House of Lords
Wednesday 16 May 2018
Prayers—read by the Lord Bishop of Leeds.
Carers: Back Pay Liability
My Lords, the Government recognise that sleep-in liabilities are placing financial pressures on the adult social care sector and are exploring future options to minimise the impact. Any such intervention would need to be legal, proportionate, fair and necessary. To support providers now, HMRC has created the social care compliance scheme to allow participating social care providers until March 2019 to make payments to workers.
My Lords, I thank the Minister for his answer and his concern, because this is a concern that is widely felt within the social care sector. I am associated with a charity called Walsingham Support, which supports adults with learning difficulties: those with brain-acquired injury, autism and complex needs. Like many other care providers, it is finding it very difficult to comply with the current exercise, which is for back-pay liability in respect of night-working. Until fairly recently, night workers who were permitted to sleep were given a flat rate and the full wage if they were required to work during the night.
I am so sorry. I have got a question; I have three questions but I hoped that I could give a little bit of background. Will the Government clarify the funding position as a matter of urgency? Will they commit to funding the estimated £400 million of back pay directly to those recipients? Will they commit to the additional funding needed by the social care sector to pay all sleep-in shifts? Perhaps I may be permitted to give a little—
I recognise the concern expressed by the noble Baroness, which the Government share. Even though the position on the change of the status on paying sleep-in payments changed in October 2016, we understand the size of civil liabilities for some providers who, of course, are, in many cases, providing for some of the most vulnerable people in society. That is why this HMRC scheme was set up. It gives providers extra time—up to 15 months—to get their house in order, understand their liabilities and pay them. That comes to an end in March 2019, which is why we are working on looking at other interventions and talking to the European Commission about the legality and state-aid rules in relation to that. I am afraid that I cannot give her any more detail at this stage, but I can tell her that it is a priority.
My Lords, this is particularly about the retrospective nature of this award. I contacted my noble friend, who was kind enough to take up the case of the Wilf Ward Family Trust, which provides for the care needs of young people with learning disabilities and which will be affected. Is he able to contest the retrospective nature of this decision and ensure that no similar back pay will be awarded in the future? County councils are completely incapable of making up this shortfall.
I thank my noble friend for raising the issue, which we are looking into. The point here is that the change in policy has come about because of decisions made by employment tribunals and a clarification of the law, and the job of government is therefore to help providers to comply with the law. That is how the scheme has come about, and why extra support is being looked into. We are working closely with providers to try to understand the scale of the liability and how it affects organisations differently—we think that up to two-thirds are affected. We will also make sure that any intervention that might follow—I stress “might”—is proportionate, fair and legal.
My Lords, Jeremy Hunt told MPs last week that a lot of work was going on in government on this issue to,
“understand the fragility of the current market situation”.—[Official Report, Commons, 8/5/18; col. 520.]
However, we already know that the viability of nearly 70% of the disability care sector is threatened by the sleep-in pay crisis, as last week’s survey by disability charities shows. Homes will have to be sold or more local authority contracts handed back. Is this not enough evidence of the desperate state the care sector is in and why the extra funding is needed from the Government to ensure that already low-paid staff are treated fairly and receive the money they are owed?
The noble Baroness makes an important point about the attention my right honourable friend the Secretary of State is giving this. We are taking this issue seriously, and she is quite right about the number of organisations that are affected. As I said, a scheme already exists which allows providers to defer any payments, and we are investigating whether any further interventions are necessary during that period when they can defer them.
My Lords, I draw attention to my entry in the register of interests as a vice-president of Mencap. Is there not a taste of retrospective legislation or at least retrospective interpretation of legislation in this, something we always try to avoid? When one hears figures, as we have, of some £400 million of liability for organisations undertaking such excellent work, does this not justify the Government intervening to ensure that no such organisations suffer unduly as a result of these changes?
I agree with the noble Lord that there is a retrospective element to this, but it is around the clarification of the law. The Government have put a support scheme in place through HMRC to provide that support to resist, for example, enforcement notices on workers who ought to be paid in arrears. That is up and running and it has been open since September 2017. But clearly, as that continues we are also looking at whether other interventions might be necessary.
My Lords, it is quite clear that the £2 billion extra for adult social care in the 2017 spring Budget had absolutely no relevance to this £400 million deficit and liability for providers, and it would be unwise for the Government to assume that it should be used for back pay. While it is wonderful that HMRC has slightly deferred payment, until the Government are able to help providers we will continue to see provider after provider going to the wall. Allied Healthcare cites £11 million as its own back pay on this issue. When will the Government help these providers?
On the extra £2 billion of funding, I have not tried to link it with this; it is of course at the discretion of local authorities to use that to support the social care sector in the way they see fit. It is worth pointing out that Allied Healthcare is in this social care compliance scheme. My honourable friend the Minister for Care has written to it to express her disappointment at the approach it has outlined. Its liabilities have not crystallised yet, so it is not right for it to refuse that and she has written to it to demand clarification. However, clearly we understand that the clock is ticking and that there is an urgency to this.
National Autism and Education Strategy
My Lords, we welcomed the publication in November of the report Autism and education in England 2017. We are carefully considering the recommendations, including creating a national autism strategy. Some recommendations reflect existing policy, such as our funding of extensive autism awareness training for school staff, improving local accountability and providing additional funding. The report is informing our thinking about the next steps in achieving our vision for the SEND system that we will confirm later this year.
My Lords, that is a very welcome response because I think we all agree that every child has a right to a good education and to reach their full potential. The National Autistic Society supported the report of the all-party group, which was chaired by two Conservative Members of Parliament, who did fantastic work. The report said that three things are needed: teachers should have autism training, schools should know how to make reasonable adjustments for youngsters who are autistic, and councils should make provision for school places now and for the future. Given that optimistic hope and the Minister’s response, will he agree to meet with colleagues across the House so we can press it further with him?
My Lords, I have an interest in this via Motability and also because my little grandson is on the spectrum. I congratulate the Government because there is interest in and support for the subject on all sides of the House, including from Ministers. The National Autistic Society has done a marvellous job over the years. There has been a lot of research, there are a lot of statistics and more work is being done in different areas. We know the answers now—there is a huge amount of knowledge. We need the money now. Can the whole system be brought forward so we can get on and give these youngsters the chance they deserve?
My Lords, we have invested £373 million for local areas to implement SEND since 2014 and have just renewed a grant to the Autism Education Trust to help improve the training of education staff. It has trained some 150,000 staff since 2011-12. Awareness is very much rising in the education sector.
My Lords, the Minister talked about awareness. Awareness only goes so far. Have the Government identified how many specialist support teachers they need—people trained specifically to meet the needs of this group—and at what density? Without that, you can have all the awareness you need but not know how to implement it properly.
My Lords, the approach has very much been to include autistic children in mainstream education, and 72% of autistic children are. As I mentioned a moment ago, we are rolling out the training to staff to ensure that awareness of the condition is more widespread. That is certainly the intention. We have also invested substantially in the creation of special schools. Some 600 local authority maintained schools have a specialism for autistic children.
I welcome the fact that all teachers are going to be given autism awareness training when the new teacher training starts in September. Can this also include classroom assistants, who are often the first to see children who may have problems? They too need to have training to know how to deal with this.
My Lords, the noble Lord will no doubt be aware that girls on the autism spectrum are often more adept than boys at concealing their difficulties and often go undiagnosed and untreated. What special arrangements are in place to improve the diagnosis of girls with autism?
I cannot reply specifically on the condition in girls, but I am aware that the highest proportion of education, health and care plans are for people on the autistic spectrum. There is comprehensive acceptance that the new EHC plan system is working. In 2015, we carried out a detailed survey and found that 75% of parents and users thought that the young person was getting the help they needed, but I accept that we need to continue learning and improving in this process.
My Lords, not in any way to underestimate the importance of education, but it seems to me that this extends quite a bit beyond that, and relates very much to the households of autistic children, not least when the autistic child is a boy and the other siblings are girls. I suggest that perhaps some attention be paid to the benefit of dogs in many of these households. I am sitting next to a dog now, who is wonderful at dealing with the difficulties my noble friend has, and I can see one sitting opposite me. I am aware of a number of families in which dogs have made a world of difference to the behaviour of these children in their homes. Although there are one or two small charities doing work in this direction, some expansion and co-ordination would be extremely helpful.
My Lords, I completely agree with the noble Lord’s comments. I know of a vivid example in the academy trust I founded. We had a child on the autistic spectrum who was literally unable to speak to either pupils or staff in the school, although he was very bright. One of the teachers had the inspirational idea to bring a dog to the school. Within a month, that child was talking happily to the dog, and a few weeks beyond that was interacting with the children and teachers in the school. It might be useful to finish on the positive note that many people on the autistic spectrum go on to have remarkable lives, and I will give just a few examples: Hans Christian Andersen, Susan Boyle, Charles Darwin, Albert Einstein, Bill Gates, Thomas Jefferson, Steve Jobs, Michelangelo, Mozart and Isaac Newton. The whole spectrum of life can be enriched by people with this condition.
To ask Her Majesty’s Government what steps they are taking to improve the assessment of immigration applications by UK Visas and Immigration, given that 40 per cent of immigration appeals heard by the Immigration and Asylum Tribunals in 2016 were granted.
My Lords, UKVI is focused on improving the quality of all decision-making. While appeals are allowed for a variety of reasons, and many of the appeals being heard are now fairly historic, we recognise that continued improvement is necessary. That is why investment is being made via a stronger assurance regime, better and more frequent training, strengthened feedback loops, and creating new governance and structures. Additionally, we are working with Her Majesty’s Courts and Tribunals Service on reducing the number of outstanding appeals and the time taken through the appeals system.
I thank the Minister for her response, but this whole scenario shows that we are in a very desperate situation. For instance, I was told by the Minister that, in 2005, 17% of decisions went to appeal. That was 13,221 decisions. By 2016 this had doubled to 40%. That means that 40% of folk were dissatisfied and, on appeal, won. I imagine that, over the past 10 years, we have had perhaps 200,000 successful appeals. Does this situation not undermine confidence in the Government and in the initial decision system of the immigration process? Is it not time that we did something about this? Forty per cent is not something to be played about with. Can I ask another question?
I do not have the Companion with me, so I will leave that for another time. The noble Lord rightly makes a point about the number of appeals increasing. Actually, they went down slightly in the past year, but the number of applications is increasing over time and that is something to be mindful of. He also asked about better decision-making. I have several things to say about that. First, the average age of appeals being determined by the First-tier Tribunal is, according to HMCTS statistics, 50 weeks. That is a considerable length of time. The latest data on win rates is certainly not where we would like it to be.
Appeals are allowed for a variety of reasons. Often it is because new evidence is presented before the tribunal that was not available to the decision-maker at the time. Often, the information is presented very shortly before the hearing and too late for the Home Office to withdraw the case. But one specific reason for the higher rate of allowed appeals is that many cases going through the appeal system are now quite old. The average age of a human rights case is over a year. In that time, often appellants have built up new rights.
My Lords, given that we heard on the news last night that over 60 of the Windrush generation may have been wrongly deported, and the recent observation of the UN special rapporteur that shifting from the rhetoric of a hostile environment to one of a compliance environment will have little effect if the underlying legislative framework remains intact, will the Government now review that legislative framework as a matter of urgency?
I will refer to the cases that the noble Baroness asked about—63 people who may have been wrongly deported. As the Home Secretary said, the department has been checking records back to 2002, some 16 years ago, when electronic records began, looking at all removals and deportations of Caribbean nationals aged 45-plus. So far, 63 cases have been identified where Caribbean individuals could have entered the UK before 1973. This means that, of the 8,000 total deportation and administrative removal records that came up, so far there is a focus on 63 because something in their record indicates that they could have entered before 1973. Of those, there are 32 foreign national offenders and 31 administrative removals. So it does not mean that 63 people have been wrongfully removed or deported; it is the number of cases that merit further investigation. But I thank the noble Baroness for bringing that point up.
My Lords, there has been much discussion about targets for the number of removals over the past few weeks, which we are all aware of. As the average length of time that these appeals are taking is increasing, is it not the case that we need some targets to reduce the length of time, because people are being left in limbo with their lives on hold as these are going through?
The right reverend Prelate is absolutely right to point out what we are endeavouring to do, which is to reduce the amount of time that people spend in limbo, to use a Christian term, while their appeals are heard or indeed while their cases are heard. I thank him for making that point. It is what we are endeavouring to do.
My Lords, is it not correct that, from time to time, we review the criteria that are applied in the appointment of tribunal chairmen and members? Will my noble friend indicate whether that review has taken place recently and what the basic criteria are for appointing the chairs of tribunals?
I think I tried to explain that to the noble Lord, Lord Roberts. It is noticeable that one of the specific reasons for the higher rate of allowed appeals is that many of the cases going through the appeals system are very old. As I said to the noble Lord, Lord Roberts, the average age of a human rights case is over a year, and appellants have often built up new rights over that time.
UK-US Trade: Iran Sanctions
My Lords, the UK continues to encourage UK businesses to take advantage of trade opportunities in Iran and the US. The Government have updated their services for doing business in Iran on GOV.UK. The UK remains party to the JCPOA, and the UN-EU sanctions on Iran continue to be lifted to allow UK businesses to operate in Iran. We are working with our European partners to explore potential options for protecting UK and European interests.
I am grateful to the Minister. Will she confirm that the Government will not allow British companies to be bullied by the American Administration, the more so that, if that bullying were to succeed, it would totally undermine the nuclear deal with Iran?
My Lords, the UK is absolutely committed to the JCPOA, the nuclear deal with Iran. We are trying to work with the US to ensure that links with Iran can continue so that the UK and other international parties to the deal are able to allow Iran to get the benefits of the lifting of economic sanctions, so that it can see the benefits of maintaining the nuclear deal. We are also working with Iran, with the E3 and the European External Action Service, to try to work out how we can ensure that Iran sees continued benefit. We are committed to maintaining the deal because we think it is critical for the safety of the world.
My Lords, I draw the House’s attention to my entry in the Register of Members’ Interests, both as the Government’s trade envoy to Iran and also as chairman of the British Iranian Chamber of Commerce. Would my noble friend say what she thinks the effects of the change in American policy are going to be on Airbus and Rolls-Royce, which have extensive pending orders in Iran? Secondly, following on the point made by the noble Lord, Lord Dubs, I am reassured by her answer, but did she notice the widely reported statement by the American ambassador to Germany in Berlin? Within hours of President Trump’s announcement that he was changing policy, he said that German firms should start winding down their operations with Iran. Surely it is completely unacceptable for people to give orders to firms that are acting in accordance with the laws of their own country.
My Lords, it is clear that there is extraterritorial reach to some of these sanctions. I cannot say anything but that. We are working with the US to see what we can do to make sure that those trade ties can exist. We are working on a range of measures to try to make sure that we protect UK and other EU interests, working with the E3 and the other parties. I cannot give a direct answer because at the moment we are still working through the options. However, I can say that we are working hard to make sure that those interests are protected. We are also working hard to ensure that it is in Iran’s continued interest to be part of the deal, to ensure that we maintain the JCPOA, which we think is critical.
My Lords, surely the blunt truth is that in international trade, the dollar rules. American banks will comply, and the US Administration have totally failed to listen to the representations from President Macron, Chancellor Merkel and our own Foreign Secretary. In those circumstances, would not any lawyers, in the Government or otherwise, urge British firms to be ultra-cautious?
We are actively providing advice through our team on the ground in Iran and through our sector and other teams in DIT. We are trying to make sure that any business that is non-sanctioned is able to flow. We would say that all businesses have to take into account the commercial, legal and financing risks in any transaction, and clearly these sanctions make that difficult. We are trying to work with the US. The noble Lord is right that there was persistent lobbying but the sanctions were still imposed. That is why we are working with our EU colleagues and directly with both the US and the EU to try to protect our businesses and encourage the US to allow us to maintain our economic ties, because we think that they are important.
My Lords, the Government have lauded the US-UK Trade and Investment Working Group for the progress that has been made in the relationship. Can the Minister confirm that this issue in particular has been raised at the trade working group, because it would be utterly unacceptable for UK businesses to lose US market access for carrying out perfectly legal trading relationships under an international agreement to which the UK as a sovereign entity has signed up? Can she further confirm that the arrangements being put in place potentially to shield banking transactions, which are critical to the City of London, will carry on post Brexit next March?
