House of Lords
Wednesday 15 January 2020
Prayers—read by the Lord Bishop of Worcester.
Oaths and Affirmations
Lord Desai made the solemn affirmation, and Lord Myners took the oath, and both signed an undertaking to abide by the Code of Conduct.
Deaths of Former Members
My Lords, I regret to inform the House of the deaths of Viscount Montgomery of Alamein, on 8 January, and of Lord Chalfont, on 10 January. On behalf of the House, I extend our condolences to the noble Lords’ families and friends.
European Union (Withdrawal Agreement) Bill
Committee (2nd Day)
Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee
Clause 22: Powers corresponding to Section 21 involving devolved authorities
18: Clause 22, page 26, line 28, at end insert—
“( ) But regulations under this Part may not amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”Member’s explanatory statement
This would ensure that regulations made under this Part may not make provision to amend the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 in line with restrictions under new paragraph 11G, Schedule 2 to the European Union (Withdrawal) Act 2018 (Clause 19).
My Lords, yesterday, I explained the purpose of the amendments that we sought to make at that stage, and the first, second and fourth amendments in this group all underlie the same purpose; namely, to ensure that if changes are necessary to the devolution settlements, they are dealt with in a proper constitutional manner, and that when we are outside the EU, the spirit, as well as the letter, of the devolution settlements is followed and the Government at Westminster pay the greatest regard to them.
I should make it clear, as I did yesterday, that I approach this from the standpoint of Wales, in part because that is where, by and large, my experience comes from, and because the union and its continuation is so important to Wales. It is essential that this House, and, I hope, Her Majesty’s Government, give every encouragement to those in Wales who wish to see the union strengthened, by close co-operation. It may seem that these devolution issues are not that important at this time, but they are. It is inevitable that the devolution schemes will have to be looked at in the light of our departure from the European Union.
I will deal with each of the three proposed amendments, the first of which seeks to amend Clause 22. I intend to say very little about this. It follows on from last night’s debate on the amendments to Clause 21 and the extent to which powers conferred in that clause are not subject to limitations. The same arguments apply to Clause 22. In light of the position that was left last night, I see no point in advancing the arguments to the same effect all over again.
On Clause 26 and Amendment 23, in a way, this amendment comes out of order, because it presupposes that the amendments suggested that would delete proposed new subsections 5A and 5B in the name of the noble Lord, Lord Pannick, and other noble Lords, will not proceed. I will make some observations in due course in support of the objectives of the clause, but not on the manner in which those objectives are sought to be carried out. I will make those observations when we come to that amendment. This amendment addresses a much simpler issue: the importance of giving due regard to the views of the devolved Administrations in Wales, Scotland and—now that it is again in place—Northern Ireland, in formulating any draft regulations of the kind envisaged in the clause, both as to the courts that are to be entitled to depart from previous decisions and the tests that are to be applied.
The clause rightly provides for prior consultation with the judiciary if Ministers decide to proceed in this way. Although Wales’s judiciary is linked with that of England at present, I ought to declare that I presided over a commission appointed by the Welsh Government that examined the future of the legal system in Wales, and in particular, the possible establishment in due course—long outside the scope of the time of this Bill, of course—of a separate judiciary in Wales. The clause also provides for other persons to be consulted but does not list them. Neither Welsh, nor Scottish nor Northern Ireland Ministers are included in the list of consultees. However, bearing in mind that retained EU case law is comprehensive in its definition, and that both the devolved legislatures and the devolved Governments have made legislation and acted on the basis of current law within the devolved fields, it seems obvious that they should be consulted if there is to be a change in the scope of the courts and a new test is to be laid down. They are vitally affected by it, and they should not be left out. The amendment is simple, asking that the role of the devolved Assemblies and Administrations be recognised. I understand that when this clause first appeared in the Bill, there had been no prior discussion with Welsh Ministers about this issue. I hope that the Government will look at it and give the closest possible attention to this amendment.
On Clause 38 and Amendment 45, as the report of the Constitution Committee states in welcoming this clause’s recognising the sovereignty of Parliament, the clause has no legal effect. It may therefore be surprising that I wish to take up time on a clause that has no legal effect. However, the Explanatory Memorandum also makes it clear that there is no material difference to the position of Parliament. Yet I agree that there are circumstances in which it is useful to remind people of the basics of our constitution, and this is no exception.
However, this amendment has been tabled because if there is to be such a reminder—the clause can have no purpose other than that—it should be recognised that since 1998 there has been a significant change to the constitution and in particular to the devolved schemes of administration. In failing to refer to the Sewel convention, which provides that Parliament will not normally legislate without the agreement of the National Assembly, the Scottish Parliament and the Government of Northern Ireland in relation to devolved matters, the clause does not put in place the correct balance of our constitution as it now moves forward. The amendment has been tabled to provide such a reference. It would ensure that for the future—as I hope would be the case in any event—the importance of the devolution settlement is critical to how the union is preserved as we go forward to our life outside the European Union. I beg to move.
My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.
Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.
My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.
Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.
This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.
Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.
I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.
Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.
My Lords, my name is also attached to Amendments 18, 23 and 45. I am very pleased to support the points made by the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Finlay.
The issues at question are issues of trust between the devolved Governments and the Government of the United Kingdom. Nobody is arguing that the devolved Governments have power over international treaties—of course they do not; they are reserved powers. None the less, what will be undertaken in those treaties will almost certainly have a very direct effect on matters that are devolved, some of them fully, to the National Assembly for Wales, and likewise to Scotland and Northern Ireland in slightly different ways.
To that extent, there have been occasions when the UK Government have been well represented in negotiations in Brussels by Ministers from the Government of Wales. It is perfectly right that they should be there on matters such as the sheepmeat regime or when questions of smaller languages are debated. When such matters arise, as is likely, in the context of any ongoing treaties or new treaties that will emerge, it is vital that the confidence of the Welsh Government and the National Assembly, and likewise that of Scotland and Northern Ireland, is taken fully into account.
The real danger is that things happen by default. The UK Government, with all the good will in the world, might think that issues do not arise without having talked about them. There needs to be some system to avoid unnecessary tension and rows between the various Governments within the United Kingdom.
I did not participate in the debate last night, but I read with considerable interest the comments made by the noble Lord, Lord Duncan of Springbank. He said:
“This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule.”
He goes on to say that he would be happy to make a note available
“to all noble Lords who are interested in this, so they can see where we believe this power will be required”.—[Official Report, 14/1/20; col. 639.]
The point is that if the noble Lord, Lord Duncan, has recognised that there is a need for greater clarification than is provided in the Bill, surely with the Bill still going through Parliament there is an opportunity to table amendments, such as the ones proposed in this group, to safeguard the position. It is not enough to have a sentence in Hansard. That obviously helps to clarify the position, but there needs to be something more cast-iron than that.
This is not a party-political issue, it is a matter of getting means of sensible co-operation into the Bill. If the Government cannot accept the amendments now, I very much hope that between now and Report they will consider these issues and try to bring in some form of wording that gives an assurance in the Bill along the lines that the noble Lord, Lord Duncan, suggested last night.
