House of Lords
Tuesday 8 May 2018
Prayers—read by the Lord Bishop of Ely.
Brexit: Digital Single Market
My Lords, I am delighted to see that, by including the phrase,
“once the United Kingdom leaves the European Union”,
in his carefully prepared Question, the noble Lord has confirmed from the Liberal Democrat Front Bench that we will be leaving the EU. The UK will not be part of the digital single market once we leave the EU. We are undertaking a comprehensive programme of analytical work looking at the implications of the UK’s exit from the EU. We are seeking input from a wide range of businesses, civil society groups and consumer bodies to inform our future trading agreement negotiations with the EU. This includes e-commerce.
My Lords, recent CEBR estimates put the value of our digital exports in the creative industries alone at £21 billion, yet as the Minister has confirmed and the Prime Minister stated at the Mansion House on 2 March—indeed, the noble Lord, Lord Callanan, repeated it last week—
“the UK will not be part of the EU’s Digital Single Market”.
The Prime Minister went on to say:
“This is a fast evolving, innovative sector, in which the UK is a world leader. So it will be particularly important to have domestic flexibility, to ensure the regulatory environment can always respond nimbly and ambitiously to new developments”.
How on earth will that protect those digital exports? Or is this just another example of the Government whistling in the dark?
My Lords, I completely agree with the noble Lord that the creative industries and digital are a very important part of our economy. We are the leaders in Europe—7.9% of our GDP is digital, with the next biggest, I think, being France, at 3.9%. We acknowledge that this has to be part of the wider negotiations on the single market. We are undertaking a great deal of analysis to make sure that we understand the implications of those negotiations.
My Lords, analysis, study, the eventual bringing to our attention of possible ways forward—is the Minister able to help us in a shorter term than that, given that nearly two years have passed since all this began? I know that he will use the word “shortly” or “soon”, but can he give us an idea of when we will have a fix on this? The greatest part of our trade is led by our activities in this sphere. All the talk is about trade, yet this issue has the potential to damage a significant part of our trading arrangements. Has not enough advice been given by the House of Commons DCMS Committee in its recent report? Urgency is what we seem to be lacking.
I have to disagree with the noble Lord: urgency is not lacking, and considerable work is going on. Clearly, when we are about to undertake some of the most important negotiations that we have had for decades, we would not want to outline exactly what our negotiating position was before we did it. We absolutely take on board what the noble Lord and the noble Lord, Lord Clement-Jones, have said and understand the importance of the digital area. That will take place within the broader single market negotiations.
My Lords, to go from the macro to the micro, if we leave the EU, might we not be susceptible, as individuals, to roaming charges when we go to Europe? Is not the addition of, say, up to several hundred pounds on the phone bill of everyone who visits Europe something that might lead us to put on the line some compromise of our position regarding our new independence?
The noble Lord is right that roaming charges are one of the main areas that we have to look at as part of the negotiations that particularly affect DCMS. That is absolutely on our radar and we understand the implications both ways. We understand that it is a fairly recent innovation not to have roaming charges within the EU: we completely understand that and it will form part of the negotiations.
My Lords, I agree about the importance of the creative industries and I am sure they will continue to be creative as we go forward beyond Brexit, but I want to ask my noble friend a question about portability. This is the ability to take your television programmes abroad digitally when, for example, you go on holiday in the Mediterranean, so that you are able to watch “Coronation Street”, “EastEnders” or whatever is your particular delight. Can my noble friend give me an update on whether that will still be possible?
My Lords, by chance I called on a UK tech association last week and the message I received was that the industry is in the doldrums—that is my word. I think the inference was that it is depressed—that since whenever this exercise started, there has been a depression in the industry generally. Does the Minister wish to say how we can reinject a sense of optimism into the sector, to give the heads of these trade associations the view that we are, indeed, heading in the right direction?
I can absolutely dispel the noble Viscount’s gloom: the tech industry is not in the doldrums; in fact, quite the reverse. The creative industries, including tech industries, are growing at twice the rate of the economy. I hope the noble Viscount is reassured by that.
I am not quite sure which council the noble Lord is talking about, but as part of the industrial strategy, as he knows, we are launching sector deals, and I am pleased to say that the artificial intelligence sector deal was launched a week or two ago to great acclaim.
Brexit: Logistics Industry
My Lords, the Department for Exiting the European Union is responsible for overseeing the negotiations to leave. We continue to engage regularly with companies across the economy to inform our negotiating position and prepare for our departure from the EU. The department has not signed any non-disclosure agreements in respect of negotiations.
I thank the Minister for that reply. Since he is close to the logistics industry, does he agree that the line favoured by the Prime Minister has the potential to solve the looming crisis in the supply chain industry, or does he agree with the Foreign Secretary, who has described the Prime Minister’s proposals as “bonkers”?
If the noble Lord is referring to customs solutions, there are, of course, two models on the table. I am sure noble Lords are very familiar with the issue, but there is the streamlined model and the alternative model, a new customs partnership. Both have issues and drawbacks as well as opportunities and the Government are examining both models closely. When we have reached the most appropriate solution that is best for the UK, we will announce it.
My Lords, 73 years ago today was Victory in Europe Day, when Britain, Russia and America saved Europe from a new dark age. I ask the Minister: when we leave Europe will we have the mechanisms in place to ensure the correct defence and security arrangements to look after the security and safety of this continent and this country?
The noble Lord makes a very good point. As the Prime Minister said in her Munich speech, our offers for the guarantees of security in Europe are unconditional and we look forward to a close and productive security, foreign affairs and defence partnership with our EU partners.
My Lords, returning to supply chains and logistics, currently it is estimated that a non-EU vehicle entering one of our ports takes 45 minutes to get through customs and all the procedures, whereas for EU vehicles it is a few seconds. The FTA—Freight Transport Association—has said that an extra two minutes means 17 miles more of queue. What is the Government’s estimate of the extra time that it will take a vehicle to cross the border post Brexit?
As the noble Lord is aware, we are negotiating to have as frictionless customs arrangements as possible. We do not want any delays and we want whatever delays there might be kept to a minimum. That is the purpose of the discussions we are having and of the agreement we hope to come to.
My Lords, is the Minister aware that when freight from Dublin goes across the UK to the continent, it takes approximately 10 hours? If that same freight had to go around the UK to Europe, it would take 40 hours. What are the Government doing to prevent the Irish situation affecting the frictionless border?
My Lords, perhaps I can come to the assistance of the Liberal Democrats, who seem to be at sixes and sevens over whether or not we are going to leave the European Union. I am certain that we will not leave the European Union. Last week we had a Question on the dangers of gambling, particularly internet gambling, but I am prepared to make a wager with the Minister of at least £10—I am a generous Scotsman—that by the date designated for exiting we will not be leaving the European Union. Will the Minister take that bet?
I am not sure whether the rules of the House permit gambling exchanges across the Floor. I am probably better off not answering that question in case I get into trouble with the House authorities. It is very good of the noble Lord to come to the rescue of the Liberal Democrats on behalf of the Labour Party, whose position seems equally confused.
My Lords, the Liberal Democrats are quite clear that we do not want to leave the European Union. I ask the Minister: what mechanisms do the Government use to engage with members of the logistics industry, which has some 40 different representative organisations and groups? Have the Government now engaged with the Port of Dover, which recently said that not one Minister had been to visit it despite the fact that it is predicted to be at the eye of the storm when—or if—we leave?
I assure the noble Baroness that we have had many meetings with the Port of Dover. We continue to engage extensively, at both ministerial and official level. Of course, it is one of 275 ports and airports—albeit one of the largest—that we need to engage in discussions with to make sure that we put in place the logistical arrangements to make the border as frictionless as possible.
The “how” is that we will look in detail, using our excellent teams of officials, at all the available options. We will announce in due course what the best solution is for the United Kingdom and then, of course, we will have to discuss those matters with our European partners.
My Lords, is it not worth remembering that most digital traffic does not go through ports or customs anyway so the entire customs union debate, which is quite separate, is completely irrelevant to this question of digital and knowledge product trade. What are relevant are all the regulations and licences, which govern the trade in digital services throughout the European Union, and where—even after 40 years of membership—we have not been very successful in making much progress. Is the real concern not a global one? Are not the real markets where growth is coming in the next 10 years predominantly—90%—outside the European Union, and should we not think in rather wider terms that this petty issue of digital services in Europe?
My Lords, my noble friend, with his long experience of these matters, makes an extremely good point. Digital products can of course cross the European frontier very easily and cross worldwide frontiers extremely easily. The issue of trying to unify regulations is on a worldwide basis and the EU is a shrinking market in the world.
Product Safety: Freezers and Refrigerators
My Lords, we believe that Britain’s product safety requirements are among the strongest in the world. Manufacturers have a legal responsibility to place safe products on the market. The UK is leading on proposals to enhance the standard for fridges and freezers at an international level.
My Lords, the recent Which? report said that current safety standards are not fit for purpose and that its tests have resulted in “Don’t buy” recommendations for 250 models, most of them from household names accounting for 45% of the market. In particular, Which? advised not buying plastic-backed models. While we await the appropriate report on the Grenfell Tower blaze, what actions will the Government take to reassure consumers and support the findings of the Which? report?
My Lords, I am of course aware of the Which? report. It made it quite clear that most or all of the fridge freezers it referred to did meet existing standards. The Which? report was looking at enhanced standards. The Government will certainly look at that and are working with Which? and other parties. This is why I stressed in my opening Answer that seeing whether even more stringent standards can be set has to be done internationally. But those products certainly meet existing standards—which, as I said in my original Answer, are among the safest in the world.
My Lords, this worries me. I declare an interest in that a close friend of mine escaped with her life when she woke up in the night to find that her fridge was on fire. Although the brilliant London Fire Brigade was there within minutes, her entire flat was gutted. The firefighters who got her out and put her safely in the back of the ambulance guessed what make her fridge was and said, “Tell your friends never to buy one of those”. The firefighters know this; that is why the London Fire Brigade has been campaigning for the last five years for a ban on those kinds of fridges. If they know that, do the Government not know that, and will they not protect us?
My Lords, all fires are potentially disastrous and it is right that the noble Baroness should highlight that point. The number of fires that have been caused by fridge freezers is very small indeed—something like 2% of all domestic fires—and the number is declining. We are aware of the concerns, which she rightly highlights, about products with plastic rather than metal backing. That is why we are looking at strengthening standards in that area. As I made clear, I think that our standards are already very high, and all the fridges meet those standards. The Which? report, rightly highlighted by the noble Baroness and her noble friend, said that we should possibly look at strengthening those standards. That is what we are doing.
My Lords, in view of what has been said, I am very glad that the Government have set up a new Office for Product Safety and Standards, and am grateful for my invitation to visit it. On from fridges, what is being done with the many hundreds of thousands of outstanding Whirlpool tumble driers, which also pose a fire safety risk? I believe that the Minister must be on the consumer’s side in these matters.
My Lords, I think I have used the expression, “The consumer is always right” on other occasions. We are on the consumer’s side. My noble friend will be aware that my honourable friend Andrew Griffiths has already had discussions with Whirlpool and made his concerns clear. This question is related not just to fridge freezers but, as my noble friend is well aware from her experience as a Minister in this department, and I am grateful for the work she did, to other items as well. We want to look at all the standards and make sure that we continue to have the right standards and that they are as stringent as possible.
My Lords, the Minister is of course aware that his noble friend, the noble Baroness, Lady Neville-Rolfe, has led a continuous charge on this and related issues since she ceased to be a Minister. Does he accept that there is a suspicion that the failure to take proper action over this and related issues is an indication that, as a result of Brexit, government decision-making elsewhere is paralysed?
My Lords, I totally and utterly reject that accusation. We are doing a great deal on this front. However, I agree that my noble friend has done a great deal on this—and not just since she left government. She led the charge on this as far back as November 2014, when she announced the original review of the UK product safety system.
My Lords, I think one should share some of the credit. The Minister’s noble friend did a great deal of work, but the Opposition were also involved in trying to get the new Office for Product Safety and Standards set up. The Government are saying that we lead the world in terms of our standards, but, if these standards are linked to roughly 60 fires a week in the UK, how many deaths is it going to take to get them to change their mind on this? We have a new body, the Office for Product Safety and Standards. It has a wonderful website with a list of things it can do. When is it going to do something, and does it have the power to change the way people manufacture these dangerous machines today?
My Lords, I will echo the noble Lord in saying that it is not just the work of my noble friend and pay tribute to the Opposition Front Bench, other Members of this House and another place and, for that matter, Which? magazine for highlighting problems here. Obviously any electrical equipment has the potential for danger. That is why we want to get the right safety regulations in place and why we are looking at tightening them. That is why we want to make sure that proportionality is considered in all these matters and that is why I highlighted the fact that only about 2% of fires are caused by fridge freezers. There are other products that need looking at. We will continue to look at our safety standards, keep them under review and make sure that they continue to be the safest in the world.
Will the Minister go back to the mantra that he gave to the House a few minutes ago? He said that the consumer was always right. That really is arrant nonsense if he begins to think about it. It is not right when it comes to unhealthy eating, which is why the Government seek to intervene. It is not right when people are forced to pay very high interest rates on loans. It is not right when it comes to alcohol consumption levels, and it is certainly not right when it comes to massive stakes on fixed-odds gambling machines—so can I persuade him not to issue that mantra again?
No, I am afraid the noble Lord will fail in that, because I believe that the consumer should be provided with adequate information to make an informed decision on all these matters, whether they be excessive amounts of food, which might interest the noble Lord, alcohol or whatever. The consumer can then make their decision. Allied to that, there should be adequate protection in terms of goods of this sort, so that the consumer is not endangered in matters where they would not be able to make an informed decision.
NHS: Overseas Doctors
My Lords, no application for a medical practitioner role that is on the shortage occupation list, which is based on advice from the independent Migration Advisory Committee, has been refused a tier 2 skilled work visa. The Home Office publishes regular visa statistics. However, the Home Office visa case working system does not capture the profession of the applicant. That information is captured on the tier 2 visa application form, and to provide it would require a manual check of our records.
I am grateful to the Minister for the detail there but it does not actually answer my Question. I have some figures from NHS Employers, which says it knows of at least 400 cases of qualified doctors from overseas who have been offered jobs in the NHS but not been allowed in because of the lack of being in a designated shortage occupation and the pressure on tier 2 visas. When the NHS is short of thousands of doctors, applications from EEA doctors are diminishing and the NHS is actively recruiting overseas, what possible logic can there be for the doctors whom it has recruited then to be turned back and denied visas by the Home Office? Last week the leaders of 12 medical colleges, the BMA and NHS Employers wrote to the Home Secretary asking him to take action to end this ridiculous and indefensible situation that damages patients. Will the Government act now?
My Lords, there were quite a few points in that question. The noble Baroness’s first point was that there are 400 cases of doctors overseas who have been denied visas because they are not on the shortage occupation list. Therein lies the point: the shortage occupation list is arrived at with advice from the Migration Advisory Committee regarding those occupations that cannot fill the demand within the NHS. If we expand some of the doctor numbers that are not on the shortage occupation list, we are in danger of pushing out some of those other professions that we do need and that are on the shortage occupation list. We need to think about this in the round.
My Lords, I would like to give the Minister a direct example. In Cambridge and Peterborough NHS Foundation Trust, children and young people with mental health problems are having to wait many months to access mental health treatment because the child and adolescent psychiatry consultant, who has been chosen and appointed, has not yet been granted a visa five months after the cap for tier 2 NHS workers was reached; on Friday it will be six months, and we will probably find that the same applies. Does the Minister agree that the Government’s hostile environment policy is now directly damaging patient care? Does she agree with my honourable friend Jon Ashworth, who asked the Home Secretary in a letter on 1 May:
“The visa rules clearly aren’t working in the best interests of NHS patients. I am asking that you put patient safety first by taking NHS workers out of the tier 2 visa system so that hospitals can get the right numbers of staff in place”?
My Lords, as my right honourable friend the Home Secretary explained last week, the term “hostile environment”— coined by former Home Secretary Alan Johnson—is not one that he wishes to use because of all the negative connotations. Instead we will talk about a compliant environment—that is, complying with Immigration Rules. On the direct example that the noble Baroness gives me, I will not talk about specific examples because clearly I do not know the details of the case. I will go back to my original Answer, which says that no one on the shortage occupation list should be denied a work visa.
Will my noble friend give the House an assurance that all overseas doctors will be submitted to the same checks on their medical qualifications and knowledge of language as all EEA doctors are obliged to submit to before they are allowed to practise in this country?
All overseas doctors—I think my noble friend was talking about non-EEA doctors—should obviously have the requisite qualifications to practise. At the danger of repeating myself, if those doctors are on the shortage occupation list, there should be no bar to obtaining a visa.
My Lords, the Minister mentioned the Migration Advisory Committee. As someone once said, “Advisers advise, Ministers decide”. Are the Government confident that the restrictions on visas for particular occupations are supported by employers, stakeholders and the general public?
