the situation in which there may not be a conclusion to that negotiation, as well as a situation in which there may be. In the event of the latter case, the withdrawal agreement and implementation Bill will bring the legislation into line with the statute book.

Will my noble and learned friend clarify for the Committee, if nothing is agreed until everything is agreed and we may not go into a transition period, how it can possibly make sense to have 29 March written into the Bill?

Because that addresses a distinct issue, which is the exit date from the EU. It is quite distinct from the question whether we are able to finally conclude an implementation period, which it is our intention to do. Let us be clear about that. The EU has also indicated its intention to do it as well. But we are engaged in a bilateral negotiation.

It is plain and obvious that nothing is agreed, but can the noble and learned Lord be clear with the Committee about the Government’s position in relation to negotiating this transitional implementation period? Do they now accept that they are no longer seeking to impose any red line relating to the jurisdiction of the Court of Justice during that implementation period?

I am not sure I agree with the term “red lines”; it is not one that I am inclined to use. I am never quite sure what they are. Our position is that during an implementation period, if and when finally agreed, we will accept that there is a role for the European Court of Justice. Indeed, it is outlined in the EU’s own proposals for the agreement at Articles 82 through to 85. As the noble and learned Lord indicated, that is not yet the subject of final confirmation between the two parties but it is what is anticipated.

On a related point, during that period, I agree with the noble and learned Lord, Lord Hope, that as we cease to be a member state we will cease to have the right to have a judge in the Court of Justice of the European Union. That must follow. However, we will have the right to make interventions in cases that pertain to the United Kingdom.

My Lords, there have been moments during the 11 Committee days that we have had so far on this Bill when I felt a little sorry for the noble and learned Lord opposite for the positions that he was being expected to argue by those behind him and in other places, but never more sorry than I am today. This is the most absurd situation. We have offered him an amendment and I am grateful for the description given by the noble Lord, Lord Kerr of Kinlochard, as delicate. It does not presume even that there are transitional arrangements. It simply says that, if there are transitional arrangements, this is what will happen. I cannot understand why it is not accepted. I had hoped on this 11th final day of Committee that we would have a breakthrough.

The 11th hour of the 11th day, as my noble friend Lady Hayter says. If we had had a breakthrough, we would have been able to say we had finished Committee with a concession—not much of a concession, it would have to be said, because it is so obvious that this ought to happen, but at least it would have been something that we could build on as we move towards Report where we hope we will have a degree of constructive engagement.

This really does not make sense at all. We all know, and the noble and learned Lord knows—indeed, he accepted it—that there will be a role for the European Court of Justice after the magic exit day, whatever day we end up with. If there is not, this amendment does not operate. It is very straightforward and simple: to suggest otherwise is cloud-cuckoo-land or Red Queen land.

The noble and learned Lord’s final recourse is to legal certainty. We all accept the importance of legal certainty, and that that is what is behind the Bill. However, there is complete legal certainty if this Bill, when it becomes an Act, says, “If something happens, this provision does not come into effect until the end of that period”. I will not quote Latin again, but we know there are principles which say that those things are certain which can be made certain, and it will be certain because we will know whether or not there is such an arrangement.

I thank the noble Lords and the noble Baronesses who have spoken, all of whom have supported my position in their speeches and interventions. The noble Lord, Lord Kerr of Kinlochard, is absolutely right, of course, that what the Government are doing with the transitional arrangement does not solve the problem but postpones it. But, obviously, they hope that by postponing it, things will be more resolved at the end of that period. However, we cannot have a situation in which we have a vacuum, because the provisions for judicial interpretation and enforcement disappear.

The noble Lord, Lord Hannay of Chiswick, put himself momentarily into the role of a politician to consider what the Government would do, and I was envisaging exactly the same thing. If the Government have their way, this Bill will be passed in this way and they will trump to the world that the role of the European Court of Justice has gone—ended, so far as the United Kingdom is concerned, on exit day. Then, a few months later, the Prime Minister will have to stand up and say, “We have decided to reinstate a role for the European Court of Justice. We think it makes sense to do that”. I cannot see that happening. I cannot imagine why the Government would want to put themselves in that position.

Therefore, I very much hope that, despite the noble and learned Lord following his brief today, as he has very loyally done, when this comes back, which it undoubtedly will—unless the Government have the sense to put forward their own amendment, which I hope they will—they will accept that this amendment has to be followed through. In the meanwhile, I can do nothing else than beg leave to withdraw the amendment.

Amendment 358 withdrawn.

Amendments 358A and 358B not moved.

Clause 19 agreed.

Schedule 8: Consequential, transitional, transitory and saving provision

Amendment 358C

Moved by

358C: Schedule 8, page 55, line 33, leave out sub-paragraphs (1) and (2)

My Lords, this amendment is in my name and those of three other members of your Lordships’ Constitution Committee: the noble Lords, Lord Norton of Louth and Lord Beith, and the noble Baroness, Lady Taylor of Bolton.

Amendment 358C and Amendment 360A, with which it is grouped, address the powers tucked away in Schedule 8 to modify retained direct EU legislation by the use of delegated powers that relate to subordinate legislation. A power to modify is an important matter because “modify” includes a power to repeal—see Clause 14 (1).

This Committee has debated on previous days the surprising omission from the Bill of any provision that identifies the legal status of retained EU law. Is it primary legislation, secondary legislation or something else? The powers in Schedule 8, in paragraphs 3(1) and 5(1), which we are now addressing, have attracted the attention of your Lordships’ Constitution Committee because those provisions treat retained EU law as analogous to secondary legislation for the purposes of powers to modify. That is a surprising position for the Bill to adopt, certainly in relation to that part of retained EU law which confers important rights: for example, in the fields of employment, the environment and consumer protection. It means that, in addition to the other powers to modify retained EU law, which the Bill will confer and which we have debated in detail—Clauses 7, 8, 9 and 17—there is yet another set of powers recognised by Schedule 8 that will give Ministers the power to modify the retained EU law, on important subjects, which is brought into domestic law.