My Lords, these amendments are designed to cement the established position of the devolved Administrations in the new situation in which we will find ourselves.
Amendment 18 to Clause 22 relates to any amendment to the statutes establishing devolution. They can be amended by a Section 109 Order in Council as long as the devolved Administrations agree but, as the clause stands, it leads to a suspicion that the Government could take the power to change devolution settlements without the agreement of, for instance, the National Assembly of Wales. We need the Government to make it clear one way or the other that they do not intend to do this.
Amendment 23 to Clause 26 simply adds devolved Ministers to the list of those to be consulted before the Government bring forward regulations referred to in that clause. Amendment 45 to Clause 38 relates to the Sewel convention. It simply inserts the well-established principle that Parliament will not normally legislate on devolved matters without legislative consent from the National Assembly for Wales.
I want to spend a little longer on Amendment 29, which puts the Joint Ministerial Committee on EU Negotiations on a statutory footing and requires representatives of devolved Administrations to be briefed regularly on future relationship negotiations. The history of the JMC as a whole has been chequered, to say the least. I have been privileged to see it from both sides: from the Welsh perspective as a Minister between 2000 and 2003 in a coalition in the National Assembly, and from 2011 to 2015 when I was a Minister in the Wales Office here.
In the early years, 2000 to 2003, I would describe the JMC as having been part of an old boys’ network. Labour was in power, in government, both here and in Cardiff, where it led the coalition. There was a dangerous lack of formality about the business we did. It was very good humoured but it did not have structure and was slightly erratic. It at least met regularly, if not frequently, but its behaviour was erratic. From 2010, I would characterise relationships as at the other end of the spectrum, with the coalition Government— the Liberal Democrats and Conservatives—here, the SNP in Scotland and Labour in Wales, as well as the complexity of Northern Ireland. I would say it was more of an armed standoff in those years. It provided an opportunity to have a well-scripted, very formal row with each other, with people coming out on to the steps of Downing Street to tell the world what they had said on their side of the argument. As a result, not surprisingly, it did not meet that frequently. Having observed the JMC in recent times, it does not seem to have got much better.
The devolved Administrations have drawn a lot of their strength and confidence from their vital EU links, which affect so much of the devolved work that is taken in those countries. Those links are now to be severed. As a Welsh Minister in the early years of this century, for instance, I represented the combined Governments of the UK at a European Council of Ministers; the noble Lord, Lord Wigley, referred to that kind of situation in his speech. I presented the agreed joint position of those Governments. It has given the devolved Administrations status and strength and is a very important part of their overall situation.
As we leave the EU, it is doubly important that the role of the devolved Administrations is fully recognised and enshrined in law, as this amendment attempts to do because it refers to the frequency of meetings, as well as to the establishment of the principle. As we go forward, it is vital that the devolved Administrations have the right to know the Government’s intentions which will affect them and their work. My experience of government here is that the relevance and importance of an issue to the devolved Administrations are very often overlooked. A Minister here is effectively a Minister for England. It is often forgotten that certain decisions have a real impact on Scotland and Wales.
I urge the Minister to accept these amendments. If that is not possible at the moment, I would urge him to bring back something that will reassure the devolved Administrations in these respects.
My Lords, your Lordships are being spared a long speech from me simply because the noble Baroness, Lady Randerson, has made it for me.
I want to focus on Amendment 29. When we were debating the first European Union (Withdrawal Agreement) Bill, the irregularity and lack of efficiency of the JMC was referred to again and again. We identified exempted items from the provisions that would need to be set within a framework in order to try to establish an internal market for our country. We identified that, subsequent to the passing of that piece of legislation, the JMC would need to perform better to guarantee that what we were asking for would come to pass. That has not happened.
Amendment 29 seeks to tighten up on a resolution we made then and which we have had the chance to monitor since. If the proposals before us go through, a statutory basis, a serious performance and an impact assessement will be needed if we are to have the trusting relationship between the Administrations in these islands which will guarantee that the desires of the Government are implemented in an appropriate way. This is the shortened version of my speech. I know that your Lordships are rather sad at not getting it in full.
My Lords, I endorse the remarks of my noble friend Lord Griffiths and the noble Baroness, Lady Randerson, on Amendment 29. Your Lordships will recall that it is nearly 23 years since the people of Wales and Scotland voted for devolution. It is almost 22 years since the people of Northern Ireland voted for the Good Friday agreement and the establishment of devolution there. Happily, last week we saw the restoration of the institutions of government and democracy in Northern Ireland.
The political landscape of our country has changed tremendously during the past two decades. Having been the Secretary of State for Northern Ireland and for Wales, I am not convinced that Governments of either persuasion—nor the coalition— understood, in the course of those 20 years, what devolution was all about. Certainly, the relationships between the United Kingdom Government and those in Belfast, Cardiff and Edinburgh could have been better. I am one of those old boys to whom the noble Baroness, Lady Randerson, referred. Back in 2003, we had Labour Governments in Scotland, Wales and England. It was a bit cosy, inevitably. Things changed after that. We never had a Labour Government, of course, in Northern Ireland.
The Joint Ministerial Committee, for which I held Cabinet responsibility from 2007 onwards, never really worked. It was a great idea, bringing together Ministers from all the different Administrations but it did not work as it should have done. It did not meet as frequently as it should have done. I am not convinced that even under the new designation of Joint Ministerial Committee on EU Negotiations it has been all that successful, but it has been a bit better than previous incarnations. Now is the chance because our constitution has changed dramatically, not just because of devolution but because of what we are debating today.
Our departure from the European Union and all that involves in constitutional matters has to be looked at in the context of devolution as well. I hope that the Minister will look very carefully at Clause 29 in particular and put when and how JMCs meet on a proper statutory footing. If JMCs do not work then the trust and the confidence between the three devolved Administrations—one now very new—and the United Kingdom Government will evaporate. A number of noble Lords, including the noble and learned Lord, Lord Thomas, have made the point that unless we get the devolution settlement post Brexit right, it will threaten the union. The Government talk about the precious union all the time but it can be threatened if we do not take the devolved Administrations seriously in their role within the United Kingdom. If this does not work then the movement for independence in Scotland will get even stronger and movement towards a united Ireland might actually happen in Northern Ireland. I do not want any of those things to happen. I am a unionist with a small “u”. The best way to prevent that and to restore strength in the union is to ensure that we respect the devolution settlement, and these amendments do precisely that.
My Lords, I bring a Scottish voice in support of the arguments that have been advanced in the amendments from the noble and learned Lord, Lord Thomas of Cwmgiedd, and by other noble Lords who have spoken. These are important points, not only as the noble Lord, Lord Murphy, has just said, for maintenance of the union but also for many practical reasons. As the noble Baroness, Lady Finlay, said, no one disputes that the negotiation of an international treaty is a matter devolved to the United Kingdom Government. However, we have to recognise that much of the subject matter of many of these agreements will fall to the devolved Administrations to implement; it will be in areas of devolved competence. Therefore, it is important that there be proper engagement with the devolved Administrations in reaching these agreements, not only to ensure a community of interest within these islands but to give those with whom we are negotiating some reassurance that what they are negotiating will be implemented properly by the various devolved Administrations. If the people from the devolved Administrations are not present, something may be missing in the reassurances they are seeking.