The conversations we have had with our US colleagues have been very significant. I would say that we do have a deep and strong relationship with the Americans, but when we disagree with them, we say so. There has not been a meeting of the US-UK Trade and Investment Working Group since the sanctions were imposed, so there has been no opportunity for discussion through that group. However, we are making representations through my right honourable friends the Prime Minister, the Foreign Secretary and the Chancellor and we are ensuring that those points are being heard. On banking, post Brexit, we are clearly trying to ensure that we have as fluid a border as possible, so we are trying to make sure that our financial services industry, which is critical to the economy and the country, is protected as much as possible.
Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
European Union (Withdrawal) Bill
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the European Union (Withdrawal) Bill, has consented to place her prerogative and interest, in so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
1: After Clause 3, insert the following new Clause—
“Maintenance of EU environmental principles and standards
(1) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.(2) In particular, the Secretary of State must carry out the activities required by subsections (3) to (5) within the period of six months beginning with the date on which this Act is passed.(3) The Secretary of State must publish proposals for primary legislation to establish a duty on public authorities to apply principles of environmental law established in EU law or on which EU environmental law is based in the exercise of relevant functions after exit day.(4) The Secretary of State must publish proposals for primary legislation to establish an independent body with the purpose of ensuring compliance with environmental law by public authorities. (5) The Secretary of State must publish—(a) a list of statutory functions that can be exercised so as to achieve the objective in subsection (1); and(b) a list of functions currently exercised by EU bodies that require to be retained or replicated in UK law in order to achieve the objective in subsection (1).(6) The Secretary of State must before 1 January 2020 lay before Parliament a Statement of Environmental Policy which sets out how the principles in subsection (7) will be given effect.(7) The principles referred to in subsection (3) include—(a) the precautionary principle as it relates to the environment,(b) the principle of preventive action to avert environmental damage,(c) the principle that environmental damage should as a priority be rectified at source,(d) the polluter pays principle,(e) sustainable development,(f) prudent and rational utilisation of natural resources,(g) public access to environmental information,(h) public participation in environmental decision making, and(i) access to justice in relation to environmental matters.(8) Before complying with subsections (3) to (6) the Secretary of State must consult—(a) each of the devolved administrations;(b) persons appearing to represent the interests of local government;(c) persons appearing to represent environmental interests;(d) farmers and land managers; and(e) such other persons as the Secretary of State thinks appropriate.”
My Lords, I wish to move this amendment which has been tabled in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Bakewell of Hardington Mandeville, and the noble Lord, Lord Deben. We have discussed extensively amendments with similar wording and the same intent in Committee and on Report, so I will try to be brief.
Why have we brought this amendment back at Third Reading? On Report, my noble friend Lady Brown of Cambridge withdrew the amendment because the Minister promised the imminent publication of a consultation document which would deal with the issues that the amendment seeks to address. This is what he said:
“Yes, we are saying that we will be able to address this issue again after noble Lords have had a chance to look at the consultation on the statement of principles and the consultation on the new environmental body. I hope my reassurances are enough to enable noble Lords not to press the amendment and that they will take the opportunity to consider the contents of the consultation before we get to Third Reading”.—[Official Report, 23/4/18; col. 1436.]
We have considered the contents of the consultation, which was published last Wednesday, and we are not satisfied. Although the consultation document is encouraging, it does not go far enough.
Let me recap briefly on the central issue. We have heard many times that the purpose of the Bill is to ensure that everything is the same the day after Brexit as it was the day before, yet for environmental protection things will not be the same. We are talking here about protection of our air quality, water quality, rivers, oceans, habitats and biodiversity. That is because, although the rules for protecting our environment will be translated into UK legislation, crucially, the environmental principles underpinning those rules will not and, furthermore, the current mechanisms for enforcing the rules will disappear and not be replaced. If approved, the amendment would fill those gaps and so ensure that, as intended, the protection of our environment after Brexit will indeed remain the same as it is now.
At first sight, the Government’s consultation appears to address our concerns, as the Minister assured us that it would. It includes discussion both of the environmental principles, such as the precautionary principle and the polluter pays principle, and of a new green watchdog to ensure that environmental standards are upheld, thus filling the governance gap that otherwise would be created by Brexit. Those would be part of a new Bill, the environmental principles and governance Bill, to be published in the autumn and introduced into Parliament early in the second Session—in other words, next summer.
However, on closer inspection, the Government’s proposals are simply too weak. There is no commitment to enshrine in legislation the environmental principles to which I have referred. Instead, the preferred option is to create a policy statement, which, as the consultation document says, would allow the Government,
“to balance environmental priorities alongside other national priorities”,
“offer greater flexibility for Ministers”.
The favoured option for the green watchdog’s enforcement role is that it would be able to serve advisory notices to the Government or other public bodies. To quote again from the consultation document:
“government believes that advisory notices should be the main form of enforcement”.
That is far weaker than the current arrangements, under which the Commission has the power to initiate court action. In contrast, an advisory notice can be ignored and there is no sanction if it is. The consultation document even acknowledges the need for strong enforcement when it says:
“there is a special case to act on the environment. Most EU infringement proceedings against all Member States have related to environmental law, indicating a greater need for oversight in this area. In addition, while there are individuals or bodies with direct interests to protect in other areas of EU law, the environment is in a different position”.
Finally, the Government’s timetable for their proposals, weak as they are, show that their new mechanisms would not be in place by Brexit day.
I can imagine that the Minister in his reply may well say that the amendment would pre-empt the result of the consultation and that everything would be taken care of in this promised environmental principles and governance Bill, but I do not accept that. If the Government were really committed to maintaining our environmental protection after Brexit, why not seize the opportunity to show that commitment today? Why should we expect the promise of jam tomorrow when it may turn out that the jam is no more than what is sometimes called thin gruel? Greener UK, a consortium of NGOs, said this in response to the consultation:
“the government has failed to meet the minimum requirement for maintaining the current level of environmental protection. And this disappointment is magnified because ministers – including the prime minister – promised a ‘world-class’ watchdog, and not just to protect but to enhance standards. In proposing a bill that clearly weakens existing protections, it has fallen very short of expectations”.
Noble Lords who care about the preservation of our environment for future generations should support this amendment. After the big reveal of the consultation document, we now know that the Government’s proposals open the door to weaker environmental protection after Brexit day. I beg to move.
My Lords, the days that we have spent debating amendments to the Bill have been very dark days for your Lordships’ House. Sometimes when we have successfully scrutinised a piece of legislation in the past, it has been described as the House at its best. Without any doubt, these days will go down in history as the House of Lords at its worst.
Noble Lords, some of whom have been elected to or worked in Parliament for many years, have used and abused the gentle, forgiving system in your Lordships’ House to further their own ends of stopping us leaving the EU. I have watched and listened with growing concern and incredulity as people who should know better have tabled and spoken to amendments, most of which have been technically out of order and nothing to do with the Bill. I speak as an ex-Deputy Speaker in the other place: it is interesting to note that if we had a Speaker—and that day may now be much nearer than we think—none of the amendments put down by wreckers of the Bill would have been called and the Bill would have been back in the Commons long ago.
I do not know how the House of Commons will deal with the irrelevant amendments we will send to it, but I know that irreparable damage to our reputation has already been done by the antics of these dark days. We have set ourselves up in such a disreputable way, as guardians of wisdom and the common good, in so many of the amendments that we have passed.
That is a chance I will have to take. I do not agree with the noble Lord. I think that I am speaking up for this House, for this country and for what we are trying to do.
I repeat: to set ourselves up in such a disreputable way, as guardians of wisdom and the common good, in so many of the amendments that we have passed, simply in an attempt to wreck the Bill and thwart the will of the people, is both false and dangerous.
I am addressing the amendment and other amendments too.
The House has repeatedly been warned of the recklessness of the course it has taken. The noble Lords, Lord Grocott and Lord Howarth, from the Labour Benches, and the noble Lord, Lord Forsyth, from this side of the House, have made excellent contributions, showing not only their understanding of the workings of Parliament but the damage that we have been doing to our reputation and the dangers we have created for the future of your Lordships’ House. They have been derided and scoffed at—not because they were wrong, but because every word they said was true. The scoffers knew this in their hearts and simply could not bear to listen to the truth.
It is not often in life that one is given a second chance to correct a big mistake—a folly of historic proportions—but we will be given one and I sincerely hope that we will take it. When the Bill returns to this House from the Commons, if we all accept, in as healing a way as possible, that whatever side we have been on and however we have behaved, our job is done and we should no longer seek to impose our will on the parliamentary process, perhaps not too much lasting damage will have been done to your Lordships’ House. Should the principal remain protagonists continue to pursue controversy, they will serve only to deepen the divisions in this House.
I am sorry, but if this House thinks it understands what is happening in the world outside, that is a grave mistake.
I am trying to be brief, but interventions have made my speech longer—and I am tempted to go on longer, because I feel so strongly about the position this House is putting itself in. This is the most important political issue in which any of us will ever play a part. Our speeches and votes will be on record, and I do not believe history will be very kind to those who continue to hinder the progress of this vital chapter in our country’s affairs.
My Lords, I support the amendment moved by the noble Lord, Lord Krebs. The environmental principles were debated at length in Committee and again on Report. Then, as the noble Lord said, the Minister assured us that a consultation document would be forthcoming before Third Reading. Indeed, it was published last Thursday. In paragraph 9, on page 2, it states:
“This consultation explores the functions of a new, independent, statutory environmental body to hold government to account on the environment and support our longer term objective on this, to be the first generation to leave the environment in a better state than that in which we inherited it”.
This has been the stated aim of the Secretary of State on many occasions, and the aspiration is covered in the 25-year environment plan. He further aspires to have a world-leading environmental watchdog to safeguard the environment. I fear that this accountable body proposed in the Environmental Principles and Governance consultation falls a very long way short of being a world leader. Neither will it deliver the fine words in paragraph 9 of the document.
As the noble Lord, Lord Krebs, has already demonstrated, advisory notices are not likely to bring polluters to book, nor safeguard the habitats and environments of the countryside and towns that we hold so dear. This is far weaker than the current arrangements through which the European Commission has the power to initiate court action to remedy breaches of environmental law. A world-leading watchdog needs strong legal powers, not merely the ability to make suggestions and issue advisory notices.
The weakness of the powers, functions and scope of the consultation is disappointing. The amendment seeks to remedy that by insisting that environmental law be complied with. While it may often be possible to ensure compliance without recourse to the courts, an effective watchdog will need a range of meaningful legal powers, including the power to initiate court action.
It is essential for the new institution to engage closely with those affected by environmental problems, but the consultation document does not even commit to receiving complaints from the public. This represents a backward step from the complaints process currently in place. Additionally, the consultation is limited in its jurisdiction and suggests that the remit will apply only to central government, and not to other public authorities.
Restricting the enforcement role to central government will take away important safeguards, and risks alienating communities from those responsible for looking after their local environs. It will not be possible to challenge those who make the decisions that affect people and nature directly and personally. The few teeth the watchdog has will fail once people realise that it cannot help them solve the environmental problems they face. The amendment makes it clear that the watchdog and the principles should apply to public authorities in general, rather than only to central government.
Although the publication of the consultation is welcome, it does not provide the reassurances and certainty that many stakeholders had been expecting. As the noble Lord, Lord Krebs, said, it contains no commitment to enshrine environmental principles such as the precautionary principle and the “polluter pays” principle in the forthcoming Bill. Instead, we can look forward to a “policy statement”. Previous experience of policy statements in relation to biodiversity is that they have proved ineffective.
The Government have promised a world-leading environmental watchdog and enhanced environmental standards after Brexit, yet, in practice, the consultation proposes to give the environment less protection after Brexit than exists now. The status of the environmental principles is at risk of being downgraded and the proposals for a new watchdog are far from world-leading.
There is no timescale for the Government to publish their response to the consultation, nor can we be assured that the environment Bill will appear in the autumn. There are many examples of government proposals stalling, including there still being no clarity on when the Government intend to announce the next steps following their call for evidence on the important issue of corporate liability. The consultation closed in March 2017 and the response has yet to be published.
The Government wish us to be the first generation to really make a difference to the environment. The clue to how the environment will be protected and saved is in the word “generation”. That means all of us—not just Cabinet Ministers and the Government, not just Members of the other place, nor even just Members sitting in your Lordships’ Chamber today. Nor is it to be left to the public, who have had the decline in the state of the environment brought to their attention so vividly by Sir David Attenborough.
We cannot afford to leave a gap in environmental legislation that might allow irreparable harm to be done. Every single one of us must play our part, but we will not be able to safeguard our environmental assets—living and breathing, growing and archaeological —if the watchdog on which we rely has no teeth to operate. We have an opportunity today to act; I urge your Lordships to take it.
My Lords, I declare an interest as chairman of the climate change committee. That is why I strongly support the amendment. We see here exactly what played out during the debates on the climate change committee.
I want first to thank the Government for a serious attempt to move in the direction we wanted. My noble friend and I have not always agreed, but what he promised in the sense of a real contribution has been made. What we have to say now is only in sadness rather than out of any antagonism. My noble friend Lord Framlingham, who followed me in part of my former constituency, really cannot say that this is an irrelevant amendment, because we are talking about what the Government have placed before us. This is part of the withdrawal Bill; it has nothing to do with our pro or anti-Brexit position.
If my noble friend is going to say that, I shall find it rather difficult to move towards him, because it is not; I speak as chairman of the climate committee because it is not. The reason I speak is simply this: we were promised that we would pass into UK law all the protections that we have as members of the European Union, so that, on the day after our leaving, we would be in the same position in respect of those protections. Under the present arrangements, we will not be.
As I say, this repeats what happened with the climate change legislation. The then Government were in favour of it in general, but when it came to the detailed powers, the Treasury opposed it. The Minister in Defra, or at least its equivalent in those times—it was then the Minister at the Department of Energy and Climate Change—was in favour of those powers. That battle was fought in the then Government, and they decided that they would not give the powers until we were able to show that there were enough Labour Members to give a majority in the House of Commons so that they would have to give way. Happily, it therefore became an all-party Bill that we can all claim credit for, passed by the Labour Government and ultimately supported by every party in Parliament.
I want it to be the same here—for all of us to support this because it is the parallel and the same battle. There is an argument within the Government as to whether we should go further, as the amendment suggests, and I want us to support that part of the Government that wants us to go further. This is being critical not of the Government but of an attitude of some parts, not of this Government but of all Governments when one tries to enhance and enshrine environmental matters. We are not in any way being combative but standing up for the same principles for which we stood up and successfully passed in the Climate Change Act.
Let us realise that we want a “world-class” watchdog. Those are the words, not of me, rebels or those who do not like Brexit, but of the Prime Minister and this Government. “We want to be a Government who set standards we have never set before”. Those are not my words—although they are my sentiments—but those of this Government. What we are asking the whole House, unitedly—and people in favour of our movement from the European Union and those against—to accept that after we leave the EU we want the same protections as we were promised. This is the simple way to achieve it.
These are not dark days, I say to my noble friend. These are the days when we are standing up for the future for our children and grandchildren. They are the same days as those when we stood up in the past and are not to do with disagreements about Brexit, but with the carrying through of the government promise and the view of many members of the Government. We know that when the case against the amendment is put forward, it will be the case not of the whole Government but of part of them, and it is our job to try to support those who want this kind of protection. We have seen what happens if you do not have it. When I was Secretary of State for the Environment, the Environment Agency had some independence; I insisted that it spoke publicly and that it could criticise the Government. It is now part of the department and its chief executive sits on Defra’s board of management. We did the same with what was then English Nature. It is now part of the set-up and is drawn into the Government.
The consultation paper has been written by two hands. It is written by the hand that says, “We really must have an independent watchdog. We must stand up and say, ‘The environment comes first and we have to pass it on’”. The other hand says, “Ah, but Ministers must always be in charge and we must balance this promise with all sorts of other things”. I want us to strengthen the hand of the future and of the commonality of Britain. My noble friend Lord Framlingham suggests that we are somehow running against public opinion. I have to say that we are running entirely with public opinion on this. The public want proper protection and to make sure that their children and grandchildren live in an enhanced and better world.