My concern is not reduced by paragraph 3(1) of Schedule 8 saying that these powers can be used only,

“so far as the context permits or requires”,

and paragraph 5(1) says that the powers may be used,

“unless the contrary intention appears”.

These statements are opaque in the extreme and certainly do not provide any degree of legal certainty.

I therefore look forward to hearing from the Minister why these powers are needed at all in addition to the other extensive powers which the Bill confers, and I look forward to hearing from him what these powers say, if anything, about the legal status of retained EU law. I beg to move.

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.

A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

My Lords, I support the amendment. There is not much to add to what the noble Lord, Lord Pannick, said about what the amendment does and why it is necessary, nor to add to the questions he asked or to those then added by the noble Lord, Lord Beith, which in particular picked up issues with regard to the devolved Administrations.

We know that a major theme in your Lordships’ House, rightly, has been how powers are to be exercised, recognising that there may be circumstances in which they have to be exercised. Notwithstanding that, on the whole this Committee has rightly taken the view—or we hope that we will see it take the view, certainly from the interventions and contributions that have been made throughout the Committee—that this is a matter where proper parliamentary scrutiny is required. There may well be a role for certain delegated legislation, but please let us not add to it with still yet another way in which things can be done which avoid that full parliamentary scrutiny.

I hope that the Minister, when he responds, will be able to say something reassuring, both answering the questions posed by the noble Lords, Lord Pannick and Lord Beith, and saying why we need not be concerned and that the Government will content themselves with relying on those delegated powers that will be specific to the Bill, once this Committee and the other place have determined just what those delegated powers should be.

I am obliged to noble Lords. I begin by making two observations. These amendments are linked closely to the issue we have already debated in Committee of the status of retained EU law and how we deal with it in the context of its status. As has been indicated previously in Committee, the Government have been listening and considering that, and we intend to come back to the House on the matter before Report. I mention that because it is a relevant backdrop to what we are considering at this stage.

On the points raised by the noble Lord, Lord Beith, essentially, the powers in paragraph 3 of Schedule 8 are, first of all, designed to remove what I might term the shadow of European law from what will be domestic legislation. However, more particularly, the noble Lord raised a point about the devolution issues and quoted from the Explanatory Notes. I understand that the section of the Explanatory Notes that he refers to addresses Clause 11 prior to its recent amendment. I appreciate that we then withdrew that amendment, but the Explanatory Notes should be read in that context. Essentially, therefore, we have moved on because of the decision to flip Clause 11—I think that was the term used—so I ask the noble Lord to look at the proposed amendment to Clause 11 to understand the context in which we now want to deal with this point.

The noble and learned Lord is being reasonable, but he is inviting us to presume that we have moved on when we have not yet done so. The Government have indicated a willingness to look further at the Clause 11 issues and come back with something new. However, when we compare that discussion to the one we just had, it is a bit odd now to be invited to behave as if something has happened which has not happened yet.

I understand the noble Lord’s point. He appreciates the statements of intent that we have made with regard to Clause 11. Although we withdrew the amendment to Clause 11, it was tendered and withdrawn for a particular purpose, in order to ensure that it could be finalised before Report. I hope that that addresses the noble Lord’s concern about the terms of the Explanatory Note that he quoted.

We have discussed on previous occasions in Committee the risk of ossifying the statute book and how that has to be balanced against checking the ability of the Government to propose changes to retained EU law. Clearly, as I indicated, the Government have heard the debates on the question of how we should treat the status of retained EU law, and we intend to come back on that. However, we must make provision for how delegated powers outside the Bill will interact with retained direct EU legislation. To do nothing would create uncertainty and potentially—by putting it beyond the reach even of Henry VIII powers that can modify Acts of Parliament—risk placing retained EU law on a pedestal of protection beyond even the elevated position of primary legislation. That is why I say that the two issues are linked: how we deal with the status of retained EU law but also carry on with our domestic powers to deal with the entire scope of our domestic legislation, including that which is going to be defined as retained EU law.

At present, the Bill provides that all retained direct EU legislation is—within the context provided by the scope of the powers—to be amendable by delegated powers on the statute book on exit day, unless Parliament provides for the contrary intention, also by future delegated powers.

I am sympathetic to noble Lords’ concerns that this makes retained direct EU legislation too easily amendable and that it does not recognise what are sometimes referred to as internal hierarchies of EU law, with “primary-esque” regulations sitting above “secondary-esque” tertiary legislation—that is an approximate comparison between our own system of legislation and what we find from the EU, with tertiary legislation largely in the form of delegated and implementing Acts.

The Government of course are concerned to ensure that we have a workable statute book going forward. That is why the power in Clause 7 is key to ensuring that the statute book works on day one after our withdrawal from the EU—and, after it is corrected, it must also work on day two, day 20 and day 200.

In this context, it is perhaps relevant to remind ourselves that Parliament passes around 1,000 statutory instruments each year. Similarly, in 2017, the EU adopted more than 500 basic pieces of tertiary legislation and slightly fewer than 500 amending pieces of tertiary legislation—all of which instruments will be part of our legislation after Brexit. Without the ability to adjust retained direct EU legislation with subordinate legislation, we face a serious risk of these regimes simply ceasing to function. Before exit day, the regimes could be adjusted in EU law; after exit day they need to be adjustable by relevant domestic delegated powers—both pre-existing powers and those that we are transferring from the European Union.

In relation to pre-existing domestic powers, it is crucial that the effect of our leaving the EU is properly reflected in the statute book, including by ensuring that powers which have been granted by Parliament continue to function effectively. We are withdrawing from the EU, and among the key reasons for this is to return decision-making to the United Kingdom. Paragraph 3 of Schedule 8 ensures this by lifting what I term the “shadow” of the treaties from our statute book.

Paragraph 3 of Schedule 8 ensures that the amendment of retained direct EU legislation is subject to parliamentary scrutiny—and, rightly, allows Ministers to bring to Parliament instruments, within the existing scope of the powers, which propose policy that would either have been in areas of the exclusive competence of the EU or which diverges from EU policy. It cannot be rational, once we have left the legal architecture of the EU and the treaties, for the restrictions they place on what this Parliament can consider and approve to continue in some shadowy form after we have left the European Union. That is why we are taking these powers.

