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European Union (Withdrawal) (No. 2) Act 2019

Volume 801: debated on Wednesday 8 January 2020

Motion to Take Note

Moved by

That this House, for the purposes of section 2(2)(b) of the European Union (Withdrawal) (No. 2) Act 2019, takes note of the Report under section 2(1) of the European Union (Withdrawal) (No. 2) Act 2019, published on 8 November 2019.

I will give noble Lords not entranced by the prospect of a further European Union debate at this time some more moments to leave the Chamber.

My Lords—I hesitate to use the plural—I beg to move the Motion standing in my name on the Order Paper. As this is my first appearance at the Dispatch Box since last term, I begin by wishing all noble Lords a very happy new year.

In moving these Motions today, the Government are meeting the legal obligations placed on them by Section 13 of the European Union (Withdrawal) Act 2018 and the European Union Withdrawal (No. 2) Act 2019, or the Benn Act. For the benefit of the House, I will set out—briefly, given the late hour—how these obligations have arisen.

Noble Lords will no doubt recall that on 19 October last year, the other place considered a Motion seeking approval to leave the EU with the deal negotiated by the Prime Minister. An amendment was tabled to that Motion in the other place in the name of the then Member for West Dorset, which was subsequently passed. As a result of the amendment being passed, under the terms of Section 1(3) of the Benn Act the Government were required to seek an extension to the Article 50 period to 31 January. As a result of this extension being granted, the Benn Act then required the Government to publish a report by 30 November

“explaining what progress has been made in negotiations on the United Kingdom’s relationship with the European Union.”

The vote on 19 October also engaged Section 13(4) of the European Union (Withdrawal) Act 2018, which requires the Government to

“make a statement setting out how Her Majesty’s Government proposes to proceed in relation to negotiations for the United Kingdom’s withdrawal from the EU.”

The Government complied with both requirements on 8 November, with the report and Statement made available on GOV.UK and provided by the Printed Paper Office for the convenience of your Lordships. Under the Benn Act and Section 13 of the European Union (Withdrawal) Act, the Government were then required to move a Motion in relation to those reports in five calendar days and seven sitting days respectively. That is why we are here today. I know noble Lords will have noticed that we have somewhat exceeded the five-day deadline. The Dissolution of Parliament prevented this debate taking place sooner, but the Government have sought to comply with the law as soon as practically possible.

For the benefit of noble Lords who have not read the statement and report, they make clear that the Government have no further plans for renegotiations. This is for the very simple reason that the Government had, and continue to have, no plans to further renegotiate the terms of our exit. So, despite the fact that a deal was already in place and we are now in the process of legislating for the implementation of that deal, it is a legal necessity for us to consider these Motions. As noble Lords will know—I repeatedly said it during the passage of those Acts—the Government will always comply with the law.

Having dispensed with these Motions today, in short order this House will be asked to consider provisions in the withdrawal agreement Bill that seek to repeal both Section 13 of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal) (No. 2) Act 2019. I hope that when these matters are considered in this House, noble Lords will agree with me that these requirements are no longer necessary and that, whatever one’s view on Brexit, they have served their purpose and it is now time for us to move on.

Section 13 of the European Union (Withdrawal) Act 2018 and the European Union Withdrawal (No. 2) Act 2019 have detained the UK in the EU, and us in this House, for many hours already. This debate is about a government report and statement that make clear that we have no further plans to renegotiate the terms of our exit—a position clearly supported in the general election. So given the late hour, I will not seek to delay the House any longer than required as we dispense with these necessary legal obligations.

My Lords, we are an even more select little club than anticipated. I thank the Minister for that introduction, but I am just a little puzzled by Section 13 of the 2018 Act being proposed for repeal under the WAB, the current withdrawal agreement Bill. The statement says:

“The Government has no plans to have further negotiations”

on the withdrawal agreement, which I understand and recognise. But the Explanatory Notes to the withdrawal agreement Bill say that Section 13 is proposed for repeal to

“ensure that the Withdrawal Agreement can be ratified in a timely and orderly manner, and to remove provisions that are no longer needed.”