My Lords, I cannot speak for the general public at large. The noble Baroness is absolutely right that advisers advise, and those advisers advise on those professions for which we have a shortage. We have not talked about other professions, such as particular types of skilled engineers, which are in shortage in this country. She is absolutely right that Ministers then decide on what the criteria should be.
European Union (Withdrawal) Bill
Report (6th Day)
Relevant documents: 12th, 20th, 23rd and 24th Reports from the Delegated Powers Committee
93: Before Clause 14, insert the following new Clause—
“Future interaction with the law and agencies of the EU
Nothing in this Act shall prevent the United Kingdom from—(a) replicating in domestic law any EU law made on or after exit day, or(b) continuing to participate in, or have a formal relationship with, the agencies of the European Union after exit day.”
My Lords, I move this amendment for two principal reasons: first, in order to assist the Government in their shaping of their case for the UK’s future relationship with the European Union post Brexit; secondly, because it is consistent with Amendment 49, which was passed earlier on Report.
Speakers in these debates have repeatedly suggested that anyone who moves an amendment is a hypocritical remoaner intent on sabotaging the Bill and trying to prevent Brexit from ever happening. I regret the referendum result, but I accept that the UK is to leave—even on this 73rd anniversary of VE Day. My concern, along with that of many in your Lordships’ House, is to ask the Government seriously to consider improvements to the Bill in order that the people should be clear about the how as well as the what of Brexit, and that the transition to a final arrangement is as good as we can get it. It is my understanding that this is both the role and the responsibility of this House.
I remain concerned that a deeply divided country is being offered two stark alternatives which, if you will bear with me, I will put in biblical terms—someone has to. Like the people of Israel in the desert, we too easily romanticise the past and yearn to return to Egypt; or, on the other hand, we promise on the other side of the mountain a land flowing with milk and honey, ignoring the challenges that go with it not actually being our land to do with as we will.
I mean it seriously when I suggest that we should be honest in our discourse on Brexit and acknowledge that we shall be spending some years in the wilderness as we begin to work out the consequences of the decisions we have taken and the implications of the relationships we must now begin to establish. Wilderness time is not necessarily negative time—simply a time of waiting, wishing and hoping or recriminating—but a time for stripping away the clutter, identifying and owning our values and priorities as a nation and actively bringing together a people divided by their varying apprehensions of events that have befallen them. That serious need for a concrete unifying strategy has yet to be addressed seriously in either House of this Parliament: slogans and wishful thinking are not enough.
With this in mind, then, I come to the substance of the amendment standing in my name, and to which, I am sure, the Prime Minister would give her consent as it rests on commitments already articulated by her. In her Mansion House speech of 2 March 2018, the Prime Minister confirmed for the first time that the UK will seek to maintain a formal relationship with certain EU agencies after Brexit. She further acknowledged that the terms of the future UK-EU relationship may see the UK Parliament take the step of replicating certain provisions of EU law. I hope noble Lords will forgive me for quoting in order to obtain clarity. She said:
“Our default is that UK law may not necessarily be identical to EU law, but it should achieve the same outcomes. In some cases Parliament might choose to pass an identical law—businesses who export to the EU tell us that it is strongly in their interest to have a single set of regulatory standards that mean they can sell into the UK and EU markets. If the Parliament of the day decided not to achieve the same outcomes as EU law, it would be in the knowledge that there may be consequences for our market access”.
She went on:
“And there will need to be an independent mechanism to oversee these arrangements”.
She also said:
“We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”.
“We would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution”.
The Prime Minister then went on to set out what the mutual benefits of such an approach might be. These include: first, that such membership, however described, is the only way to ensure that products need to undergo only one series of approvals in one country; secondly, that such membership would enable the UK to contribute its technical expertise in setting and enforcing appropriate rules; and thirdly, that this might then allow UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ.
That is enough for now to demonstrate the Prime Minister’s case. She concluded with a further statement about the sovereignty of Parliament and the acknowledged costs of rejecting agency rules for membership of the relevant agency and linked market access rights. It is important to remember that these decentralised agencies were originally established following a proposal from the European Commission and agreement by both the European Parliament and the Council of the European Union, which, if I am correct, means that the establishment of over 40 bodies was achieved with the support of the UK. Surely it makes sense, then, to be consistent and retain access to them.
As the Prime Minister made clear in her speech, there will be consequences of not doing so. For example, and to take just one, there is the European Maritime Safety Agency. Our international reporting and monitoring obligations on maritime safety are currently handled via EMSA and there are shared EU rules on seafarer working conditions. That enables the UK to maintain its status as a “quality flag state” under international law. The complexities involved in replicating this would appear to be immense. Furthermore, establishing a domestic equivalent to the EMSA will inevitably put a huge strain on the Civil Service, taking many years to negotiate, and will be enormously expensive. Could that be yet another uncosted consequence of Brexit? I could equally cite the European Aviation Safety Agency, the European Chemicals Agency, Europol, the European Medicines Agency, and many others.
Is it not probable that any future UK-EU trading relationship might demand replication of certain EU measures—product safety regulations, for example? As other regulations continue to evolve in Brussels in the years to come, is it not probable, if not inevitable, that the UK might have to keep pace if reciprocal arrangements with the EU 27 are to continue—for example, those covering matrimonial and parental judgments?
This amendment does not in any way place an additional burden on the Government, nor does it ask the Government to change their stated policy stance. It formalises and reinforces those commitments made by the Prime Minister in her Mansion House speech. Furthermore, with phase 2 of the negotiations now well under way, the addition of this clause would demonstrate Parliament’s wish for the UK to maintain a close relationship with the EU and, in this sense, it is consistent with the role envisaged for Parliament in Amendment 49.
It is fair to say that, although amendments relating to EU agencies were rejected in the House of Commons, that was possibly because the Government had not at that point announced their policy position. Now that their policy position is clear, sending this amendment back to the Commons would simply give an opportunity for further debate on future UK-EU co-operation.
I hope that I have given a clear rationale for this amendment and its inclusion in the Bill. I hope that the Minister in responding will recognise its constructive nature and its attempt to give some idea as to what sort of milk and honey might lie over the mountain once we have negotiated the wilderness journey. It does no one any favours to pretend we are where we are not; it does everybody a favour to attend to a detail that at least has the virtue of acknowledging the uncertainties ahead and the size and potential costs of the journey on which we have now embarked and gives one element of shape to what to many looks, to quote another biblical line, somewhat “formless and void”. I commend the amendment for debate and beg to move.
Amendment 93ZA (as an amendment to Amendment 93)
93ZA: Before Clause 14, after paragraph (b) insert—
“(c) negotiating continued membership of the European Economic Area, and its corresponding agreements.”
My Lords, following consultation with the right reverend Prelate the Bishop of Leeds and the noble Baroness, Lady McIntosh of Pickering, I have decided that it would be better not to debate this amendment and to decouple Amendments 110A and 112BC for a fuller debate later in the proceedings. To pick up a theme of the right reverend Prelate, I hope not to be in the wilderness for too long. I shall certainly value my waiting time, and it would be nice if that waiting time ended some time before dinner, but I shall understand if it does not. On that basis, I thank the right reverend Prelate for his courtesy and do not intend to press the amendment.
It is a great pleasure to support and echo the eloquent words of the right reverend Prelate the Bishop of Leeds. In doing so, I commend the generosity of the noble Lord, Lord Alli, in so graciously agreeing not to press an amendment that would find a place later in this Bill, while also recognising that we have had the opportunity to debate the matter that he wishes to discuss in that amendment at three different stages, and I do not believe that he was present at any of those stages. So we are very grateful to him.
I declare my interest in that I advise on environmental matters, as declared on the register, and am also delighted to sit on the Rural Affairs Group of the Church of England General Synod. I particularly believe that the European Environment Agency would benefit from Amendment 93. Many noble Lords will be aware of my particular interest in Denmark, since I am half-Danish. I have had the opportunity to visit some British members of the European Environment Agency while in Copenhagen last year. To follow through on the thoughts and arguments developed by the right reverend Prelate, I argue that the European Environment Agency provides essential research on which the European Commission and other institutions depend and on which environmental protections for British citizens currently flow.
I want to put some questions to the Minister who is responding to this debate. First, I presume that the British Government wish to continue to benefit from the research undertaken by the European Environment Agency, as was indicated by the Prime Minister in the words quoted by the right reverend Prelate the Lord Bishop of Leeds. Will the Minister confirm that that is the case and what financial arrangements will be made to cover the work of the agency? Many environmental protections have been debated in this House during the passage of the Bill.
Secondly, and more importantly, there is a matter which was impressed on me in the meeting I had in Copenhagen in August with British officials working for the European Environment Agency. This is not the first time I have raised this; I had a number of conversations about it with the Minister’s predecessor, my noble friend Lord Bridges. However, over a year has passed and I have had no reassurance whatever in this regard. Many of these officials are British; many are married to Danes, Swedes or people of other nationalities. Many of them are experts and not on permanent contracts. I met one who was a very clever scientist who has a big question mark hanging over her future. Her young family wish to attend school and, subsequently, university. The House will recall an amendment that deprived EU citizens living in this country of the right to vote in our original referendum.
There is an urgent need for clarity because President Juncker has committed that British officials working for European institutions—I presume this is both permanent officials and those on expert contracts—will be able to apply for Belgian nationality from 30 March next year. If that is the case, British officials working for European Union institutions in Brussels will have preferential status, compared to those working for other agencies such as the ones mentioned by the right reverend Prelate and to the ones I met who were working in the European Environment Agency. It is now a matter of urgency that we reassure those excellent British officials working for such agencies that they will have at least the same status as those working for EU institutions in Brussels.
To sum up, what will be the Government’s future relationship with agencies such as the European Environment Agency? What will be the extent of our financial commitment, and when will we know what that is? What will be the status of those working for the European Environment Agency, the European Medicines Agency, and all such agencies? When will they know what their future will be?
Amendment 93ZA withdrawn.
My Lords, I will speak briefly in favour of Amendment 93, because it strengthens the argument of some of the amendments which I moved in Committee about maintaining our standards through membership of many of these EU institutions. These institutions set the standards which give us a quality of life that we have come to accept as normal as members of the European Union—indeed, as Europeans. They not only set the standards but have mechanisms to enforce them and are independent of government. In Committee, the Minister assured us that the Bill will seek to retain in UK law all these rights and protections,
“so far as is practical”.—[Official Report, 19/3/18; col. 19.]
The law may well be transposed, but it is toothless unless we have these institutions which monitor, measure and enforce compliance, and which have the right to exact penalties for non-compliance.
The right reverend Prelate the Bishop of Leeds said that to set up our own institutions would require a lot of time, expense and expertise, which we are short of. To accept these institutions would demonstrate that, by opening up our market, we are not entering a race to the bottom and we are not going to abandon the precautionary principle. There is a lot of uncertainty over withdrawal, but this amendment goes some way to ensuring that our quality of life as citizens will not suffer because of this uncertainty. That is why I support it.
My Lords, I will be equally brief and will make just one point. When I had the honour to serve on the EU Home Affairs Sub-Committee of the European Union Committee of your Lordships’ House—something that was brought to an abrupt conclusion when I voted for those two amendments on the Article 50 Bill last year—I remember vividly one particular evidence session. Those giving evidence were led by a notable citizen of the United Kingdom, Mr Rob Wainwright, who was the head of Europol. Everything he said throughout his evidence to our committee made it abundantly plain that, if our security and our relations on the police front were to be maintained, we had to have a solution that as closely as possible replicated what we already enjoy. That is why I strongly support the amendment, which was admirably moved by the right reverend Prelate and spoken to by the noble Lord, Lord Haskel, and my noble friend Lady McIntosh. They have made equally valid points, but at the end of the day what is fundamental to our country’s survival is adequate and proper security and the proper interchange of information throughout the 28 nations of the European Union as it is now. We are leaving, but in doing so we must not jeopardise in any way the security of our people. That is why I strongly support this amendment.
My Lords, I will briefly support what the noble Lord, Lord Cormack, said, and also thank the right reverend Prelate for his able speech, which was strongly reinforcing as regards our gradually becoming ever closer to the European Union itself. That is the reality of these matters, because although the noble Lord, Lord Cormack, wishes to say on behalf of others on his Benches as well that we are leaving, there is now in this country a firm feeling of second thoughts on that matter, and therefore we may not be leaving.
In the meantime, the Prime Minister herself has got closer and closer to the EU in terms of various different parts of our linkages, in particular in respect to the agencies, and in terms of some of the procedures and laws. The strongest one, apart from Europol, which is a good example, is the European arrest warrant part of that security procedure, which is increasingly regarded as an incredibly indispensable instrument of suitable control between the justice systems of the member states, and so on—we had the recent example in Spain of something that was widely welcomed in this country.
With a number of agencies, if we were to relinquish membership of them—or even “almost membership”, however close that might be to them—that would be damaging not only to individuals who are involved in them but to the recipients of those services and the security of the high standards maintained. As we go on with this torturous process—we will see it again with the revival of the discussions about the EEA, the customs union, and so on in later amendments—we realise now that our closeness to the EU is a reality and not just an aspiration.
My Lords, I was very pleased to add my name to this amendment, and I congratulate the right reverend Prelate on his introduction to it. As he says, what is not to like about it? It reflects the Prime Minister’s policy and intent, and it provides an opportunity for the Government to negotiate with Brussels with the good will and strength of Parliament behind them. So why not accept it? It seems to me an excellent amendment.
Whether we are talking about the Brexit debate or about the people dealing with Europe, I am struck that the European institutions that citizens generally know about most are the European Parliament, the Council and the Commission. However, it is an absolute fact that these agencies, which are relatively new in the evolution of the European Union, are among the key instruments under which Europe works. They are among the most efficient, benefiting from huge economies of scale in expertise and costs to industry and other organisations within the Union; they are very successful; and they are highly regarded not just within the European Union but internationally. That is why it is so important that we as a country, whether we leave or not—although we are on a trajectory to leave—should stay in strong contact with these agencies. Many of them are major determinants in British industry being able to access and work with the European single market in the future.
I am the chair of your Lordships’ European Union Energy and Environment Sub-Committee. When we looked at Brexit and the environment, 100% of the witnesses from UK industry who appeared before us or sent us written evidence were very clear that we should stay as close as possible to EU chemicals policy regulation and the REACH regime. They did not want to have to manufacture a third set of rules and regulations—not just for North America and the EU but our own as well. That was a fundamental aim of the industry.
One of our more recent reports concerned the internal energy market. The Prime Minister also mentioned this in her speech as something we need to stay near to, and it is an enterprise that Britain has led. I doubt that even Members of your Lordships’ House have heard of the Agency for the Cooperation of Energy Regulators, but it will be an important element of, and part of the jigsaw of, our energy security and energy prices in the future.
We have already mentioned Europol and the European Medicines Agency. Just like REACH for the chemicals industry, it is very important for the pharmaceutical industry that we stay part of the EMA and avoid huge duplication in development and approval costs.
For all those reasons, we need, if we can, to stay part of and be a participant in those agencies. Many of them currently have observers from the EEA states. The European Space Agency is not a European agency as such but Canada and other members are associates of it. Maybe that is a model we could persuade the EU 27 to follow. We also need to take into account the “soft” area. This is not just about being an associate member; the knowledge and work inside the European Union institutions determine markets and how industry needs to work in the future. By retaining involvement in those institutions, we will have that information, contact and networking, which otherwise we will forsake. For that reason, I believe it is very important to support the amendment.
My Lords, as someone who voted leave, I have always envisaged that what is being debate here will actually happen. I have always assumed that, when Britain is outside the European Union, it will want to co-operate extensively with Europe on a whole range of matters, such as environmental matters, which have been mentioned. I cannot conceive of any future Government of our country, whether they be Labour, Conservative or coalition, wanting to reduce the environmental quality of life. The trend is all the other way: to make it even better as it goes on. That is what will happen when we are out of the European Union, just as ever it did when we were in the European Union.
Similarly, as an ex-Home Secretary, I see the value of Interpol. I am quite sure that we will continue to work very closely with Interpol and continue the exchange of information that is so vital to arrests and to the reduction of crime, not only in our own country but in Europe.
One item not mentioned today is the Erasmus programme. I was the Education Secretary who started Erasmus and I think it has brought inevitable great benefits, both for students of our own country and students of other countries. Indeed, I discovered that one American university has decided that, during one year, all its students have to go and study in another city for three months. Erasmus allows that to happen and I am quite sure that it will continue in the future.
Having said all that, I do not think it requires a parliamentary fiat, if I may say so to the right reverend Prelate. It is clearly the Government’s policy to do that because it is a policy based upon common sense. It is essentially part of our negotiations, as has been made clear by the Prime Minister, and I hope that the negotiations are successful.