I know that there is concern about the use of Henry VIII powers—but, again, those have to be available for allowing the modification of regulations and directives that come into retained EU law. Perhaps in this context they are more aptly termed Charles V powers, as he was the equivalent Renaissance continental monarch at the time.

My Lords, since we have returned to the subject of Henry VIII powers, I would like to inform the Minister that, after this morning’s discussion on the Statute of Proclamations, I looked up the Wikipedia entry—my historical memory of this being relatively limited—and discovered that Thomas Cromwell’s original proposals for the Statute of Proclamations passed through the House of Commons unamended, but they were amended in the House of Lords. Does the Minister think that is a relevant precedent?

Of course, our constitutional position has altered over the last few years—say, the last 500—and, at the end of the day, we see ourselves as, essentially, an amending House. I understand the noble Lord’s point but, in that context, we also understand the precedence of the other place with regard to the final passage of legislation. Therefore, our primary tasks in this context are scrutiny and comment.

The Government have always said that this Bill is not the place for radical policy change. Essentially, what we want to do at this stage is preserve the existing domestic powers to amend legislation pursuant to paragraph 3 of Schedule 8, in order that we can address issues with regard to retained EU law. But the manner in which those powers will ultimately be deployed will depend on the outcome of our consideration of the question of what status we confer on retained EU law. Given that that is an ongoing issue, I invite the noble Lord at this stage to withdraw his amendment. He may, of course, choose to return to it once he has seen our proposals with regard to retained EU law, but it appears to me that the two issues are inextricably linked.

Before the noble Lord announces the fate of his amendment, I have a question for the Minister. He said several times that there is a connection here with what will happen to EU retained law and what status it will have. We have had full debates on that, as he rightly says. We have heard from the noble Baroness, Lady Bowles; we have heard from the Constitution Committee; we have heard a rather different proposal from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who is not in his place at the moment. My question is simply: when will we know what the Government’s decision is? I hope that they will not stick—because they cannot stick—to the idea that it will be simply for Ministers to decide as we go along the status of a particular piece of retained law. When will we know the Government’s position? That might enable us to advance not only on that point but on points such as the one being debated at the moment. Can the Minister give us an answer as to dates?

I cannot give the noble and learned Lord an answer as to dates, but clearly we are concerned to ensure that any proposals we have to make are in place in time for consideration by the whole House before Report.

I am grateful to the noble and learned Lord, who I have always regarded as a true Renaissance Minister in all respects. I am very pleased to hear him confirm that the Government are seriously considering the issue of the legal status of retained EU law. The Committee of the House will look forward to seeing amendments from the Government in that respect. I am far less persuaded of the need to include in this Bill paragraphs 3(1) and 5(1) of Schedule 8, in addition to all the other extensive powers which the Government—and Ministers—will be giving themselves to amend retained EU law, under Clauses 7, 8, 9 and 17. The question is: why is it necessary also to include these powers in Schedule 8?

The concern, as the Minister will understand, is that future Ministers may decide that it is much more convenient to use the extensive, unrestricted powers in Schedule 8 than to comply with whatever restrictions are imposed by this House, by the other place—by Parliament—on the powers to modify under Clauses 7, 8, 9 and 17. So we might need to come back to this matter on Report.

I was also interested to hear the Minister say in his reply that the Bill is not the place for “radical policy change”. I will remind him of that when we debate the amendments—which no doubt will be put forward on Report—to take out the provisions in the Bill that remove from retained EU law the European Union charter of rights. I beg leave to withdraw the amendment.

Amendment 358C withdrawn.

Amendment 359 not moved.

Amendment 360 had been withdrawn from the Marshalled List.

Amendments 360A and 361 not moved.

Amendment 362 had been withdrawn from the Marshalled List.

Amendments 363 to 364 not moved.

Amendment 365

Moved by

365: Schedule 8, page 64, line 33, leave out from first “time” to end of line 34

My Lords, I can hear the strains of the “Farewell” Symphony as we prepare to tackle the penultimate amendment to be debated in Committee, and how appropriate it is that the very final amendment should be in the name of the noble Lord, Lord Adonis.

Amendment 365 is in my name and the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Baroness, Lady Hayter of Kentish Town, and it is very sharply focused. The Committee has already considered the issue of tertiary legislation, with Amendments 110 and 135 as vehicles. Those amendments combined the issue of the principle of tertiary legislation with that of sunsetting. Amendment 365 is about only sunsetting, so I need not trouble the Minister to revisit the general defence of tertiary legislation, which he made at cols. 1473 and 1474 at an unearthly hour on Monday 12 March, although it was then what the rest of the world knew as Tuesday 13 March.

On that occasion, the Minister also made a defence of the exemption of tertiary legislation from sunsetting. He said:

“Where sub-delegated or transferred legislative powers are crucial to the functioning of a regime, it would not be appropriate”—

how often that word “appropriate” recurs—

“for those powers to be subject to a sunset”.—[Official Report, 12/3/18; col. 1475.]

If one accepts the principle of bodies such as the Prudential Regulation Authority and the Financial Conduct Authority exercising tertiary powers in their role as continuing guardians of a regime—and the Minister made a very good case for that in his speech on that occasion—it also makes sense for them to continue to do so after two years have elapsed from exit day. Indeed, I feel that I am now starting to make the Minister’s speech for him. However, there remains a serious point, because if bodies responsible for the functioning of a regime are to continue to exercise their powers without a sunset, it is crucial that those powers are tightly drawn in the first instance, as there will be no opportunity for parliamentary scrutiny of the subsequent exercise of the powers that have been delegated to those bodies.

Therefore, perhaps the most helpful thing the Minister could do in replying to this debate would be to give your Lordships a clear assurance that the tertiary powers will be carefully circumscribed, and that when affirmative instruments delegating those powers come before Parliament—because the actual delegation will be subject to the affirmative process—they do not simply prescribe some general subject area in which the body is to operate and which is to be its responsibility, but are rather more specific and indeed constraining. I beg to move.