For the Government to fight the amendment, they must explain why weakness is strength, why doing less is doing more, and why not accepting the views of those most concerned with the environment—inside and outside the Government—is better than accepting them. It is a difficult task and I do not think it is winnable task. I say to the whole House that this is a chance for us to vote seriously for the future and to do here what we did 10 years ago with the Climate Change Act, which this House would never dream of saying was other than a success because it is the lead for every country in the world. If the Prime Minister is right and we want a world-class watchdog and to set standards for the whole world, there is no better way than to take the lessons of the Climate Change Act and put them in the Bill, as the Government promised they would.
My Lords, I wish to confirm exactly what the noble Lord, Lord Deben, just said about the Climate Change Act. I moved the Second Reading of that Bill in this House: it started in this House, not in the Commons. At the end of the day, it required that effort down in the Commons, referred to by the noble Lord, to make it an all-party operation. So it is an Act genuinely owned by Parliament.
I want to be brief. It is only since the Maastricht treaty that the ECJ has had the ability to levy fines on non-compliant states, a power that the UK thought to give to the court. It had the advantage of lifting the laggard member states, which benefits us all. And the UK fares well on the scorecard of cases won. We have the third highest success rate of any country now in the EU. Of 750 cases opened against the UK since 2003, 668 were resolved before reaching the court, but the number on the environment suggest that a new system of environmental enforcement might be needed after we leave to maintain standards.
Overall, 34 environmental cases brought before the court by the Commission against the UK actually went to judgment. Four were dismissed as inadmissible or unfounded. The 30 remaining cases resulted in a judgment against the UK, in whole or in part. I am talking only about environmental cases; these do not include cases on agriculture or fishing. In our 44 years of membership of the EU, there has been a roughly 60/40 split between Tories and Labour: both have been bad on the environment and have needed a kick up the backside. In the four years from 2007 to 2010, the UK was the fourth worst in infringements among the 28 member states. In the six years from 2011 to 2016, we were the ninth worst in infringements among the 28. So it requires an external push to get change.
I know from my experience at MAFF and Defra, and from being responsible for agriculture at the Northern Ireland Office, that actions taken to avoid fines are cheaper than paying the fines. Infraction by the EU, or the threat of infraction, has driven environmental policy in this country for 30 years on all the issues referred to by the noble Lord, Lord Krebs, whether it is clean beaches or better water quality. Without the threat of a fine, an ultimate sanction that cannot be levied by the Supreme Court in this country, no action would be taken. This, therefore, is a very modest proposal to try to protect against some of the pressures that necessarily come from the economy, the Treasury and business on the environment. Who speaks for the environment? We had better all speak for the environment —without it, we are all sunk.
My Lords, I support the amendment of the noble Lord, Lord Krebs. He laid it out extremely well, but I cannot resist adding to his comments. I say, first and foremost, that this has nothing to do with Brexit, nothing to do with exiting the EU; it is all about British institutions. Quite honestly, I take deep offence at the disgraceful contribution just now. I voted to leave; I very much want us to have a successful Brexit, but for me a successful Brexit is a green Brexit. It is also about the Government honouring their promises to move all European law over. In my view, this is the most important amendment that we have considered in the whole passage of the Bill. This House has the opportunity today to secure our world-class environmental protections that have come about through our membership of the EU.
No, no, no. These protections are for our air, our food, our animals, our countryside and ourselves: it is for us that we are doing this.
I have had a lot of flak from people for voting for Brexit, and one of the biggest things that they are unhappy with—obviously I get a lot of green people emailing me—is the risk of losing our environmental protections when we leave the EU. It is something that I worry about as well. Currently, our Government are policed by the Commission and the European Court of Justice. But our Government cannot be trusted on environmental issues, on which they have routinely lost legal cases. Examples include ClientEarth forcing the UK to make good on reducing our lethal levels of air pollution, and the Commission forcing us to reduce the disgusting levels of human waste in the River Thames. So I agree with the criticisms levelled against me and levelled against Brexit. If we do not replace the legal powers of the Commission and the ECJ and maintain the environmental principles that underpin them, Brexit will be a disaster from an environmental point of view. This amendment is our chance to put that right.
The naysayers to this amendment—if there are many in the House—might suggest that the whole point of Brexit is to remove ourselves from EU institutions and so it is wrong to try to recreate their functions. This is plainly wrong. Parliament can, and should, determine what our environmental principles are and who should enforce them. It is perfectly right for Parliament to insist that a statutory body, with real enforcement powers, should hold the Government legally accountable to its national and international environmental obligations.
To me, the crucial part of this amendment is proposed new subsection (1). The Government have repeatedly promised us that leaving the EU would not mean any diminishment of rights, obligations and protections. But, clearly, if we do not pass this amendment, we will be diminished.
Other Members of your Lordships’ House have said how feeble the option is that the Government are offering us. The reason for this feeble environmental watchdog is probably because of the divisions in the Government. On the one hand we have a wonderfully ambitious Environment Secretary, whom one can almost imagine frolicking in a field of wheat. On the other hand we have an International Trade Secretary who dreams of GMO-fed beef and chlorinated chickens from factory farms in America.
I am most grateful to the noble Baroness. Surely her speech and many other speeches would do very well as submissions to the consultation. The supporters of this amendment asked the Government for a consultation and they got a consultation. If they have criticisms to make of what has been proposed in the consultation, let them submit them to the consultation. Is that not how it is supposed to work?
I thank the noble Viscount for his intervention. I will most certainly do as he suggests. That is a very good idea.
A compromise appears to have been reached between the Trade Secretary and the Environment Secretary. They seem to have said, “Okay, let’s have a watchdog but let’s make it toothless, so that it won’t actually have the powers and duties it needs to be effective”. So the Government propose that the new body will not be able to initiate legal action, will have no legal obligation to operate the current environmental principles—such as polluter pays—and will be kept out of anything to do with dangerous anthropogenic climate change. The consultation fails to propose anything close to what we have already.
The amendment is therefore inconvenient for the Government, so they will oppose it. Of course, a real environmental watchdog could not be anything but inconvenient to a Government. We want it to be inconvenient to a Government. We want it to actually hold them to account. We want it to stop them doing bad things. We want it to uphold all the principles of clean food, clean air and clean seas that we currently have.
The Minister has made good on his promise to put the issues out to consultation ahead of Third Reading, but it is simply too weak. It is weaker than the EU law that we have already and it could, of course, be weakened after the consultation. We have no guarantee that the issues will not be kicked into the long grass under the weight of other legislation coming through from Defra.
It is less than a year to Brexit day, and it is obvious that the Government’s promised Bill on the environment simply cannot be passed until long after we leave the EU. That means that there will be a governance gap, which we cannot afford. So I urge every Member of this House to vote for this amendment.
My Lords, I support the amendment moved by the noble Lord, Lord Krebs. I say to the noble Lord, Lord Framlingham, that the irreparable damage that may be done is damage to our environment and our health if we lose the safeguards and protections that we have for our environment.
No, I will not. I am sorry. The crucial part of the amendment is subsection (4), which talks about,
“an independent body with the purpose of ensuring compliance with environmental law by public authorities”.
When I was chairman of the Environment Agency, action was taken on some of the major issues affecting our environment—such as the fact that we discharge raw sewage into the River Thames 20 times or more a year, and the lethal levels of air pollution in our cities—only because of the prospect of infraction proceedings from the EU. If we lose that lever, we lose the ability to tackle these major environmental issues. It is essential that we insist—not just as part of the consultation but now—that the powers of the new environmental watchdog include the ability to take that sort of legal action.
My Lords, I was pondering in bed this morning, as one does, about when the change of tone came from the Government on the watchdog and the principles and the commitment to the environment.
We have heard really quite encouraging statements from the Government over the past year. These have included a pledge to be,
“the first generation to leave the environment in a better state than we inherited”;
“We need to fill the governance gap”.—[Official Report, 8/1/18; col. 8.];
and promising to create,
“a new, world-leading body to give the environment a voice … independent of government, able to speak its mind freely”,
with “clear authority” and “real bite”. These are not my words, these are the Government’s words. They were not enunciated just by the Secretary of State for the Environment, whom you would expect to say things like that, but they were quite frequently enunciated by the Prime Minister as well. That was jolly welcome to us environmentalists, who believe that the environment is not about birds and bees and tweety things but is actually about the ecosystems on which all of human life and economic prosperity depend.
However, somewhere along the line the cracks in the Government’s commitment to their intentions and their fine words have appeared. The consultation document which came out last week was total confirmation of that. There has been a huge watering-down of the status of the environmental principles to a policy statement, which the Government would only have to have regard to, on the basis that it would,
“offer greater flexibility for Ministers”.
I am not sure that that ought to be the objective of all this. Even though the Government promised that Brexit would not weaken our environmental protections, the way in which the principles are being dealt with in the consultation will not deliver that. As many noble Lords have said, the watchdog is more like a watchpoodle and simply will not do the task that has been carried out by the Commission and the European Court of Justice very successfully, as the noble Lord, Lord Smith, has just pointed out.
The consultation was very late. We should have smelled a rat when it did not appear as promised in November 2017. As a former chief executive of the Royal Society for the Protection of Birds, I know about little birds and a little bird has told us that this is a sign of cold feet in a range of departments—BEIS, the Treasury, the Department for Transport and, indeed, No. 10. There is a total lack of cross-government agreement and that means that the consultation is late, the governance gap is opening up under our feet and there is no chance of getting even these weak proposals in place before Brexit day.
The Government have made a commitment to ensure legal continuity on day one of Brexit so it is vital that the principles and the watchdog are part of domestic law.
My Lords, I am most grateful to the noble Baroness for giving way. I am just contemplating the case that has been put for a really powerful watchdog to protect the environment. If we think, for example, of the decision to turn off the pumps in order to protect the birds on the Somerset Levels, it had a devastating effect on the people who live there.
I shall no doubt see the noble Lord, Lord Forsyth, on this matter at a later point because, in fact, the folklore around that decision is wide of the mark. This is not the time or the place, but I am sure the noble Lord, Lord Smith, and I will be able to see him afterwards.
We really need the principles and the watchdog in place so that, on Brexit day, we have public bodies that are following the principles, courts that are applying the principles, and the public are able to rely on the watchdog to have a voice on the environment. This Bill is the only opportunity that will deliver that on time, so the way the Government deal with this now is the ultimate test of whether they really are truly committed to maintaining equivalence in environmental protection post Brexit. I hope the Government will stand up and meet this test.
My Lords, I add my thanks to the noble Lord, Lord Krebs, and the others who have their name to this amendment for their speeches and suggestions. I entirely agree with them and also with the words of the noble Lord, Lord Smith, who was in that prominent position himself at the Environment Agency. I personally felt very surprised at the rather over-robust outburst from the noble Lord, Lord Framlingham, about the whole purpose of this amendment and indeed the nature of the Bill itself. The noble Lord, Lord Deben, emphasised earlier the ecumenical nature of the formulations that have come out of this very serious and deep study made by many people, including the Government.
I was going on to emphasise, once again, the ecumenical nature of this whole process, and the tribute paid by the noble Lord, Lord Deben, and others to what the Government have done in response. I am grateful to the briefing note that was given by the Repeal Bill Alliance, which represents so many widespread different bodies, that it is necessary to get the guarantee and the certainty in the text of the Bill. I agree with the alliance when it says:
“The original drafting of the bill leaves gaps in environmental protections by excluding vital environmental principles such as the ‘polluter pays’ and ‘precautionary principles’ as well as EU directives that include environmental safeguards and obligations”.
Is it a preposterous idea that the Lords should propose serious amendments to a Bill and send them to the Commons, asking it to consider them, even on Third Reading? I think that is quite a normal part of the process of the parliamentary interchange between the Houses. It is up to the Commons to decide how to react. The reality, as we know, is that the Commons does not react in the open and free way that it would if it were on the basis of free votes in all parts of the House. Because of the magic mechanism of the only constitutional safeguard we have—the three-line Whip—the Conservative MPs would end up either having to do that or to become rebels themselves, which is always a difficult thing.
So when the noble Lord, Lord Framlingham, said that he was representing wider interests, I disagree. He was representing the salient interest of the Brexit lobby of the divided and broken Conservative Party in the Commons. Therefore, it is very important for us to remember—I quote from the press on 10 May:
“The cliché that the war is over because the eurosceptics have won is wrong. Brexit has created another divide between those evangelical about the UK going it alone and those that know such visions are fantastical. Every now and again May indicates she is in the latter group. There are some like John Major who is urgently aware from his experience that either way the UK is heading for the cliff’s edge”.
That means that the logic of what the Lords does is justified; it is nothing to do with party politics.
My Lords, this is an important amendment. At various stages, I have spoken very strongly in favour of environmental protection. Whether or not noble Lords agree with my conclusion is up to them, but it is very important that the House be aware that I am absolutely 100% in favour of protecting the environment.
I have a difficulty with the amendment before us. Had the Government not brought forward their consultation document, I would be repeating many of the things that have been said. In fairness, however, they have, and I think there are things we can do in the future better than we have done them in the past. I have listed a number of bodies that are either directly or indirectly affected by things to do with the environment. My question to the House at the end of the day is, could we do it in a simpler way and better way, and is not this consultation document exactly what Brexit is about?
With the leave of the House, therefore, I will talk about existing bodies that have some say on the environment. We have the Commons EFRA Committee and the Commons Environmental Audit Committee; the Lords EU Energy and Environment Sub-Committee; the Lords Select Committee on the Natural Environment and Rural Communities Act 2006, which we have just debated; the National Audit Office; the Natural Capital Committee; the Joint Nature Conservation Committee; a committee on climate change, for which my noble friend Lord Deben has done so much; the Environment Agency; Natural England; the Rural Payments Agency—I am not so sure there—and the many groups and charities dealing with wildlife and conservation. We now have the opportunity of a consultation document—and I wonder how many people who have spoken have actually read right through it; I plead guilty to having read right through it—and we are promised that, in the autumn of this year, a Bill will come forward.
Therefore, I ask myself and other noble Lords: are our present arrangements doing what we want them to do? I would be shaking my head and saying, “I think that we can do it better”. We have had an overlapping of many of the organisations, and a waste of money and time. I encourage Members of your Lordships’ House to at least consider what is in here, and for those who think that there is not enough in here, this is our opportunity to do something about it.
My Lords, I am grateful to the noble Lord, Lord Krebs, for setting out so clearly the arguments for this amendment, and to all noble Lords who have spoken in support of it. I say to the noble Lord, Lord Framlingham, that he clearly has not listened to our arguments or to the respectful and considered way in which we have conducted ourselves throughout the debate on the environmental and other issues.
I think the noble Lord has already heard that he cannot intervene, because he has already spoken, so I am not going to give way. I hope that the Minister will echo the fact that we have responded to and dealt with the issues in a very respectful way on both sides.
I do not know the noble Lord’s record on the environment; I am sure he will have other opportunities to tell noble Lords about it. But certainly, if he cares about the environment, this is exactly the place we should deal with it, and that is exactly why noble Lords from around the House are so passionate about the need to pursue this amendment. I hope that the noble Lord will read our amendment and see the sense of it.
On Report, the Minister promised a consultation document and finally, five days ago, after much chasing, we received a copy. There were all sorts of stories in the press about why it was delayed, and now we have seen it we can kind of understand why. This version is a pale imitation of what we had been led to believe the document would say. For whatever reason, it has clearly been watered down; I agree with the noble Lord, Lord Deben, who said that it has been written by two hands. As noble Lords said, we were promised a world-leading environmental watchdog and enhanced environmental standards after Brexit. However, this document gives the environment less protection and provides for a watchdog with fewer powers. This is why environmentalists are so disappointed, and why our amendment is so important.
To recap on the arguments, first, the document makes the case for environmental principles to be found in one place. However, it does not specify what they should be and certainly does not echo the EU principles that we have set out in our amendment, and neither does it provide for them to be contained in primary legislation. These principles matter because they impact, for example, on GMOs, pesticides, the habitat, waste regulation and water purity. This is why we have set them out clearly in our amendment.