My Lords, briefly, I want to support this amendment. I think I was probably responsible for the previous three occasions that the noble Baroness, Lady McIntosh, referred to, in that very early in this debate I asked the Government to set out for each of the European agencies their intention for future co-operation. I did that because, like the noble Lord, Lord Teverson, as chair of one of the sub-committees I know that every industrial and professional sector wants to know what its future relationship would be, as that is the normal way of doing business: they operate with their European counterparts through those European agencies. I then asked further questions about the environment, food safety and, vitally, transport, which would otherwise close down.
I am very grateful that the Prime Minister has picked out aviation as an area on which we must continue to co-operate, and chemicals—the European Chemicals Agency regulates 20,000-plus day-to-day chemicals. Unless we have very close relationships with all those industrial sectors, and on issues such as security and Europol, Brexit will be a serious blow to the way large parts of our industry, public sector and professions operate day to day. We need to give them certainty. I still think it would have been helpful had the Minister produced a detailed list, because we are gradually working our way round to saying that, on all these issues, co-operation will need to continue.
In terms of the Government’s intention in the negotiations, it is required. But to counter, to a degree, the otherwise helpful contribution from the noble Lord, Lord Baker, the EU have to agree it. If we do not have this as a positive point in our negotiations, and if we do not co-ordinate the role of British industry, sectors and professions with those of their European counterparts, there will be an end to that co-operation. I have had cause to remind the Minister that the EU’s current guidelines in negotiations say that we will no longer participate in these agencies from March next year. If so, that is seriously disruptive. It is therefore important that this House gives an indication to the other place and to the Government that we must continue to participate. I hope the Minister does not repeat his and his colleagues’ previous disdain in dismissing the need to make this clear. I hope the Prime Minister’s intention is wider than the few specific agencies to which she referred in her Mansion House speech.
My Lords, I strongly support the amendment, partly to give our support to the Prime Minister against those within her divided Government who do not believe that it is important to stay closely associated with these agencies.
Perhaps I may give a little of their history. I was on the staff of Chatham House in the early 1980s when the British Prime Minister, Margaret Thatcher, first proposed the single market and made it clear that what was in Britain’s interests—as well as, she argued, in enlightened European interest—was to replace a tangle of different national regulations with single regulations in a single market. She did not assume that we would get rid of all these regulations but that we would agree on common regulations. Many of the agencies then grew up to make sure that these regulations were observed and enforced, and altered and developed as technology, pharmaceutical research and other things changed. That was why they were clearly in Britain’s interests. There were always some in the Conservative Party who did not believe in that—they believed in deregulation—and thus were dubious about the single market because it was replacing national regulations with common European regulations.
One of the most interesting pieces of research carried out for Chatham House in that period was by an American trade lawyer who wrote about the extraterritorial jurisdiction of US regulations over the United Kingdom until the single market was formed. Very often business, engineering, the chemical industry and the pharmaceutical industry in Britain simply followed American regulation. The idea that we had sovereign regulation on our own did not exist. As the single market developed, so European regulations, over which we had considerable influence, replaced the British adoption of regulations designed for American purposes, which we felt we had no choice but to accept.
That is these agencies’ historical origins and they clearly still serve British national interests. It is therefore important that if and when we leave the European Union we remain associated with them. Technology and research have continued to develop and these agencies therefore serve an increasingly important role. I therefore hope that the Minister in replying will reinforce what the Prime Minister said in her Mansion House speech and make it clear that a major objective of the Government is to remain as closely associated with these agencies as possible, even if Boris Johnson may then denounce it in the Daily Mail.
My Lords, I share in full measure the hopes and concerns articulated today by so many of your Lordships. That said, if the amendment is put to the vote, I shall not feel able to support it. My approach to this amendment, as to earlier amendments to the Bill, has been essentially that it is fine to tell the Government what they must do once they have achieved what they regard as the best available deal, but it is not fine to seek to impose on the Government requirements as to precisely what that deal must be or how to achieve it. In other words, we can tell the Government what rights Parliament or, as I promoted, the public should have on a further referendum as to what we can do and should do, by way of approving or rejecting the proposed final deal—or, indeed, a decision to exit with no deal—but we should not seek to bind or inhibit the Government in reaching a deal and so risk weakening their negotiating position.
The Bill is not for that purpose but to keep our statute book intact. I urge your Lordships, rather than indulge all our hopes and wishes in this area, to think about whether we ought to put these explicit requirements into this legislation.
My Lords, I wonder whether the noble and learned Lord is reading the same amendment as me. The one I am reading, which was so well introduced by the right reverend Prelate, states:
“Nothing in this Act shall prevent the United Kingdom from … replicating”,
or “continuing to participate”. It does not say that we have to do it. It just says that nothing shall prevent our doing it. Perhaps I am reading a different amendment from the noble and learned Lord.
Funnily enough, when I first read the amendment, I took the same point from it that my noble friend has taken. However, it seemed that it could not be so because it simply would not make sense to move an amendment that is not intended to have any effect on the Government as they pursue this legislation.
The House may be aware by now that I am in favour of our staying in the European Union. I have great respect for the right reverend Prelate the Bishop of Leeds; it is great for bishops to spend a long time in the wilderness, but not for people doing trade and leading the economic life of the country. While the right reverend Prelate is in the wilderness, perhaps he can conduct our negotiations with whoever we are conducting them with in the wilderness on our behalf.
My reading of the amendment is that it has zero impact. I cannot see anything in the Bill that prevents our having any relationship with European agencies. Our issue with the Government is that they do not want relationships with many of them. I do not intervene, however, just to make the point that the amendment is useless. I am concerned by what is becoming a pattern in our debates on the Bill: thinking that changes with no substance whatever amount to great advances in our campaign to reverse Brexit. We should concentrate on things of real substance: the customs union, the single market and the referendum. Those are real changes.
As far as I can see, the Minister will not accept gestures of this kind because he does not accept anything from this House on principle, even from Bishops. Perhaps the Almighty can sway his mind in a way that we mere mortals cannot. He could accept the amendment but he will not. Even if we go to a vote, it is not worth wasting the time of the House on trivial matters of this kind; they may give us the impression of having some impact, but we are in fact having zero impact.
My Lords, I disagree with the noble Lord, Lord Adonis. One of the most important matters is security. In Barcelona the other day, one of Britain’s most wanted fugitives—Jamie Acourt—was arrested in a joint operation between the Metropolitan Police and the Spanish police, possibly assisted by Europol. The NCA head of international operations said:
“Our ability to share information and work at speed with our international partners ensures there is no safe haven for fugitives. We will never stop pursuing these individuals”.
That is no doubt true, but Acourt will be returned under the European arrest warrant. If we do not stay part of the warrant and have to fall back on the long-winded extradition arrangements that predate it—without any participation in Europol to facilitate cross-border police operations—our security will be endangered. I hope the noble Lord, Lord Adonis, accepts that security is one of our most important interests. I hear what noble Lords said about the effect of the amendment but, politically, it is important that this House presses on the Government the importance of staying in agencies and institutions.
My Lords, I am delighted to speak in support of the key Amendment 93, to which my noble and learned friend Lord Goldsmith added his name and which was moved so biblically and effectively by the right reverend Prelate the Bishop of Leeds. Of course, at that time, I had not only a brilliant legal adviser on my right, but a theological one—my noble friend Lord Griffiths—who has now left the Chamber. I said, “I have to have a biblical quote”, but I am afraid he has a sense of humour and said, “The people who were wandering aimlessly in the pre-Brexit wilderness were soon squabbling among themselves, ignoring the advice of their leader”, and so on. But I will leave my noble friend’s helpful comments for another time.
I say this particularly in answer to the noble and learned Lord, Lord Brown, and my noble friend Lord Adonis. This is an important and meaningful amendment because it would restrict the pretty wide powers given to Ministers in the Bill. That is why we need to pass it. We have on a number of occasions, on this Bill and the Nuclear Safeguards Bill, expressed our surprise that nowhere in the referendum process—in the immediate aftermath, nor in this legislation or any other—did the Government ever spell out that the Article 50 process automatically triggered our exit from Euratom. I will not repeat the costs and dangers of that eventuality given earlier debates on it, particularly the input at that point of the noble Lord, Lord Teverson.
However, equally unremarked on and unmentioned by the Government, or by the Brexiteers during the campaign, was the similar removal of the UK from a swathe of agencies, many of which, as we have heard, we helped to construct and all of which have served this country well. Colleagues will already know, from medical researchers who have been in touch, patient groups, health professionals and the pharmaceutical industry, of the risks of being outside the European Medicines Agency, quite apart from the loss of jobs and specialisms that are now moving to Holland. But the same could be said about the European Food Safety Agency, often referred to, but not today, by my noble friend Lord Rooker; the environment agency, emphasised by the noble Baroness, Lady McIntosh, and my noble friend Lord Whitty; the railways and aviation agencies, often referred to by my noble friend Lord Berkeley; the European Chemicals Agency, which has been mentioned; and, of course, Eurojust, suggested by the noble Baroness, Lady Ludford, and Europol, mentioned by the noble Lord, Lord Cormack.
The commonality is that any mention of those agencies in this House and beyond has included a plea for us to remain members, associates or partners with whichever such agency is in the frame. Sometimes this means following the same rules—as the Government have now accepted for clinical trials—to assist in monitoring; for safety; for easy and rapid transport, as for medical isotopes; to facilitate trade and exchange; to enable skilled persons to undertake checks or repairs; or, as my noble friend Lord Haskel said, to guarantee safe products for users and consumers.
For some of the agencies it might mean paying money in, as the Prime Minister acknowledged. For some it might mean harmonising assurance, governance or penalties for rule-breaking. But for all it will mean a willingness to adapt and respond to requirements, usually simply to maintain our existing rules and practice. What is clear is that, given the wide powers in the Bill for Ministers, we must ensure that none of those powers is used to frustrate our continued involvement with such agencies, whether because, for example, we set different sanctions for breaches, raise fees or charges in a different way that makes it difficult to move along in their way of working, or apply variant rules or any other similar change. That is why it is critical to circumscribe the powers in the Bill so that they cannot be used to prevent us having necessary EU rules or ways of working that would frustrate our participation in any of these agencies. We do not want the powers to be used for that reason, hence the very simple amendment.
The noble Lord, Lord Hannay, had it right: the Bill should not be used to frustrate the intention, should that be the Government’s wish, to stay in these agencies for the good of the whole country. It is, as the right reverend Prelate the Bishop of Leeds said in his introduction, entirely in line with what the Prime Minister said in Mansion House and it would allow this country to continue such relationships where that continuation is in the national interest.
My Lords, I understand the sentiment behind Amendment 93 tabled by the right reverend Prelate the Bishop of Leeds— I assure him that I am not one of those who regard him as a hypocritical remoaner. However, I must make it clear that the Government consider its inclusion in the Bill to be both completely unnecessary and totally inappropriate.
Once we leave the EU, this Parliament—and the devolved Administrations, where appropriate—will be free to change the law where they decide it is right to do so. As such, nothing done by this Bill, or any other Act of Parliament, can bind the actions of future Parliaments. A provision which essentially provides that future Parliaments can mirror EU law, which this Bill neither requires nor prevents, is therefore completely unnecessary. Nor does the Bill prevent Parliament approving any future relationship between the UK and the EU, including its agencies and institutions.
If the intended effect of the amendment is to preserve the sovereignty of Parliament, it is also completely unnecessary. The amendment may have been tabled with one eye on the withdrawal agreement, but my ministerial colleagues and I have been clear throughout the Bill’s passage, both within this House and in the other place, that its aim is just to create a functioning statute book as we depart from the EU—a point well made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. For the avoidance of any doubt, the Bill does not seek pre-emptively to legislate for or against any final withdrawal agreement or future relationship with the EU. On this point, I am surprised to find myself in agreement with the noble Lord, Lord Adonis, probably for the first time in the Bill’s passage. On this narrow point, he is right. Incidentally, we have accepted many amendments put forward in this House and by its committees. We have tabled more than 100 amendments responding to concerns raised by various Members of your Lordships’ House, so it is not quite true that we always reject everything that is said.
We will come to that debate later.
Let me make it clear: if there is a role for any EU agency as part of the withdrawal agreement, it will be legislated for under the withdrawal agreement and implementation Bill which we are planning to introduce later in the year. The same principle applies to the future relationship which will, as necessary, be legislated for in due course.
The inclusion of this amendment would make this position less clear than it is at the moment. It may also create an odd presumption that, since the Bill does not prevent the amendment’s intended effect being achieved, the specific inclusion of the new clause would mean that the UK will seek to mirror the laws of the EU after our departure or to continue its current participation in EU agencies. That may not be the right reverend Prelate’s intention, but the amendment could be read as going even further and attempting to save, or partially save, the European Communities Act for the purposes of mirroring changes in EU law after exit. If that is the case, it could be seen as allowing a wide discretionary power to keep pace with EU law. This would also be a wholly inappropriate approach when we do not yet know the outcome of the negotiations.
As I have highlighted during our previous debates on the Bill, the UK has a long-standing tradition of ensuring that our rights and traditional liberties are protected domestically. The UK leads the world in many areas in setting and upholding high standards across our statute book; for example, in areas such as consumer protection, environmental standards and workers’ rights—a point well made by my noble friend Lord Baker. I believe that all Members of Parliament, in this House and in the other place, are invested in the continuation of this legacy. It is in Parliament that we are better able to address and legislate for the specific needs and ideas of the UK.
In our negotiations, we are seeking a deep and special partnership with the EU, and our relationship with its agencies and bodies is being evaluated on this basis. I assure the House that where there is a demonstrable national interest in pursuing a continued relationship with an agency or other EU body, the Government will carefully examine whether we should pursue this. In response to the questions raised by my noble friend Lady McIntosh, participation in the European Environment Agency is of course a matter for the negotiations, but if we do negotiate participation we will, of course, make the appropriate financial contribution.
Will my noble friend help the House in one respect? I am trying to understand whether the amendment in any way obliges the Government to do anything or in any way prevents them doing anything. It seems to me entirely neutral in its effect. Can he help us?
I think I covered that in what I said earlier: we believe it to be unnecessary and pointless.
Going back to my noble friend Lady McIntosh’s questions, the second question she asked me was about contracts of employment of staff employed in those agencies. Of course, these are a matter for those agencies, but the rights of those UK citizens, as UK citizens in other EU countries, are guaranteed in the agreement we reached with the EU in December. The noble Lord, Lord Whitty, asked me about the membership of agencies ending in March 2019. As set out in the agreement reached in March, during the implementation period common rules will remain in place and the UK may continue to participate in EU agencies where the presence of the UK is necessary and in the interests of the Union or where the discussion concerns acts addressed to the UK and its citizens.
In conclusion therefore, while I fully understand the intentions behind the amendment, I do not believe that anything would be gained from its acceptance in the Bill, apart from confusion.
Before the Minister sits down, can he help me on one matter? I am sure there is an easy answer to it. The Bill is exceptional in its regulatory power. Whereas I see the strong force of what is being submitted by the noble and learned Lord, Lord Brown, I wonder if it has the effect of curtailing these very wide Henry VIII clauses.
I do not believe that it does curtail our powers under the SI provisions of the Bill, on which we have had separate, long discussions.
In conclusion, I do not believe that anything would be gained from its acceptance in the Bill apart from confusion and uncertainty. I therefore hope that the right reverend Prelate will feel able to withdraw his amendment.
My Lords, I thank the Minister for his response and all those who have spoken in the debate. I often find myself changing my mind when I hear good argument but I cannot assure the House that I have done that in this case. The Minister referred to the sentiment behind the amendment, but it is not sentiment: what I offered was a rationale, not a sentiment. The intention behind it is as I stated in my speech. I take the comment of the noble Lord, Lord Baker, about “common sense”, but every time I hear the phrase I begin to worry. Usually, common sense is so common and so thinly spread that it does not always apply in the specific, and as they say, the devil lies in the detail. So I am not sure that it is enough just to be sure that things will continue, or that we can continue to hope.
The noble Lord, Lord Adonis, said that it is not good for businesses and so on to be in the wilderness. I totally agree, but my point in using that metaphor is that we are, whether we like it or not, going to find ourselves in some sort of wilderness, because it will take a long time to work this through. It will not be that suddenly on day one, whether we stay or leave, everything in the garden is rosy. I am just being realistic about that. Finally, I find the repeated charge that this House is trying to impose on the Government, or tell the Government what to do, tiresome. It seems to me—I may be simple—that the remit and responsibility of this House is to send back to the Government and to the other House arguments that may make them think again. Otherwise, we have no purpose. So, while I take the comments seriously, I wish to test the opinion of the House.
Clause 14: Interpretation
93A: Clause 14, page 9, line 42, at end insert—
“( ) an enactment contained in any Order in Council made in exercise of Her Majesty’s Prerogative,”
My Lords, we have just debated an important issue, and later I shall turn to some other very substantive matters. Nevertheless, I ask for a moment of the House’s time while I make the case for the five government amendments in this group, especially for the noble Lord, Lord Adonis, who apparently does not believe that we are tabling any amendments to the Bill.