That clouded my brain, although it may be the late hour. Are the Government saying that the provisions in Section 13 of the 2018 Act are not needed because the withdrawal agreement Bill overtakes it? It is a little unclear. I recognise that the withdrawal agreement will not be reopened but the Explanatory Notes appear slightly to cloud the picture as to exactly why Section 13 is being repealed to allow the withdrawal agreement to be ratified in a timely and orderly manner. As I say, it may be that I am puzzled due to the late hour.

I turn now to the Benn Act, as we all call the European Union (Withdrawal) (No. 2) Act 2019. Will the Minister explain why the whole Act is proposed for repeal? What about Section 2(5)? It says:

“The Secretary of State shall make a further report … at least every 28 calendar days starting on 7 February 2020 either until an agreement with the European Union is reached or until otherwise indicated by a resolution of the House of Commons.”

The point is that Section 2 of the Benn Act has the heading:

“Report on progress of negotiations on the United Kingdom’s relationship with the European Union.”

Unlike the 2018 Act, which goes on to refer specifically to the withdrawal agreement and the political declaration, it seems to me that this provision is not limited to the withdrawal agreement and the political declaration. It talks only about the progress of negotiations on the UK’s relationship with the European Union. Surely that extends to negotiations on the future relationship. I do not appreciate how this Act—particularly Section 2(5), which talks about future reports—can be deemed ripe for repeal in these circumstances. Perhaps the Minister will reply on that.

This is particularly apposite given that, as we will discuss next week, the December version of the withdrawal agreement Bill removes what was in the October version about parliamentary oversight. It rips away what was in the October Bill because the Government say that, because they have a mandate now, they do not need any continuing parliamentary accountability on the progress of negotiations on the future relationship, and it rips away the Benn Act as well. It is not clear to me why this is, because Section 2 of the Benn Act is not limited to the withdrawal agreement. Will the Minister explain?

Finally, I thank the Daily Mirror for drawing my attention to something called the Regulatory Policy Committee. I had never heard of it but apparently it is an independent body sponsored by BEIS which issues opinions on the quality of departments’ assessments of the potential impacts of regulatory proposals. It gave an opinion on the impact assessment that the Government issued on the October version of the withdrawal agreement Bill. Given the short time available, the committee decided not to give a rating and to suspend judgment on whether the impact assessment was or was not fit for purpose, but it identified a number of areas where it could benefit from improved evidence to the level that the Regulatory Policy Committee would normally expect to see.

It therefore gave the Government a pass in October, recognising that everything was done in a hurry. It was particularly worried that there was a lack of quantification of the impact on business of the regulatory requirements under the Northern Ireland protocol, and stated that

“if significantly more time was available … we would expect the Department to expand the analysis and submit a revised IA”

for RPC scrutiny. This has not happened, so yesterday the RPC issued another statement:

“The Government have not revised the October IA to reflect either the comments in our October opinion or the changes made to the Bill at its re-introduction to Parliament in December. Our opinion, therefore, remains that the quality of evidence in the IA is not at the level that we would expect to see in a final stage IA.”

This brought some rather robust comments from my colleague in the other place, Alistair Carmichael, who said:

“At every step of the way, the Tories have tried to disguise the damaging and dangerous consequences of their Brexit plans. The Government must stop running away from the false promises that they have made and be honest with the public about what they have in store for them with their hard Brexit plan. It’s about time that Boris Johnson started being honest with our people, rather than hiding the true price of a hard Brexit. What do they have to hide?”

I bat that question to the Minister, to answer if he would.

My Lords, this debate could have been, and—the noble Baroness, Lady Ludford, is right—should have been, about the state of the negotiations with the EU. It was not simply about the withdrawal deal, although the agreement did include the political declaration, and that is essential to the discussions that are going on. That is what we should have been debating this evening, and we should have had an update from the Government. Instead, as the noble Baroness indicated, we are faced with a Bill that shuns all such future requirements for reporting to Parliament. Indeed, it is hard to reconcile Clause 38(1) of the withdrawal Bill, which recognises

“that the Parliament of the UK is sovereign”,

with the rest of the content of the Bill, which takes mammoth powers to the Executive and away from Parliament.