In paragraph 114 of the report published yesterday by the Constitution Committee—of which I am a member—the committee reiterated what it said in its report last year on the parliamentary scrutiny of treaties:
“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence … The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations”.
In paragraph 115, the Constitution Committee recommends that
“the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union”.
Amendment 29 goes further than that and wants to put it in the Bill; that is probably worth while.
Some noble Lords will recall that, when the Joint Ministerial Committee on EU Negotiations was established—I think, in the autumn of 2016—great commitments were made about the intention of the United Kingdom Government to engage at every step of the way in the negotiations to get a withdrawal agreement. Yet we know that, for many months, that Joint Ministerial Committee never even met. This is not the place to go into why it did not meet, but good intentions were not delivered on. We know that there were good intentions. In replying to the debate on the gracious Speech last Wednesday, the noble Baroness, Lady Williams of Trafford, said the following in response to a similar point that I and the noble Lord, Lord Kerr of Kinlochard, made then:
“the noble Lord, Lord Kerr, and the noble and learned Lord, Lord Wallace of Tankerness, asked about the representation of the devolved Administrations in negotiations on our future relationship. We recognise the need for their close involvement in negotiations on our future relationship with the EU in order to deliver a satisfactory outcome”.—[Official Report, 8/1/20; col. 289.]
That was a statement of intent with which I could have no dispute, but we want more: we want how it will work in practice to be fleshed out. Given that the Joint Committee on EU Negotiations has not had a happy track record—it improved as time went on—many of us would feel more reassured if it was on the face of the Bill.
Is it not difficult to legislate for a committee to meet more often when it does not meet often enough?
My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.
My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.
I want to speak briefly to Amendment 29, to which I have put my name. I have little to add to what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.
I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.
That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.
I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.
Realistically, I do not believe that the Government will do that, and I have to admit that, as a former negotiator myself, I see the arguments for a very cohesive delegation. If we do not include the devolved Administrations directly in the negotiation, we have to have a really reliable and perceived-as-genuine system for informing them of our objectives in the negotiation, and tell them how we are getting on.
I would not die a death for the precise language of Amendment 29, but it writes into the Bill the fact that the JMC shall have a real job to do in scrutinising what the Government intend to do, advising them on how to do it and hearing how they are getting on. I therefore support the amendment.
Many distinguished Lords have spoken on the amendments, and I agree with them all, particularly the noble Lord, Lord Kerr, who is just leaving. It illustrates the lack of comprehension that there has been about how the British union state has changed, and how its pluralism has changed and become a more central feature.
I have had the great privilege of being on the Constitution Committee for the past four years, and this issue kept recurring. It is not a dispute or debate that has suddenly emerged; it came in Bill after Bill connected with constitutional relationships and with trade, yet somehow it was not resolved, mainly because the devolved Assemblies were being bypassed, often in a very hurtful way, leading to accusations of power grab and such statements.
The issues that have been mentioned include: reserved powers for the Welsh, Scottish and Northern Irish Governments, an issue that has come several times and has not yet been dealt with properly; and the outcome of European legislation when it is transferred to this country, which has not been adequately dealt with either. We discussed this frequently on the Constitution Committee and wrote what I thought was a very important survey of intergovernmental relations. It seemed to have very little effect on ministerial thinking, or indeed on thinking about the nature and importance of devolution throughout our country.
In particular, there is the inadequacy of the Joint Ministerial Council, which is mentioned in Amendment 29. The JMC is an almost hopeless body that has staggered on for two decades with no clear membership, no clear times for convening, and very little effect in real intergovernmental consultation, so I very much hope, as everybody does, that the Government will feel able to accept these proposals. Otherwise, the effect could be disastrous. Our union is in grave danger. People refer primarily to Scotland, but in my experience discontent in Wales is certainly much stronger than it was. It would be tragic if inattention and carelessness led to our leaving not one important union, but two.
My Lords, following not just yesterday’s speeches, but those today from the noble and learned Lord, Lord Thomas, my noble friends Lord Howarth, Lord Griffiths, Lord Murphy and Lord Morgan, the noble Baronesses, Lady Finlay and Lady Randerson, and the noble Lord, Lord Wigley, from Wales, as well as welcome additions to our West Country debate from the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Kerr, the Government should have heard by now that the devolved authorities and people close to them feel somewhat squeezed out of the Government’s handling of our withdrawal from the EU and our future relationship with it, and of how the Government plan to discuss, or not, with those representatives as we go forward. That was probably not helped by the response of the noble Lord, Lord Duncan, last night.
We particularly welcome Amendments 18, 23 and 45, accepting in particular that, if we really must have an albeit non-legally enforceable statement about the sovereignty of Parliament in the Bill, it surely has to be accompanied by at least an equivalent nod to the devolution settlements and the Sewel convention to safeguard the union, as my noble friend Lord Murphy emphasised.
Looking towards the future, the noble and learned Lord, Lord Thomas of Cwmgiedd, said earlier this week that devolved Governments have an interest in all the negotiations. It is not simply the bits that can be identified as within their competence, because how agriculture pans out will absolutely affect the future of those countries. So will other parts of trade.
Our Amendment 29 in the name of my noble friend Lady Smith, as well as those of the noble Baroness, Lady Ritchie, and the noble Lords, Lord Bruce and Lord Kerr, seeks to achieve the input of the devolved authorities in the negotiations. As we have heard, it would place the Joint Ministerial Committee on EU Negotiations on a statutory footing—something that we have urged on the Government since its formation in 2016. As my noble friend Lord Morgan reminded us, it has been pretty constantly discussed in the Constitution Committee. The amendment would ensure regular and frequent meetings of the JMC on EU Negotiations, which as we have heard, has at times been sidelined, especially when it was seen as a bit inconvenient. The noble Baroness, Lady Randerson, said that it had a “chequered” history. As my noble friend, Lord Griffiths, reminded us, it was not used in the way intended when it was set up. Importantly—we have not heard this voice this morning—the amendment would also require the JMC to focus on the very unique challenges facing Northern Ireland, including the aspects discussed in your Lordships’ House last night.
The amendment also covers the relationship between the JMC—the Joint Ministerial Committee—and the new and, as we have heard, highly important UK/EU Joint Committee. For example, the Secretary of State would have to brief British members of the Joint Committee to make sure they knew what the JMC was discussing, so that discussions held with the devolved authorities were fed in to the UK negotiators. This is vital. The British members of the Joint Committee, who would, of course, be Ministers, would have to give regard to the views of the Joint Ministerial Committee, which brings together the devolved authorities. They would also have to bear in mind the requirement of the Northern Ireland protocol to facilitate trade between Northern Ireland and Great Britain.