These are all consequential amendments on the status provisions that we debated on day two of Report, and which I am pleased to say that the House accepted without a Division. I know the House will look again at these complex provisions at Third Reading but, as I said on day two, I hope there will be no further amendments beyond anything that relates to additional matters where the distinction between primary and subordinate legislation is important, and therefore we should insert that distinction between retained principal direct EU legislation and retained minor direct EU legislation.
Amendments 93A, 93B and 93C clarify types of legislation that are included in the definition of “enactments” in the Bill. This definition includes a non-exhaustive list of enactments. The new status clause provides that enactments are to retain the same status as they had before exit day. The intention behind the provision was to address the concerns of some noble Lords about the effect that the Bill has on domestic legislation via Clause 2 and whether it changed the status of that legislation. As part of the Government’s commitment to ensuring clarity and certainty, we have tabled the amendments to make it clear that these additional types of legislation all continue to have exactly the same status that they had before our exit from the EU. The amendments clarify that Church Measures, Orders in Council made in exercise of Her Majesty’s prerogative and devolved enactments made in exercise of the prerogative are within the definition of “enactments” and therefore will retain the same status that they held prior to exit day. The Government have of course consulted with the Church of England, the Palace and devolved authorities before tabling the amendments. The amendments also make it clear that in the highly unlikely case that any of these instruments are related to the EU and contain deficiencies, the Government could correct those deficiencies if appropriate, although in these cases it is likely that others would use their own existing mechanisms to so do.
Amendments 112BA and 112BB simply insert the new definitions of “retained principal direct EU legislation” and “retained minor direct EU legislation” into the Interpretation Act so that the terms do not need to be defined in future legislation. I hope noble Lords will find nothing to object to in this group, and I beg to move.
My Lords, I understand and am grateful for what the Minister has said about the purpose behind the amendments. He is quite right that, for example, the first three amendments identify as enactments things, including Church Measures, that would normally be regarded as such but were not included. My question for him is simply this: he said in moving the amendment that one of the advantages of the amendments would be to enable deficiencies, if there were connections with EU law, to be corrected through secondary legislation. Could he explain how these amendments will enable that to be done? I did not quite follow that.
As I said, we think it is highly unlikely that any of these instruments that are related to the EU will contain deficiencies. If appropriate, we could use secondary legislation powers to correct those deficiencies but, as I said, in virtually every case it is likely that others—the devolved Administrations, the Church and so on—would want to use their own existing measures to do so.
Amendment 93A agreed.
Amendments 93B and 93C
93B: Clause 14, page 10, line 6, after “legislation,” insert—
“( ) an enactment contained in, or in an instrument made under, a Measure of the Church Assembly or of the General Synod of the Church of England,”
93C: Clause 14, page 10, line 6, after “legislation,” insert—
“( ) an enactment contained in any instrument made by a member of the Scottish Government, the Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Government, a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland or a Northern Ireland department in exercise of prerogative or other executive functions of Her Majesty which are exercisable by such a person on behalf of Her Majesty,”
Amendments 93B and 93C agreed.
94: Clause 14, page 10, line 7, leave out “section 2” insert “sections 2 and (Status of retained EU law)”
Amendment 94 agreed.
95: Clause 14, page 10, line 40, leave out from “means” to end of line 41 and insert “such day as a Minister of the Crown may by regulations appoint (and see subsection (2));”
My Lords, this amendment, which I have proposed with the noble Lord, Lord Hannay, the noble Baroness, Lady Hayter, and the noble Lord, Lord Newby, is not the most significant of the various cross-party amendments which this House has passed in recent weeks, but it is nevertheless important. We propose that the wording of the Bill simply reverts to the original drafting. During the debate in Committee on this point, there was near unanimity that the date should be taken out of the Bill.
We have so often been told by Ministers in this House that a certain amendment was unnecessary. Well, it was certainly unnecessary for the Government to amend their Bill during its passage in the other place to fix the date. Article 50 clearly states:
“The Treaties shall cease to apply … two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.
So we know beyond any doubt that for the purposes of this Bill, we leave the EU on 29 March 2019, but this date should not be defined and specified in the Bill, in case it becomes necessary and in the national interest to agree an extension, as provided in Article 50. Any extension sought by the Government could be limited to only a few weeks, as the European Parliament elections are now fixed for 23 May 2019 and the Parliament will be dissolved towards the end of April 2019.
I have reread the speech given in Committee by the noble Baroness, Lady Goldie. She said that the original drafting of the Bill, which did not include the date, was unacceptable to the House of Commons but, as I am sure she is aware, Members on both sides of the House of Commons were highly critical of the Government’s amendment to write the date into the Bill. Indeed, the Committee for Exiting the European Union in the other place stated that the government amendments will remove flexibility and create significant difficulties if, as the Secretary of State suggested in evidence, the negotiations,
“went down to the 59th minute of the 11th hour”.
Catherine Barnard, professor of European Union law at Cambridge, described the amendments as creating “an artificial straitjacket”. She said:
“In other words … it creates a rod for the UK negotiators’ backs, weakens any UK negotiating position and adds unnecessary pressure to those in the executive trying to deliver Brexit in a coherent, measured fashion”.
In the face of this strong opposition to the government amendment, in the end a compromise was proposed in the other place by Sir Oliver Letwin to give Ministers the power to change the date. This was passed in a whipped vote.
The purpose of this amendment is simply to give another opportunity to the other place to think about whether including the date is really expedient. What is the point of putting the date in the Bill when it may have to be changed in circumstances which we cannot foresee? If there is a case for putting the date in primary legislation—which I do not accept—it might be more appropriate to put it in the withdrawal agreement and implementation Bill, which will come to Parliament later in the year.
As I said on Second Reading, this Bill is absolutely necessary for the good government of the country. Although Ministers have said that they have no intention of seeking an extension to the two-year period, nevertheless, in legislating the process of withdrawal, we should give them a bit more flexibility to secure and obtain ratification of the best possible deal which will do the least damage to the economy and to the national interest. Ministers should recognise that, from all sides of this House, we are trying to help the Government in their negotiations and in no way to thwart the process. I beg to move.
My Lords, I rise to support Amendment 95 and also Amendment 99, both of which stand in my name as well as those of other noble Lords. The case for these amendments has been stated clearly and cogently by the noble Duke who has spoken before me, and I shall put it quite succinctly.
First, as the noble Duke said, there was no reference to the date of our exit from the EU in the Bill as it was originally drafted and tabled by the Government about a year ago. It is a fair assumption therefore that, in the Government’s view at that time, putting the date in this Bill was neither necessary nor desirable. If it had been either of those things, it would have been in the original Bill. Its inclusion at a later date was a purely political decision—alas, another of those sops to one of the all-too-frequent outbursts from the Government’s Brexit-at-any cost supporters.
Secondly, the date seeks to pre-empt, or at least to make far more difficult, the use of one of the key provisions of Article 50—that which enables a two-year cut-off date to be extended by common accord of the 27 and the exiting state, the United Kingdom. Today is not the moment to discuss the eventuality under which that provision for an extension might arise, but it is surely premature today to seek to rule out at this stage that possibility, particularly since the post-negotiation withdrawal and implementation Bill, to which the noble Duke referred, could provide an opportunity to do that if by that stage it was clear beyond peradventure that the provision of an Article 50 extension was not going to be required or needed.
That is a political judgment about the views of the 27. It is not a political judgment on the views of the British Government, who have always said that they would never under any circumstances propose such an extension—one of those statements which I fear they may have to eat cold at some stage. The answer to my noble friend’s question is that it is a political judgment about the attitude of the 27. I do not think that today we can rule it in or rule it out, and I do not think we should.
Thirdly, we have heard from the Government Benches on a lot of occasions during the passage of this Bill that this is a purely technical Bill; I think the most recent occasion was earlier this afternoon. It is a technical Bill designed simply to prepare our statute book for exit day and that it is not a proper vehicle for policy formulations, in which case, and on that analysis, I suppose the Minister will shortly rise to his feet and accept the amendment, which I would certainly encourage him to do.
My Lords, I have nothing of substance to add to the speeches by the noble Duke, the Duke of Wellington, and the noble Lord, Lord Hannay, who have made a compelling argument to delete the date from the Bill. Having the date in the Bill was really a very silly move by the Government. It was not in the Bill to start with for very good reasons. It gave flexibility to Ministers to determine what it should be. They put it in only under pressure from part of the Tory party; they only then amended it and made it more complicated under pressure from other bits of the Tory party. The original position of having flexibility in the Bill made eminent sense, was preferable to what we have now, and we should revert to the original position.
My Lords, I wish to speak to my Amendment 96, which is associated with this debate, but also to speak to Amendment 95, moved by the noble Duke, the Duke of Wellington. The comments that have been made across the House add up to a sentiment, shared by the overwhelming majority, that it is singularly inappropriate to define 29 March at a certain time as the point of exit.
My amendment suggests that, after the word “means”, we insert:
“the day concluding any implementation period or transition period agreed between the United Kingdom and the EU”.
I am proposing that because the meaning of “exit” should surely be at the end of the implementation that leads to exit; otherwise, there is a contradiction in what we are putting into law. If the feeling in the House is to pass Amendment 95, I should be very content.
My Lords, I have to acknowledge that this is not an amendment that thrills me, not least because it seems to me to offend one of the great principles of social and economic thought, enunciated in a wondrous book, of which this year is the 60th anniversary—namely, Parkinson’s Law or the Pursuit of Progress. Noble Lords who are old enough to remember it will know that that law as enunciated was that work expands to fill the time available. I have no doubt, as far as negotiations in relation to the EU are concerned, that, whenever the end date was pronounced to be appropriate, there would be no difficulty in filling the time available, and everything that has happened so far confirms me in that impression.
The other related observation about human behaviour, which sadly has governed a lot of my life—I am not proud of it—but seems to be almost an abiding characteristic of the European Union is that you never do today what you can put off till tomorrow. I think that we have seen enough of negotiations EU-style, with late-night ministerial meetings and early-morning press conferences, to know that lastminute.com is one of the abiding principles by which the European Union reaches its decisions.
What troubles me about the amendment—although I shall lose no sleep about what happens to it—is that, whatever the mover’s intentions, the undoubted interpretation from the world outside will be that this amendment is designed to put further down the track the date on which we shall leave the European Union. That is an observation that I hear time and again in talking to people. After all, in March next year it will be almost three years since the British people made that historic and momentous decision.
I cannot help being vain enough to mention just two points that I made at Second Reading about this House and its treatment of this Bill. I simply said that, in all our discussions, there will be an elephant in the room—the chasm between the spread of opinion on Brexit in this House and the spread of opinion in the country at large. I think that I can be allowed to make special reference to my own region of the West Midlands, which was the strongest voting region in favour of leaving the European Union. Coincidentally, the House’s own research tells us that one of the least represented regions in the United Kingdom in this House is the West Midlands. The other two, by the way, are the north-east and east Midlands. Those three regions amount to the three most strongly Brexit parts of the country. It would be nice to have a lot more people here from the West Midlands—and, should the Government want any advice on people whom they might think of putting in the House in order to address that regional imbalance, I would certainly give it to them. But this mismatch is the elephant in the room.
I repeat what I said then: for all that we may try and decipher the motives of people who voted leave, the most generally accepted one is that people felt there was a chasm. So many people in this country sensed that Westminster, and Members in both Houses, were not listening to what they were saying. At the start of the Bill, I was fearful that this House would make that anxiety even more justified, and I have neither seen nor heard anything at Second Reading, in Committee or on Report that has given me any reason whatever to doubt that judgment. We have passed 11 substantial amendments already. There is no doubt that they were all well presented and for good, rational reasons, although I did not agree with them all. However, they have the compound effect of it appearing to be the case that this House is trying to delay, to block or, in the case of my noble friend Lord Adonis, who has been honest enough to say so throughout, to reverse the decision which the people made two and a half years ago. That has undoubtedly been the impression that we have been presenting.
Of course, people say that that is our duty; it is what the House of Lords is for. I agree that it is a perfectly legitimate objective for this House to make the House of Commons think again on any Bill. However, this is not any old Bill. This Bill has the authority of a referendum, with an unprecedented vote, to back and sustain its objectives. It has been moved inexorably on its way by the votes in both Houses to implement Article 50. This House did it; so did the House of Commons. The Bill is an inevitable and necessary consequence of the referendum and of the votes in these two Houses.
I agree that that is our job. The Government, and the House of Commons, can be asked to think again. However, I hope that the noble Lord, Lord Cormack, and other noble Lords who have made this point on a number of occasions, will agree with the proposition I am about to make. If the Commons does think again on some of these amendments, and sends them back here, our job is then completed. I think that is the consequence of the point made by the noble Lord, Lord Cormack, and is, surely, the way we should proceed.
At heart, the noble Lord seems to be saying that it is our duty to implement, regardless, the will of the people nearly two years ago. Does he forget that the Government tried to bypass Parliament and implement Article 50, the date of which we are discussing now? They wanted to do it without consulting Parliament, bypassing it and the people. I do not call that democracy or respect for Parliament at all.
We have had this argument on many occasions. Parliament can do what it wants to do. I repeat that to the noble Lord, but I am sure he understands it. If Parliament thinks that the proposal which is coming before it is so obnoxious, it can throw it out—it can throw the Government out. It has done that during my parliamentary career and that of many other noble Lords. The idea that Parliament is a pathetic institution that needs protecting from the Government of the day is a fundamental misunder- standing of what is meant by parliamentary democracy.
The House can, of course, pass this amendment if that is the wish of the majority, which I suspect it will be. That will make 12 things for the House of Commons to think again about. However, we have to remember that the Bill has to get on the statute book, and in good time. I do not think there is a lawyer here who denies that for a moment. We keep hearing about cliff edges, so far as the economy is concerned. I do not agree with that, but the words “cliff edge” have gained currency. There is no doubt whatever that, if this Bill does not hit the statute book in good time, there will be an undoubted cliff edge for the legal structure and operation of this country, for the meaning of legislation and where European legislation fits into it.
I therefore hope that we will acknowledge that we have certainly done our duty of making the Commons think again—I ask your Lordships not to represent me as saying that we must not make amendments to the Bill; at no stage have I said that and of course I have not, as I have been here for far too long to make that kind of suggestion. However, this is an important Bill which needs to be passed—
My Lords, I have listened to my noble friend with the respect with which I always listen to him. Would he not agree that on the day of the referendum a substantial proportion of the British population was unconvinced? If we are to make a success of change in the constitution, consensus and maximum good will are essential. That is why it is so important for the House of Lords to take as long as necessary to make sure that the anxieties of the large section of the population that did not go along with this decision is reassured.
As far as that is possible; the choice was and is still a binary one. I do not think that there can be a compromise between my noble friend Lord Adonis’s position and mine, because he wants to remain in the European Union and I want to leave it. There may be a halfway position there, but I have not quite discerned it yet. Larger brains than mine need to find a consensus on that, if there is one. However, I am utterly clear that once this House of Lords, as well as the House of Commons, has said to the British people, “We want you to make a decision. We’ll tell you what the wording on the referendum ballot paper will be. We’ve decided that, we will decide the date, and we will abide by that decision”, those statements are unchallengeable. It is our duty to deal with the legislation which is the inevitable consequence of that decision, of which the Bill is one part.
My Lords, I will restrain myself from entering into a longer debate on this issue. I agree with my noble friend Lord Grocott that this is an important Bill, but it will also affect the negotiations, and part of that will be affected by the timetable.
It is interesting that at various times when we have discussed the promised vote on the final deal—it is not just a matter of leaving but of our future relationship with the EU after we have left—the Minister has said that he hoped that the vote, in both Houses, would take place before the European Parliament has had its say, but that he could not definitely promise that it would, because our parliamentary timetable might not be flexible enough to fit in with that of the European Parliament. I cannot say that I accept that argument, because after all, we control our business and when we have votes—not necessarily how late at night they happen, but effectively we control our timetable. However, if the Minister was correct in the assumption that the European Parliament’s vote might not be at a predictable time—it may be delayed because talks are still going on—it may suddenly be brought forward.
Here, I will answer the point raised by the noble Lord, Lord Butler. It seems essential that the deal has to be agreed before April, when the European Parliament will go into recess, because under Article 50 the deal has to be agreed and have the consent of the European Parliament. If the European Parliament is to recess, adjourn or prorogue before its elections, the deal has to get consent before then. Therefore, there is a timetable, and it has to go before the European Parliament. I have had various legal advice about what happens if the European Parliament does not give its consent—it seems quite complicated—but certainly Article 50 says that it has to give consent. Therefore, the negotiations could go on a bit later than everyone wants, and the European Parliament will have to prorogue for its own elections and will have no authority thereafter. The date on which we leave could be fixed by the words in an Act of Parliament which will be passed in August or whenever, some months after those events, and that seems a very unhelpful position for our negotiators to be in.