Secondly, the document makes it clear that the application of environmental principles would be subservient to other government policy priorities. For example, new housing is described as more important than the environment. It goes on to portray the environment as the enemy of growth and development rather than complementary to it—in contrast to the Government’s own 25-year environment plan, which recognises the interrelationship between growth and the environment.
Thirdly, the proposed environmental watchdog is a toothless imitation of the powers currently exercised by the European Commission to intervene and compel. Under this document, the proposed watchdog will advise, assess progress and lay reports before Parliament—all worthy objectives but not a substitute for the current enforcement mechanisms. It will have a relationship only with central government and not with other public bodies, and it will not have a remit to engage with people and communities, thus failing to empower people and putting the very principle of access to justice at grave risk of being abandoned. It will not even have a role in receiving complaints from the public.
Instead, great play is made in the document of it being the role of Parliament, including Select Committees, to hold the Executive to account—a point echoed by the noble Baroness, Lady Byford. But of course that is what we have now, and it would be without any of the additional benefits of oversight from Europe. It is that additional oversight we are now seeking to replace in UK law.
I will not support the amendment at this stage; I will probably support it or something similar at the stage when the Bill—the primary legislation—reaches us. However, to help the noble Baroness’s argument and to address the excellent points made by my noble friend Lady Byford, should she not address the fact that we are seeking that the European regulations have the force of law after we have left, and how that goes to the heart of the amendment to which she is speaking? She is not addressing those points as forcefully as she might.
I thought that I had addressed that. If after Brexit day we are to have the same powers and enforcement as we had prior to it, we need to have a green watchdog with those enhanced powers that Europe has given us in the past—as we heard from the noble Lords, Lord Rooker and Lord Smith, and other noble Lords. That is the need. If we do not replace that in some way with an independent body that can achieve that, we will have no way of enforcing the regulations to which the noble Baroness referred.
The key thing in our amendment is that we have an independent body with the powers to ensure compliance by public bodies with environmental law. There will be a governance gap, a power gap, if that does not occur. I say to all those people—including, again, the noble Baroness, Lady Byford—who say that the consultation is the right way to deal with this, that the idea that a consultation will deliver a new watchdog with some teeth when it is not included in the consultation is magical thinking. We all know that the reality is that the opposite is the case with government consultations and, inevitably, further compromises tend to occur before legislation is finalised. I do not think that to hold that out as a hope and an offer is going to give us much reassurance.
Finally—and this is also a really important point—Michael Gove has already acknowledged that there will be a governance time gap. This consultation proposes a Bill in the next Queen’s Speech. That would not be enacted until, say, the end of next year at the earliest. A lot can go wrong before then. As we have discussed before, a rather large number of Defra Bills have been promised and are already in the queue for enactment. Timescales are already slipping. Even with the most optimistic projections, the current plans mean a time lag where environmental protections will not be—as promised in the Bill—the same as we had before exit day.
Our amendment addresses that gap. It addresses those omissions and requires that the legislation would be produced within six months of the date on which this Act is passed and therefore fill that gap. This is the only way to maintain both the spirit and the substance of continuity with EU rights which the Bill promised and the only way to protect the environment for future generations. I hope that noble Lords will see fit to support it.
My Lords, it is, frankly, disappointing that this amendment has been tabled today. We have debated the important topic of environmental protections on numerous occasions in your Lordships’ House, and the Government have taken clear action in response to many of the points raised. There was support across the House for the Government’s amendments removing the powers in this Bill to create new public authorities and our commitment to do so only in primary legislation.
Indeed, the noble Baroness, Lady Hayter, said on Report:
“the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things”.—[Official Report, 25/4/18; cols. 1585-86].
I agree with her. The Government have committed to do precisely that—to bring forward primary legislation so that Parliament can fully scrutinise, indeed interrogate, the powers of a new environmental watchdog. Yet here we have an amendment designed to use this Bill to set the parameters of such a body without the benefit of the consultation that we are now undertaking and without the scrutiny that would come from considering a Bill that is specifically introduced for that purpose.
We have endeavoured to provide as much transparency as possible to our plan for ensuring environmental protections are enhanced and strengthened, not weakened, as we leave the European Union. In November, the Secretary of State for Environment, Food and Rural Affairs gave a commitment on the Floor of the other place to create a new comprehensive policy statement setting out environmental principles, recognising that the principles currently recognised in UK law are not held in one place. At that time, the Secretary of State also announced our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on environmental legislation, stepping in when needed to hold these bodies to account and being a champion for the environment.
In direct response to the points made by the noble Lord, Lord Krebs, we welcome all consultees’ views on how this is best achieved, and that includes on the range of enforcement measures that might be required. On Report, I gave a firm undertaking that this consultation would be published ahead of Third Reading, and we did just that on 10 May. The consultation includes proposals on a new, independent statutory body to hold government to account on environmental standards once we have left the European Union and a new policy statement on environmental principles to apply post EU exit. I say to the noble Baroness, Lady Jones, that this is a consultation: we want to hear all views and we have, as yet, made no decisions on how these bodies might operate.
On the subject of timing, I am afraid that the noble Baronesses, Lady Jones and Lady Bakewell, are simply wrong. The Secretary of State for Environment, Food and Rural Affairs announced that we will bring forward a new, ambitious environmental principles and governance Bill in draft in the autumn of this year, with introduction early in the second Session of this Parliament, to deliver these proposals in advance of the end of the agreed implementation period.
Put simply, Amendment 1 risks compromising the timely and full consideration of many important issues. It requires consultation with stakeholders—a point well made by my noble friend Lord Ridley—and yet mandates a set way forward in primary legislation. This is neither helpful nor necessary, as the issues it seeks to bind the Government to commit to are those we will explore in the consultation. In short, the amendment is premature and it prejudges the views of important stakeholders.
There are good reasons for gathering and properly reflecting on views ahead of taking action. Indeed, if we did not do so, I suspect that we would be criticised by the very people moving this amendment. For example, a significant proportion of environmental policy and legislation is devolved. We need to take account of the different government and legal systems in the home nations, as well as the different circumstances in the different parts of the United Kingdom. Amendment 1 risks compromising consideration of these important issues, as well as the wider devolution settlement, by requiring the UK Government to take UK-wide action, including to publish proposals for UK-wide primary legislation on governance and principles.
The government consultation is concerned with England and reserved matters throughout the United Kingdom, for which responsibility sits in Westminster. However, we are exploring with the devolved Administrations whether they wish to take a similar approach, and would welcome the opportunity to co-design proposals to ensure that they work well across the whole of the United Kingdom. We would also welcome views from a wide range of stakeholders, including environmental groups, farmers, businesses, local authorities and the legal profession. I welcome the comments of my noble friend Lady Byford, who made some excellent points worthy of our consideration.
Turning to the issue of environmental principles, the published consultation outlines our proposal to require Ministers to enshrine these principles in a comprehensive statutory public policy statement setting out their interpretation and application. As we have said many times before, the core purpose of this Bill is to provide for continuity in our framework of laws and rules before and after exit: no more and no less. The Bill takes a comprehensive—
My Lords, will the noble Lord clarify one thing? He suggested, I think, that we are going to continue with the European regime until the end of the implementation period, which would give time for consultation. Or will we move away from the European Union arrangements in March 2019? That is important. If we are to continue to maintain all European environmental regulations, as now, up to the end of 2020, then we are in a slightly different position.
Yes, I am absolutely confirming that: the principles will continue until the end of the implementation period.
Changes to the law should be taken forward by proper processes allowing for them to receive full consideration by those affected. The Government have acted—
Yes. All current processes will continue until the end of the implementation period.
The Government have acted as a responsible Government should. They have done what this House invariably asks them to do by setting out a range of options and inviting views to inform policy through the consultation process.
Does my noble friend mean that, until the end of 2020, we would be able to take an enforcement action to the European Court? If he does not mean that, the system does not continue and the Government do have to put into the Bill an alternative. But if he does mean that, it is a revelation.
I ask noble Lords to wait a moment. There will be a further withdrawal agreement and implementation period Bill to consider the details of the implementation period, which have already been agreed with the European Union. This has already been announced and we have already set it out. But there will be further opportunities to consider this, as there will be further opportunities to consider the primary legislation that we are announcing in response to this amendment.
I do not know which way to vote, so what the Minister is saying to the House is enormously important to me. Are we actually going to be able to have enforcement by the European Court of Justice until the moment of the completion of the implementation?
Because there will be separate legislation to consider the implications of the implementation period as part of the withdrawal agreement and implementation Bill that we have already announced. We are trying to confine the purposes of this Bill to the originally announced process. I realise that lots of noble Lords want to use this legislation as a way to both influence the legislation and in some cases to prevent the process of Brexit. But we are trying to put forward revisions to the statute that will ensure that European regulations will continue to have effect in British law after the end of the period.
Can I point out to the Minister that we have no agreement that there will be an implementation period? Indeed, many government departments are preparing, rightly, for there not to be one—because nothing is agreed until all is agreed. That is why this amendment is even more important in terms of that potential gap.
Obviously if there is no deal, we do not have an implementation period—but we are working towards getting a deal. Each of the stages so far has been announced and agreed. We agreed the issues over the financial settlement and citizens’ rights before Christmas. We agreed the implementation period in March. I realise that that the noble Baroness and many of her colleagues do not want the process of Brexit to proceed, but we are acting as a responsible Government and endeavouring to agree these things in a timely and proportionate manner. We have agreed the details of an implementation period. Each time they declare their scepticism, but we are confident that we will reach a deal at the end of the day.
As I have set out, this is neither helpful nor necessary as the text of the amendment mirrors all of the issues that we are consulting on before introducing legislation that this House and other places will be able to scrutinise. I hope that noble Lords will acknowledge that voting for this amendment would prejudge a significant period of consultation that would go against the principles of good policy-making and be ultimately detrimental to the future protection of environmental law. I hope, therefore—without much optimism—that the noble Lord will see fit to withdraw the amendment.
I hate to interrupt the Minister again, but I am genuinely confused by his answers to the Cross Benches. Do I understand that there will be an untrammelled means of enforcement until the end of the implementation period, and during that time there will be negotiation about future legislation; or is it suspended while the negotiation goes on?
As the implementation period has already been agreed, it will be the subject of further legislation in this House. Irrespective of that, we are giving a commitment to bring forward the environmental legislation already announced by the Secretary of State for Environment, Food and Rural Affairs, on which I have already updated this House.
My Lords, I thank all noble Lords who have taken part in the debate this afternoon. We have heard some very passionate and powerful arguments, many in favour of this amendment. I also thank the Minister for his response, although I found it as disappointing as he found my amendment. In fact, I was reminded of the words of Francis Cornford, written over 100 years ago. In his chapter on argument, he said that there are many reasons for not doing something but only one reason for doing it, which is that it is the right thing to do. I strongly believe that in this case, the right thing to do is to support the amendment.
In his speech, the noble Lord, Lord Deben, reminded me of something I heard him say over 20 years ago when he was Secretary of State. He defined sustainability as “not cheating on our grandchildren”. One of the advantages that many noble Lords will share with me is that, as you get older, you have grandchildren. I am fortunate to have three wonderful grandchildren. But with that pleasure comes the responsibility to care about their future. This amendment is about caring for the future of our grandchildren. It is not just about birds, bees, butterflies and wild flowers, because the health of our grandchildren is intimately related to the health of the environment that we leave for them to live in. This is about a healthy environment for the future and about the health of future generations. So, in spite of the arguments for not doing so, I wish to test the opinion of the House.
2: After Clause 4, insert the following new Clause—
The duties imposed on the EU under Article 168 of the Treaty on the Functioning of the European Union apply with equivalent effect to public bodies in the United Kingdom after exit day.”
My Lords, I begin by thanking the Minister and the noble Lord, Lord O’Shaughnessy, their officials and the noble and learned Lord, Lord Mackay of Clashfern, for the frank and open meetings we have had to discuss the issue of public health. I declare my interest as an honorary fellow of the Faculty of Public Health and I thank Mark Weiss and Angus Baldwin from the faculty, who have been most helpful.
We discussed this vital issue at some length on Report. At that stage, the noble Lord, Lord Hunt of Kings Heath, requested that we return to it at Third Reading. We are grateful to the Minister for agreeing to that so that we can return to the protection of the public’s health being part of retained EU law, as it affects Brexit negotiations and us after we leave the EU. My noble friend Lord Warner led on this principle and, in the light of the Minister’s reassurance, withdrew his amendment at the time. The assurances given on Report were important. I want to quote what the Minister said then, if I may, because I think that it clarifies where we are going now:
“All EU legislation in the area of public health which becomes part of retained EU law and domestic legislation implementing EU public health requirements will, by virtue of Clause 6, continue to be interpreted … by reference to relevant pre-exit case law and treaty provisions”.—[Official Report, 23/4/18; col. 1387.]
This means that Article 168, which was described by the High Court, in a case that went to that court, as at the epicentre of EU policy-making, would be available to our domestic courts in future.
The Minister went on to make it clear that the effect of Article 168 in the domestic law of this country before exit will continue after exit. However, although he had said that in effect Article 168 would be available in the future for UK courts to draw on, conflicting legal advice subsequently obtained by the coalition that had been promoting this is causing concern within the public health and wider health sectors. Since Report further organisations, including the Academy of Medical Royal Colleges, have joined the coalition. There are now 62 major organisations calling for watertight reassurance.
This Brexit-neutral amendment would ensure that both the present Government and future Governments continue to have regard to the Article 168 duty of a,
“high level of human health protection”
as we leave the EU, and ensure that we do not row back on the progress we have made in public health during our time in the EU. The amendment would place in the Bill, and therefore beyond doubt, the fact that Article 168 will be retained law after we leave the EU.
If the Minister cannot accept the proposed new clause—which would be the simplest solution—I hope he will be able to make a clear commitment to this House that Article 168 will be retained EU law after we exit the EU. I also ask him to confirm that the case law itself can be used to hold any Government, now or in future, to account, and that such a statement on the official record of this House can be used in court. Such reassurances would provide additional certainty and clarity about the tone and guiding principles for the UK’s Brexit negotiations across the board, including our future trade negotiations. I am, of course, aware that further legislation will come forward. I beg to move.
My Lords, as the author and architect of the earlier amendment on public health, I think that I should say a few words. I thank the Minister: we had a number of spirited discussions, and he also had helpful meetings with the noble and learned Lord, Lord Mackay of Clashfern. When I read them carefully after Report, I was satisfied with the assurances that he had given. I think the Government shifted their position from saying that such an amendment was not necessary to recognising that there was case law suggesting that they should make the position absolutely clear on the Floor of the House—and when I had time to read the assurances the Minister gave on Report, I thought that he had done that extremely well.
As my noble friend Lady Finlay has said, there is a good deal of anxiety out there about whether there will be a drop in standards after Brexit. The debate on the previous amendment showed that there was still a mountain to be climbed—not by the Minister himself, but by the Government—to reassure people that many of the pre-Brexit safeguards will be in place, and standards will be met, post Brexit. I think there will be an issue when we deal with any trade Bill in this area: people will want to look very carefully to see that there is no backsliding on public health standards and protections. But for the meantime I thank the Minister for what he has done; I have no wish to make his life any more difficult than it already is.
My Lords, your Lordships will know that I took part in the debate on the amendment tabled by the noble Lord, Lord Warner. A clear decision on this matter was made by the Court of Appeal long before Brexit; it exists in our law and is based on European law. I know of no better assurance than that. The principle is clearly set out in the Court of Appeal and the High Court judgment in the packaging case. I do not know the nature of the legal advice to which the noble Baroness referred, but there are legal advices and there are legal advices. My advice is certainly very clear: if you have a judgment of the Court of Appeal on European law, which was part of our law before Brexit, under the retained law arrangements it will be part of our law after Brexit. If I had any reason to suppose that this amendment had been proposed according to that legal advice, I would feel that the amendment that we had before was, if anything, rather better.