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

I thank the noble Lord, Lord Lisvane, for introducing this amendment, which stands also in the names of the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Hayter. I am glad to have the opportunity to address it.

First, I reassure noble Lords that the strength of feeling around the exercise of delegated powers by those not immediately accountable to Parliament has been heard, as I said the other evening. The Government are looking very closely at the issue of transparency before Parliament, and we will of course hold that at the forefront of our minds as we consider our position ahead of Report.

At the heart of this Bill is the repeal of the European Communities Act, including Section 2(2) of that Act. As noble Lords on all sides of the Committee know, that provision has been the vires used for many statutory instruments made by many Governments in recent years. This Bill does not replace that power. Although there are several broad powers in the Bill, with some approaching the breadth of Section 2(2) of the ECA, they are, unlike that power, time limited. The Bill is not an assault on Parliament but, rather, the means by which this Parliament will take back control to itself.

Nevertheless, there is, and will always be, an important place for subordinate legislation in our legislative system. As my noble and learned friend Lord Keen said in responding to the previous group, there are indeed many delegated powers of a similar type in parts of European law. I and the other former MEPs in the Committee will have known the system of comitology well. These powers currently allow the Commission, with the scrutiny of the European Parliament and the member states in the Council, to make subordinate legislation setting out technical details, adjusting to developments in the market or prescribing procedures and forms. The powers to make this legislation—generally, as the noble Lord, Lord Lisvane, acknowledged, known as tertiary legislation and taking the form of delegated or implementing acts—will still be important as an integral part of the European law regimes that we are bringing into domestic law via this Bill.

Without the ability to exercise those powers in the future, the law that we are rightly incorporating into the UK’s domestic legal order would quickly become stale. Perhaps I may give some examples of areas where regular updates are required. One is the amendment of the regulation of chemicals, where the ability to react quickly is of real importance for public safety and health. Therefore, we need narrow and specific delegated powers to be exercisable after the sunsets of the broad delegated powers in this Bill.

Although I have no doubt that over time, new domestic regimes will replace all these European-derived powers, there is not the time to seek to redesign and replace all these powers in the next two or three years. Sunsetting all these powers would commit us to doing little else in the next few years other than providing for their replacements—something I cannot consider a proportionate or sensible use of our time. The proper way for these powers to be replaced is when it is appropriate to do so as part of future primary legislation in that policy area.

I am of course aware of noble Lords’ concerns about the transparency and scrutiny of new powers being vested in UK Ministers and other public authorities under the Bill. I repeat that the Government are listening to those concerns and we will reflect closely on them before Report. However, I can illustrate the diversity of issues that these powers cover and which my ministerial colleagues are tackling. For example, I hope that noble Lords will agree that one can reasonably argue that the power to set the font size on tobacco packaging does not require the same parliamentary time as, for instance, the management of invasive alien species.

We are keen to hear the views of noble Lords but, given the variety within these powers, the Government are very wary of prescribing a one-size-fits-nobody solution to scrutiny. That, I fear, would only store up even more discontent among noble Lords. I remain convinced that the delegated powers granted under this Bill will be needed for the foreseeable future and that the right way to address the exercise of delegated powers transferred or granted by the SIs under the Bill is not to sunset them all. Rather, it is for noble Lords to scrutinise closely and carefully the SIs transferring those powers and the conditions they set out, and to reject them if they do not meet their exacting standards. We in the Government are committed to making sure that Parliament has all the material it needs to do this. I therefore ask the noble Lord whether, in the light of that, he will consider withdrawing his amendment.

My Lords, I am very grateful to the Minister and to his Opposition shadow for what they have said in this very short debate. It may be a good moment to pay tribute to the stamina of the Minister and his ministerial colleagues. We are on day 11—it must seem to them like day 43. They are no doubt musing on some parliamentary version of what used to be said of King Philip II of Spain: that if death came from Madrid, we would be immortal.

The Minister’s reply rather put the onus on to your Lordships to look at the affirmative instruments that would delegate these powers and decide whether they were sufficiently constrained. I think that might be the second-order question. The first-order question—and I know the Minister accepted this point, even though he did not reflect it in what he said—is for the Government to think very carefully about how these powers should be constrained in order to avoid any controversy in your Lordships’ House. If that message has been taken on board, I beg leave to withdraw the amendment.

Amendment 365 withdrawn.

Amendments 366 and 367 not moved.

Amendment 368 had been withdrawn from the Marshalled List.

Amendments 369 and 370 not moved.

Amendment 371 had been withdrawn from the Marshalled List.

Amendment 371A not moved.

Schedule 8 agreed.

Schedule 9: Additional repeals

Amendment 372

Moved by

372: Schedule 9, page 67, leave out line 38

My Lords, it appears to fall to me to move the 372nd and last amendment to the Bill. By my calculations, some 236 noble Lords have so far taken part in the deliberations on this Bill, which is more than the entire membership of your Lordships’ House for the first six centuries of its existence. I believe, from a quick scan of Hansard, that we are now in our 115th hour of deliberations on the Bill, which is time enough for two and a half circumnavigations of the globe—which I am told is roughly what Dr Liam Fox has so far undertaken in search of trade treaties to succeed the European Union. It has also enabled the Minister and me to forge a deep and special partnership, but the maiden aunt of the noble Lord, Lord Lisvane, need not be too alarmed because we have had witnesses present for the entire duration.

This amendment would prevent the repeal in this Bill of the European Union Act 2011, which provides for referendums in the case of significant changes to the treaties regulating the European Union. I do not want to go into the substance of the legal issues involved—I refer noble Lords who wish to understand those issues to the entry on 4 July 2016 of the blog by Pavlos Eleftheriadis, who is professor of public law at Oxford University, where there is a substantial subsequent debate. However, these matters are before the courts at the moment. There is a case which is pending, and the courts will decide these issues. I do not think I can add much to those deliberations.