I am sure that there will be late-night sessions and lots of consultations, with people ringing back for instructions as the negotiations go on—there are people who have been through all this. I hope that we have trained the Minister well in coping with late nights here, because he may well have more of those, but there could be very long nights as the negotiations go on. If one side—our negotiators—were curtailed by a strict date in the Act, that would put us at a disadvantage. The other side is not so constrained. The European Parliament can meet at very short notice when a decision has been taken.
However, I interpret Article 50 slightly differently. It says:
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after … notification”.
So, without having to go to the Council for a unanimous decision, the withdrawal agreement could contain a leaving date of a week or two weeks after the two-year period, which would allow the last-minute arrangements to be made. If that is what the withdrawal agreement specifies, if that suits all the parties and if our Government would like to sign up to it, it would seem silly not to be able to do that.
It is important that we enable the negotiators to get the best possible deal, setting out exactly how we leave and exactly what our future terms of trade will be. If the amendment is passed, it will remove the straitjacket that the Government inserted at the behest not of the negotiators but of certain ardent Brexiteers. Let us remove that straitjacket, make the task easier for the negotiators and reflect what our own EU Committee said:
“The rigidity of the Article 50 deadline of 29 March 2019 … makes a no deal outcome more likely … enshrining the same deadline in domestic law would not be … in the national interest”.
I am sure that the Government want to put the national interest first and I certainly believe that this House will want to do so. Therefore, we strongly support the amendment moved by the noble Duke, the Duke of Wellington, and we urge everyone to go into the Lobby behind him.
My Lords, I thank all noble Lords for their contributions to this debate. Exit day has been discussed at length throughout the passage of this Bill. Set dates such as this are often crucial to the functioning of any legislation, but I would like to take this opportunity to remind noble Lords of the particular importance of exit day in this Bill.
Exit day is the moment in time when the European Communities Act is repealed. It is the point at which EU laws are converted into UK law, when the deficiencies in retained EU law emerge and when a range of other effects are triggered under the Bill. However, I reiterate that exit day within the Bill does not affect our departure from the EU, which is a matter of international law under the Article 50 process, as my noble friend the Duke of Wellington and the noble Baroness, Lady Hayter, made clear. What it does affect, however, is whether we leave the EU in a smooth and orderly fashion.
The definition of exit day, and how it is to be set out, has been amended significantly since the Bill was introduced to the other place by my right honourable friend the Secretary of State for Exiting the European Union on 13 July last year. My noble friend Lady Goldie has previously described the sequence of events which led us to the current drafting and I will not test the patience of your Lordships by repeating the arguments she made in Committee. What I will say, however, is that, crucially, the Bill left the other place reflecting the reality of international law under the Treaty on European Union. I see no reason, therefore, to change the Bill any further. The final drafting also reflected the concerns of Members of the other place who had been on both sides of the referendum campaign. That fact sits at the core of my opposition to Amendments 74, 95 and 99 in the name of the noble Duke, the Duke of Wellington.
As has been stated on many occasions during Report, this House reviews the legislation sent to it by the other place and highlights—often very well—areas where it does not think due consideration has been given. This point was well made by the noble Lord, Lord Grocott, as a leaver from the West Midlands. As a leaver from the north-east, also an area underrepresented in this House, I have considerable sympathy with his arguments. I therefore cannot why these amendments are seeking to restore something like the original drafting of the Bill when that drafting was considered at great length, on many occasions, and was rejected by the other place.
I also do not agree with Amendment 96 in the name of the noble Lord, Lord Wigley. The Bill is designed to provide continuity and certainty in domestic law as we leave the EU. This must be true in a scenario where we have a deal with the EU, but it must also be true in the unlikely event that there is no agreement between the EU and ourselves. While this is not what anybody on either side is hoping for, it would be irresponsible and out of keeping with the remainder of the Bill not to prepare for that unlikely event. In that circumstance, it would be vital that the Bill did not make reference to concepts which are contingent upon a successful negotiated outcome, such as an implementation period. That would prevent the Bill achieving its objective as agreed at Second Reading, because in that scenario further primary legislation would be required to alter exit day and provide for an operable statute book. Even in the Government’s preferred scenario of a successfully negotiated withdrawal agreement, including of course an implementation period, the noble Lord’s amendment presumes that no substantive provisions of this Bill will be required until the end of that implementation period.
While I do not want to be drawn into a discussion about the legal construction of the implementation period, which will be a matter for the withdrawal agreement and implementation Bill—I have no doubt we will have great fun in our opportunity to consider that—I do not think that the noble Lord can be certain in his assumption. This is the real issue with the noble Lord’s amendment: it attempts to use this Bill to legislate for the implementation period. But the Government have been quite clear that the implementation period will be a matter for the withdrawal agreement and implementation Bill once we have agreement. This Bill is deliberately and carefully agnostic about whatever deal we strike with the EU, prejudging neither success nor failure in negotiations.
Of course, we hope and expect to be successful in these negotiations, and our continuing progress demonstrates good movement towards that goal. I hope that noble Lords will reflect the compromise reached by the elected House, and therefore I respectfully ask the noble Duke to withdraw his amendment.
My Lords, I will respond first to the pertinent question from the noble Lord, Lord Butler. I did not mean to imply that, under the Article 50 process, there could not be a longer extension. I just feel that, as a practical matter, it is unlikely to be practical to extend for more than a few weeks, because the European Parliament will indeed be dissolved in late April prior to the European elections in May 2019.
Are we not talking about two types of extension? As the noble Baroness, Lady Hayter, said, the European Parliament will have to approve or disapprove the agreement before it adjourns. But it could agree a deferment of the date on which the UK leaves the EU by a much longer period, could it not? It would be within its power to do that.
With the unanimous agreement of all members of the European Council a delay can be agreed without a term. That is unlikely. I referred to the European Parliament elections because that is a practical deadline in this process. That is the point there.
I agree strongly with the point made by the noble Lord, Lord Grocott, that this Bill must be passed. There is no doubt that we need this Bill for the good governance of the country, as I said earlier and at Second Reading. However, I do not agree that this should be construed as a device to delay Brexit by more than a short period for technical reasons.
I agree with the noble Lord, Lord Cormack. He said that we have a duty to improve this Bill and we have done so in many ways in the 10 or 11 amendments that we have so far passed.
This amendment and the related amendments give the other place an opportunity to think again about the expediency of including a date in this Bill, and it is right that we should test the opinion of the House.
Amendments 96 and 97 not moved.
98: Clause 14, page 11, line 26, after “in” insert “section (Status of retained EU law) or”
Amendment 98 agreed.
99: Clause 14, page 11, line 38, leave out subsections (2) to (5) and insert—
“(2) In this Act—(a) where a Minister of the Crown appoints a time as well as a day as exit day (see paragraph 19 of Schedule 7), references to before, after or on that day, or to beginning with that day, are to be read as references to before, after or at that time on that day or (as the case may be) to beginning with that time on that day, and(b) where a Minister of the Crown does not appoint a time as well as a day as exit day, the reference to exit day in section 1 is to be read as a reference to the beginning of that day.”
Amendment 99 agreed.
100: Clause 14, page 12, line 6, at end insert—
“(6A) In this Act references to anything which is retained EU law by virtue of section 4 include references to any modifications, made by or under this Act or by other domestic law from time to time, of the rights, powers, liabilities, obligations, restrictions, remedies or procedures concerned.”
Amendment 100 agreed.
Clause 15: Index of defined expressions
Amendments 101 and 102
101: Clause 15, page 12, line 25, at end insert—
“Anything which is retained EU law by virtue of section 4 Section 14(6A)”
“Anything which is retained EU law by virtue of section 4
102: Clause 15, page 13, line 33, at end insert—
“Retained direct minor EU legislation Section (Status of retained EU law)(6) Retained direct principal EU legislation Section (Status of retained EU law)(6)”
“Retained direct minor EU legislation
Section (Status of retained EU law)(6)
Retained direct principal EU legislation
Section (Status of retained EU law)(6)”
Amendments 101 and 102 agreed.
Clause 12: Financial provision
Amendment 102ZA not moved.
Schedule 4: Powers in connection with fees and charges
102A: Schedule 4, page 35, line 14, leave out from beginning to “or” in line 15
Amendment 102A agreed.
Amendments 103 and 104 not moved.
Amendments 104A to 104C
104A: Schedule 4, page 37, line 12, at end insert—
“Time limit for making certain provision
4A(1) Subject to sub-paragraph (2), no regulations may be made under paragraph 1 after the end of the period of two years beginning with exit day.(2) After the end of that period, regulations may be made under paragraph 1 for the purposes of—(a) revoking any provision made under that paragraph,(b) altering the amount of any of the fees or charges that are to be charged under any provision made under that paragraph,(c) altering how any of the fees or charges that are to be charged under any provision made under that paragraph are to be determined, or(d) otherwise altering the fees or charges that may be charged in relation to anything in respect of which fees or charges may be charged under any provision made under that paragraph.(3) This paragraph does not affect the continuation in force of any regulations made at or before the end of the period mentioned in sub- paragraph (1) (including the exercise after the end of that period of any power conferred by regulations made under that paragraph at or before the end of that period).”
104B: Schedule 4, page 37, line 14, leave out “, 8”
104C: Schedule 4, page 38, line 19, leave out “, 8”
Amendments 104A to 104C agreed.
Amendment 105 not moved.
Clause 19: Commencement and short title
105A: Clause 19, page 15, line 12, at end insert—
“( ) paragraphs 3A, 3B, 19(2)(b), 40(b), 43(2)(c) and (d) and (4) of Schedule 3 (and section 11 (4A) and (5) so far as relating to those paragraphs),”
Amendment 105A agreed.
Amendment 106 not moved.
Amendments 106ZA to 106B
106ZA: Clause 19, page 15, line 15, leave out “(3)” and insert “(3A)”
106A: Clause 19, page 15, line 15, at end insert—
“( ) paragraph 29(9), 30A and 31 of Schedule 8 (and section 17 (6) so far as relating to those paragraphs),”
106B: Clause 19, page 15, line 18, at end insert—
“(1A) In section 11 —(a) subsection (2) comes into force on the day on which this Act is passed for the purposes of making regulations under section 30A of the Scotland Act 1998, (b) subsection (3A) comes into force on that day for the purposes of making regulations under section 109A of the Government of Wales Act 2006, and(c) subsection (3C) comes into force on that day for the purposes of making regulations under section 6A of the Northern Ireland Act 1998.(1B) In Schedule 3 —(a) paragraph 1(b) comes into force on the day on which this Act is passed for the purposes of making regulations under section 57(4) of the Scotland Act 1998,(b) paragraph 2 comes into force on that day for the purposes of making regulations under section 80(8) of the Government of Wales Act 2006,(c) paragraph 3(b) comes into force on that day for the purposes of making regulations under section 24(3) of the Northern Ireland Act 1998,(d) paragraph 21(2) comes into force on that day for the purposes of making regulations under section 30A of the Scotland Act 1998,(e) paragraph 21(3) comes into force on that day for the purposes of making regulations under section 57(4) of the Scotland Act 1998,(f) paragraph 21A comes into force on that day for the purposes of making regulations under section 30A or 57(4) of the Scotland Act 1998,(g) paragraph 36A comes into force on that day for the purposes of making regulations under section 80(8) or 109A of the Government of Wales Act 2006, and(h) paragraphs 48A and 48B come into force on that day for the purposes of making regulations under section 6A or 24(3) of the Northern Ireland Act 1998;and section 11(4) and (5), so far as relating to each of those paragraphs, comes into force on that day for the purposes of making the regulations mentioned above in relation to that paragraph.”
Amendments 106ZA to 106B agreed.
Amendments 107 and 108 not moved.
108A: Clause 19, page 15, line 19, leave out “The remaining provisions of this Act” and insert “The provisions of this Act, so far as they are not brought into force by subsections (1) to (1B),”
Amendment 108A agreed.
109: Clause 19, page 15, line 21, at end insert—
“( ) 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 transitional arrangements agreed between the United Kingdom and the European Union.”
My Lords, this amendment deals with a point that we raised and discussed in Committee. It may be that this group will not take too long, although that will depend upon what the Minister has to say. The important point about this is that the Bill as drafted would mean that at the moment Royal Assent was given, certain things would happen, including that the jurisdiction of the CJEU would come to an end. We raised the point that, given that it appeared likely that during an implementation period the Court of Justice of the European Union would continue, by agreement, to have certain jurisdiction, it would be important not to see the CJEU’s jurisdiction fall off a cliff edge, as it were. It may be that the noble and learned Lord the Minister will be able to reassure us that they will deal with this so as to ensure that if the CJEU continues to have jurisdiction in certain circumstances—which, as I say, I believe is a likely outcome of the continuation of the discussions—the Bill will not have taken away the ability to do that.
Amendment 109 would not allow Clause 6—which, among other things, brings the CJEU’s jurisdiction to an end—to come into effect until,
“the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.
The amendment focuses on transitional arrangements that are in fact agreed, not hypothetical arrangements. It would achieve no mischief because transitional arrangements would in fact be agreed and we would be saying simply that the jurisdiction of the CJEU should not come to an end until the end of that period.
The Minister may put forward some alternative way of achieving the same effect. I will listen very carefully, as will other noble Lords, to what he has to say about that. For the time being, I beg to move.
My Lords, in light of the observations made by the noble and learned Lord in moving this amendment, I will make one observation at this stage in response to his invitation to me.
Part Four of the withdrawal agreement so far agreed between the United Kingdom and the EU sets out:
“During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union”.
That would mean that during the implementation period—assuming that that is actually agreed—the CJEU will continue to fulfil the role it currently does with regard to the UK’s legal structure. This effect will be provided for under the withdrawal agreement and implementation Bill. I do not know whether that assists the noble and learned Lord but that is the position as set out.
I add only that given the terms of the noble and learned Lord’s amendment—and I appreciate that it has been deliberately framed in this way:
“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 transitional arrangements agreed between the United Kingdom and the European Union”,
if that amendment was passed, it would throw into doubt what would happen if there were no transitional arrangements. That is not an outcome that we seek but it is a distinct possibility and would mean either that Section 6 did not come into force at all or that potentially we would be thrown back into the billowing mists of uncertain inference. So I have that objection but I thought it might assist noble Lords if I made clear our position with regard to the implementation period. I hope that that responds to the noble and learned Lord’s observation.
My Lords, I cannot agree with the point raised by the Minister about the wording of the amendment. The amendment says that a day may not be appointed,
“unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.
If in fact no arrangements have been agreed between the United Kingdom and the European Union, it would seem that effect could be given to the amendment.
Be that as it may, the important point is that, as I understand it, the Minister has said two things. He has said, first, that if an implementation agreement is agreed, it will include continuing jurisdiction of some sort for the Court of Justice of the European Union and, secondly, that the Government will make sure that that jurisdiction is provided under the terms of legislation to be brought forward; I think the implementation Bill is what the Minister has in mind. If that is right and the Government are telling us that they intend that legislation will incorporate a continuing jurisdiction if that is agreed, that would deal with the mischief that this amendment was designed to deal with.
If that is the position—it would be very helpful if the noble and learned Lord could confirm whether it is—I would then be able to beg leave to withdraw the amendment. I am watching his body language but I have been fooled by that before, so I would be grateful if he clarified whether what I have said is right.
It is of course the position that there is no certainty that there will be an implementation agreement. In that event, I would seek to differ with the noble and learned Lord about the interpretation of his amendment but that is a matter of little moment, I agree. However, in the event of there being an implementation agreement that follows the terms of the withdrawal agreement in outline, which noble Lords have seen, then during the transition period the Union law applicable pursuant to paragraph 1 will produce the same effect in the United Kingdom as in the remainder of the EU. That would extend to the jurisdiction of the CJEU in respect of the matter of the interpretation and effect of such law. The noble and learned Lord is quite right that it would be the intention of Her Majesty’s Government, in those circumstances, to ensure that such a provision was expressed in the withdrawal agreement Bill.
Amendment 109 withdrawn.
110: Clause 19, page 15, line 21, at end insert—
“(2A) None of the sections of this Act to be commenced under subsection (2) 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.”
My Lords, Amendment 110 stands in my name and that of the noble Lord, Lord Teverson. It would quite simply prevent any sections of the Bill, when it becomes an Act, from commencing until the UK Government have adopted the negotiating objective of securing continued EU citizenship for UK citizens. I do not wish to rerun the arguments for continued EU citizenship which I presented during Committee. I would, however, point out that there was a massive response on the electronic media to that debate, overwhelmingly favourable to the viewpoint which I presented. This told me that the subject is very close to the hearts of thousands of people in these islands and is one which the Government should ignore at their peril.
Since Committee, the Minister has kindly allowed me to meet him to discuss these and associated matters. I was grateful to him for that and I better understand from where he comes on the issue. I hope that he likewise understands from where I come, even if he does not agree with my viewpoint. Of course, some of the legal challenges are still being pursued and we await their outcome. I would, however, like to respond to two concerns raised during Committee.