My Lords, on behalf of my noble friend Lord Hunt, who is unable to be here today, I fully support the amendment of the noble Baroness, Lady Finlay. It was helpful to be reminded of the strong concerns expressed on Report; I also endorse the comments made by the noble Lord, Lord Warner. It is important to have clarification that the need to preserve Article 168 of the Lisbon treaty as part of retained EU law is recognised, and I look forward to hearing the Minister’s comments.
I commend the Minister’s willingness to work with noble Lords across the House on this important matter and his helpful role in facilitating this and working through the issues referred to by the noble and learned Lord, Lord Mackay. Article 168 places public health protection and health improvement at the epicentre of policy-making, and the Government’s assurances that our domestic law implementing EU public health requirements will continue to be interpreted by reference to relevant EU law, including Article 168, will be welcome.
The Minister’s assurance of the Government’s commitment to ensuring that the UK remains a world leader in public health following Brexit would also be welcome. I hope he will provide the House with this, to be noted for the record.
Finally, it is important once again to pay tribute to and place on record the work of the wide coalition of major public health bodies, medical colleges, charities and the wider health community in helping us, one hopes, reach a consensus on the way forward.
I thank the noble Baroness, Lady Finlay, for bringing back this important amendment before your Lordships’ House. I do not think I have ever drunk as much tea as I have in the past week or so as I have met various noble Lords and noble Baronesses, but it has been worth it.
I shall be a little more specific in the words I read out because we need on this occasion to give noble Lords the exact words that I hope they require. Before doing that, I should pay tribute to the noble Lord, Lord Warner—to say that he has been spirited would perhaps be an understatement—and to my noble and learned friend Lord Mackay, who is right about there being legal advices and legal advices, but I would much rather have his advice than that of others.
Let me tell your Lordships a little more about the effect Article 168 of the Treaty on the Functioning of the EU will have after we leave. It is right that we pay tribute to the Faculty of Public Health and the 62 organisations that have contributed to keeping this issue at the forefront of your Lordships’ House’s discussion. An important coalition has been assembled. I would like to think that there is now genuine recognition on all sides of the Brexit argument that public health must be at the epicentre of our engagement. There should be no back-rolling in any of the health standards. The Faculty of Public Health has been at the forefront of public health, and will continue to be so. That is important to put on the record today.
Many noble Lords have spoken eloquently of the importance of Article 168, notably its role in a successful defence to the legal challenge brought by tobacco manufacturers against the introduction of plain packaging. We therefore recognise why noble Lords are keen to confirm the Bill’s effect in that area. The Government should have been clearer on this matter in previous debates and I welcome the opportunity provided by the noble Baroness, Lady Finlay, to provide that further clarity.
The Government fully expect that, after exit, Article 168 will continue to be influential to the interpretation and application of retained EU law. This may include the determination of legal challenges to which Article 168 is relevant, including the consideration of public health legislation before exit day. As was noted on Report in this House, although Article 168 is not a directly enforceable provision of the TFEU, it has nevertheless been influential on EU and domestic law in the area of public health. I reassure the noble Baroness that when retained EU law is interpreted and applied, any such influence will be preserved by this Bill.
The Bill is intended to capture EU law as it stands at exit day and, as we have previously discussed, incorporate it into domestic law. Clause 2 preserves domestic legislation that implements or relates to EU law, including that in the area of public health. It is preserved,
“as it has effect in domestic law immediately before exit day”.
This will include, for example, the effect given to the Standardised Packaging of Tobacco Products Regulations 2015 by the tobacco packaging case, which, in a sense, echoes the words of my noble and learned friend Lord Mackay of Clashfern. Similarly, Clause 3 incorporates direct EU legislation, such as EU regulations relating to nutrition and food safety into domestic law,
“as it has effect in EU law immediately before exit day”,
and Clause 5 provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures that were recognised and available in domestic law immediately before exit by virtue of Section 2(1) of the European Communities Act,
“continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly)”.
I had to get that exactly right; I hope it is. Therefore, any rights or obligations that have been drawn from Article 168 will be preserved as part of retained EU law.
Clause 7 is also important because it ensures that retained EU law is interpreted in accordance with relevant pre-exit case law. This means, for example, that domestic law implementing EU public health requirements will be interpreted by reference to relevant EU law, including Article 168. As my right honourable friend the Secretary of State for Health wrote on PoliticsHome on 18 April:
“Our guarantee of equivalent or higher standards of health protection and health improvement when we have left the EU is unequivocal”.
The influence of Article 168 of the TFEU on retained EU law, and existing duties such as those in the NHS Act 2006 and Article 12 of the International Covenant on Economic, Social and Cultural Rights will enable us to do this.
I am sorry that on this occasion I cannot therefore accept the amendment in the name of the noble Baroness.
Circumstances have not enabled me to participate in previous debates on this subject but I want to put one point to my noble friend. He has instanced the debate on standardised packaging; I was responsible for the initial consultation. That policy did not stem from a European Union initiative but from one in this country or, one might say, from my conversations with Nicola Roxon, the Australian Health Minister. We do not therefore depend on the treaty for the function of the European Union to lead on public health. We have done so inside Europe, as we have across the world, on issues such as the tobacco control regime, and I hope we will continue to do so. The practical, rather than legal, issue is how effective our continuing co-operation with other European Administrations, national and EU, will be in combating public health threats—for example, the spread of infections. That kind of activity is much more practical than it is legal.
I thank my noble friend Lord Lansley for that helpful intervention. He is, of course, absolutely right that the judgment did draw upon an aspect of Article 168, but of course the principal driver was not the EU component; that was rather a contributing component and as such it will be available as a contributing component going forward. The second point my noble friend raises is an important one and I hope it will permeate much of the discussion we have had and will continue to have. There needs to be ongoing collaboration with our colleagues and friends in the EU; that must continue. We must learn lessons where we can, not just from the EU but more broadly. I would like to think, again, that where good ideas emerge in the wider world of public health we grab hold of them, take them to heart and move forward on that basis.
Bearing in mind that Clause 4 as amended has clear definitions of the protections that were required in the amendment, would it not therefore be possible for the Government kindly to consider reinforcing the certainty and security of the assertions by including the text, or perhaps a revised, shortened version of the text, in the new Clause 5? It would go in the Bill as subsection (1), paragraph (c) to the amended Clause 4. Would that not be a very convenient way of combining two certainties to reassure the public?
I always welcome interventions of this nature. On this occasion I think that the Government position is clear—I hope so as I look to the noble Baroness—and provides the necessary and useful support and words of comfort. I think that on that basis it should be understood by all who read today’s remarks and engage directly with the Government on this matter that what they are seeking is provided for and will be available: as it is today, so shall it be after Brexit day. I hope that those words are of comfort to the noble Baroness on this occasion.
My Lords, I am most grateful to everyone who has intervened. As someone who has felt passionately about tobacco control I am glad to be able to tell noble Lords that I am now involved in working with Hong Kong on its tobacco control measures. UK public health has indeed led the world in many ways and nobody wanted to see that jeopardised. I am particularly grateful to my noble friend Lord Warner for generously sharing some of the background to all this with me, and of course the noble and learned Lord, Lord Mackay of Clashfern, who gave me a tutorial on some of the issues around EU law shortly before we came into the Chamber.
I am confident that the Government’s reassurances today will offer the legal certainty that the sector is seeking; I am sure they will be warmly welcomed by the whole health community and all those organisations which signed up to the coalition. They are 62 major health and welfare organisations and it sends a very strong signal that this Government are committed to the health and well-being and individuals, of communities and of the country during the Brexit negotiations and after we leave the EU. It signals that future Governments must retain this as a highest priority. Therefore, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Clause 8: Status of retained EU law
3: Clause 8, page 6, line 20, after “legislation” insert “so far as it is”
My Lords, I shall not detain the House but shall be as swift as possible, because these amendments are straightforward and essentially technical. Amendments 3 and 6 ensure that there is consistency in the wording between the subsections of the Government’s status clauses. They do not change the operation of the relevant sections which the new clause signposts but ensure that the House and future readers of the Bill do not infer any difference of intention from a minor difference of language.
Amendments 4 and 5 add in missing cross-references. The amendments do not affect the substance of the clause, that retained direct principal EU legislation and retained EU law by virtue of Section 5 is to be amendable like primary legislation, and retained direct minor EU legislation is to be amendable like subordinate legislation.
Amendments 10 and 11 to Schedule 3 would insert new provisions to update the numbering of cross-references contained within the Government of Wales Act 2006 in consequence of provisions of the Bill that the House considered and approved on Report. This would mean adding a reference to a new provision and removing a redundant reference to a provision that is repealed.
Amendments 12 and 13 would, as we indicated on Report, adjust the wording of paragraph 37 of Schedule 7 to the Bill, which provides for the combination of instruments containing regulations subject to different scrutiny procedures in Parliament and also in the devolved legislatures. They would not change the policy that those provisions deliver but would ensure greater clarity as to the legal effect of the provisions.
I hope that noble Lords will recognise the importance of ensuring that we have a robust piece of legislation and support these amendments.
I have no specific information about that. The amendments are intended to help the Welsh Assembly and, indeed, assist any Government in the Welsh Assembly by ensuring that we avoid confusion and greatly improve clarity. I hope that the noble Lord will accept the good faith of the Government in trying to do everything possible to assist the devolved settlement in Wales. With that clarification, I beg to move Amendments 3, 4, 5 and 6.
Amendment 3 agreed.
Amendments 4 to 6
4: Clause 8, page 6, line 22, after “5(2)” insert “or (4)(a)”
5: Clause 8, page 6, line 22, after “10(2)” insert “or (4)(a)”
6: Clause 8, page 6, line 33, after “legislation” insert “so far as it is”
Amendments 4 to 6 agreed.
7: Clause 8, page 7, line 4, at end insert—
“( ) Without prejudice to subsections (1) to (5) above, if and to the extent that the status of retained EU law is relevant for any other purpose—(a) retained direct principal EU legislation shall be treated as if it were primary legislation, and(b) retained direct minor EU legislation shall be treated as if it were subordinate legislation.”
My Lords, Amendment 7 is in my name and in the names of three other members of your Lordships’ Constitution Committee: our chairman, the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith.
The amendment addresses a difficult issue. In its report HL69, dated 29 January of this year, the Constitution Committee drew attention in paragraph 51 to what we saw as a defect in the Bill: it does not specify the legal status that would be enjoyed in our law by retained EU law—that is, the body of EU material that the Bill incorporates into domestic law as at exit day. The question is: is it going to be primary legislation, secondary legislation or something else? And if something else, what?
The Bill deals with this question in part, for the purposes of the Human Rights Act, in what is now paragraph 28 of Schedule 8. But that exception simply begs the question as to what status retained EU law enjoys for other legal purposes. The recommendation made by the Constitution Committee that the issue needs to be addressed in the Bill was widely approved by expert legal opinion, in particular the Bingham Centre for the Rule of Law and Professor Paul Craig of Oxford University, although they disagreed with the suggestion by the committee that the status of all retained EU law should be that of primary legislation.
Ministers agreed to consider this issue and tabled an amendment on Report to introduce what is now Clause 8 of the Bill. Clause 8 is an improvement because it makes two points clear. It states that the part of retained EU law which derives from earlier statutes and earlier statutory instruments, enacted to implement EU law obligations, will retain the legal status it previously had—either primary legislation or secondary legislation. Clause 8 also addresses the circumstances in which different types of retained EU law can be amended.
However, what Clause 8 does not do is address the legal status of other retained EU law for purposes other than amendment. This may matter, as the Bingham Centre has suggested, for example, in deciding which rule takes priority if there is a conflict between different elements of retained EU law, or if the question arises of when courts may allow a challenge to retained EU law and what remedies they may give. Some distinguished legal scholars have expressed such concerns about Clause 8, particularly Professor Alison Young of Cambridge University.
The Minister made it clear on Report that because of the complexity of the issue, the Government were willing to consider the matter further at Third Reading. This amendment suggests addressing the issue of legal status by using the distinction that is in Clause 8 itself —between retained direct principal EU legislation and retained direct minor EU legislation.
I am grateful to the Minister for arranging a meeting for me yesterday with members of the Bill team and parliamentary draftsmen. They explained their concerns about the amendment. They have persuaded me that the contents of the Bill will minimise the occasions on which the legal status of retained EU law will matter. They have also pointed out that the amendment would need to specify more clearly what is meant by “primary legislation”, which covers not just Acts of Parliament but Acts of the three devolved legislatures. They also tell me that they are concerned about the generality of a deeming provision of this sort, which might cause difficulties in other contexts.
I have found these arguments compelling and I would be grateful, and I hope the House would be grateful, if the Minister would say a little more about these points when he replies to the debate. I am, however, concerned that it still appears to be the Government’s position that if any of these problems about legal status do arise in the future, they can be addressed by Ministers exercising delegated powers under the Bill. I remind the House that the Constitution Committee said in our report at paragraph 69:
“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.
I ask the Minister to tell the House whether or not the Government agree with that proposition.
I will add one further point—as a promise, not as a threat—which is that the Constitution Committee intends to keep a very close eye on this issue once the Bill becomes law. If it does become necessary to give particular retained EU laws a legal status, and if this is then done by Ministers exercising delegated powers, your Lordships’ Constitution Committee will certainly wish to return to the issue. I beg to move.
My Lords, I will not add to the exposition of the amendment and the reasons for tabling it, which have been so clearly set out by the noble Lord, Lord Pannick. The committee felt that we ought to see whether we could get a more secure place for retained European law in the hierarchy of law as it would be viewed by the courts in this country. There will probably be difficulties in this area and we are probably persuaded that they cannot be resolved by the kind of declaratory amendment that we have tabled on this occasion.
There are further difficulties which the Minister might refer to, which have been pointed out by Professor Alison Young, who was referred to earlier. For example, constitutional statutes are not subject to the doctrine of implied repeal in the same way as other legislation. What will be the position if an item of retained European law is considered to be constitutional in character and appears to be in conflict with subsequent legislation passed post exit day, when the supremacy principle has fallen away and this has to be resolved?
In passing an earlier amendment which removed a discretionary power from Ministers to, in effect, decide whether matters could be put before the courts, we wanted to assert that, wherever possible, we should protect the courts and the legal system from having to be the subject of individual ad hoc ministerial decisions in particular cases. That was part of the motivation for what the committee sought to do in this case. But clearly it cannot be solved in the way that we first suggested.
My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.
My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.
On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:
“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.
As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.
My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.
The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.
The situation is, I fear, even more complex for subordinate legislation. To say that retained direct minor EU legislation is subordinate legislation is also to say that it is like Orders in Council, the rules of the Bank of England, by-laws and any number of other forms of subordinate legislation. This amendment says that retained direct minor EU legislation is like all or some of these. Each of these forms of legislation—primary or subordinate—has its own status. Such a concept only exists in our law as the totality of how other statutes and the common law set it out. There is no place I can go to be told the so-called status of an Act of this Parliament, let alone of primary or subordinate legislation more generally.
This Bill is creating several new types of legislation and needs to provide for how that legislation is to be treated. I am not saying today that the noble Lord, Lord Pannick, is wrong to pursue this point, but I do not believe it is a point with a very clear conclusion. As I have said, the Bill does grapple with this question in each of the contexts where it arises, as is done for all other types of legislation in the United Kingdom. This is complex, but the way in which it is approached by the Bill provides a degree of certainty and sets out exactly how any type of retained EU law is ultimately to be treated.
Of course, what the Bill does not and cannot do is address all of the more than 5,000 references to terms in the statute book such as “Act”, “primary legislation” or “subordinate legislation”. This is not a problem that could have been solved with simple drafting. We are returning to these provisions because the drafting does become complex. The Government were happy to give noble Lords more time to find areas where the distinction between primary and subordinate legislation was clear, visible and mattered in our statute book. Likewise, we discussed the matter with academics and others outside this Chamber and we have not identified any further issues where a simple rule such as that put forward in this amendment leads us to the right answer. But we do know of plenty where, at first blush at least, it would lead to the wrong answer, so there would at least need to be many exceptions to any simple rule that was enunciated.