My reason for bringing this amendment to the attention of the Committee is that there is an important constitutional principle at stake. The European Union Act 2011 was of course passed by both Houses of Parliament. It was passed by an emphatic majority of the House of Commons, where on Second Reading it was passed by a vote of 330 to 195. Yet there was no express vote or debate in the House of Commons on the issue of repealing this 2011 Act when the Bill went through the House of Commons. Indeed, it is not even clear from the debates that most Members of the House of Commons were aware of the fact that this Bill does repeal the European Union Act 2011, since there was no reference whatever to the Act in the deliberations of the House Commons. The issues which have become controversial in recent weeks since the legal actions started were not matters of public debate when the Bill was going through the House of Commons.

The European Union Act 2011 was regarded as a flagship piece of legislation in the 2010 Parliament. The noble Lord, Lord Hague of Richmond, who was then Foreign Secretary and who proposed the Act told the House of Commons:

“The Bill makes a very important and radical change to how decisions on the EU are made in this country … It marks a fundamental shift in power from Ministers of the Crown to Parliament and the voters themselves on the most important decisions of all: who gets to decide what”. —[Official Report, Commons, 7/12/10; col. 193.]

It was a significant piece of legislation, not a minor piece of legislation. My contention is simple and straightforward: that on a matter of this gravity, where Parliament is repealing a significant piece of legislation, it is not too much to expect the House of Commons to debate, deliberate and vote on that repeal. There has been no debate, no deliberation and no vote on the part of the House of Commons. It seems to me to be an absolutely appropriate exercise of your Lordships’ power to ask the House of Commons to consider matters properly, and that this House should ask the Commons to have an express debate and vote on the repeal of the European Union Act 2011. I beg to move.

My Lords, I have listened with admiration to the contributions of the noble Lord, Lord Adonis, throughout this Committee. They have been exemplary examples of scrutiny. But on this occasion, I am afraid, I am not persuaded. The reason I am not persuaded is that the 2011 Act imposed a referendum condition which applied in a series of circumstances, and they were all circumstances in which the powers of the EU and its institutions were extended. The Explanatory Notes to the Bill which became the 2011 Act made very clear that its purpose was to implement the commitment of the coalition Government —I quote from paragraph 11 of the Explanatory Notes —that,

“there is no further transfer of sovereignty or powers [from the UK to the EU] over the course of the next Parliament... Any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty”

The plain fact of the matter is that there is no transfer of further powers or sovereignty to the EU from the UK. On the contrary, this Bill is very simple. The agreements being negotiated are designed to achieve exactly the opposite, whether we like it or not—the return of powers to the United Kingdom from the EU. The 2011 Act simply has no application and it is entirely right and proper that if this Bill repeals, as it will, the 1972 Act, it should also repeal the 2011 Act.

My Lords, I would like to intervene briefly to support my noble friend Lord Adonis, and I do this in defence of your Lordships’ House. When the 2011 Act was debated here, I was speaking on the Opposition Front Bench with my noble friend Lord Triesman. I think we gave it six days, possibly seven, in Committee, and three days on Report. We did our best to scrutinise this piece of legislation. It seems to me that the idea that it should be repealed in a schedule without any debate in the House of Commons is, as my noble friend Lord Adonis says, a bit of a constitutional offence.

The noble Lord, Lord Pannick, makes very good points, as he always does. Can I be allowed to make a political point in return? He says that there is no transfer of powers involved in what is going on now. Let me assure you that there is a big transfer of powers to Brussels. Brussels is going to be able to legislate, during the implementation period that we have now signed up for, without any British Minister taking part. We are asking for opt-ins to various pieces of Brussels legislation as part of the negotiations and British Ministers will have no say over those policies—no say on policies on goods trade or on financial services. We will be trying to maintain equivalence with a regime over which we have no say. As to the idea that this Bill is taking back control to Britain, it is in fact handing control in large parts to the EU, where British Ministers and the British Government will have no say at all. We on this side of the House should point out this position and explain that the way to deal with it is to stay in the EU, and that is what we should fight to do.

My Lords, I understand that that political point can be shortly made and it would dispense with all our consideration of this Bill altogether.

I played quite a part in the 2011 Act—along with the noble Lord—in stating what the position in law was for EU law in this country. I was keen to point out that the treaty did not of itself have that effect. It became an argument later when the noble Lord, Lord Pannick, argued about these and other matters in the Supreme Court. However, the point was that the authority for EU law in our country is the 1972 Act. This House affirmed that and the House of Commons accepted it.

The important thing about the 2011 Act is that its repeal is consequential on the repeal of the 1972 Act and our departing from the European Union. Matters that are consequential are usually covered in schedules. If noble Lords wish to discuss purely consequential legislation, so be it, but it is not necessary. As the noble Lord, Lord Adonis, said, we have used it quite a few times and, given the amount of time we have spent on this Bill, it is appropriate that this provision repealing the 2011 Act should be in a schedule.

My understanding is that it is not consequential that the repeal of the 2011 Act under this schedule will take place when this Bill becomes law at a point determined by a Minister, whereas we only repeal the European Communities Act 1972 on Brexit day, 29 March next year, or later under Clause 14(4) if a Minister chooses to extend the date.

My understanding—it is important to tease out these issues because we are a revising Chamber—is that this is being done deliberately by the Government. They want to forestall any cases coming under the 2011 Act as soon as possible. I assume they have read the legal opinion which raised doubt about the interpretation of the 2011 Act and do not want them rumbling through the courts before the repeal of the European Communities Act 1972 takes effect.

My Lords, one has distinct memories of the European Union Bill and it then becoming an Act. The noble Lord, Lord Adonis, has done a great service by referring to it, although his objectives in so doing might be somewhat different from noble Lords in other parts of the House. That Bill was introduced at the beginning of the coalition period. I have always thought that the coalition was agreed too quickly. Both leaders, understandably, were keen to get going with it and some aspects of the agreement were left vague and unresolved. There was a great deal of excitement about the initial period of this unusual and first-time type of coalition. For those of us who pompously describe ourselves as good Europeans—rather than just fairly keen on the EU— this was a painful moment. Given the celerity of the agreement of the coalition at the beginning, the contents of the Bill were never properly gone into or discussed, despite the substantial vote in the House of Commons to which the noble Lord, Lord Adonis, referred. Again, that was because it was the beginning of the period of this new exercise of the interesting and fascinating coalition.