It is particularly important, as the noble and learned Lord, Lord Wallace of Tankerness, said, to realise that, in addition to a general interest in all these negotiations, much of the implementation will fall to the devolved authorities. As any of us who have been involved in developing policy know, if you do not discuss beforehand how it is going to be implemented, the chances are that the policy will not work.
Given the importance of ensuring that Brexit works for all parts of the UK, including the devolved nations, and given the concerns of the devolved Administrations that they are being excluded from vital talks—as we have heard, an amendment which we will come to later about the authority of courts has been tabled without any consultation with them—we look forward to a rather more positive response from the Minister when he replies. If the response is really positive, it might help the Welsh Assembly to consider whether it wants to give its legislative consent to this Bill.
My Lords, I am grateful to all noble Lords who have spoken to this group of amendments. The thread that binds together the amendments spoken to by the noble and learned Lord and other noble Lords is their entirely legitimate interest in the Government’s level of engagement with the devolved Administrations and the protection of the devolution settlements. Having listened also to the noble Baroness, Lady Finlay, I fully understand that these amendments particularly reflect some of the concerns raised by colleagues in the Welsh Government. I hope I can reassure the Committee that these amendments are not necessary and the Government are fully committed to proper engagement with the devolved Administrations.
I turn first to Amendment 18. It is clear to me that the concern here is about the scope and breadth of the powers in this clause. I hope that I can address those concerns satisfactorily. I should add that the Government have also taken note of the report produced by our noble colleagues in the Delegated Powers and Regulatory Reform Committee in relation to the powers contained in this Bill.
I hope I am right in understanding that the noble and learned Lord is concerned that, without this amendment, the devolved authorities would be able to use the powers provided in Clause 22 to implement the protocol and, in doing so, would be able to amend the devolution statutes in those areas where they have such competence. However, I am afraid I have to resist this amendment because the restriction proposed by it risks preventing the United Kingdom fulfilling its international obligations, which stem from the Northern Ireland protocol. The noble and learned Lord will understand that we must be able to fulfil those obligations as a responsible player in the international system and as a close partner of our European neighbours. The particular problem with the amendment is that the proposed restriction would prevent the devolved authorities adopting certain decisions agreed between the UK and the EU in the Joint Committee, in relation to the operationalisation—if I may use such a word—of the protocol in areas of devolved competence. I must make it clear that that risk to the UK being able to fulfil its international obligations is unacceptable to the Government.
This amendment would have the effect of preventing amendments to the devolution statutes, even in situations where the devolved Administrations agreed to an exercise of the power in proposed new paragraph 11M(2) jointly with the UK Government. This restriction could therefore hinder the introduction of UK-wide legislation that has been agreed on by all four nations of the United Kingdom. The Government could not allow such a situation.
It is important for me to make it clear that the Government are committed to not unduly restricting devolved competence as a result of our departure from the EU. Indeed, the limits of devolved competence in relation to the use of the power contained in proposed new paragraph 11(M) are clearly laid out in the remainder of the clause. No doubt the noble and learned Lord will tell me if I have not addressed his concerns satisfactorily, but I hope I have and that, on reflection, he will feel able to withdraw his amendment.
I turn now to Amendment 23, also in the name of the noble and learned Lord. This amendment would require a Minister of the UK Government to consult Ministers in the devolved Administrations before setting any regulations on which courts and tribunals may depart from retained EU case law. I listened carefully to the noble and learned Lord’s concerns and believe that I can offer him some reassurance.
The intention behind the clause is to give a power to make regulations to ensure that courts and tribunals across the UK are not inappropriately bound by retained EU case law after we have left the EU. It goes no further than that. We want to ensure that UK law is consistent and clear as we leave the EU legal order, but equally, we do not want to fossilise the law. We will do this in a sensible way, and the differences of opinion within the House on this important matter demonstrate the importance of taking the time to do this carefully and correctly, and in consultation with others.
The clause requires that Ministers must consult the senior judiciary across the UK before making any regulations. That is crucial to ensure that any guidance given to the courts is developed in a sensible manner. However, engagement on these regulations is not limited to the senior members of the judiciary. The clause also requires consultation of
“such other persons as the Minister … considers appropriate.”
Clearly, there is much interest and expertise in the devolved Administrations. I assure the Committee that we will work closely with them on this and always welcome input to ensure that the regulations work across the UK and are implemented properly—how could we do otherwise? I hope that that assurance is welcomed by the noble and learned Lord and he will feel able not to press the amendment.
I am grateful to the noble Baroness, Lady Hayter, and the noble Lord, Lord Kerr, for speaking to Amendment 29. I am glad to have the opportunity to set out how we will engage the devolved Administrations after we leave the EU. I want to give noble Lords a firm assurance: the Government are fully committed to working closely with the devolved Administrations in our preparations for the next phase of negotiations with the EU.
There are several formations of the Joint Ministerial Committee, and the devolved Administrations have been regularly invited to attend the EU exit operations Cabinet committee. Departments also have a wide range of structures in place to enable discussion and engagement across a number of areas, such as the Department for Environment, Food and Rural Affairs inter-ministerial group, and the Department for Business, Energy and Industrial Strategy energy and climate change quad. There continues to be extensive significant work between the UK Government and the devolved Administrations on common frameworks in a range of policy areas.
The mechanisms for dialogue and full engagement are already well established. This amendment, I am afraid, would place unhelpful restrictions on conversations in all these forums, including the JMC, which is underpinned by the memorandum of understanding agreed between the Administrations of the UK, Scotland, Wales and Northern Ireland. Placing intergovernmental structures in statute would limit the capacity for discussion between all Governments to adapt to changes, particularly as circumstances evolve as we exit from the European Union.
Similarly, the amendment would also place obligations on the UK representatives to the Joint Committee. Since the arrangements for the Joint Committee are yet to be finalised with the EU, the amendment risks pre-empting those conversations and any decision on the future role of JMC Europe. I can only emphasise again that the Government fully recognise that the devolved Administrations have a strong interest in international policy-making, in so far as it impacts on matters that are devolved to each of them. The key here will be continued close engagement. That engagement to date has—contrary to some noble Lords’ pronouncements —been extensive and we mean to continue engaging in exactly that way. Therefore, I hope that the noble Baroness, Lady Hayter—in so far as she is acting on behalf of her colleague, the noble Baroness, Lady Smith —will feel able not to press that amendment.
I turn last, but certainly not least, to Amendment 45 in the name of the noble and learned Lord, Lord Thomas. I think it is crucial here to look at the devolution settlements and the distinction between reserved and devolved competencies. The Sewel convention has led to consistent, UK-wide legislation in a range of areas where this is beneficial to all legislatures. It has also freed up time for devolved Administrations, enabling them to adopt UK-wide legislation when expedient. The convention was later written into the Scotland Act 1998 and the Government of Wales Act 2006, as the amendment states. However, this in no way limits parliamentary sovereignty. That fact is also explicit in the same devolution legislation. This position was reaffirmed by the Supreme Court in 2017, which was clear that Sewel is a political convention and not justiciable.