It repeals the Benn/Cooper requirements to report to Parliament, it disapplies CRaG for the withdrawal deal, it abolishes the meaningful vote for the withdrawal and final deals, and it deprives Parliament of any say on whether the implementation period should be extended, other than what is in the Bill. Of course, that is a decision taken before we have left, before the interests of the devolved Administrations have been taken into account, before we have seen any negotiating mandate—either from the EU or from our Government—and before we know how such negotiations are progressing, or what obstacles, from Northern Ireland or elsewhere, may stand in the way of a satisfactory agreement. So, before all that, the Government have decided to rule out any possibility of an extension. Yet only in October, Robert Buckland promised the Commons that the Government would bring forward an amendment to

“allow Parliament to have its say on the merits of an extension of the implementation period”.

The Government claim that the Bill will

“ensure Ministerial oversight of the Joint Committee”.

Of course, the Joint Committee is in the withdrawal deal, not in the political declaration. So the Bill will ensure ministerial oversight of the Joint Committee, but not parliamentary oversight of what our EU Committee calls

“a uniquely powerful and influential body”,

which can even amend the withdrawal agreement. These are issues that should be reported here for discussion.

So in future we will have no MEPs in the European Parliament and, under this Bill, no British parliamentarians will be able to consider and debate the actions of the Government and the Joint Committee other than take-note Motions. This absence of political oversight goes beyond the Joint Committee, beyond the implementation date of the withdrawal deal and beyond the implementation of the deal itself. Parliament will lose its role on the mandate for and progress of negotiations on our trading, diplomatic, cultural, consumer, environmental and security relations with the EU. There will be no MEPs to put the British view in Strasbourg and we will not be allowed a view here. It is taking away what in the earlier Bill was an undertaking that Parliament would have some input into these talks. That means that Parliament will be left with only take-note debates or responses to Ministerial Statements. That is not proper scrutiny and of course leaves the devolved authorities out of the game altogether.

As we have said, the withdrawal deal may be implemented through this Bill, but there is the political declaration, which was part of the agreement reached with the EU. That is the framework for future negotiations. Those negotiations will not be quick or easy, but the Government still seem to think that they can complete them within the timeframe that they have dictated, regardless of advice from anyone else. The Commission warns that

“reaching a final agreement usually takes several years. It involves over 30 stages.”

Michel Barnier says:

“It is unrealistic that a global negotiation can be done in 11 months, so we can’t do it all”—

only the “vital minimum” to establish a relationship with the UK.

Sabine Weyand, the deputy negotiator, thought that there would be only a “bare bones” deal covering only goods, which will itself cost money for people trading in goods. But more importantly, most goods now also have an element of service, whether intellectual property, servicing of what is sold, expertise or data movement. These are all issues that were covered in the Benn Bill expectations of what would be brought here, but they are not being discussed by us.

The Institute for Government reckons that

“it will not be possible to complete everything necessary to leave with a deal”,

because of course it is not just the negotiations but the practicalities that have to be sorted out in 11 months, which means that we will be only partially ready by December.

David Henig from the UK Trade Policy Project says that for a free trade agreement to come into force on 1 January next year, the political agreement would be needed by October this year. There is not just the issue of implementation; it will need ratification by national parliaments in many cases and sometimes by regional parliaments. So an even louder clock is ticking than we talked about before. Professor Catherine Barnard reckons that these agreements usefully take 48 months, not a mere nine months—what the British Chambers of Commerce called a “crazy rush”. Today, we heard from no less than the President of the Commission, Ursula von der Leyen, that striking a comprehensive trade deal before the end of the year was “impossible”.

But the Prime Minister just will not listen to that, and he reiterated that he wanted a broad free trade agreement covering goods and services by 31 December, and that any future partnership must not involve any kind of alignment. That is at complete variance with what the Commission president said. Although she would like to

“design a new partnership—zero tariffs, zero quotas, zero dumping”

and a partnership with the UK that

“goes well beyond trade and is unprecedented in scope”,

she said that

“without a level playing field on the environment, labour, taxation and state aid, you cannot have the highest quality access to the world’s largest single market.”

That is what we face at the moment without any debate in Parliament.