I believe David Cameron was not much interested in the legislation. He regarded it as a routine inclusion in the incipient contents of the coalition’s programme—not the things that appeared later on—but for the Liberal Democrats it was important. I remember it being described by a senior colleague who was then a member of the coalition representing the Liberal Democrat portion of it—I will not say who—as, “Just routine smoke and mirrors, old boy, don’t worry about it”. However, it was not easy for people to accept it in that sense and I remember vividly a substantial rebellion within the Liberal ranks in the Lords on this matter. There may have been a small one in the Commons as well—I cannot exactly remember those details—but in the Lords there was a substantial rebellion led by Baroness Shirley Williams and others in the team who were not members of the coalition Government because they objected strongly to the contents of the Bill.

The contents were elusive, vague and cynical, That is what put off people who regarded themselves as enthusiastic members of the European Union—members of the club—unlike some other people in Britain who were only half-hearted members of the club, including politicians. For example, a transfer of powers to Brussels had to be accompanied by a referendum and could take place only if the Government got the authority of Parliament to do so. However, the Government could suggest that something was too minor a matter to bother about and just leave it aside.

An extraordinary, ironical conclusion of one of the important items was that the enlargement of the Union would not be included in the Bill. In those days there was a rumour that Turkey was going to join at some stage—there were endless discussions about that possibility—and yet that would not have been part of the matter discussed in the democratic Parliament of the United Kingdom, particularly in the House of Commons. There were other anomalies which looked like opportunism. The rebellion was substantial among the Liberal Democrat ranks here, and the legislation was then forgotten and buried.

I always thought that rather than object to the repeal—I can understand why the noble Lord, Lord Adonis, is suggesting it—the infamous 2011 Act should be repealed as quickly as possible. That needs to be on the agendas of both the Lords and the Commons for the future. At the moment, therefore, I am torn between agreeing with the noble Lord, Lord Adonis, for the reasons he has enunciated, and saying that it would be a mistake and that this should be included in the total repeal list. After all, getting rid of that obnoxious legislation would not be a precursor to any other anticipated legislation following the same theme later on.

My Lords, the 2011 Act was introduced by the elected Chamber for the express purpose of safeguarding major constitutional changes in respect of our relationship with the EU and I support the amendment, to which I have added my name.

The Act, among other matters, provides for a referendum throughout the United Kingdom on any proposed EU treaty or treaty change which would transfer powers from the UK to the EU. Parliament voted for this power in order to protect the sovereignty of the United Kingdom and it is this aspect of our constitutional framework that it is important for the Committee to be mindful of as we negotiate our future relationship with the EU. Surely the proper time for the 2011 Act to be repealed is when we conclude our relationship with the EU. However, the Bill as it stands allows a Minister to repeal it at any time after Royal Assent.

The Conservative Party manifesto in 2010 led to this Act. It is worded not in terms of transfers of power but in terms of the extension of the competence or objectives of the European Union and decrease in the voting power of the United Kingdom. If we go into a transition period, there will be a new form of treaty relationship with the EU, one in which the UK has surrendered powers to the EU. The transition or implementation phase is a subordination of power to the EU 27 and binds us to them with fetters in a new international treaty. I contend that even if one believes wholeheartedly in leaving the EU there are strong grounds not to repeal this Act before we have actually and finally departed. Parliament does not yet have the terms of any deal for Brexit, nor will it have before Royal Assent. I therefore believe that it is vital that the 2011 Act is not repealed in this Bill as that would remove a safeguard which currently exists to protect the United Kingdom and our constitutional position. Parliament enacted that legislation for a specific purpose and Ministers should not be allowed to repeal it at will without proper debate and discussion unless we have already concluded our exit terms.

The other place did not have an opportunity to debate this amendment and it seems to have been missed, or perhaps honourable Members might have assumed that the repeal of the Act would apply only on the date of exit, but it turns out that it could be before that date by ministerial diktat. Given the uncertainty that still surrounds this Bill and the entire Brexit process, as well as the lack of clarity on our future relationship, I urge my noble friend the Minister to agree to this amendment. It safeguards the constitutional position enacted by Parliament in 2011 and maintains the sovereignty of Parliament over the Executive to protect the UK from deleterious treaty change that has not received prior approval from Parliament or the people.

My Lords, I am delighted to take part in this the last debate of the Committee stage, and I am grateful to the noble Lord, Lord Adonis, for providing the opportunity for it. The noble Lord, Lord Dykes, took us down memory lane. I am sorry to say that I was deprived of the delights of participation in the debates on the 2011 Bill, as I was exiled to the European Parliament at the time. Obviously, I was denied a most enjoyable opportunity.

There is an arguable case that the 2011 EU Act referendum requirement could apply on the grounds that the standstill transition and/or the future relationship removes powers from the UK relative to the EU. There is much legal argument, as the noble Lord, Lord Adonis, noted, about whether it could apply, and indeed litigation is taking place on that very question. It would therefore be premature to abolish the Act either while the litigation is progressing or before it is clear whether the relationship between the UK and the EU during the standstill transition and beyond that into the future entails a loss of sovereignty such as to trigger the need for a referendum under the Act. The standstill transition most certainly does entail a loss of sovereignty, as we discussed earlier today. We will be mere rule takers who are obliged to obey with no say; that is already clear. It is a clear transfer of power to the EU.

The Government’s emerging Brexit policy, as articulated in the Prime Minister’s Mansion House speech, suggests that their plan is for us to take our instructions on the facts from Brussels for many years to come and indeed into the long-term future, so the Act ought to be retained in the tool-box and abolished by Parliament only as and when it is genuinely no longer needed. Certainly it should not be repealed before exit day or subject only to ministerial regulations.