The amendment suggests that the convention applies to the entering into and ratification of international treaties, such as the future relationship agreement. It does not. The entering into and ratification of treaties is a reserved matter. As a matter of law, under the devolution settlements, international relations are the responsibility of the UK Government and Parliament, which includes MPs representing all parts of the UK. However, that is not to say that the devolved Administrations do not have a direct interest in our future relationship with the EU. As I have made abundantly clear, of course they do, and we will draw on their knowledge and expertise to secure an agreement that works for the whole of the UK. As always, we will seek legislative consent for any related primary legislation, including that required to implement the agreement, in areas that are in the competence of the devolved legislatures. I do not believe that this amendment will facilitate this process any further and I therefore urge the noble and learned Lord to withdraw it.
I am grateful to all noble Lords, who have spoken in this debate. It has underlined how important it is for the future that we look carefully at these devolution issues and, in particular—what I regret to say is my experience as well—address a lack of understanding of the significance of devolution as we go forward.
Things have improved from the first occasion when I had to talk to an official about laying out legislation slightly more carefully so that Wales’s position was clear. He told us, “Yes, they did that in agriculture Bills for sheep, so they could easily do it in other Bills for Wales”. Things are better than that, but maybe not better enough.
It is very important that we put in place the necessary assurances—preferably in legislation, but also by way of structure. Words are fine, but deeds are better. I hope that, by raising these points, we will show that we can proceed with respect for our changed constitutional position and that we in this House—and the Government as well—can do everything possible to reduce the risk of any split in the union. With regard to Wales, it is important that those who may wish to see the union not continue be given no further ammunition for their cause.
Three amendments stand in my name and in the names of other noble Lords. The issue in Amendment 18 arose last night in relation to Clause 21. At the conclusion of the debate, the Minister said he would produce a memorandum which would try to explain why restrictions could not be placed on these powers. I still do not understand why not. These are a perfectly proper means of changing the devolution settlement. If the Governments of Wales, Scotland and Northern Ireland are agreeable, the Section 109 route—to take the example of Wales—will do so. I did not address this issue at any length because the better course is to await the memorandum which the Minister has promised to see how we might go forward.
On Amendment 23, I am very grateful for the assurance given and will consider that further. As to Amendment 45, the clause has no legal effect, but what is really important is that we try to show the people of Wales, of Scotland and of Ireland that things have changed. When we go forward as a United Kingdom, that is something that everyone, particularly those in London, should bear fully in mind. However, I am very grateful for all the speeches that have been made and in the light of the debate, I beg leave to withdraw the amendment.
Amendment 18 withdrawn.
Clause 22 agreed.
Amendment 19 not moved.
Clause 23 agreed.
Amendment 20 not moved.
Clauses 24 and 25 agreed.
Clause 26: Interpretation of retained EU law and relevant separation agreement law
21: Clause 26, page 30, line 13, leave out paragraph (b)
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.
My Lords, I am moving Amendment 21 on behalf of the noble Lord, Lord Pannick, who apologises that he is in court. I look forward to the contributions of the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Taylor, who has chaired our Constitution Committee’s proceedings on this issue. As the committee has pointed out, the clause that we are seeking to amend raises substantial constitutional concerns. I note that two former Lord Chief Justices are in the Chamber as well, so I look forward to an interesting debate.
After the end of the implementation period, the United Kingdom courts will still have to interpret a large body of retained European law. This necessarily will involve reference to the case law created by the Court of Justice of the European Union. This case law will continue to apply in our courts alongside any relevant domestic case law. However, in Section 6(5) of the European Union (Withdrawal) Act 2018—as noble Lords will remember all too well—we have already legislated to give the Supreme Court and the High Court of Justiciary in Scotland the power to depart from retained EU case law, having applied the same test as they would have applied if they were departing from their own case law. The Government now want to give themselves the power by regulations to extend that ability to depart from established case law to other unspecified courts—which could under the terms of the Bill be any court in the land—to specify the extent to which, or the circumstances in which, the court is not to be bound by EU case law, and to substitute the Government’s view of what test should be applied by the court after consultation for the Supreme Court’s existing and well-established test.
A lot of questions are prompted by this. Why do the Government want to do these things at all? If there is a good reason, why is provision not set out in the Bill as the previous scope and previous test were clearly set out in the 2018 Act? What courts do the Government intend to extend the power to? On Monday, the noble and learned Lord, Lord Keen of Elie, said that
“there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom … We recognise the uncertainty that would be a consequence of such a move”.—[Official Report, 13/1/20; cols. 554-5.]
So what courts are intended: the Court of Appeal, the High Court, the Court of Session, the sheriff court, the county court? How much uncertainty are Ministers willing to create and contemplate? What alternative test do they have in mind? The Minister needs to give us at least an illustration of what alternative test might be mandated on the courts through the proposed regulations.
I do not argue that ECJ case law should be kept alive longer than is necessary in our system, but the best way forward is surely for Parliament to update retained European law over time as domestic law and put in primary legislation any changes in the way courts deal with retained European law in the meantime. Leaving the clause in the Bill has serious constitutional and practical consequences. It allows the Executive to create and potentially circumscribe the discretion of the court, which, if it is going to be done, should be achieved by primary legislation. It can give Ministers a direct role through the making of the regulations in instructing courts to disregard the effects of CJEU case law. The extension of the disregard to more courts could lead to more potentially confusing and conflicting decisions on the effect of CJEU case law, giving rise to appeals which would have been unnecessary if the matter had been considered by the Supreme Court in the first place.
The existence of more courts which can depart from CJEU case law may encourage additional legislation. Lower courts are not bound by one another’s determinations, so differing conclusions could be reached on human rights protections arising from EU case law, a point stressed in representations I have received in support of the amendment from the Equality and Human Rights Commission.
The provisions in Clause 26 seem to have few friends. They replace a simple and straightforward process giving the Supreme Court and the High Court of Justiciary sole responsibility for departing from CJEU case law on the basis of a well-understood and well-established test.
I hope that the noble and learned Lord can give us a much clearer indication of what the Government are seeking to achieve and why they are doing it by regulation rather than including it in the Bill. I hope that we will hear a very full response from him. I beg to move.
My Lords, I declare an interest as a litigator over 30 years of European law issues for whom these paragraphs and the legal uncertainty they unleash bring the prospect of endless work and riches as yet undreamed of. None the less, I put my name to the amendments, which of course will do nothing to obstruct or delay the Brexit that will occur on 31 January.
At Second Reading, I described another clause of the Bill as “Henry VIII on steroids”, but even that description is hardly strong enough for new subsection (5A)(b). That would allow the Minister, by regulations, to decide the extent to which, and the circumstances in which, our courts are to consider themselves bound by the law of the land, whether in the form of retained EU case law or retained domestic case law that relates to it. If Parliament is asked to change retained EU law, we will debate it and no doubt find a way to do it. Taking back control of our laws is one of the principal points of Brexit and, for my part, I hope to play a constructive role in that process. But to stand by and see these law-changing powers given to Ministers is quite another matter.