Exceptions that one expects would be needed would include both where a rule or provision should not apply to retained direct EU law and where it needs to be made clear that it has been superseded by the provisions in this Bill. They include, but are certainly not limited to, for example, how the common law would apply, including the rule in Pepper v Hart; how we would deal with presumptions about extraterritoriality; how we would deal with the issue of parliamentary privilege to proceedings leading up to an enactment; and how we would deal with the presumption of non-application to the Crown of legislation. Even armed with the most extensive legal team, it would be very difficult to come up with a simple rule, and any finite list of exceptions to that simple rule. What I have endeavoured to do, therefore, is demonstrate that a simple rule that required a large number of exceptions would not be a simple rule. At some point, there would be so many exceptions to any simple rule that it would cease to be meaningful.
I should add that, despite this clear need for exceptions—some of which I have mentioned before—this amendment produces an absolute rule with no mechanism for departing from it. To support this amendment, noble Lords would have to be confident that in each place where the words “primary legislation” appear across the statute book, the provision must apply entirely correctly to the EU regulations and that in each place where the words “subordinate legislation” appear, the provision must apply entirely correctly to EU tertiary legislation. We simply do not see how we can be reasonably confident about that.
I would wish to be able to endorse the simple rule put forward by the noble Lord on behalf of the Constitution Committee, but I am afraid that such elegant simplicity is simply not possible for this purpose. There is no escaping that there will have to be an exercise to go through each of the 5,000 references I mentioned to discover in which of them it is relevant to set out how they apply to different types of retained direct EU legislation. The only sensible approach is to look at each of those references and decide the right result in the particular context.
In response to the concerns expressed by the noble Lords, Lord Pannick and Lord Beith, where provisions need to apply to retained direct EU law, this is one of the uses to which the consequential power in the Bill will be put. However, I remind noble Lords that that power is now sunset, it is subject to sifting and any SIs of particular interest can be brought forward under the affirmative procedure. This is not a power to make constitutional provision by secondary legislation but rather to ask Parliament to approve, if required, how a range of references and provisions on the statute book should apply to retained direct EU law. We are conscious that any steps taken in that regard will be the subject of keen and direct scrutiny, and so they should be—we fully accept that.
In the present circumstances, and with that explanation, I hope that the noble Lord will understand that his amendment and his intention to provide for an elegant and elegantly ordered statute book cannot, in our view, succeed in the face of the demands of some degree of legal certainty and good lawmaking. In those circumstances, I invite him to withdraw his amendment.
I thank the noble and learned Lord for explaining so simply just how complex this issue is. I am certainly not confident to answer his question about how what he kindly referred to as my elegant simplicity would improve the Bill on this occasion. I also thank him and other Ministers for the care and attention with which they have addressed the many points raised by your Lordships’ Constitution Committee on the Bill. I hope it is appropriate for me to say that the committee believes that its report has led to a number of amendments that have improved the Bill—happily, in most of those cases, without the need to divide the House. I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Clause 15: Retaining EU restrictions in devolution legislation etc.
8: Clause 15, page 13, line 7, at end insert—
“( ) A Minister of the Crown will not normally lay a draft as mentioned in subsection (3) without a consent decision having been made under subsection (5)(a).”
My Lords, on 2 May on Report, at col. 2148, I pointed out that by reason of subsection (4) of the new Section 109A, which the Bill inserts into the Government of Wales Act 2006, the Minister of the Crown must not lay a draft of regulations to restrict the powers of the Welsh Assembly to modify retained EU law unless the Assembly has first made a “consent decision”. Calling it a consent decision is confusing, because the decision of the Assembly may, under proposed new subsection (5)(b), be not to consent or, under (5)(c), to refuse to consent. Therefore, in the proposed new clause as it is currently drafted, the making of the so-called consent decision is just a box to be ticked: a prerequisite step only, which, whatever way it goes, permits the Minister to go ahead to lay the regulation before the UK Parliament for its approval.
Under further amendments to paragraph 43 of Schedule 3, if the Assembly does not consent, the Minister must make an explanatory statement to the UK Parliament when laying the regulations before both Houses to explain his decision to go ahead without consent. At the same time, he must lay before each House any statement of explanation of Welsh Ministers as to why the Assembly has refused to consent. Of course, at the hearing of a statutory instrument, there will not be counsel on both sides putting forward these points of view, but at least both sides will be put to Parliament.
This is the precise point of objection of the Scottish Government. In the event of conflict, this mechanism gives the United Kingdom Parliament the final say, which is why the Scottish Government refused last night to give legislative consent to the Bill. I asked the Minister on Report, if the Scottish Parliament did what they have now done and refused consent,
“should Clause 11 be removed from the Bill altogether, as I have argued at Second Reading and since, and its provisions brought back in new primary legislation after further discussion and … agreement?”.—[Official Report, 2/5/18; col. 2149.]
The Minister did not answer me then, no doubt because it was a hypothetical question on 2 May. But it is no longer hypothetical, so what is his answer now? What are the Government going to do?
More pertinent to this amendment, I raised the issue of the Sewel convention. Paragraph 6 of the intergovernmental agreement made with the Welsh Government said:
“The implementation of this agreement will result in the UK Parliament not normally being asked to approve clause 11 regulations without the consent of the devolved legislatures”.
A similar reference appears in paragraph 8 of the accompanying memorandum of understanding. Therefore, there can be no objection to my amendment in principle if it were to appear in the Bill.
That is not the only way in which people in Wales can get comfort. The other possible course I suggested was that the Government affirm that they regard themselves bound in making any regulations by the express commitment to the Sewel principle which we inserted last year, and which came into force only on 1 April last, as Section 107(6) of the Government of Wales Act 2006:
“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly”.
I said in terms to the Minister:
“I would like an express commitment from the Dispatch Box on this point, either to amend the proposed new Section 109A at Third Reading to put the Sewel convention in this clause, or to confirm that Section 107(6)—last year’s insertion into the 2006 Act—will apply”.—[Official Report, 2/5/18; col. 2148.]
There was no answer to this point from the Dispatch Box. I appreciate that the Minister was busy, and he made an offer to correspond with any noble Lord on any point he had not dealt with and to put a copy of his reply in the Library. However, that is an unsatisfactory way of dealing with matters. The Minister in his response to the last amendment referred to the case of Pepper v Hart in 1992. It was with the greatest difficulty that the judicial committee in that case agreed by majority that what was said on the Floor of the House in Parliament was available to construe confusions and anomalies in legislation. Indeed, the noble and learned Lord, Lord Mackay of Clashfern, dissented and thought it wrong to have to look at Hansard to construe a statute. So it is not something that can be extended. I do not think that, particularly on such a sensitive issue, the Supreme Court would be impressed by correspondence between a Member of Parliament and the Minister, even if it was in the House of Lords Library.
The Supreme Court is about to hear exactly what is meant by the words “not normally” if the Government decide to push the Bill through—particularly the devolution clause—without the consent of the Scottish Parliament. It has been described overnight as a constitutional crisis, but what a setting to try to agree UK framework agreements across 24 areas of policy if the mechanism cannot be agreed with the Scottish Government first. The Welsh Government have come to terms with that, recognising that we live in a united kingdom and that Wales has representatives in both Houses. It is very important that there should be no room for misunderstanding. It is only in the most exceptional cases that any UK Government should push through measures that fall within the competence of the Welsh Assembly, particularly through the use of statutory instruments. That is why this amendment is before the House, and I beg to move.
My Lords, I will speak to Amendment 9 in my name. The Bill was substantially amended on Report with regard to the devolution dimension. Among other things, what one might describe as confidence-building measures were put in to ensure that Ministers, having given certain undertakings with regard to how they would exercise their powers to make regulations, would do that and would regularly report to Parliament to ensure that it was being done in good faith.
The reports have to be done on a three-monthly basis: the first report certainly has to be done three months after the date when the Act is passed and:
“Each successive period of three months after the first reporting period is a reporting period”.
That report must explain how,
“principles …agreed between Her Majesty’s Government and any of the appropriate authorities, and … relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account during the reporting period”.
That is fair enough as far as it goes, but it does not give much colour or substance as to what these principles are.
My concern, which I raised on Report, was that there was insufficient detail as to the principles. However, I asked whether the principles referred to were those agreed at the Joint Ministerial Committee,
“back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to ‘principles’ which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are”.—[Official Report, 2/5/18; col. 2141.]
I asked the Minister if he would confirm that the principles were indeed those agreed in the communique of the Joint Ministerial Committee.
The noble and learned Lord the Advocate-General for Scotland said in his response:
“Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to ‘principles’, that refers to the principles that were agreed at that stage and are carried over in the agreements”.—[Official Report, 2/5/18; col. 2164.]
I hope we have established common ground that the principles referred to are indeed those agreed and set out in the communique of 16 October 2017 from the Joint Ministerial Committee on European Negotiations. I am very grateful that the Printed Paper Office has made available copies of that communique for noble Lords to read.
I will not read it all out ad longum but it is worth noting that they are principles that relate to where common frameworks need to be established. They have to do so to,
“enable the functioning of the UK internal market, while acknowledging policy divergence … ensure compliance with international obligations … ensure the UK can negotiate, enter into and implement new trade agreements and international treaties … enable the management of common resources … administer and provide access to justice in cases with a cross-border element”,
“safeguard the security of the UK”.
It also says that when frameworks are to be established they,
“will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore … be based on established conventions and practices … maintain as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules … lead to a significant increase in decision-making powers for the devolved administrations”.
In addition, and this has occupied many hours of debate in your Lordships’ House as this Bill has gone through:
“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement”.
These are not insignificant principles. In fact, I think they are very important. If the Bill is going to be complete —people coming to the Bill should not necessarily have to try to work out where these principles are to be found—in the interests of having a tidy statute book these principles should at least be there by reference. I cannot readily see an objection to that, given that there is an understanding what these principles are. They are not to the exclusion of other things that might be agreed by the UK Government and the devolved Governments but at least they are a starting point. I hope the amendment will commend itself to the Government because it is entirely consistent with their policy.
In passing, I refer to the amendment moved by my noble friend Lord Thomas of Gresford and wonder if that were accepted for Wales, it would help find an agreement in Scotland, if it was also applied to Scotland. I suspect it might not go as far as the Scottish Government want because it does not give them the requirement for consent. It says:
“A Minister of the Crown will not normally lay a draft,”
unless such consent had been given. Perhaps the noble and learned Lord will respond to this. Unlike Section 28(8) of the Scotland Act 1998 and the equivalent provision in the Government of Wales Act which says that Parliament will not normally legislate in primary legislation, here we are dealing with Ministers. I assume that if Ministers are laying regulations, they could be subject to judicial review in a way in which a decision of Parliament would not be. That might give further encouragement to the Scottish Parliament that its concerns have been listened to. In responding, the Minister might also just take the opportunity to indicate the Government’s position in relation to the vote of the Scottish Parliament yesterday.
My Lords, to follow what the noble and learned Lord, Lord Wallace of Tankerness, has just said, the Minister may remember that I raised how to deal with the Sewel convention in relation to delegated legislation on several occasions in Committee, in dealing with what is now to be found in Clauses 9 and 11 of the Bill as it is printed for this stage of the proceedings. My recollection is that my points were dealt with by assurances from Ministers that the Sewel convention principles would apply to the making of delegated legislation in the context of both Clauses 9 and 11.
I do not have down an amendment in the same terms as that proposed by the noble Lord, Lord Thomas of Gresford, in relation to Wales because I can assume, I think, that the same principle would apply to the corresponding provision for Scotland earlier in the same clause, and no doubt to Northern Ireland as well. For my part, I would be content if an assurance could be given specifically in relation to the mechanism in this clause that means the Sewel convention would be respected in the way the amendment describes. That would be consistent with the assurances I have had in relation to the earlier provisions and would avoid writing the Sewel convention into the Bill, which I understand Ministers are anxious not to do because, in the case of Miller, it was described as merely a convention—important though it may be. I would be grateful if the Minister, when he comes to reply, would give an assurance in relation to both Wales—which has been sought—and Scotland, and no doubt to Northern Ireland as well, although it is not represented here today.
My Lords, I am delighted to support the amendment moved by the noble Lord, Lord Thomas of Gresford, and to speak to the amendment tabled by the noble and learned Lord, Lord Wallace, both of which I support. I do so having listened to every moment of the debate in the National Assembly yesterday and to large parts of the debate in the Scottish Parliament yesterday evening. What came through loud and clear was the incredulity—across party lines, even though the National Assembly for Wales accepted the agreement reached by the Minister, Mark Drakeford—on the very point touched on in the amendment from the noble Lord, Lord Thomas, namely that consent can mean consent or that consent is refused or consent has not been approved. For consent to be interpreted in that way was just unbelievable to Members there, and there was some doubt as to whether the Minister was carrying his troops with him. Indeed, Mark Drakeford himself was clearly not at ease in defending the agreement that he and the Welsh Government had approved. In his closing speech he said:
“Of course we should be ambitious for even more ground to be gained, and we are too. And I said in my opening remarks: there is more that we want to achieve. We have ambitions beyond the agreement”.
The fact is that a form of words has been reached, which are in the Bill, but they do not succeed in getting hearts and minds behind them. When one is going to something as fundamental as this agreement, which will need to be tested when real issues arise, there needs to be buy-in from all parties. Will the Minister therefore confirm that further discussions may take place with Mike Russell and his Scottish ministerial colleagues? If progress is made there to move the settlement to a form of words that is more acceptable, will the Minister confirm that that form of words would be equally available for Wales and Northern Ireland and not just be a reward for Scotland for standing out against the decisions that have been taken?
What hit Members in both the Scottish Parliament and in the National Assembly was the implication of these agreements when it comes down to the nitty-gritty. The element that stood out most clearly, in both debates interestingly enough, was public procurement. As Dr Dai Lloyd, an Assembly Member in Cardiff, spelled out, it could mean privatisation by the back door for the National Health Service. That came as quite a shock to many Labour Members, and that very point was made in the Scottish Parliament. In his closing remarks, the Minister, Mike Russell, mentioned that public procurement that leads to probably hundreds of thousands of jobs in Scotland would be affected. As the reality of the settlement hits home, there is a growing unease. We should be heading that off, and if we cannot do so tonight, the opportunity should be taken by the Government in another place, where the new clause can be amended by Members of Parliament. I believe that such amendments are needed.
One consideration that they could perhaps apply themselves to is one not covered by this amendment but which could be covered by further amendments in another place. In bringing regulations that will potentially overrule what the Scottish Parliament or the National Assembly for Wales would decide, or the attitude they might take towards certain proposals, if it is done by instrument through both Houses of Parliament, that lays the whole process open to the fact that the solution is being imposed. Perhaps the Minister and the Government could consider the possibility of dealing with those instruments in the Scottish Grand Committee and the Welsh Grand Committee by Members of Parliament from the two countries, so that at least there would be a feeling that people from Wales and from Scotland are dealing with solutions that are so important.
I personally believe that there need to be changes in the Bill along the lines proposed by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Wallace. I look forward to the Government’s response.
My Lords, I will speak in support of these amendments. I do so with great trepidation as a non-lawyer, knowing that the noble and learned Lord will be marking my homework—and doing so in front of the noble and learned Lord, Lord Hope.
The noble Lord, Lord Thomas of Gresford, is completely correct to draw our attention to the fact that a constitutionally significant moment has arrived. He is quite right to repeat the questions that he asked before. Whether one considers it a good thing or a bad thing, what happened in Edinburgh yesterday was certainly a big thing—and it could have very serious repercussions.
I agree with the noble and learned Lord, Lord Wallace, in wanting to bring out the principles agreed in October, and I am grateful to him for reading them out. But it seems to me that much is going to depend over time on how they are interpreted. Will they be interpreted narrowly or widely? The two key common frameworks are to enable the function of the UK internal market and to ensure that the UK can negotiate and implement international trade agreements. How are these principles going to operate?
The United States is generally thought to have a single market and it undertakes international trade agreements. But if you drive across the United States, it is not just gun laws that change from state to state but sales taxes and all sorts of things. There is a degree of diversity. The United States undertakes foreign trade agreements. If Dr Fox concludes a foreign trade agreement with the United States, he will have to try very hard if he is to resist the US agricultural lobby’s demands when it comes to, say, beef with hormones in it or the famous chicken. It is easy to imagine that the Scots might take a different view, and to me it is not inconceivable that different regimes could apply to the sale of chicken in Scotland and the sale of chicken in England. After all, the sale of alcohol is now governed by different regulations in Scotland, and the price is different in Scotland from what it is in England. I am not saying that any of this should happen, I am just saying that it would be very important if the Minister could give us an indication of how these principles will be applied.