The first is the issue of reciprocity and whether EU nationals should be offered British citizenship. Regardless of my personal opinion, this is not what is proposed in this amendment. My argument is that it would be illegal under international law and European law for the UK or the EU to take away our European citizenship from those of us who already hold it. For those who are not currently European citizens—for example, those who will not be born until after Brexit—I believe that we will need to negotiate a form of associate European citizenship. This is, in fact, what I understand the negotiator on behalf of the European Parliament, Mr Guy Verhofstadt, has been calling for. That would require a provision to be negotiated into the withdrawal agreement. Whether or not we offer some form of associated British citizenship to EU nationals would therefore be a matter of negotiation at that time. I very much hope that the Minister can assure the House that such an option has not been explicitly ruled out.
Secondly, may I address the issue of whether there is a solid precedent? I want to reiterate the Irish example, which I explored informally with the Minister earlier but which is still material. Following the creation of the Irish Free State—now the Republic of Ireland—and Northern Ireland, a comparable situation occurred. Irish citizens who reside in the UK, while remaining Irish citizens, are permitted to enjoy all the benefits of UK citizenship, including freedom to take up residence and employment in the UK, and to play a full part in political life, including voting in parliamentary elections and seeking membership of the national legislature—that is, becoming a Member of Parliament. Am I not right in asserting that this state of affairs will not be affected by the UK leaving the EU? Can the Minister confirm whether this is a correct interpretation?
The Irish state also offers citizenship to all residents on the island of Ireland; people resident in Northern Ireland can therefore choose British, Irish or dual citizenship. This is an example of citizenship being on offer to those residing outside the granting authority’s jurisdiction and, I suggest, is therefore pertinent to the case I am making.
When Plaid Cymru sent a letter to the Prime Minister setting out its position on this matter, it was supported by the leaders of other parties including the SNP, the Liberal Democrats and the Greens, by a range of legal experts and by a host of organisations which are concerned about this matter. My party secured an Opposition day debate on this issue in the House of Commons, which passed without division a Motion on this matter—in fact, the first Motion that Plaid Cymru has ever succeeded in getting the House of Commons to pass in that way. The debate was well attended and support came from the Labour and Conservative Benches and from SNP, Liberal Democrat and DUP MPs. In other words, there was a broad consensus in favour of the objectives being discussed, which are crystallised in this amendment.
The Minister may not be in a position to accept this amendment, as no doubt he will shortly tell us. But if he takes such a line I hope that he will also take the opportunity to assure UK citizens that in the negotiating process, the Government will seek to achieve the fullest possible agreement on a wide range of citizen-related issues and that this worry, felt by so many, should be overcome if a successful negotiation does transpire, leading to an agreement. I beg to move.
My Lords, I have often been in agreement with the noble Lord, Lord Wigley, in the course of these debates but I hope that he will forgive me on this occasion if I do not go with him. I wholly agree with the underlying sentiments that he has expressed; my concern is with the word “objective” because it is very difficult to define at any one time what an objective truly is. Some are stated and some are unstated—and even if stated, they may not represent the true state of mind of the person making the statement. The problem with an amendment of this kind is that it is capable of giving rise to litigation. I just do not see how a court could ever seriously determine whether the objective of a Government at any one time was sufficiently truly stated to give rise to the remedy which I know will be sought by the litigants. With the greatest respect to the noble Lord, although I agree strongly with his underlying sentiments, I do not think this is the way to achieve that objective.
My Lords, notwithstanding the very reasonable sentiments just expressed by the noble Viscount, Lord Hailsham, I think that I would be among others in paying tribute to the noble Lord, Lord Wigley, for the way in which he has taken the initiative on this subject. It is becoming increasingly complicated with the approach of the so-called exit day—whatever date that may be in legislation and so on—and, therefore, we need to think very carefully about this. Although this was a long time ago, I recall that the Maastricht treaty bestowed on citizens of each member state individual citizenship as EU citizens, too. It was a solemn and profound moment when that was announced many years ago in 1992, and it was made much of, mostly in the other member states but also in Britain as well. A lot of British citizens who were working abroad were delighted at the idea of being citizens of the European Union as well, which added to their obvious practical freedom of movement, although that was not essential to it.
We have now got to be very careful to make sure that the Government respond to the civilised and reasonable request for them to expand their minds a little bit into thinking about this matter, because it will be quite complicated. There is the question of the Irish Republic’s offer, which has already been mentioned by the noble Lord, Lord Wigley, and the special status that may emerge in Northern Ireland, not deliberately, according to the DUP, but accidentally. It is not much to their liking that a special status would be accorded to people there and they would remain individuals citizens of the EU. Is this a matter of collective bestowal of citizenship because of the Maastricht treaty in 1992, or is it now a matter of it being an individual proclivity if the right was there, given that there are exceptions to the idea that you have to be within only one member state to be a citizen and you can apply for citizenship from outside? It therefore may be that the very act of applying for citizenship and continuing to have the protection of the ECJ as individuals because of the bestowal of European citizenship would need to be included in this wide examination. It is a very complicated matter and should not be excluded from people’s mind and, mostly, the Government’s mind. They may be very unwilling to consider these matters, but they need to do so and we are grateful for this amendment and this debate.
My Lords, I thank the noble Lord, Lord Wigley, for continuing to champion this important cause, which is dear to the hearts of these Benches. There are several invidious features of this matter. First, it creates a division among United Kingdom citizens. Not only do people in Northern Ireland have the right to acquire Irish citizenship and thus EU citizenship, but many other British citizens have the right to, or are already pursuing, dual citizenship in order to get the passport of another country. I believe that I have the right to an Irish passport because my mother and my grandmother were born in Dublin. That creates two sets of British citizens: those with the additional political expression and practical advantages of EU citizenship and those who are unable to continue to enjoy them.
Another feature of this matter is hypocrisy. Do the noble Lord, Lord Wigley, and the Minister agree that the following is deeply hypocritical of the leading voices in Legatum? It is reported that the co-founder, who is of New Zealand extraction, and the chief executive have managed to acquire Maltese passports. How they have done so, I have no idea. That will give them EU citizenship, including the right of free movement. As advocates of the hardest of hard Brexits, they have had the ear, we believe, of many leading members of the Government. They have been pushing hard for Brexit so as to deprive the rest of us of EU citizenship, but they have made sure that they are feathering their own nest by obtaining citizenship of another EU member state and thus EU citizenship and free movement.
I take the noble Lord’s word for it. I have no reason to doubt that. I have a feeling that there may be many people in similar positions who are saying one thing and doing another. I find that pretty reprehensible.
We strongly advocate that all UK citizens should continue to have the opportunity of EU citizenship. Many of us feel particularly for young people. Those of us who are getting long in the tooth have for 45 years had the advantage of the freedom to move to and work in another EU country. It is extremely sad that the young people of this country are going to be deprived of that opportunity.
My Lords, I agree with the noble Baroness, as I think it is extremely sad. I think the noble Lord, Lord Wigley, speaks for a huge proportion of the younger people of our country who resent seeing their rights as EU citizens, particularly the right of movement, being taken away from them.
My objection to the amendment moved by the noble Lord, Lord Wigley, is even more objective than the objection of the noble Viscount, Lord Hailsham. We are asking the Government to do something impossible. It is not possible to be a citizen of the European Union if you are not a citizen of a member state of the European Union. That is how citizenship is defined in the treaty. It is left entirely to member states to decide who their citizens are, but if you are a citizen of a member state, you are a citizen of the European Union. When—I hope if—the UK leaves the European Union, every British citizen ceases to be a citizen of the European Union, and there is nothing that we can do about it. Although my heart is with the noble Lord, Lord Wigley, my head says that this amendment does not make sense. The only way that the young people of this country can retain the rights they now enjoy as EU citizens is for us to decide not to leave the European Union.
My Lords, I am the only member of my family unfortunately unable to get an Irish passport, and I very much resent it. I admire the noble Lord, Lord Wigley, for raising this issue, but I fear that my noble friend Lord Kerr has got it absolutely right. I wonder whether, when we have left, there will be any possibility of negotiating any sort of individual relationship for UK citizens with the European Union. That is my hope, but perhaps it is a faint hope. Much though I admire what the noble Lord, Lord Wigley, said, my noble friend Lord Kerr is absolutely right and there is no point in supporting this amendment.
My Lords, one aspect of this will be dealt with, or should have been dealt with, by looking at the immigration system we will have with Europe. We have made proposals for the free movement of young people, and we could have proposals for movement without visas and so on and so forth. Personally, I think the Government made a serious mistake in not setting this out and getting into a negotiation with the European Union that would tackle some of the aspects that have been raised.
My Lords, the House has heard the pleas of the heart if not of the head. I think I have said before that, although I was born in Germany, I sadly do not qualify for a German passport or else I would be doing the same as many others. So many people are doing it because they fear and regret losing their EU citizenship. As the noble Lord, Lord Kerr, quite rightly said, in the treaties EU citizenship is an add-on. Only people who are citizens of a member state have EU citizenship, with all the rights, protections and consular protections that brings. They have to be a citizen of a member state. Sadly, that change will come and we will not be EU citizens.
I would like to leave a thought with the Minister. We have not treated the whole of this aspect sufficiently seriously. We have not reached out to EU nationals living here and to people who are losing their rights as EU citizens. We have still not told EU citizens living here—unless I missed it—whether they will be able to continue to vote in our local government elections. We know they will not be allowed to vote in the European Parliament elections—that is fairly obvious—but there are other changes that the Government have been very lax and slow in spelling out.
The plea behind some of the feelings that we are having is to listen to the current EU citizens. If there is one plea that I would leave with our negotiators, it is that we need a withdrawal deal that puts citizens at its heart, not as an add-on, and that we should do everything that can be done to keep the links that we already have with agencies, education and so on. That would help to make a withdrawal deal that would enable British citizens, even if they will not have that lovely treasured purple passport, still feel as if they are continentals—full associates, if you like—with the rest of the EU.
My Lords, this is of course an important issue that has already been covered in depth, both in this Chamber and in the other place. I welcome the opportunity to discuss it further with the noble Lord, Lord Wigley, when we exchange views on the interpretation of the Vienna Convention on the Interpretation of Treaties, particularly Article 70 thereof. I acknowledge fully his interest in this area, the depth with which he has examined it and the importance that he underlines with regard to this matter.
Nevertheless the position remains, as summarised eloquently by the noble Lord, Lord Kerr of Kinlochard, that there is no provision in EU law for the concept of associate EU citizenship. It is clear that EU citizenship is tied to citizenship of a member state. The European Commission itself has referred to the additional rights and responsibilities attributed to the nationals of EU member states by virtue of EU citizenship, which they automatically attain under the provisions of the EU treaties. I emphasise the EU treaties because to take such a matter forward it would be necessary to contemplate the amendment of the EU treaties in a quite radical way, in order to attempt to confer on citizens of non-EU members the status of EU citizenship or something connected to it. However, we are willing to listen. Noble Lords may recollect that the European Parliament mentioned the idea of some associate citizenship; it has never elaborated upon that but if it wishes to, we are listening, and we would listen to that. I wish to make that clear.
The position of the Republic of Ireland emerges as the consequence of bilateral treaties that predate our entry into what was then the EEC and Ireland’s entry into the same, and that is not directly affected by our exit from what is now the EU. My understanding is that those arrangements continue in force.
With regard to the wider issue raised by the noble Baroness, Lady Hayter—the matter of voting rights, for example—during the course of the earlier negotiations we attempted to negotiate with regard to the exchange of voting rights, but at that stage the Commission declined to do so. That is something that we would wish to carry forward but the Commission was not prepared to engage in that discussion at that stage of the negotiation. Again, we remain open on these matters.
The citizens’ rights agreement reached in December, which is now set out in the draft withdrawal agreement, provides certainty for UK nationals in the EU regarding their rights following our exit. The agreement with the EU protects the rights of EU citizens and their family members living in the UK on exit day and indeed vice versa. To that extent, it will give citizens certainty about a wide range of rights including residence rights, healthcare rights and pension and other benefit rights. That will mean that UK nationals who are legally resident in the EU by the end of the implementation period will continue to benefit from most of the rights that stem from their EU citizenship today. As I say, associate EU citizenship does not make up part of the citizens’ rights agreement, and indeed by attempting to make it a negotiating objective we would be setting ourselves what is, frankly, an impossible target. The consequence would be that, should the amendment pass and the Government fail to adopt such an impossible negotiating position, our entire post-exit statute book would be put at severe risk. There would appear to be no sensible point in attempting to do that.
I stress that with regard to this matter we are in listening mode. Reference was made to the suggestion of further litigation in this area. A case is going on in Holland at present. It was referred by the Dutch Government to the Amsterdam Court of Appeal, which has heard the appeal and is due to deliver its judgment later in June. We do not believe that is going to affect the matter at all but we await the judgment of that court. At present, though, we must proceed with the ultimate goal: to deal with Brexit in the easiest manner possible so far as citizenship is concerned.
My Lords, it was an application about the rights of certain UK citizens resident in Holland having rights post Brexit in Holland. The objective of the case was clearly to secure a reference to the CJEU for the interpretation of certain treaty matters. When that proceeded, it is my understanding that the Dutch Government then intervened in the proceedings and they were the subject of a hearing before the Court of Appeal in Amsterdam. That matter is not yet advised, so that is where it stands. I am afraid I cannot give further details of the case but I understand that it was partly funded by lawyers in the UK. I hope that assists the noble Lord.
As I say, at present we, the EU and the Commission are quite clear on what the concept of EU citizenship means, that the source is the EU treaties, and that there is no provision at present for associate citizenship. If during the course of negotiation the Commission or other bodies in the EU come forward with such proposals, we will of course listen to them. At this stage, though, I invite the noble Lord to withdraw his amendment.
My Lords, I am grateful to everyone who has taken part in this debate: the noble Viscount, Lord Hailsham, the noble Lords, Lord Kerr of Kinlochard, Lord Dykes and Lord Green, the noble Baronesses, Lady Hayter and Lady Ludford, and the noble and learned Baroness, Lady Butler-Sloss. It has been a short but worthwhile debate. Some of those participating in it have seen weaknesses in the amendment, and I accept that there is room for criticism in that direction and that it is a challenge with regard to the status quo within which we are operating.
None the less, I feel that some benefit has come out of the debate, in that the Minister has indicated that the Government would be in listening mode, both in terms of the negotiations that are going on and in terms of what may or may not come forward from the European Parliament itself on this matter, bearing in mind that Mr Verhofstadt has indicated fairly strong feelings in that direction. If it were possible for some form of associate citizenship to develop out of this—if indeed we leave the EU, which I would regret but is likely to happen—that could retain our links for the period while we are outside the EU directly, I am sure that would be of interest to a large number of people, particularly to young people, as has been mentioned in this debate, because they identify with the European dream. The European dimension is part of their identity and they would like to have some access to it in a more formal way. On the basis of the comments made by the Minister, which I welcome as far as he was able to go, I beg leave to withdraw the amendment.
Amendment 110 withdrawn.
110A: Clause 19, page 15, line 21, at end insert—
“(2B) But none of the remaining provisions may come into force until it is a negotiating objective of the Government to ensure that an international agreement has been made which enables the United Kingdom to continue to participate in the European Economic Area after exit day.(2C) Regulations under this Act may not repeal or amend subsection (2B).”
My Lords, I shall speak also to Amendment 112. The amendments are an attempt to ensure that we end up with a framework to deal with not just the goods we import and export but the services we trade in. The customs union amendment that we passed overwhelmingly a few weeks ago is only one half of the equation. The customs union deals only with goods. That is very important: it deals only with goods—tangible items such as cars, washing machines and televisions—where we have a £96 billion trade deficit. That is something we need to fix, but perhaps that is for another debate.
The EEA deals with services—such as retail, tourism, transport, communications, financial services and aerospace, where we have a £14 billion trade surplus. The customs union only will benefit our European neighbours in their imports, but without an EEA equivalent, it will damage our profitable export business and therefore the jobs and livelihoods of many thousands of people. It is for that reason we need to ensure that any continuation in the customs union must include continuation in the EEA or its equivalent.
My fellow proposers of the amendment and I come to this issue from the experience of creating, building and running businesses. It is our hope that the voice of business will be heard here. It is our hope that common sense will prevail over political dogma. It is hard enough to build a business in this country—the proposers of the amendment have all done so. We create jobs, we create real wealth, and to make it harder for us by ignoring what we do is, I think, unacceptable.
The EEA is a free trade agreement between the EU, Iceland, Liechtenstein and Norway. It is similar to but not—not—the same as the EU single market. It excludes the common agricultural policy and the common fisheries policy. EEA participation does not entail any political integration or closer union. The EEA arbitration mechanism is not the European court, it is the EFTA arbitration court. There is flexibility in control over free movement of labour and people. Individual countries can take control of that area. Our access to European markets after Brexit could be radically improved if we retain our existing participation in the EEA. Having asked for a customs union for goods, it makes no sense to have one without an agreement to cover services.