European law, no less than our own, is contained to a significant extent in the judgments and interpretations of the courts—what in the domestic context we refer to as principles of common law. If Ministers were free to remove the binding force of principles that they did not like, they could selectively neuter the protections given by law to workers, consumers, disadvantaged groups and the environment. Such a power in the Executive to interfere with the law declared by the courts, including the courts of this country, has no precedent that I know of. It would also cause uncertainty with effect from now, because no one can predict which parts of retained EU law will be changed over the year ahead or how the structure of what remains will react when a load-bearing element is removed.
Alarming in a different way is new subsection (5A)(c), on which the noble Lord, Lord Beith, began his remarks. Courts could be licensed under this provision to make their own departures from retained EU case law on conditions that Ministers could specify. As Sir Bob Neill explained in the Commons, that is a recipe for uncertainty, confusion and opportunistic litigation on a grand scale.
The Minister will, I anticipate, encourage us not to worry, because senior judges must be consulted. But consultation means only that. The Government have the whip hand. The complex ramifications will not be exposed by argument as they would be in court and, if deference to the judges’ views could ever have been assumed, it certainly could not be now. I suggest that there would be situations in which the judges will not even feel able to offer an opinion.
Imagine the scene. The Minister summons the judges and informs them of his proposal to instruct them that in accordance with the clear will of the people—or at any rate of the Government—they are no longer to be bound by the settled interpretation of the precautionary principle in environmental cases or the principle of indirect discrimination in employment law. The judges would no doubt come back with such comments as might occur to them on the timing, the procedural implications and so on. But since such instructions would be lawfully issued, if this clause passes into the Bill, and would implement clear government policy, these serving judges could not pass substantive comment without being dragged into the policy sphere, which, contrary to the views of some, they are extremely anxious to avoid.
Secondly, the Minister will point out, quite correctly, that the power in question will sunset when the transition period ends. However, it is the power to make regulations that will sunset, not the application of those regulations after the transition period. So that reassurance is illusory.
Thirdly, perhaps the noble and learned Lord, Lord Keen, who is as shrewd as he is principled, will tacitly accept the overbreadth of these provisions but hint at their restrained future use. In that case, I would invite him to come back with a version consistent with those restraints. We are reasonable people and if his only concern is a possible bottleneck in the Supreme Court other solutions could be devised and have indeed been suggested to him.
To leave this extraordinary clause unamended would be, I suggest, a dereliction of duty. I hope that amendment will come from the Government. However, when the time comes and in the last resort, as the noble Lord, Lord Butler, said on Monday,
“we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment”.—[Official Report, 13/1/20; col. 490.]
That is particularly so, I would add, on an issue that was not put to vote in the Commons, that has been the subject of strong comment from the Constitution Committee, that in no way jeopardises Brexit but that threatens the independence and good order of the courts.
My Lords, members of the Constitution Committee are very concerned about this suggestion in the legislation. The case was outlined by the noble Lord, Lord Beith, who went into some detail, so I do not wish to repeat all that. I simply want to ask the Minister, first, whether it is the Government’s intention to use this new subsection (5A)(b), and, secondly, if they will not use it, why it is in the Bill. If they intend to use this provision, can the Minister please give us some examples of where that might be?
My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.
At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.
This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do it by regulation. Such decisions ought to be made by Parliament in primary law, ensuring that the sort of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.
My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.
Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.
There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.
I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.
My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.
I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.
Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.
The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”
In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.
Professor Ekins suggests that that
“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”
I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.
As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.
That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.
My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.
I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.
I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.
Here, the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that
“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]
But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?
Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”
That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.
I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.
As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.
Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.
I did so for two reasons. First, it would create a considerable bottleneck. Indeed, it could be said that the Supreme Court might be so busy that it would not have time to do anything else—a prospect which this Government might welcome. But that is not the point. The point is that we must look realistically at this issue, and there is much to be said for allowing the Courts of Appeal or the Inner House to be able to have the same power as the Supreme Court.
There is another reason. As I think experience has shown, certainly the experience of some judges who sit in the Supreme Court, it is extremely helpful to have a judgment of the lower court in those proceedings where issues that go straight to the Supreme Court sometimes turn out not to be quite so satisfactory. However, this is not a new point because it is one that I made some 20 months ago, and it really does seem to me that if the Government are proposing to go anywhere other than the Courts of Appeal or the Inner House, it will cause chaos. But if they intend to go only to the Courts of Appeal, this can be written into the Bill—it is very simple—and should be done now. I very much hope that that would be the way forward.
The second issue goes to the test. The noble and learned Lord, Lord Neuberger, and I both pointed out in the debates on the withdrawal Act that using the powers under the practice statement to look at decisions of the CJEU and to decide whether they should be followed was not the right way forward. First, the test was never devised in those circumstances. Secondly, and much more worryingly, it would give the Supreme Court, or any other court that could depart, a huge power without any clear guidance, so there would always be the risk that the court could be put in the position of being perceived to be entering into the political field in making the decision to reverse or not to reverse. Therefore, there is substantial merit in putting a new test, so I support both of the underlying purposes. However, to allow a Minister to specify a test which the judges have to apply would be a power that any populist Government would love to have, but as far as I am aware, no populist Government, however powerful, have ever asked for this before. It runs entirely contrary to the rule of law and to the fundamental principle of the separation of powers.
It seems to me, therefore, that one of the points that arises is which of the courts can and should be dealt with now, and if there is to be a modification of the test, that needs to be debated. This may not be the right time to do so because, as was pointed out in the earlier debates, the way in which retained EU case law is approached must depend on whether the decision is made for close alignment with the EU and therefore the need to continue the case law, or whether a different way will be put forward. So it is difficult to set out the test now, but it should be done, and done only by Parliament. We cannot give Ministers the power to tell judges how to decide cases.
My Lords, if the noble and learned Lord, Lord Mackay, would like to speak first, I would welcome that.
I do not particularly wish to speak first, but in view of the noble and learned Lord’s invitation, I will make my brief contribution. Unlike the noble Lord, Lord Anderson of Ipswich, I have a fair amount of experience in this area of European law and the modification of existing judgments—I sat in the House of Lords when it set aside a previous judgment. It is extremely important that we consider the principle that has to lie behind this. The present situation is that EU retained law has been made part of the law of the United Kingdom unless and until it is modified by Parliament in due course. When passing the previous withdrawal Act, we placed a number of restrictions on that power for Ministers in various areas relating to human rights and so on.
From what I read in the newspapers as these things developed, my impression was that the Government were anxious that the power to modify or depart from EU judgments would be better given to a wider set of courts than the Supreme Court, and the High Court of Justiciary in Scotland on criminal matters, as had been done in the withdrawal Act. I can see that it may be part of overall policy that it should be rather wider than the present law would permit. However, it is important that whatever method is used, it is one that will prevail across the whole of the United Kingdom. Therefore, to give the power to do this to, for example, the Inner House of the Court of Session, would have the effect that it would apply in Scotland but not in England and Wales directly, nor in Northern Ireland. There would be a degree of difficulty in that. That is why, in my view, this power should be in the Supreme Court. As we all know, when the Supreme Court gives a judgment, it is a judgment for the whole of the United Kingdom. It is important to emphasise that the name of the court is the Supreme Court of the United Kingdom.