I will ask also for three political reassurances. First, the gap between the two sides that has led to this divergence could now lead to a court case. In my view, that would be very bad. At the time, I considered Clause 2 of the Scotland Act 2016, which handles the Sewel convention, unsatisfactory and ambiguous. But I must say that I think that clarity now might be more dangerous, because clarity in the circumstances we are in now would cause serious trouble for one side or the other. Therefore, I really hope that this does not have to be settled in court.
The gap seems to me to be quite small—I have no view on that—but the atmospherics could be improved. I will give the Minister an example. Last week, the Government published a new paper, Framework for the UK-EU Security Partnership. “Published” is probably the wrong word; the Government “slipped out” the paper. It was clearly produced not just in the issuing department —Mr Davis’s department—but also in the Home Office. It covers issues such as the criminal records information system, mutual legal assistance, extradition, the Schengen information system, Eurojust, the European arrest warrant, the European investigation order, the prisoner transfer framework position and a lot more. I am sure that the Home Office had a huge input into it, because it is the department responsible for England in relation to the EU in future in these areas. So I asked what consultation there had been with Scotland and was told that the Scots were not consulted at all on this document. That seems to me to be extremely unwise.
The people who are responsible for all these areas in Scotland are not working to the Home Office but to the Scottish Government. What is needed here is a little more tact and talk and a little less discourtesy—a bit more diplomacy. It would be good if the Minister could say that, in working out how these principles will be applied and how the frameworks will work, rather more attention will be paid to Scottish concerns than there has been until now. I am not talking about the substance of the matter—I am not competent to talk on that—but about the atmospherics and keeping channels open and talking.
Secondly, if I am right that the gap is actually very small, and if Mr Russell in Scotland is telling the truth when he writes to us saying that his door is still open and a deal could be done, and if Mr Lidington and Mr Mundell are telling the truth when they say that their door is open and a deal can be done, then somebody should make a move. There is no point in having two doors open but nobody going through them. Somebody has to make a move, and it would be very good if the London Government could do that.
My last point has already been made by the noble Lord, Lord Wigley, and the noble and learned Lord, Lord Wallace, and I have probably made it far too often and bored the House—but it would be so much better if our debates on these issues could be illuminated by hearing the views of the governing party in Scotland, directly by being here. This is a paradigm case. Members of the governing party in Scotland are asking us, when Mr Russell writes to us, to take account of their views—but we do not have the opportunity to cross-examine and interrogate them and work out how strongly held or how soundly based those views are.
The noble Lord is very well-meaning in what he suggests. However, is he aware that Mike Russell actually agreed to the same proposal from the United Kingdom Government that the Welsh Government agreed to? He went along with that and then went back up to Scotland and was told by Nicola Sturgeon that it would not be approved because she did not like it. She runs it: not Mike Russell. How on earth can the United Kingdom Government—as noble Lords know, I am no fan of the United Kingdom Government on most things—legitimately deal with someone who says he goes along with it and then goes back up to Edinburgh and gets overruled by his First Minister?
The noble Lord probably knows more about it than me. I only know what I read in the UK press, which is almost nothing, and in the Scottish press. But my point is a slightly different one. I thought I would be attacked by the noble Lord on slightly different grounds. I want SNP representation in this Chamber. On previous occasions the noble Lord has reminded me that it is entirely the theology of the SNP that prevents it being represented in this Chamber—and he is completely correct about that. I do not understand why the SNP, represented in the other place, adopts towards this House the policy that Sinn Féin adopts towards the other House. I do not understand it at all. The onus is of course on members of the SNP to change their minds if they wish to take part in our debates, but I would ask the Minister to say what some of his colleagues in the past have said: if SNP MPs were to change their minds, the Government would be delighted to see them represented in this place.
My Lords, it is certainly not my purpose to say or do anything that makes it more difficult to reach an agreement with the Scottish Government—that is the last thing I want to do. But I want to say, in answer to one of the points that the noble Lord, Lord Thomas of Gresford, made, that the provisions that we are talking about in relation to the frameworks are provisions in which the Scottish Parliament does not have jurisdiction because the framework is for the United Kingdom as a whole. Therefore, it is not within the jurisdiction of the Scottish Parliament. That is why I have said so far that the consent of the Scottish Government is not necessary at that stage. But I would like to see a consent to the arrangements: then they can go through pretty well formally in the Parliament of the United Kingdom.
I had understood from Mr Russell from the early days—I will say a little more about this when we come to considering the Bill passing, which I hope we will do in due course—that the Scottish Government have said that they require to consent to the Parliament of the United Kingdom passing these. But, so long as their views are fully heard by the Parliament of the United Kingdom, that is the correct way to approach this. The legal competence in this matter lies with the Parliament of the United Kingdom. Therefore, technically, consent is not necessary from any of the devolved legislatures: otherwise, one of them could make these regulations impossible for the others. So consent at that stage is not necessary. It is highly desirable, which is why I was trying to concentrate on an arrangement under which it should happen.
I think that I am right in saying that the memorandum provides that, in effect, the Sewel convention will apply before these things are put to the United Kingdom Parliament. As I said before, the amendment and memorandum that the Government proposed went slightly further than I had suggested, by giving the opportunity for the dissenter, whichever Government it was, to put their point of view in their terms before the Parliament of the United Kingdom before it was considered.
So far as the question of consent is concerned, the technical question is: what is required? The intention of the legislation so far is that a decision has to be taken by each of the devolved Governments before anything is put in this connection before the UK Parliament. In other words, every opportunity is given for them to reach consent in their committees. I would like to see this settled, but the decision as to what is required is a legal decision, which, so far as I am concerned, does not require as a matter of law the consent of the Scottish Government—although that is very desirable. I am entirely in favour of doing everything that we can to deal with these matters.
Talking of papers going out and so forth, I saw an article about papers dealing with fisheries. It said that the document contained the idea that the UK Parliament can deal with fisheries in the world. Of course, we do not need to have discovered that in this paper, because it is in the reserved matters in the original constitution of 1998. The fact that the UK Government and the UK Parliament are responsible for international relations is well known; it is not a discovery one makes from a recently leaked document. That sort of thing does not help the atmosphere.
I certainly support strongly all that has been said about doing our level best to get the best atmosphere with the Government of Scotland as well as with the Government of Wales—and I would love to see a Government in Northern Ireland as well.
My Lords, I would also like to say a word about giving this Bill a Third Reading, in the absence of a legislative consent Motion from one of the two functioning devolved legislatures, as we heard, obviously. We know that this House regrets that absence.
There is no doubt that we are partly in this position because of the failure of the Government to start their Brexit process by engaging with the devolved authorities. Indeed, there was some six months when the JMC did not even meet, even after the outcry over the initial Clause 11, which had been tabled without consultation, much less agreement with the interested parties.
It was, like much of the Government’s Brexit handling, the result of no pre-referendum consideration of the impact of any withdrawal and indeed, even after June 2016, inadequate attention to this vital area of returning EU regulation. Of course, it was the result—maybe all of us are slightly to blame for this—of not fully appreciating how devolution has fundamentally affected decision-making across the UK. As in the example given by the noble Lord, Lord Kerr, some of this is continuing. Papers are still being produced without the consultation that I would by now have hoped was becoming regular. As I have said, I think, to the Minister, I hope that when this Bill is over, the Government will review the status and the functioning of the currently very ineffective Joint Ministerial Committee.
For now there is, as the Scottish as well as the Welsh Government recognise, a need to look at how to protect an internal UK market even as we pull out of the EU equivalents. Indeed—in a way it is quite funny—the Scottish Government have been the most vociferous about staying in the EU single market, so it is slightly odd that they seem to want to turn their back on an all-UK version of that.
The deal now in Clauses 13 to 15 seeks a way forward, allowing most of the non-reserved powers to be, rightly, with the devolved authorities, while on a temporary basis holding back some of those which may be needed either for trade agreements or for our own internal single market. Consumers and businesses will want to know that they can buy or sell across internal UK borders without safety, product or other regulations being different, such that they lead to border checks or inadequate standards or controls. The example of alcohol pricing across the border is not the same. If you are buying alcohol in Scotland, you know you are in Scotland and it may be cheaper or more expensive. But if you are buying a chicken when you are in Durham, you want to know whether it was chlorine washed when it was produced in Scotland. As a consumer, those products will cross the borders. So there are undoubtedly areas that we will want to sort out, for the consumers, as well as for businesses trading across the UK.
The Bill for now allows for decisions on these temporarily frozen areas to be taken by consensus, but where one devolved Administration disagrees, as we have just heard from the noble and learned Lord, Lord Mackay, their rationale—and indeed the UK Government’s response to their reasoning for withholding that consent—would come to this Parliament. It would not come back to the UK Government, but to this Parliament for consideration and final decision.
As my noble friend said, until very late in the process, the Scottish Minister had been part of these negotiations and appeared content with their direction of travel and outcome. It was at the very last moment that the Scottish First Minister took another view and demanded a veto—effectively a veto over what both Wales and England might do in some of these areas. This is understandable from an independence party that retains doubts about the role of the UK Parliament over any of its affairs.
We on this side of the House support the union. While absolutely defending and championing devolution —who could not, as an old friend of the late and much-lamented Donald Dewar, and indeed the then Labour Government who implemented devolution?— we do not see it as either separatism or proto-independence.
While acknowledging that the SNP does not share our commitment to devolution—and indeed still campaigns for something different—we nevertheless hope, as others have said, that the UK, Welsh and Scottish Governments will convene cross-party talks to broker an agreed way forward, since we regret that the Scottish Government failed to negotiate something to which their Parliament could consent. We live in hope that it might still be possible. There is still time.
Could the noble Baroness, Lady Hayter, therefore explain why the Labour members of the Scottish Parliament voted in the way they did, to support not giving legislative consent and to support having a Bill, which the Presiding Officer had said was ultra vires?
My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.
There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.
I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,
“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,
while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.
My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.
I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.
I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.
The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.
I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances, I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.
In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.
I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.
On the question of where we are with regard to an LCM, the background which has been described clearly by my noble and learned friend Lord Mackay of Clashfern, I note that the Prime Minister and the Chancellor of the Duchy of Lancaster both answered questions on this earlier today in the other place. Yesterday, the National Assembly for Wales granted its consent to the Bill, as recommended by the Welsh Government, and of course we welcome that. It represents significant progress and a sincere willingness to work together to find the right solution for the United Kingdom as a whole and for its constituent nations. It also recognises that this is not about taking away devolved powers. As Mark Drakeford said to the Assembly yesterday, the effect is,
“not to change the rules but to ensure that they continue as they are today, and to continue until a new rulebook can be agreed”.
I notice the point made by the noble Lord, Lord Foulkes, about the background circumstances to us finding no agreement from the Scottish Government and the Scottish Parliament. I am disappointed that the Scottish Parliament has voted not to give its consent at this time, but I emphasise in response to points made by noble Lords that so far as we are concerned, the door remains open for the Scottish Government to reconsider their position. However, communities and businesses across the United Kingdom need certainty. They need to know how the law will apply to them and that after exit day, divergence in those laws will not create barriers to living and doing business across the United Kingdom. We have to maintain that internal market. I would urge the Scottish Government to continue working with us to deliver that certainty for the benefit of those in Scotland, the benefit of those in England, the benefit of those in Wales, the benefit of those in Northern Ireland—that is, for the benefit of the entire United Kingdom, because this is a United Kingdom issue being addressed by the United Kingdom Parliament, as needs to be done.
I would like to put on the record as well that this Government are committed to acting in the spirit of the intergovernmental agreement which has now been published, and I should say too that we are committed to acting with all the devolved Administrations so far as that agreement is concerned, not only those which have given their consent. We will continue to respect the devolution settlements and we will seek the consent of the devolved Administrations, as we set out in the intergovernmental agreement, with regard to matters as we go forward, including the matter of the amendments adopted by noble Lords during the Report stage of this Bill. With that, I invite the noble Lord to consider withdrawing his amendment.
My Lords, I am most grateful to the Minister for his very full reply, and in particular I note his formal commitment from the Dispatch Box to the application of the Sewel convention to this legislation. Moreover, the principles that are referred to in the amendment tabled by my noble and learned friend are indeed the principles set out by the Joint Ministerial Committee in October last year. As the noble Baroness, Lady Hayter, said, the process of consultation with the devolved Administrations started far too late and there were no meetings of that Joint Ministerial Committee for some seven or eight months; that is, during the very important period when the negotiations with Europe were beginning. It is almost ironic that it is the principles that were set out by agreement between all the parties at the first meeting of that Joint Ministerial Committee which now find themselves as the foundation of the way forward in this Bill.
The noble Lord, Lord Kerr of Kinlochard, said that there should be less discourtesy and more diplomacy, and I agree with him entirely on that. The noble Lord, Lord Wigley, gave us some insight into the proceedings yesterday in both Edinburgh and Cardiff. He described the incredulity that was expressed at the drafting of the very point which I have taken in my amendment—incredulity that a consent decision could mean no consent or the refusal to consent. It is a mark of the state of the relationships that exist between the devolved Administrations that there has been no proper discussion on these issues until now.
I agree entirely with the noble and learned Lord, Lord Mackay, that what we are looking for is a mechanism whereby there is agreement about how these UK framework agreements are to be entered into. It is not so much the agreements themselves as the mechanism by which those agreements are made that is important. The point I was seeking to make was that if the Government choose to push on with this Bill without the consent of the Scottish Government, the chances of coming to a UK framework agreement are that much more diminished. It would be much preferable for the Government to continue their efforts to come to an agreed mechanism whereby those arrangements can be completed.
Having regard to the commitments that have been made from the Dispatch Box, I do not need to press the amendment. I will finish on this note—namely that, as with the noble Lord, Lord Kerr, I think it is a great shame that the SNP are not represented in this Chamber. They merely wish to take control; they merely wish to make their own laws; they are prepared to risk economic security for sovereignty, whatever that may mean; and there are quite a number of people in this House who take a similar view, but not for Scotland. I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Schedule 3: Further amendments of devolution legislation
Amendment 9 not moved.
Amendments 10 and 11
10: Schedule 3, page 44, line 24, at end insert—
“( ) In subsection (9), leave out “and (8)” and insert “, (8) and (8L)”.”
11: Schedule 3, page 44, line 26, at end insert “, and
(b) in subsection (7)(a), omit “, (b)”.”
Amendments 10 and 11 agreed.
Schedule 7: Regulations
Amendments 12 and 13
12: Schedule 7, page 73, line 32, leave out “that requires” and insert “for”
13: Schedule 7, page 74, line 20, after “Act” insert “(and, accordingly, references in this Schedule to an instrument containing regulations are to be read as references to an instrument containing (whether alone or with other provision) regulations)”
Amendments 12 and 13 agreed.
My Lords, I move the Motion with a tremendous sigh of relief. This is a good time to reflect—briefly, noble Lords will be pleased to know—on the passage of the Bill through the House. As I have said on numerous occasions, the Bill has a simple purpose: to prepare our statute book for leaving the European Union. This Bill is vital to ensuring that, as we leave, we do so in an orderly way.
When the Secretary of State for Exiting the European Union opened the Second Reading debate in the House of Commons, he said:
“I stand ready to listen to those who offer improvements to the Bill”.—[Official Report, Commons, 7/11/17; col. 343.]
No one can be in any doubt that we have listened. We have brought forward significant amendments to all the key aspects of the Bill, in partnership with many noble Lords in this House, with almost 200 amendments having been made to the Bill in total. The Bill now ensures that our courts are clearer on the interpretation of the CJEU’s case law. It ensures that Parliament is better informed about, and better able to scrutinise, the powers in the Bill. And it ensures that, as we leave the EU, more new powers are passed by default to Edinburgh, Cardiff and Belfast than ever before.
We have had 11 extended days—over 100 hours—of Committee debate on the Floor of this House. We have had six days on Report, and we have discussed almost 800 amendments. More noble Lords spoke at the Second Reading of this Bill than any other Bill in the history of your Lordships’ House.