Members on these Benches make no bones about the fact that a further vote for British citizens on the Brexit deal is justified in its own right. That is our major argument for a further opportunity for the citizens of this country to have their say on Brexit. It would be a wholly different exercise from the 2016 referendum because citizens would be able actually to evaluate what kind of Brexit we are going to get. Is it the kind of Brexit that some have advocated, or is it Brexit in name only? There have been no lesser advocates than Jacob Rees-Mogg for having a two-stage process. In 2011, he said in the context of one or other of the plans to renegotiate our membership:

“Indeed, we could have two referendums. As it happens, it might make more sense to have the second referendum after the renegotiation is completed”.—[Official Report¸ Commons, 24/10/11; col. 108.]

For that, one can substitute the Brexit negotiations.

I recall my noble friend Lord Newby quoting recently that a majority of Conservative voters want to have a referendum on the final Brexit deal. In London, that figure reaches 61% to 25% opposed, and the support for people to have the chance of a vote on the deal is growing all the time. So the major case for that to happen rests, as I say, on substantive rather than procedural grounds.

Until things are clear, it seems to Members on these Benches that there is validity in retaining the possible use of the EU Act, which is about the loss of sovereignty and the transfer of powers to the EU. That is precisely what we are going to be faced with.

My Lords, this is a piece of political opportunism. The context of the 2011 Act, as those who were in the House well remember, was that there was very strong opposition in your Lordships’ House to there being referendums as the result of relatively minor transfers of powers and competences. That was rejected as being unnecessary and being a sop to the Eurosceptic wing. However, there were, incidentally, quite a few occasions on which it was conceded that all was far from perfect in the European Union, which is not something we have heard much about in the debates during the course of this Committee stage. To say that we should rely on a Bill that was most unpopular with many Liberal Democrats and a good number in the Labour Party in order to hold another referendum is really not what this is about.

My Lords, it must be unprecedented to have such a long and well-attended debate on what is almost the final repeal in the last schedule to a Bill. Given that this is the last debate that we will have in the Committee stage, perhaps I may, as the person who happens to be responding from these Benches, pay tribute to the quality of the contributions that have been made by all sides of the Chamber, including from my noble friend Lord Adonis. I have to say that anyone outside who says that we have been spoiling or somehow wrecking the Bill would not be able to maintain that charge in the light of the clarity and detail of the scrutiny that we have given the Bill.

As to the amendment, I admire the ingenuity which brings it forward. It is clear that the purpose behind it ultimately would be to trigger the referendum-requiring provisions set out in the 2011 Act. There are two ways of looking at that. One is to consider the political nature of the 2011 Act and compare that with what is happening at this stage, where one might well say, if I dare, that it was simply a staging post to the position we find ourselves in now. Many of us find the position of exit an unhappy one, but it would be a staging post to that and it has now passed. There is a legal question which is quite different: whether in fact the conditions in the 2011 Act are triggered. From what the noble Baroness, Lady Ludford, has said, there are legal proceedings which may challenge that, and I do not think it is right for me to venture an opinion from this Dispatch Box as to whether those are right or not.

However, I will venture a political opinion from my position, which is this. We are well aware that there are some in this House, in particular on the Liberal Democrat Benches—we fully respect their views, even if we may not share them—who would like to see a further referendum, and many in the country would like to see that. If that is going to happen, one might say that the way for it to come about is through a direct vote on whether a referendum should be taking place rather than what might seem to be a side wind. And that is my problem with the proposed amendment, even though it is ingenious. I have reason to believe—indeed, I suspect, from what the noble Baroness, Lady Ludford, said—that this House will have an opportunity on Report to express its view directly, full-throatedly and openly about a further referendum. The House will give its view, but I am not convinced about doing it through this route.

Can my noble and learned friend give his view on whether it is appropriate that the 2011 Act should be repealed in advance of the repeal of the European Communities Act 1972?

It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

If I could have a last celebratory intervention on the Minister in Committee, can he indicate to the House when the Government intend to use the powers they would get under this Act to repeal the 2011 Act?

I do not want to give the noble Lord a precise date at this time. We will wait until the legislation is on the statute book before deciding such things.

Crucially, a second referendum is not provided for by the 2011 Act. As I hope I have set out, that Act could never have been intended to achieve that goal.

Is the Minister indicating that the Government may repeal the 2011 Act in advance of the repeal of the European Communities Act 1972?

I will not comment any further on the repeal date, I am afraid, no matter how many times the noble Lord asks me.

I refer noble Lords to the first sentence of the first part of the Explanatory Notes to that Act. Acts of Parliament or referenda are required by the 2011 Act,

“if these would transfer power or competence from the UK to the EU”.

We are leaving the EU. That process is neither governed by the types of decision referred to in the 2011 Act, nor involves a change to the treaties on European Union or the functioning of the European Union. Those treaties will go on without us, governing the EU and its institutions, for which we wish only the greatest of success. Moreover, I hope it is unquestionable for the Government to pursue a withdrawal agreement that will transfer power to the EU; it is the nature of leaving the EU that it must involve a transfer of power back to the UK. Therefore, I say with all due respect to the noble Lord, Lord Adonis, that it is disingenuous of him to mislead others outside this House that the 2011 Act is an instrument to deliver a second referendum on our membership of the EU.

We are progressing towards establishing a future relationship with the EU as an independent third country. As part of this, we will require new processes for approving our new relationship with the EU. The Government are committed to giving Parliament a vote on the final deal of our withdrawal agreement negotiations.

The Minister is saying things that directly contradict what the Prime Minister has said: that we will have an implementation period in which we will follow the laws set by the EU without having any say over them. In her Mansion House speech, she said that we wish to maintain regulatory alignment with the EU in a large number of areas. That means following EU laws without having any say in them. Will the Minister accept that point?

I will not accept that point. We have not agreed anything yet. We are still to have those negotiations.

Of course I am not saying that. I am saying that we are in the process of conducting a negotiation. We have said that when have concluded that withdrawal agreement, we will return to this House with the withdrawal agreement and implementation Bill. The noble Lord will be able to make all his points—at great length, no doubt—over and again during that process. He has made those points many times in the course of this Committee, so if he will forgive me I will make a bit more progress and then we can all go out and have an enjoyable evening at the end of this stage.