If it is desired to give the power to a wider section of the courts, the way to do so is to specify which courts they are. The example given by my noble and learned friend is one possibility, but it is for the Government to decide how wide they wish to be. However, it is important that the courts should not have the power to ultimately decide; it should be required to refer the matter to the Supreme Court. The Supreme Court can modify the burden that that would involve by a lead process, leaving it free to dismiss a case where it was thought there was nothing in it. One possible line is for the lower court to give a judgment which might ultimately help the Supreme Court, but I do not know whether that would always be necessary. The important thing is that any court that has this power would have it only as a way of referring the matter to the Supreme Court.
I was thinking of putting forward an amendment to this effect, but I thought it probably better to leave it until we have had a chance to discuss it. I have reached the conclusion that, as a practical matter, if we in this House can persuade the Government to change, it is likely to be effective; whereas if we do not persuade the Government to change, it may not be effective, with results that we may not altogether approve of. My main effort in this is to try to persuade the Government that a system along the lines I have proposed would be perfectly acceptable and workable, and would embrace all the courts that it needs to embrace.
My Lords, I am grateful to the noble and learned Lord for preceding me because he is in a unique position to give advice to the House on this issue. I intervene only to add to what has already been said because I want to stress the importance of the issue. There is an old saying that hard cases can make bad law. This may be a hard situation for the Government but they are in danger of making very bad law indeed. Why they are in danger and why they would be wise to think very carefully again before they ask for this to be implemented is apparent from the careful steps that were taken back in 2005 when I was still one of the chief justices—to whom the noble and learned Lord, Lord Brown, referred—who are present before your Lordships.
At that time, changes were being made which went to the root of the constitution, and the courts were concerned that they could be severely damaging to our unwritten constitution. As a consequence, the then Lord Chancellor and I—then Lord Chief Justice—came together to make a concordat to try to deal with those difficulties. It was recognised that one of the underlying principles of our common law and constitution was the separation of powers, and what was being done in 2005—which affected the position of the Lord Chancellor in relation to the courts—was trespassing on the principles that had existed hitherto. The noble and learned Lord, Lord Mackay, was well aware of these principles when he was Lord Chancellor and a member of the Government. The role that the Lord Chancellor played at that time was to ensure that the important balance—which explained how we managed to continue without a written constitution—succeeded, which it did remarkably well.
As I see the situation, what my noble and learned friends and my noble friend Lord Anderson have been saying to your Lordships is that this proposes a change in our law that would undermine the proper observation of the rule of law in a most critical way. I suggest that for this House to allow that to happen without protesting in the clearest way would be very undesirable indeed. I feel confident that if the Government look at this matter again and bear in mind the speeches made to this House today, they will see how it can be dealt with. However important Brexit is, it must not be allowed to create a precedent that could be followed hereafter, as has been suggested, which would damage our situation.
I hope we will always be able to continue in this country without a written constitution. However, if we let what is proposed go through without saying it should be amended, we will create a situation where that will not be possible. We should pause before doing so.
My Lords, I have no legal training, unlike many of the eminent lawyers who have spoken this morning. I have occasionally found myself in court, but mainly as a litigant against the Met Police and the Government, although occasionally as a defendant, but I was obviously always innocent.
As I have no legal training, perhaps I can be seen as somebody who represents some of the majority of the people in the UK who have no legal training and who perhaps will not understand what is happening here today, because quite honestly it is an aberration and something that we all have to resist. I very much hope that this Government can see that they have a fight on their hands, because if this clause gives any insight into government thinking it is quite chilling and quite upsetting, as it is contrary to everything that Britain stands for.
Our overconfident Government want to completely redraw the checks and balances in our constitution so that Ministers can opt out of legal precedent at will. Ministers are seeking power to disapply EU case law as though their existing Henry VIII powers are not enough. No good justification has been given, and no sensible restrictions have been put in place so that these powers are used only when strictly necessary. This clause will create a wild west of legal uncertainty, where no one can really be sure what the words “contained in retained EU law” actually mean, until even the most basic issues are litigated on. It is a scorched earth policy and totally inappropriate for our legal system.
Of course, these absurd powers will also be particularly harmful for the environment and our natural world, since so much of our environmental legislation comes from the European Union. The UK Government have a terrible track record of getting into trouble with the European courts for things like our air pollution epidemic and the amount of raw sewage in our rivers. It is almost no wonder that the Government would like this magic wand to take away EU case law. But what is convenient for our Government would be disastrous for our environment, which is why my noble friend, who cannot be here in the Chamber at the moment, and I so strongly support these amendments. I hope that the many clear, sensible and legal arguments put forward by so many noble and learned Lords today will encourage the Government to rethink this.
My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.
I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.
Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years, EU legislation
“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]
Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.
Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles, which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.
Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.
My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.
As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.
Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.
The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.
The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.
We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers. Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.
The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.
It would always be a proper use of this House’s power, albeit that there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.
The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.
That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.
For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.
I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.
As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.
At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.
The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.
The noble and learned Lord, Lord Judge, alluded to the issue of precedent and the certainty it brings to the law of the United Kingdom, and he cited the case of Rylands v Fletcher. I recall that as long ago as 1985, in the case of RHM Bakeries v Strathclyde Regional Council, the late Lord Fraser of Tullybelton pointed out that Rylands v Fletcher was not the law of Scotland and he went on to express a judgment that said that it was not the law of England. The point is that with diverse jurisdictions and legal systems within the United Kingdom, there is already room for different sets of precedent and different applications of the law, and we simply have to take account of that. Precedent is a very important aspect of the common law, but it does not bring about uniformity. We have a flexible legal system in Scotland, England and Wales and indeed in Northern Ireland, and we can accommodate the sort of proposal that is being brought forward here in the context of this regulation-making power.
Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?
As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.
I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.
How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?
I do not consider that this clause in any sense violates the principle of the separation of powers.
Given that the Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?
No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.
Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?
My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.
Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?
It is not a question of having policy areas in mind. We want to take forward a consultation process that will enable us to arrive at an appropriate conclusion as to how we should look at EU case law as a part of retained EU law after the implementation period has expired.
My Lords, I understand that the first part of the amendment may be reasonably accommodated within the answer given to the previous question about separation of powers. I cannot see how the second part can be accommodated—formulating the question the court has to decide in deciding whether the previous decision of the Court of Justice of the European Union should be followed.
With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.
My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?
My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.
My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?
That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if they wish.