Business understands the need for alignment. In October, the car sector, chemicals, food and drink, pharmaceuticals and aerospace warned of “serious risk” to competitiveness and

“huge new costs and disruption”

if the Prime Minister ended regulatory alignment, and five trade bodies, worth £98 billion to the economy between them, urged the Government to recognise the

“importance of continued regulatory alignment in negotiations”

on a deal and not to tear up regulations which enable them to work with EU customers and suppliers. This is vital for the future of our economy. These are debates which should be happening here on more than just take-note Motions.

I find it quite hard to understand the objection to a level playing field with our largest trading partner. I find it even harder to imagine that that is a slogan. I was staggered that just before Christmas there was a demonstration outside Parliament with printed posters that called for “No level playing field”. This is a strange way to negotiate and to think about the future of our economy.

This debate was called to take note of the negotiations. They are not formally in place, but they are clearly happening in shadow form, with the Prime Minister already sketching out his objectives. As I have just said, those objectives are at variance with what might be possible and he does not plan to present them to the Commons for approval. That is typical of the withdrawal agreement Bill, which will severely undermine parliamentary democracy. The Minister seems to think it is enough to say that this is a take-note on something that was published some months ago. He really has to do better to reassure the House that our withdrawal is not going to happen simply under governmental diktat rather than with parliamentary approval.

My Lords, I thank the noble Baronesses for their points. I am grateful that they have taken the time at such a late hour.

As I set out in opening, the Government continue to have no plans further to renegotiate the terms of our exit and we will always obey the law. Of course it was necessary to consider the Motions before us this evening, even though we are now in the process of legislating for the implementation of the deal. That is currently in the other place and will come to this House next week.

On the specific points asked by the noble Baroness, Lady Ludford, on the repeal of Section 13, there is no need for a further meaningful vote in Parliament. The public showed in the general election that they want to get Brexit done and to leave the EU with a deal on 31 January. The Bill will give Parliament the chance to repeal the conditions under Section 13 set out in the previous Parliament.

With regard to Section 19, we think it is unnecessary law, and it has no legal effect in practice. For this reason, it is being repealed. We have complied with the Article 50 extension requirements under the Benn Act, and we will shortly comply with the outstanding debate requirement. Beyond that, the Act serves no useful purpose, and there is no reason for it to stay on the statute book.

With regard to the repeal of the Cooper Act, the duties in the Act have been spent and no longer have any legal effect. The Act therefore has no future purpose and there is therefore no reason for it to stay on the statue book.

The noble Baroness’s point on Section 2(5) of the Benn Act was that, for further reports, it would apply only if the Commons defeated or amended the Motion referenced at Section 2(2), which it has not.

I move on to the points raised by the noble Baroness, Lady Hayter. She referred to a further parliamentary vote on extending the implementation period. As she will understand, we will not be extending it. That was a commitment in the Conservative Party manifesto. As I am sure she has noticed, we won the general election on that commitment and therefore will not extend the implementation period. There is therefore no need for Parliament to have a vote on doing so.

I take the opportunity to reassure her that we are completely committed to parliamentary accountability. Ministers—whether me or others—will be here to answer questions on these topics, reply to debates in this House and appear in front of committees and so on of this House and the other place. Of course, the normal rules of parliamentary procedure will apply. In fact, we are essentially reverting to the procedures that operated under a previous Government involving her party—those of normal parliamentary scrutiny. There is no need to put special provisions on to the face of the Bill or into statute telling Parliament how it can carry out its role of scrutinising the Government.

I am sure that we will have extensive debates about ratification of the future relationship next week and probably in future weeks to come. The noble Baroness made some very interesting points about regulatory alignment. Again, as we have discussed many times, I do not agree with her on that, but this is really not the occasion to have those debates. There will be plenty of opportunity for them during the passage of the legislation over the next two weeks and indeed on many future occasions. Given the lateness of the hour, I think that now is probably not the appropriate time to go into all those details. I am sure that we will have those discussions in full in the future and it therefore probably makes sense for us to complete this debate.

We all look forward to the many hours that we will spend in this place considering the withdrawal agreement Bill, when, I am sure, this and many other related points will be raised and the Government will be provided with the appropriate scrutiny by the Opposition.

Motion agreed.