What are the arguments against? The biggest is our belief that the EU negotiators will not give us access to European markets on similar or even better terms than we have today—that somehow they will punish us for leaving. We are not asking for charity, we are paying for access. Four weeks ago, the Chancellor confirmed that the Brexit bill will be between £35 billion and £40 billion. The question I have to ask the Minister is: what do we get for our £35 billion or £40 billion? Perhaps the Minister will have an answer, but in case he does not, I suggest what it should be. It should be the freedom to access the movement of our goods and services throughout those European markets. The Government have agreed a hefty Brexit bill without our getting access to European markets, a customs union or any trade agreements.
Forgive me if I have no confidence in the retort from the Government Front Bench: “We can’t tell you what we’re doing now because we don’t want to show our hand”. It is stretching credibility, in every area where we ask for clarification, to say, “We don’t want to tell you what we’re going to do because it shows our hand”. I cannot tell your Lordships how frustrating it is for those of us who have to operate in this environment to hear Minister after Minister tell us that they cannot tell us what they are going to do because they do not want to show their hand.
My criticism is not just for the Government Front Bench. The Opposition Front Bench, the members of whom I know work incredibly hard and have tried their hardest to take the Bill through, are unable to act on this issue. I do not blame them for that. For me, it is up to the elected House to decide on the EEA, not this House. Our job is to send this amendment back to them to ask them to make a decision on the EEA.
While sharing my noble friend’s admiration for the extraordinary work that has been put in by our Front Bench both here and in the Commons, I remind him of an amendment proposed to the Bill in the House of Commons on 13 December last year, which said explicitly:
“No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise”.
When that amendment went to the vote, there were 292 votes in favour. It was therefore clearly supported by the great majority of Labour Members of Parliament. Was that amendment not a model of cogency and clarity and completely consistent with my noble friend’s amendment this evening? Is it not the most practical way, as he suggests, to avoid the cliff edge of huge and costly disruption to supply chains and loss of access to vital service markets; and, with the customs union, for which this House has voted, to provide us with a real opportunity of a border-free Ireland?
I could not agree more with my noble friend. He is absolutely right. On 13 December, a similar amendment was moved in the other place, and the Labour Party put a three-line whip on it. I think we are in the right place here. Party policy is very clear on Europe, and a three-line whip on a similar vote justifies this. I agree with my noble friend. It is very clear that we on the Labour Benches are in line with our party policy and that the membership of our party is with us.
But this is bigger than party politics. It is about people’s jobs. It is about the future of our economy. That cannot be left to doing what is politically convenient at the time. These amendments have been drafted to give the other place the opportunity to think again. That is what I believe we should do this evening. We should pass these amendments and give the democratically elected House the opportunity to think again. I beg to move.
My Lords, I will also speak to Amendment 112. I have followed this debate closely in your Lordships’ House and the other place. This is the first time that I have spoken in this debate, and to find myself opposing the Government is a decision that I have not taken lightly. But, as other noble Lords have said, this is an argument based not on ideology but on the pragmatic reality of what faces our business community, our employers, our wealth generators, if we do not get the right outcomes. They all need certainty, they all need to plan, they all need to look at their current business models and they all need to look at what disruption they will face. I have spoken to many businesspeople, particularly those in the supply chains—the small and medium-sized businesses that are the backbone of our country. Whether it has been privately or in the many discussion forums that I have attended, the main concern of the business community is the Government’s rigid position on exiting the EU.
We all know that 52% of the voting public voted to leave the European Union. That debate has been had. What nobody voted for was for us to be poorer because we were unable to get our basic building blocks right. Indeed, my honourable friend Mr Stephen Hammond, in a Westminster Hall debate in the other place, recently articulated very eloquently that,
“we need an exit and a deal that allow us to trade freely with our former partners and to sign new free trade agreements, and that provide a level of economic certainty to businesses and economic and security certainty to our citizens”.—[Official Report, Commons, 7/2/18; col. 545WH.]
For the sake of clarity, as a member of the EU we are members of the EEA, along with the other 27 EU partners. A strong message was sent out last week to the other place to look very carefully at the need to remain in the customs union. Our concern is that 80% of our economy is service-led, which is not covered by the customs union, so while hugely important for our goods sector, what about the 4.3 million businesses in the services sector? As 79% of our employment is in services, that is 24 million people contributing to 33% of turnover last year. Issues such as non-tariff barriers will have an enormous impact on business, particularly SMEs and supply chains. As the noble Lord, Lord Alli, said, in 2016 trade in services with the EU had a surplus of £14 billion. Why would we want to put barriers in the way of our vital and successful services sector?
The EEA is not the same as the single market. It excludes, as the noble Lord, Lord Alli, said, the common agricultural policy and the common fisheries policy. It is not under the jurisdiction of the European Court of Justice. What we are asking, through this amendment, is to continue as a member of the EEA. The referendum had one question: whether to leave the EU. Remaining a member of the EEA offers business certainty and will enable us to influence through the many committee networks that exist for non-EU members in the EEA.
Leicestershire, the region of the east Midlands that I call my home, spans industries and sectors in both goods and services, from manufacturing to transport, with our rail, air and freight links transporting goods around the world, to top universities, pharma companies and creative services, to professional and business services and retail, to name a few. The Government’s own impact assessment set out the following Brexit scenarios for the east Midlands: remaining a member of the EEA would mean a 1.5% fall in GDP; a free trade agreement would mean a 5% fall in GDP; a no deal and reverting to WTO rules would result in an 8% fall in GDP.
We have to be pragmatic. In this region, the fallout from the 2008 economic crisis has been incredibly hard on people in the east Midlands. We are a fantastic region, where our confidence is emerging. Austerity has taken its toll, and while we all knew we had to really tighten our belts for the last few years, we must not now embark on a path of uncertainty on which businesses cannot make decisions. I have been in the SME sector and supply chains for 40 years, and my family since the 1950s, and I have taken UK businesses overseas to explore emerging markets on many occasions. I, like others, want the UK to remain at the top of investors’ minds as a place to do business, but the recent rhetoric is not helping. The PM, for whom I have great respect, has said her sense of duty is towards her country and its people. My commitment and my duty to my country is, I believe, just as strong.
For those who believe this House does not have the right to ask the other place to revisit legislation they want Parliament to put through, that is not how I see our role in your Lordships’ House. I have received lots of communications, spoken to lots of people and listened carefully to all sides of the debate. There is support for these amendments in your Lordships’ House and in the other place. There is an opportunity for the democratically elected other place to discuss and debate this properly in the interests of our country.
I genuinely believe that we must send a strong message to our EU partners, and to others with whom we want to pursue FTAs, that we take all our relationships seriously and are not in the habit of turning our backs on our friends old and new, and that we are trusted partners—a nation looking outward, and stronger for our relationship within the EEA. For business, good news is great and bad news is manageable, but it is the uncertainty that persists from the Government that is forcing UK businesses to look as if they are facing a cliff edge.
My Lords, this House has already voted in favour of the customs union to stop the imposition of trade barriers that would decimate our manufacturing base. We did so, I suggest, with the tacit support of half the Cabinet, and a majority of Conservative MPs, including in her dreams, I suspect, the Prime Minister. We have to do the same for Britain’s services industries as well. Unlike manufactured goods, cross-border services trade does not have effective WTO rules to fall back on in the absence of any preferential trade agreement between Britain and the European Union. It is absolutely fundamental for us to be clear in our minds that services are not the same as goods. WTO rules effectively provide for goods; they do not provide for services.
Such a free trade agreement between Britain and the EU would be extremely hard to negotiate services into; there is almost no precedent for it—goods tariffs quite possibly, but services very unlikely. Therefore we are not talking of a trade agreement between ourselves and the EU, which is Canada-plus, plus, plus. This is far from it. I have been both a British Trade Secretary and a European Trade Commissioner, so I have seen these issues from both ends of the telescope. It is not possible, given EU rules, and the red line of the British Government, for us to achieve anything like the sort of trade agreement that the Government speak of.
This, therefore, is the crux of the matter in the debate. Without effective WTO rules for trade in services, and without the likelihood of a full bilateral agreement covering all services, we have to maintain our services access by other means, and the only dependable means available to us outside the European Union is membership of the EEA. This would give us coverage by right of all the regulatory standards and rules, harmonised within Europe’s single market, and would give us what amounts to free trade in services. Such single market rules apply to Britain’s pre-eminent EU exports. Our exports to Europe in financial services, including other business services and broadcast services, are colossal. These sectors represent over half of our services economy, which in turn amounts to 80% of Britain’s economy as a whole. This is how important they are to our future economic well-being in this country. Financial and professional services alone account for 25% of all UK services exports, using the automatic passporting arrangements that presently come with our membership of the European Union and the single market.
If we quit the single market as a result of leaving the EU, without the access that the EEA gives us, these rights and their powers of enforcement would be forfeited—no ifs and no buts: that would be consequence that we would face. The impact on cross-border delivery of services to Europe would be savage. A significant proportion of our broadcast content production, as well as cross-border banking and insurance, would be hit for six. This will have a major knock-on effect on the whole of our creative industries in this country and on employment in Britain. In financial services, Frankfurt, Paris, Dublin and Amsterdam will be the principal beneficiaries, as we are already beginning to see.
Our economy simply cannot afford this loss. We are not talking about the next few months; we are not talking about the next couple of years. We are talking about the medium-term consequences, as investment strategies shift to reflect our exclusion from the single market. I understand why the hard Brexiters will probably not lose any sleep over this at all because, for them, it is not economic—it is political. But for the rest of the country, it is their jobs, their livelihoods and the future of their businesses, as well as our country’s income and, moreover, our public services and what we will be able to afford to spend on them, that will be at stake.
I know fully well the arguments about the obligations as well as the advantages of being out of the EU but in the single market via the EEA. We would indeed be presented with a dilemma over rule-making because we would no longer be full voting members of the EU. But no economy of our size and status as a former EU member has ever attempted to join the EEA before. We would be in a reasonable position to frame the negotiations over our EEA membership. It would be a first—but it would also be a welcome first for the EU 27 seeking to keep trade barriers to a minimum, and I think we would be entitled to expect and receive some flexibility.
As for free movement of labour, it is already open to Britain to operate less liberal labour market policies, and we can do so as EEA members. Let us be honest: we all know, do we not, what the Government’s intention is? They know fully well that businesses and public services in our country, including the National Health Service, will continue to need EU nationals as employees, which is why they intend to allow them to keep coming, whatever they say or do not say now. To pretend otherwise is simply to perpetrate another Brexit fraud on the British public.
As I say, as a former Trade Commissioner, I know only too well what is at stake and how we would need to navigate our EEA membership application to gain the maximum national advantage—and I believe it can be done. On Brexit, the time has come for economic reality and common sense to prevail over political dogma and wishful thinking. In this House, in making up our minds on these crucial issues, we are not so easily bullied, and we know why. That is the privilege we have of being Members of this House. This amendment gives us the opportunity to do the right thing for the country and, in my view, that is what we have a duty to do and why we should support this amendment.
My Lords, before the noble Lords, Lord Howarth and Lord Forsyth, tell us that we are frustrating the will of the people, it may be appropriate to remind them of the arguments that the leave campaign made before the referendum for leaving the customs union and the single market. We had to leave the customs union because, if we stayed in, we could not negotiate those different free trade agreements that we would make independently with India, China, the United States and many others, which would give us better conditions than we had had, constrained as we were by being a member of the European Union. They said that we had to leave the single market because we had to get rid of so many of these constricting regulations that bound the British economy and which we could be free of when we left. I wish to suggest that neither of those arguments now holds.
The Government have so far spent well over half a billion pounds on the Department for International Trade, and the Treasury, as the newspapers reported this morning, has decided that that is getting to be too expensive for the value that is being produced, which, after all, is very low. Liam Fox has travelled the world several times—someone told me the other day that he has travelled half the distance between here and the moon so far—and has achieved remarkably little. A number of countries have made it quite clear that they are not prepared to offer us anything better than we would get as a member of the European Union. Our hopes that we have a wonderful free trade partner in the United States do not appear to be assisted by President Trump’s present approach to foreign economic relations. Those who still support a hard leave, such as Jacob Rees-Mogg, are reduced to attacking business as being part of Project Fear when business says that its interests are about to be damaged so badly.
On deregulation, we have heard increasingly from members and supporters of the Government, including those on the Front Bench at present, that we do not want to deregulate—that we want to maintain the high standards of regulation. I have not even heard anyone suggest recently that we should get rid of the working time directive. If that is the case, the reason why we want to leave the single market has also evaporated. The Minister earlier this afternoon suggested that, as an independent country, we could mirror EU regulations by passing, on our own, the same regulations the European Union has just passed. That is wonderful parliamentary sovereignty, isn’t it—jumping in behind, taking the rules and saying, “Gosh, look, we’re doing it on our own”? Geoffrey Howe, a far greater Foreign Secretary than the present incumbent, used to talk about the gains to Britain of the single market: that we would be sharing sovereignty and taking part in decisions about common regulations. Outside the single market we will be taking the rules others have given us and pretending that we are a sovereign country.
The Minister suggested earlier this afternoon that the amendments in question would introduce confusion and uncertainty. I suggest to the Minister that most of us think that that describes the Government’s current position. Indeed, I took part in a radio discussion on Sunday morning with someone whom I imagine is quite a good friend of his—Nigel Farage—who agreed with me that the Government’s current negotiations with the European Union are a total mess. That is the relatively widespread set of opinions from a range of different views around the world. Then, we are faced with the Daily Mail this morning, in which the Foreign Secretary is rubbishing the Prime Minister’s views. If that had ever happened during the coalition Government —if a Liberal Democrat Cabinet member had rubbished the Prime Minister—there would have been a government crisis. But we apparently have such a weak and unstable Government that they totter along from one thing to another, unable to decide what they are doing.
My question to the Minister and to noble Lords who are about to speak is: given that the arguments the leave campaign made in that hard-fought and narrowly won referendum have now evaporated, what are the arguments for staying out of the customs union and single market?
My Lords, I feel sometimes in this House that one has wandered into the film “Groundhog Day”; one hears the same arguments over and over again. I thought I might actually address the Bill.
I say to the noble Lord, Lord Alli, that I thought we were debating the European Union (Withdrawal) Bill which, on my reading, simply seeks to ensure that we have in place the necessary legal framework when we leave the European Union, which the other place voted for overwhelmingly when it agreed that we would give notice under Article 50. I have no idea why an amendment about membership of the EEA has any relevance whatever to the Bill. As the noble Lord, Lord Alli, said, it is the job of this House to ask the House of Commons to think again: but to think again about the legislation we are actually debating, not policy matters which Members of this House do not agree with. That is what the noble Lord is doing.
For brass neck, the noble Lord really takes the prize when he stands up to criticise the Government for not being clear about what they want to achieve. They are pretty clear about it: they want a negotiation which will ensure the best deal for our country. That is not helped by the noble Lords, Lord Alli and Lord Mandelson, and others who are seeking to undermine their negotiating position by passing amendments of this kind.
If the noble Lord, Lord Alli, is concerned about the Government’s position, I remind him that the noble Lord, Lord Kinnock, helpfully reminded the House that over 200 people voted to join the EEA. The noble Lord pointed out that that was on a three-line whip in the House of Commons. What he did not say was that it was defeated in that House, as was membership of the customs union. What on earth are we, in this unelected House, doing asking the House of Commons to think again?
I am grateful to the noble Lord. The figure which I used, accurately, was 292, which is slightly over 200. The margin of defeat of that amendment was very small—about nine votes. I was demonstrating the very strong body of opinion, in the elected House, in favour of the principle set down in my noble friend’s amendment. The noble Lord’s familiarity with the Bill should have shown him that, when we are discussing the matter of the EEA, we are completely consistent with the proposals of the European Union (Withdrawal) Bill, which covers our membership of the European Economic Area. Consequently, to try to ensure that we leave the European Union in good order—similar to the phrase that he used—it is surely utterly relevant and entirely proper for this revising House to say to the House of Commons: “Since the Bill provides for reference to the EEA, we are completely consistent with our purpose and the purpose of democracy in asking for further consideration of the arguments in favour of sustaining our goods economy, our service economy and the unity of our nation”.
I am most grateful to the noble Lord for his guidance on the procedures and nature of this House. He will be well aware of the importance of brief interventions at this stage in the consideration of a Bill. There were indeed 290 votes on a three-line whip, but what is the whip on the Labour Benches today? You are all being told to abstain. For the noble Lord, Lord Alli, to say that the Government’s position is confused, when not many months ago, as the noble Lord, Lord Kinnock, pointed out, the Labour Party had a three-line whip on the EEA but is now urging people not to vote for this amendment—
As this has been raised, it is only fair—for my colleagues more than for the noble Lord, Lord Forsyth—to make it absolutely clear that the three-line whip was on an issue about whether that decision should be taken by Parliament or not. Heidi Alexander, who proposed the new clause 22, said that:
“New clause 22 would not decide on the substantive question of EEA membership, but it would guarantee that at a future moment the House could have its say”.—[Official Report, 15/11/17; col. 426.]