I am of course conscious of the reservations held by several noble Lords—in particular the noble Lord, Lord Liddle—regarding the Government’s proposal in this area and their desire to press for a different proposition. However, I hope we can all agree that, however that vote takes place, we will need a new and different process to approve that deal. Our Bill as drafted will therefore repeal the 2011 Act. The relevant provision is in Schedule 9. The repeal of the Act is an integral part of the Government’s commitment to returning full parliamentary sovereignty and properly reflecting in our statute book the dramatic changes that our withdrawal from the EU will deliver to our constitution.

Therefore, I hope noble Lords will understand that the 2011 Act is not perhaps what some present it to be and that it is right that it is repealed to make way for our future processes of securing parliamentary approval for the Government’s relationship with the EU. Therefore, for the last time, I ask the noble Lord if he would please withdraw his amendment.

My Lords, I am immensely grateful to the noble Lord for the gift of the Adonis nut bar. I tried to buy one online and was told that the site is pornographic—the parliamentary internet is very well policed—but I could refer the matter to my supervisor if I wished to take it further. I toyed with referring it to my noble friend the Leader of the Opposition but I thought she would be very keen that I did not eat the nut bar, because she thinks I have far too much energy at the moment in any event in pursuing these matters in the House.

I found one of these nut bars the other day. It has lots of impenetrable small talk and carried a health warning. I think it was suitably named.

My Lords, I have always disregarded health warnings on the grounds that one would never eat anything at all if one proceeded down those lines.

The debate has been disappointing in that I do not think the two key points I made have been responded to. I have huge admiration for the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay of Clashfern, but they have not addressed the point that, in the way the Bill is framed, the repeal of the 2011 Act is emphatically not consequential on the repeal of the European Communities Act 1972. Rather, it is consequential on the enactment of the Bill and it will take place well in advance of Brexit day and the repeal of the European Communities Act 1972. If it was indeed consequential on the repeal of that Act, which I fully accept it should be because we would not be a member of the European Union at that point, I would have no difficulty at all with the repeal in Schedule 9. It is because it is being deliberately accelerated in advance that there is an issue.

It cannot happen until immediately after Parliament has passed a Bill fixing a date for leaving the European Union. The 2011 Act has no substance or content at all apart from the European Union treaty, so this idea that it has to be consequential in time is an extra. It is consequential in its subject matter. That is what is really important.

My Lords, we might not leave the European Union next year. We have not enacted the legislation to do so. At the moment there is no treaty. The 2011 Act would be repealed under the terms of the Bill. The two are clearly not consequential.

Does the noble Lord agree that there is no relationship between exit day and the repeal of the European Communities Act? Clause 19 says that the repeal, inter alia, of the 2011 Act, is a provision of the Bill that will,

“come into force on such day as a Minister of the Crown may by regulations appoint”.

It has absolutely nothing to do with exit day or the ECA.

That is the precise point. The big question that the Minister would not answer—I do not think he wanted to give me the answer—is why the repeal of the 2011 Act is being accelerated ahead of Brexit day and the repeal of the European Communities Act 1972. The Minister has not given an answer, nor has he given the Committee any indication of when that repeal would take place. My understanding is that the Government would seek to repeal the 2011 Act as soon as they can after the enactment of the Bill, which will mean that its terms would not apply for the period between that repeal and Brexit day, but it is of course perfectly possible. Who knows what will happen in the next 52 weeks? As Harold Wilson famously said, a week is a long time in politics, so goodness knows what will happen in the next 52. The Act would not apply. It may well be that my noble and learned friend is right that there is not a substantial legal argument here, but that is precisely the issue the courts are there to determine. They will not have the opportunity to do so because the Act will have been repealed.

To clarify, I did not say that. I deliberately did not express a view as to whether that argument would legally succeed precisely because I understand it is the subject of legal proceedings. I would not want for a moment to pre-empt them.

My Lords, those legal proceedings will by definition cease if the 2011 Act is repealed soon after the enactment of the Bill.

The second point that was not addressed, which is a matter of some substance, is that, on an issue of this gravity, surely it is not too much for the people to expect of Parliament that the House of Commons itself should expressly vote on the repeal of the 2011 Act. Because of the guillotine Motion in the House of Commons and the limited opportunities there were for debate in the Commons the matter was never debated, let alone voted on. That is one of our responsibilities.

My final point on the final day and the final amendment on the Bill, with such a magnificent attendance by noble Lords on the Conservative Benches, is to address the final point made by my noble and learned friend about taking a decision expressly on the issue of a referendum. I agree that it is a matter we should expressly take a decision on. The point of the 2011 Act is that it is existing statute law and should be repealed expressly only by the House of Commons.

It is clear that the dominating issue that will preoccupy us over the next six to nine months is whether the people themselves should have a say on the terms of the withdrawal treaty. What is already lurking behind the debate—it is, I am afraid, an issue of intense debate in my own party, but I suspect it will spread to other parties—is whether the people should be allowed that final say. It is clear that many people, I suspect including my noble and learned friend and maybe my right honourable friend the leader of the Opposition, at the moment do not think that a referendum is the right course. What is happening is we are having a charade of big debates about what are essentially second-order issues in the House while the consensus is rolling on that, maybe to avoid too big a division of public opinion, we should allow Brexit simply to roll on next year.

That will be the dominating issue of British politics in the next nine months: whether Brexit is a done deal, whether Parliament will debate, with the option of rejection, the Prime Minister’s withdrawal treaty and whether—in considering what is the biggest and most significant issue that has faced Parliament in this generation—before we take the final plunge into the unknown and engage in Brexit, we will give the people a say on the terms of withdrawal. That is a very big and weighty issue to raise at the very last moment of the debate in Committee, but in two weeks’ time we will regroup and start Report. We can rehearse all these arguments again. On that note, I beg leave to withdraw the amendment.

Amendment 372 withdrawn.

Schedule 9 agreed.

House resumed.

Bill reported without amendment.

House adjourned at 7.09 pm.