The Government have of course suffered defeat on 15 issues. Although I regret the number of defeats, I am grateful to the many noble Lords who have worked constructively to improve the Bill. This House has done its duty as a revising Chamber. The Bill has been scrutinised. It is now right that the Bill be sent back to the elected House of Commons so that Parliament can, as a responsible legislature, complete the job of ensuring a functioning statute book for the whole of the UK. I beg to move.
Amendment to the Motion
At end insert “and, in the light of the vital importance of the issues raised to the future of the United Kingdom, this House urges the Leader of the House to make representations to government colleagues to ensure amendments made by the House of Lords to the Bill are considered as soon as possible”.
My Lords, I do not think that the House of Lords has spent longer considering any piece of legislation in its 800-year history. I join the Minister in paying tribute to the hundreds of noble Lords who have contributed over four months of debate. In Iolanthe, the House of Lords does nothing in particular but does it very well. This time, I think we have done rather better. Nevertheless, Parliament and the country are in a critical situation on Brexit, and a few comments might be in order as the Bill leaves us.
Wisely, the House of Lords has not been bullied by the Daily Mail and the right wing of the Conservative Party into becoming a rubber stamp for extreme Brexit. On no reading of party manifestos in the last election—let alone the present composition of the House of Commons, where no party has a majority—can extreme Brexit be called the “will of the people”. We are doing our constitutional duty in asking the House of Commons and the Government to think again on certain elements of the Bill as it came to us, in particular the extensive Henry VIII powers, the failure to provide for a customs union, the failure to entrench the Good Friday agreement, the failure to respect the devolution settlements and the failure to seek continued membership of the EEA.
Negotiations are ongoing on all these issues between Her Majesty’s Government and the European Commission. We are a parliamentary democracy, and it is essential that the will of Parliament becomes the voice of the Government. That can only happen if Parliament is allowed to express its will, which is why I am moving this Motion to request the Government to allow early and full consideration by the House of Commons of our amendments.
When this Bill first started, four months ago, the noble Lord, Lord Callanan, whom the House has grown to admire for his persistence and his emerging good humour, told us that it was needed urgently so that the statute book would be in good shape on 29 March next year, when European law no longer applies. Suddenly, that imperative appears to be less urgent. As noble Lords may know, there are all kinds of rumours going round about the Government delaying—perhaps for months, perhaps even for ever—consideration by the Commons of your Lordships’ amendments, because the Prime Minister fears a rebellion among Conservative MPs against extreme Brexit. To deny the House of Commons the right to express itself on our amendments in a timely manner is obviously undemocratic, and I therefore look forward to the Minister telling us when the Government intend that our amendments will be considered by the House of Commons.
If and when our amendments are considered by the Commons, what should happen then? The Commons may of course be persuaded of the wisdom of your Lordships in all 15 of our amendments carried against the Government, so we have no further role to play. Looking at the statements of Mr Dominic Grieve, the de facto leader of the sensible Conservatives, and those of my party leader, who of course is always open to good arguments, it is possible that that might happen. If it does not, then we as a House will have to exercise our judgment as to our response.
Noble Lords on all sides of the House have shown a commendable unwillingness to be dragooned into voting for the short-term expediency of party leaders against the national interest, and I am sure that will continue. Speaking for myself, my view of the situation is this. First, the so-called Salisbury convention, which affords a protected status to the manifesto commitments of a party that has won a general election, clearly does not apply in the case of our amendments to the Bill. Most of our amendments concern issues that did not feature in the Conservative manifesto in the last election at all. Even on the contested issues raised in some of our amendments, the Conservative Party did not win the last election and therefore has no mandate for anything.
Obviously, if the House of Commons expresses itself strongly, we take serious note, irrespective of the Salisbury convention; but if the Commons expresses itself with small and declining majorities, which might vanish if pressed to consider further, we take serious note of that too. Furthermore, on fundamental constitutional issues, we have a responsibility to the country to defend essential rights and interests, which is precisely why the Parliament Acts of 1911 and 1949 give us, as an unelected House, a delaying power over Bills such as this one. If the Government do not give the House of Commons an adequate and timely opportunity to consider our amendments, that fact would be bound to have a significant bearing on our future assessment of the public interest.
Does the noble Lord not think that he should be rather more honest about his motives? For example, in January he tweeted this to Donald Tusk:
“We will probably hold a referendum on Mrs May’s Brexit terms before next March, so please work on the assumption that we will continue to play a central role in the future of the European Union”.
Is that not his real agenda? Is this all not just flim-flam?
I very much hope that happens, and I hope that the noble Lord, being a democrat, will support the holding of a referendum on the Prime Minister’s final treaty. However, that motivation does not guide us in our consideration of these amendments. Our role is to perform our duty as a revising assembly.
Finally, I want to say a word about the right wing of the Conservative Party, which is calling for our abolition because we are not acting as the unquestioning registry office of the views of Mr Paul Dacre, Mr Jacob Rees-Mogg, Mr Nigel Farage and, indeed, the noble Lord, Lord Forsyth. I am strongly in favour of House of Lords reform. I have consistently voted in favour of an elected second Chamber; if the present crisis leads to that, it would be a great gain for the country. An elected Chamber would be much more powerful than the present House and therefore much more able to stand up to Governments such as this one, with weak and non-existent mandates but big and damaging policies.
I will not give way. Whatever happens hereafter, I am totally unafraid of being abolished for acting according to our conscience and the constitution. Indeed, if we do not act according to them, we deserve to be abolished. Our Writ of Summons requires us to be here at Westminster,
“waiving all excuses … to treat and give your counsel upon the affairs … the safety and defence of the … Kingdom”.
I cannot think of any legislation since the Second World War that more seriously concerns the affairs, safety and defence of the United Kingdom. We should do our duty.
My Lords, I trust that noble Lords are relieved that I have removed my Motion to Regret from the Order Paper. I did so because I did not want to prolong today’s proceedings and also because I have an unexpected family commitment this evening that may prevent me staying until the end of the debate.
I have saved noble Lords an awful lot of time. I hope that students of Brexit will read what I said at Second Reading on 30 January in column 1392. The core of my argument was that the Government were underestimating the strength of our hand in Brussels, because politicians and bureaucrats do not understand how to do deals; that they should have resiled from Clauses 2 to 4 of Article 50, which give the Eurocrats control over our leaving process; and that they should have dictated our terms for leaving to the Eurocrats. Those terms have not changed, and remain in the interests of the real people of Europe—as opposed to those of the Eurocrats, with their determination to keep afloat their failing project of anti-democratic integration. We should be generous with those real people, by offering them wide mutual residence, our ongoing security support and the continuation of our free trade together, which their exporters need so much more than ours. If the Eurocrats accept all that, we should be generous with the cash that we give them. If they do not, we should leave anyway, and give them no more cash after 29 March next year.
As the Bill leaves this House for the Commons, the Government still do not seem to believe that we can legally resile from those Article 50 clauses and leave anyway —yet I am advised that there have been some 225 unilateral withdrawals from international treaties and organisations since 1945. I recommend Professor de Frankopan’s opinion in Money Week on 21 November 2016, which covers supportive decisions from the German constitutional court and confirms that leaving without the Eurocrats’ consent is just a matter of political will.
The area in which the Government seem most confused—and most unnecessarily under the thumb of Brussels—is trade. We have free trade with the EU, so why do we not simply offer to continue it with a new arrangement under the jurisdiction of the World Trade Organization and threaten to go under the WTO’s normal remit if the Eurocrats do not agree? As I have said, continuing free trade would be much to the advantage of the EU exporters to us because, if it stops, they would pay us some £13 billion a year in tariffs—under present WTO terms—against the £5 billion that we would pay them. Nothing would change. We would all just go on as we are and the inflated problem of the Irish border would simply disappear. Moreover, there is even an article in the treaties that I do not think has been mentioned in these proceedings. It obliges the EU to continue free trade with us after we leave it and become part of the wider world. Article 3(5) of the Treaty on European Union contains the following:
“In its relations with the wider world, the Union … shall contribute to … free and fair trade”.
Have the Government pursued this clause with Brussels?
I conclude with two further observations on the passage of the Bill. First, I regret that not one of our five former EU Commissioners who spoke, and only one of our 17 former MEPs who spoke, saw fit to declare their EU pension entitlements. I refer especially to the entitlements of the former Commissioners, which can be lost if they fail to uphold the interests of the communities—now the EU. Secondly, our 156 hours of debate so far have shown me something that I had not spotted before: Europhilia is a hallucinatory illness. It affects otherwise quite sensible people and leads them to see the European Union as a good thing, when any normal person can see that it may have been an honourable idea in 1950, but now it does nothing useful that could not be done much better by the democracies of Europe collaborating together. It has become a bad, pointless, corrupt and very expensive thing, which the British people, I am glad to say, have seen through. I trust that they will also see through the blandishments of so many of your Europhile Lordships in our debates so far, and take pride in the decision they so wisely took in the referendum on our membership.
My Lords, I would like to say a word about my attempts for Scotland. I am going to read this from my note, because I have shown it to Michael Russell. As I said to your Lordships, on the Monday before Clause 11 was due to be discussed in Committee, I met a member of the SNP, Ian Blackford, to whom I said that I had not received any briefing from the Scottish Government on that clause. Next day I received briefing from the Lord Advocate and Michael Russell, the Scottish Minister in the consultation on Clause 11. Having carefully thought over what they said, I tabled an amendment to provide a mechanism for the consultation that I thought would meet their concerns, and in Committee I stated my view of the relevant law that would return on Brexit.
On Report the British Government tabled amendments that fully met my suggestions, and indeed went further. I had suggested that, if the consultation failed to reach agreement, the participants should provide an agreed statement of their disagreement to the UK Parliament before it was asked to approve the instrument approving the framework agreement in question. The government amendment also proposed that any dissenter should have an opportunity to state the reasons for their dissent in their own terms. Your Lordships will understand my dismay when I learned from Michael Russell that the Scottish Government could not accept that amendment.
The First Minister of Scotland then wrote to the Lord Speaker with a number of amendments that she asked him to circulate, which he did. My noble and learned friend Lord Hope of Craighead and I decided that we should table the principal amendments in the letter: he would introduce them and I would explain the reasons why we could not support them. This we did. No member of your Lordships’ House questioned my explanations. The First Minister of Scotland has not corresponded with either of us; we have not corresponded with anyone other than Michael Russell and the Lord Advocate on this matter, and I have had talks with the UK Ministers and officials. Michael Russell has publicly and graciously acknowledged the help that my noble and learned friend and I have given, and I thank him for the courtesy he has shown in all his correspondence with us.
I am satisfied that Clause 11 as now amended is entirely in accordance with the devolution settlement, and is an appropriate way of dealing with the unique problem of adjusting the EU provisions for the internal market in the United Kingdom to the post-Brexit situation.
I have had my home in Scotland all my life, having been trained as a Scottish lawyer, and I am profoundly sad that I have been unable to achieve the agreement of the Scottish Government to these proposals. Although my concern was principally with my native land, I am glad that the Government of Wales have accepted the arrangements, and I send my best wishes to those in the other place, in the hope that they will succeed where I have failed.
My Lords, as one who—unlike certain other colleagues—has barely missed an hour of the 156 hours of discussions on this Bill, may I say a few words before we send it back to the other place? I join others in thanking the team of Ministers for their patience and good humour, even on occasions when those could have been sorely tested. The noble Lord, Lord Duncan, the noble and learned Lord, Lord Keen, the noble Baroness, Lady Goldie, and the noble Lord, Lord Callanan, have had a heavy workload, and I am sure that they and their officials will be glad to see us pass Third Reading. I thank in particular the noble Lord, Lord Bourne of Aberystwyth, for the way in which he responded, and made himself and his team available to discuss issues of concern. In particular, with his background in the National Assembly, he could readily identify with the concerns emanating from Cardiff Bay, even if his brief did not allow him to respond as fully as many of us—and perhaps even occasionally he himself—might have wished.
I have no doubt that the Bill we now return to the other place is significantly better than the one we received. Ministers should concur with this sentiment. After all, of the almost 200 amendments that have found their way into the Bill, all but 15, and a handful of consequential amendments, have come from the ranks of government itself. Let no one—the Daily Mail or anybody else—claim that this Chamber has delayed proceedings. We have not. The Government have their Bill bang on time, even if, at times, we had to spend 11 hours or more a day on our deliberations to make that possible. The Government clearly needed all this time: as we heard from the noble and learned Lord, Lord Mackay, a moment ago, it was only at the very last moment of Report that they were able to move the final form of amendments that they saw necessary to make Clause 11, as was, workable in the way that they desired.
We heard in an earlier debate about the deadlock that has emerged with devolved Governments. I believe that this problem is inherent in the model of government that we have in the UK: a unitary state, with limited devolved powers, but without the safeguards that a federal constitution would provide. The problem will not go away, as yesterday's debates in Cardiff and Edinburgh have shown. Welsh Minister Mark Drakeford then acknowledged that the agreement is not as watertight as he would have wished. Undoubtedly these questions will arise again in another place. They will, I fear, flare up even more when these provisions are tested in practice.
Noble Lords across parties have been generous about my role in scrutinising, probing and trying to improve the Bill—and to do so constructively from a Welsh viewpoint while accepting that the Bill has, of course, a UK-wide remit. I thank them for those kindnesses. Noble Lords have also on several occasions, including tonight, expressed regret that there was no SNP presence in the Chamber. That sentiment was usually expressed for the best of motives, and I understand the thinking. But I have to say this: if they were placed in the same invidious position as I have found myself in at times during our deliberations—a one-man band trying to do a job for which a party team is needed, unable on one occasion even to respond to the calls of nature because of having a sequence of Plaid Cymru amendments under consideration, and no one in my own party with whom to share the workload—SNP colleagues might well conclude, as do I, that such a presence is unsustainable, and that our system at Westminster is not able to cope with multiparty representation in a quasi-federal state.
That is not an experience that I intend to repeat, single-handedly, on any future occasion. It is not just the SNP, Plaid, Sinn Féin, or whoever, that need to buy into the Westminster system. Westminster itself has to do more than express regret for empty seats and absent voices, and has to make the necessary and reasonable adjustments, if the genuine sentiments expressed during our debates are to be more than hollow words. I shall say no more, but I hope that those in authority will heed that message.
In passing 15 amendments against the Government’s wishes we have given elected MPs an opportunity to think again on the matters in question—particularly those relating to a customs union and the single market, to the Irish border, to a flexible departure date and, at the end of negotiations, to a meaningful vote, whether by Parliament or by the people. Much water has gone down the Thames since MPs considered the Bill last year. Our proposed changes will give them a hook on which they can attach further amendments of their own, if they cannot accept our precise wording. They also give the Government an opportunity to pause and consider whether the model of Brexit they concocted last year is, in fact, fit for purpose.
For what has emerged beyond doubt from our debates is that there can be more than one model for Brexit, that each one has its positives and its downsides, and that no one model answers all the attendant problems in one fell swoop. For Brexit to work—for young and old; for working people and for employers; for manufacturing, service industries and agriculture; for exporters and importers; for our universities and our tourist operators; for our public services and for those with special needs—and not only for England but for Wales, Scotland and, particularly, for Ireland—it cannot be a simplistic one-dimensional model. There will have to be give and take on all sides, and only a complex, balanced package can meet those reasonable needs and aspirations.
Our work, for now, is done. We pass this amended Bill over to elected parliamentarians. We can only hope and pray that they will have the courage of their convictions and—yes—improve it further, and, by so doing, make it reasonably acceptable to all the diverse interests, values and viewpoints across these islands.
To those who see it as a quite simple matter to cut ourselves off from all the European institutions which we—yes, we, many here in this Chamber tonight—have helped build, to forget all that and exit into a setting sun over a distant horizon and whatever cliff edge lies beyond, let me say this: you exit if you want. But a majority of us in this Chamber, I suspect, will do everything within our power to keep the European dream alive, albeit in a new, more limited context; a dream of a continent working in peace and harmony, and a dream worthy of being transmitted to our grandchildren. To quote an absent friend, it is a dream that will never fade.