That is, of course, what we have done with the meaningful vote. It is appropriate that accuracy is put before this House.
So, from having a three-line whip, and arguing for the importance of the European Economic Area, we now have a “Don’t know” position on the Front Bench. And the noble Lord, Lord Alli, has the cheek to say that the Government are confused about their position; just as the Opposition have been confused about a customs union or the customs union. The truth of the matter is that a number of noble Lords wish to reverse the decision of the British people.
The noble Lord, Lord Wallace of Saltaire, asked me to comment on the position in the referendum campaign. I campaigned in the referendum campaign and went to a number of public meetings. I heard the argument being made that, if we were to join the EEA and be out of the European Union, we would have “fax diplomacy”. We would have no say in the regulations and that was the worst of all worlds. I now find that the people who were advancing that argument are now pretending that it is in the interests of the country: it certainly is not.
The noble Lord, Lord Alli, asked: “What are we getting for our money?”. As my noble friend has pointed out repeatedly, nothing is agreed until everything is agreed. There will be no money paid if we do not have a negotiation which is in the interests of the United Kingdom. By suggesting that that money will be paid, and that the Government cannot get a good negotiation, he is undermining the position of his country, and of the Government, in vital negotiations which, as speeches on all sides have pointed out, are of great importance to the economy as a whole.
I have been in this House for a little while—about 20 years—and I understand that this is an important issue. There has been a civility in this House which has made it a special place to have a debate. I hope that, whatever the feelings of noble Lords, the rest of this debate can be conducted, as is our tradition, with kindness, care and consideration of other people’s views. I know that the noble Lord has strong views, but if we could take it down a notch it would allow us all to have the debate we want in the spirit to which this House has become accustomed.
I am sure that the noble Lord was not among those jeering when I was trying to make my points earlier and that his advice to his colleagues will be well received. He said, “Take it down a notch”: he is proposing that we fly in the face of the biggest democratic vote in our history and that, as unelected Peers, we ask the House of Commons to consider a matter which has been considered before and not concentrate on what we are here for, which is improving the legislation in front of us.
The noble Lord, Lord Kinnock, said that this is sort of connected to the Bill. There will be an opportunity for us to consider this matter at the end of the negotiations. The Government have promised to bring forward legislation on the agreement and have promised a vote in both Houses on this matter.
My noble friend says “A meaningful vote” from a sedentary position. By that he means a vote to reverse what the British people voted for in a referendum. There will be a vote on the negotiation and on the agreements which have been reached. I urge this House not to undermine the position of the Government in their negotiations or that of the Prime Minister by seeking to argue that her objectives cannot be achieved.
I am grateful, and at this point an intervention is appropriate. If anybody is undermining the Government at the moment, it is the Foreign Secretary rubbishing the Prime Minister. My noble friend, who is a brilliant debater—I am delighted to be able to debate with him—is arguing for a cause but completely missing the point. I ask him just to reflect: what sort of example are we being given by a Cabinet that is rent asunder by the Foreign Secretary, the second most important member of the Government, rubbishing the Prime Minister in the Daily Mail?
I know that my noble friend is not very keen on the Foreign Secretary, and that he has made a number of attacks on Boris Johnson in this House, including calling on the Government to sack him. I point out that Boris Johnson played an important part in the referendum campaign and that the people voted—
On Report—I am just referring to Standing Orders.
The Foreign Secretary set out his case, which was not to be in the customs union or in the single market, and the British people voted overwhelmingly. This House is seeking to undermine that vote, and in so doing it is damaging its own standing and reputation in the country.
My noble friend has just made, unusually, an unforced error, as they say in tennis. Did he not—perhaps he did not—agree strongly with the Foreign Secretary during the referendum campaign, when Boris Johnson made it absolutely clear that he was in favour of us staying in the single market?
No, I did not, and I was not aware that he had done that. I do not think that my noble friend and I would be at loggerheads or in disagreement if I said that the Foreign Secretary does not always get everything right. However, he argues passionately for the democratic mandate which was given to this Parliament and to this Government, and which this Government are determined to carry out.
These amendments are doing no good whatever to this place or to our ability to get the best deal for the British people. If my noble friend Lady Verma said that, like the Prime Minister, she has in all conscience to get the best deal for the country, I suggest that the difference between her and the Prime Minister is that the Prime Minister is elected and the responsibility is hers, and my noble friend should give her her loyalty and support.
My Lords, I have put my name to these amendments, and I will start by putting this in context. When you make a change in business, you do so if there is a burning platform—if you have to make the change—or to make a change for the better, to improve things. Now we keep hearing about equivalence, and about whether we will be able to get terms as good as those we have now when we leave. To follow on from what the noble Lord, Lord Cormack, said, we have heard comments from other members of the Conservative Party, and not just Boris Johnson. Jacob Rees-Mogg has accused the Business Secretary, Greg Clark, of,
“promoting ‘Project Fear’ by saying that thousands of jobs were at risk if Britain did not minimise friction in trade”.
That is the Business Secretary saying that, and it is called Project Fear. Boris Johnson has said that the proposals for a customs partnership after Brexit are “crazy” and that it will not work.
On the Irish border situation, we had the customs vote and the Irish border vote here, which were both won overwhelmingly. That is all about a frictionless border between Northern Ireland and the Republic of Ireland. All the discussions and the Government’s plans for a frictionless border are as frictionless as sandpaper is smooth. There is no plan whatever. It is not just about the customs union being the solution to the Irish border situation; the equivalence of a single market is also required to sort out the Irish border—the free movement of people, capital, goods and services.
We have already voted overwhelmingly on the customs union, and now we are talking about this Norway option: the EEA. It is not the best option; we are proposing it as an alternative. If things come to it and we have to leave the European Union, it should be considered the least worst option. It is not about thwarting the will of the people, as the Prime Minister keeps saying, or about how EEA membership would leave the UK a vassal state, as has been said. The complication, which has been addressed, is Labour’s stance on this. Labour said clearly that it wants a softer Brexit and that it wants to remain in the customs union but to stay as close to the single market as possible. Let us go no further than Keir Starmer, the shadow Brexit Secretary, and his six tests. First, he asked:
“Does it deliver the ‘exact same benefits’ as the UK currently has as a member of the single market and customs union?”
Am I misreading something? He said “single market and customs union”. The second of his six tests is:
“Does it ensure the fair management of migration ‘in the interests of the economy and communities’?”
The EEA is the best option by far, apart from remaining in the European Union. It incorporates the four freedoms but also gives us freedom: we do not have to be in the customs union; we can we can take the common agricultural policy and fisheries policy out of it; it does not involve the ECJ as it is regulated differently; and there is some flexibility on movement of people.
Is the noble Lord aware that this was looked at in some detail during the referendum campaign, and the Norwegian experience was that they had to show severe difficulties in their labour market, it had to be reviewed every three months, and they never used it because they feared retaliation? It is not as simple as that; there is a major issue with the EEA, which is freedom of movement, and outside this House it matters.
We all know the noble Lord’s views on migration and immigration, so I will not even bother to go into that.
I go back to some senior Labour figures and supporters, including former shadow Business Secretary Chuka Umunna, who lashed out at his leadership, the TUC, Chris Leslie, the former shadow Chancellor, and Wes Streeting. Even John McDonnell says:
“Respect the referendum result but get the best deal you can to protect our economy and protect our jobs”.
Again, he explained that that meant being in a customs union and remaining,
“close to the single market”.
Why can the Labour Party not get behind this totally? I find it astonishing.
As the noble Lord, Lord Mandelson, said, 80% of our economy is services—the EEA would address the services issue. Financial services account for 12% of Britain’s economy—we would have unfettered access, so all this passporting would be allowed—and 50% of our trade is with the European Union. There is all this talk of going global and agreeing free trade deals with other countries. I have said this before: try agreeing a free trade deal with the USA, or with India without talking about the movement of people. It is all about the movement of people and about tariffs and goods. The CETA with Canada took over seven years to bring about and does not include services. The European Union has said that it is not as easy to get the best free trade deal in the world as Liam Fox has claimed it is. What would Canada say about it? Moving on to equivalence, WTO rules are the worst possible option. I do not think the country would accept crashing out under WTO rules. The no deal option would not be acceptable to Parliament or to the people.
Perhaps the Minister can answer the nub of the point made by the noble Lord, Lord Green. We have no control over our borders, yet a 2004 EU regulation allows all EU countries to repatriate EU nationals after three months if they show that they do not have the means to support themselves. Other countries, such as Belgium, repatriate thousands of people a year. We have never used this regulation, yet we say that we have no control over our borders. Why have we not used it? Why has no one spoken about this in the past?
In conclusion, the best option by far would be to remain. To quote the Financial Times:
“The EEA is not an ideal port for a ship seeking shelter from the worst of the upcoming Brexit storm, but … it may be the only port available … docking in this port is perhaps better for the UK than sailing straight into the storm just because it is exciting, insisting on a perfect port and nothing less, or maintaining that there is no impending storm at all”.
Today is VE Day and we are celebrating peace. There has been peace in the European Union for 70 years. I thank the European Union for that. It is not just down to NATO; the European Union has been responsible for that peace. A Spanish MEP, Esteban González Pons, recently made a very powerful speech in the European Parliament. He said that Europe’s past is war; its future is Brexit. He went on: “Brexit teaches us also that Europe is reversible, that one can go backwards in history … Brexit is the most selfish decision taken since Winston Churchill saved Europe with the blood, sweat and tears of the English. Brexit is the utter lack of solidarity when saying goodbye … Europe is peace after the disasters of war. Europe is forgiveness between the French and Germans … Europe is the fall of the Berlin Wall. Europe is the end of communism … Democracy is Europe. Our fundamental rights. Can we live without all of this? Can we give up all of this?” He went on: “I hope at the next Rome summit we talk less about what Europe owes us and we talk more about what we owe Europe after everything Europe has given us. The European Union is the only spring our continent has lived in its entire history”.
Europe is full of faults but I think it is the best option we have, and the role of this House is to challenge and to bring this up as the least bad option. I recommend the amendment to the House.
My Lords, in the dim and very distant past, responsibility was given to me by Neil Kinnock—now my noble friend Lord Kinnock—for dealing with the Maastricht treaty Bill in the House of Commons. John Major had come back from the Amsterdam summit with a flawed agreement and an opt-out on the Social Chapter of the Maastricht treaty. We somehow had to protect the treaty, which we supported, while making the case against the exclusion of the Social Chapter. For over a year and a half, I, along with my party and 26 Conservative MPs, one of whom was to go on to lead his party, ran the Government ragged and made life for my now friend, John Major, a complete misery.
Therefore, I know a little bit about the parliamentary tactics involved in dealing with European legislation. I know a bit about the European issue as well, and maybe that is why I have played such a small part in these debates up until now—I have had my fill of it in the past. But I knew about the way in which tactics play out. A lot of my friends in the House of Commons —the European supporters, some of whom are speaking in this debate tonight—kept questioning the tactics of the Front Bench. They kept asking, “Why are we doing this? We’re endangering the project as a whole”. I said, “Wait a bit. We’ve worked out the strategy and the tactics”. I also had to pacify the Eurosceptics on our Back Benches, who thought that I was not opposing enough. At the end of the day, because our strategy and tactics were right, we inflicted the first defeat on the Conservative Government in 14 years, and it required a Motion of confidence by the Prime Minister to get the opt-out from the Social Chapter through.
During this debate I have listened to my noble friends—they are long-standing friends as well—and they make a powerful case. Crashing out of the European Union, as we might do, would be almost fatal to the economy of this country and to the future generations for whom we have responsibility. However, I have to say to these noble friends that our Front Bench has been incredibly successful up until now by taking a careful and calculated view of the issues involved here. We have given the House of Commons a series of issues on which it can make the final decision. We have not overegged the pudding or overstretched ourselves; we have been careful, because my noble friends Lady Hayter and Lady Smith have carefully judged the mood of this House and have anticipated the mood in the other House. If it is their calculated view tonight that we should not vote for this amendment, I shall accept that judgment.
My Lords, it really is intolerable that my noble friend Lord Forsyth should give lectures about loyalty at a time when the Foreign Secretary is writing in the Daily Mail and the European Research Group is laying down ultimata. It is intolerable that he should cast doubts over the loyalty of my noble friend Lady Verma. Of course he is right to point out that we are considering the withdrawal Bill and to say that we are considering a number of matters that the House of Commons has already considered, but the role of the House of Lords is to give the House of Commons the opportunity to consider things a second time. In the end, its will will of course prevail, but we have a duty and a right to ask it to consider matters a second time.
Since the House of Commons last considered these matters, time has moved on and we have seen members of the Cabinet at each other’s throats. We have seen Ministers openly defy the Prime Minister in a way that I have never seen in the nearly 50 years since I was first elected to Parliament in 1970. We have seen Back-Benchers laying down ultimata in a way that has not been seen before. We have seen the most senior Ministers in the Government, as well as Back-Benchers, divided over the direction in which the country should go. If they are divided over the direction in which the country should go and if they are trying to hem in the Prime Minister, reduce her range of options and drive her down the road towards the hardest possible Brexit, we have a right to widen those options and to give her and other members of the Cabinet and the House of Commons a wider choice than they might otherwise have. It is not a question of thwarting the will of the people or of delaying the Bill; it is a question of trying to improve it in a way that will help the House of Commons reach sensible conclusions about the kind of relationship that this country should have with the European Union after our departure.
My Lords, my noble friend Lord Alli addressed the House on the basis of principle and with passion—and so did the noble Lord, Lord Forsyth. I greatly respect the commitment to the national interest of all who have spoken, including of course those who have spoken in support of the amendment. I suggest that it would be good for our proceedings if, whatever side we are on in these passionate debates, we could all work on the assumption that each other’s motives are to be respected.
Of course the future of UK services industries is of immense importance—that is not in doubt at all, and it has to be a major concern of the Government as they develop their negotiations with the European Union on the terms of Brexit. My noble friend Lord Mandelson is pessimistic about their prospects, but it seems to me that it must be in the interests of the European Union as well as of the United Kingdom that the EU does not put impossible barriers in the way of our services exports.
I feel bound to point out that membership of the European Economic Area does entail certain conditions. Non-EU members of the EEA have agreed to enact a large volume of legislation similar to that of the European Union. Non-EU members are consulted on prospective legislation, but they are not represented in the governing institutions of the European Union. The Norwegians refer to the legislation that is presented to them as “fax democracy”: they wait by their fax machines in Oslo to find out what the legislation is that it has been determined in Brussels should govern them.
It is also worth noting, as my noble friend Lord Alli did, that agriculture and fisheries are not part of the terms of reference of the European Economic Area and, therefore, that membership of the EEA would do nothing to assist us in resolving the problems of the Irish border.
A second condition of membership of the EEA is to accept the principle of the free movement of people. My noble friend Lord Alli suggested that somehow this could be got around. My noble friend Lord Mandelson and the noble Lord, Lord Bilimoria, drew attention to the possibility that, under existing EU provisions, it would have been possible for us to have operated a tighter regime on immigration. Those things may be so, but the fact remains that, if you are a member of the European Economic Area, you accept the principle of free movement of people. The noble Lord, Lord Green of Deddington, explained calmly and clearly what the possibilities and the difficulties are.
A third condition of membership of the European Economic Area is that those who are in membership have agreed that they will pay in considerable sums of money to finance grant schemes intended to reduce the economic and social disparities within the EEA. We should note that the size of those payments greatly increased following enlargement in 2004.
As we all know very well, those who voted leave in the referendum—a majority of our people in, as the noble Lord, Lord Forsyth, rightly reminded us, the biggest exercise in democratic participation that we have ever seen in this country—voted advisedly to take back control of our laws, our borders and our money. In respect of the three principles of membership of the European Economic Area that I have just mentioned, it is clear that, if we remained in the EEA or applied to join it—whatever the precise status would be—we would not have taken back control of our laws, our borders and our money.
We were told again this evening that it will be a cataclysm for the economy if we do not find ourselves members of the EEA. I am afraid that the citizens of this country, who were unimpressed by the forecasts of doom that were presented to them when they were so strenuously advised that it would be a terrible mistake to vote leave, will not be impressed by renewed forecasts of doom. They expect the wish that they so clearly expressed in the referendum—a referendum which they were told by the Government would be determinative and not advisory—to be met. If they perceive, as I think they would if this amendment were passed, that your Lordships’ House is seeking after all to keep them effectively in the EU by another name and to thwart the very clear decision that they expressed at the referendum, they will, to use the term of my noble friend Lord Mandelson, feel that a fraud has been perpetrated on them.
We of course have the right in this House to send our advice to the other place by way of amendments. The question that we have to judge is not whether we have that right but whether it is wise in these circumstances to exercise it. It seems to me that now is a time for a politics not of confrontation but of healing.