My Lords, I found that a very disappointing response from the Minister, for whom I have great respect. It did not answer the question of which courts would now be part of the process and added to the list; it did not answer the question of what test the Government envisage being introduced through the process; and it did not answer the question of why this is not included in the Bill. The attempt to use the regulation process as an ex post facto defence of the fact that the Government have not come up with a policy yet, but would quite like to talk to some of us about what it might be in the future so that it can be put in regulations, is wholly unconvincing.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out, he was talking to the Government about this 20 months ago. There has been plenty of time to come up with a policy in the interim and not leave us in this situation where we are told, “It’ll be alright, we will bring in some regulations and discuss them with you all; all your concerns will be accommodated”. I do not think that they have been accommodated at all.
I welcome the intervention from the noble and learned Lord, Lord Mackay of Clashfern. As so often on these occasions, he pointed out that with a bit more work, maybe we could get somewhere and achieve something that is consistent with the Government’s intentions but meets people’s concerns.
There are times when Ministers have to recognise the level of feeling and concern which has arisen from significant quarters in the course of Committee proceedings. This has been a remarkable debate and, in the proceedings so far on the Bill, no other debate has brought out such intensity of feeling and concern, particularly from people with significant experience to contribute to the discussion. Ministers have to recognise this. We talk about consultation, and I think that some consultation is required between now and Report.
Certainly, we will want to reflect on what the Minister said on the possibilities—I was encouraged by the intervention of the noble and learned Lord, Lord Mackay —and how we can reconcile what the Government are talking about with the need for some degree of certainty around how the law is to be administered in future. We are certainly not there yet. I beg leave to withdraw the amendment.
Amendment 21 withdrawn.
Amendments 22 and 23 not moved.
Clause 26 agreed.
NHS and Social Care: Staffing
To ask Her Majesty’s Government how they intend to ensure safe staffing in social care and the National Health Service in this Parliament.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interests as a nurse, as set out in the register.
My Lords, patient safety is paramount. We expect health and social care providers to deploy sufficient numbers of suitably qualified, skilled and experienced staff at all times. The NHS People Plan aims to ensure a sustainable overall balance between supply and demand across all staff groups. This Parliament will see the people plan deliver 50,000 more nurses by 2025, a further 6,000 doctors in general practice and 6,000 more primary care professionals, all of which will support safe staffing and better care.
I thank the Minister for her reply and particularly commend the NHS People Plan, yet evidence suggests that urgent action is needed to address the shortages in social care as well as healthcare. Many older people with dementia are failed by our social care system, in part due to costs and the availability of suitable staff. It is vital that the Government resolve the future of social care funding. Without certainty on funding, employers cannot invest in and plan for the future workforce. Dignity in care will be achieved only with rapid, proactive planning. Can the Minister explain the potential delay to the cross-party talks about funding for social care and what approach will be taken to ensure that proper staffing in social care is available during this Parliament?
I thank the noble Baroness for her question and pay credit to the work she has done in this area. She is absolutely right that we have to make urgent progress in delivering a sustainable social care solution. In the first instance, we have given councils up to £3.9 billion of additional funding in 2019-20, and the Prime Minister has been clear that he wants to see cross-party consensus on a sustainable way forward this year. I look forward to seeing progress made as swiftly as possible and hope that we will see work across this House on it, as I know this place takes the issue very seriously. In addition, we have run a national adult social care recruitment campaign to raise the profile of adult social care and encourage applicants. This has been successful; we have seen a 23% increase in the number of vacancies advertised on the DWP’s “Findajob” platform, which is improving the situation in the short term.
My Lords, there are particular shortages of nurses in certain specialties such as children’s palliative care, children’s mental health and learning difficulties. What will the Government do to improve the situation in those very important and sensitive areas?
The noble Baroness is quite right that we want to target recruitment towards the areas with the greatest shortages. That is one of the reasons why, when we announced the new non-repayable funding, we also announced a top-up for targeted specialties struggling to recruit. It is also why we have announced the availability of placements which can enable nurses to develop experience in specific specialties, which make it easier to recruit and retain those nurses in very rewarding and sometimes hard to recruit specialties.
I am sure the Minister will understand why the House might be slightly sceptical of “as soon as possible” promises, given that we are still waiting for a Green Paper that was promised almost two years ago. A date would be a good idea here.
Do the Government intend to follow the example of the Welsh and Scottish Parliaments and introduce safe nursing staffing legislation? Does the Minister agree with me—and with UNISON, which has 450,000 health workers in its membership—about the ever increasing importance to the NHS of recruiting nurses from overseas? How can the Government justify increasing the health tax, which applies to overseas nationals and will surely make it harder to recruit and retain nurses? Will the Minister suggest to the Treasury that the Government should in fact drop that planned surcharge?
The noble Baroness will know that appropriate staffing levels are already a core part of the CQC’s registration regime and that the law already requires hospitals to employ sufficient numbers of suitably qualified, skilled and experienced staff at all times. It is also mandatory for staff to provide monthly reports on the average number of care hours per patient per day, which is considered a better measure than staff numbers. However, we recognise the proposals that have come forward regarding staff safety and legislation; they are being considered at the moment.
The NHS surcharge is being considered to make sure that it is at an appropriate level to ensure that we continue to recruit at an appropriate level. At the moment, the rate of recruitment from non-EU countries has increased significantly by more than 150%.
My Lords, I am sure the Minister knows that safety is about not just numbers but the continuing development and supervision of nurses and midwives. Can she comment on what the Government are doing to ensure that both nurses and midwives are funded properly for clinical supervision and professional development?
The right reverend Prelate is quite right. Ever since the tragic events in Mid Staffordshire, the NHS and our nation have been on a journey to make sure that the NHS is one of the safest healthcare systems in the world. This is based broadly on three policy strands: better regulation; greater transparency; and a culture of learning. HSIB is part of that. We hope to move forward in putting legislation in place to ensure that there can be learning without blame, and we hope to ensure that the appropriate training is in place. The people plan, which the noble Baroness, Lady Harding, is in the process of finalising, will ensure that specific proposals on how that will be delivered come forward imminently.
My Lords, the Government are to be commended for wanting to raise the number of staff in the NHS and social care. In the near term, it is equally important that we make sure that we use the staff we have as efficiently as possible, and that we give them the tools and skills to be as productive as they can, including through the use of technology. To what extent will the digital tools that already exist and are on the market feature in the people plan?
My noble friend is a great advocate of investment in innovation and technology—and for good reason. One of the health infrastructure plan’s key priorities is ensuring that we bring forward the data and digital transformation solutions that will enable staff to spend more time on caring and less time on administrative and repetitive tasks that could be much better undertaken by some of the digital solutions that are now available. Some of those solutions would manage rotas more effectively and others, such as those being delivered by the £200 million AI hub, will enable, for example, AI solutions in radiology and pathology, which could lead to much earlier and more effective diagnoses in areas such as cancer.
To ask Her Majesty’s Government what assessment they have made of the situation in Hong Kong, including the recent elections, continuing protests, allegations of police brutality and the arrest of media and humanitarian workers.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare that I travelled to Hong Kong to monitor the recent elections as a guest of Stand With Hong Kong and Hong Kong Watch, of which I am a patron.
My Lords, we remain concerned at the situation in Hong Kong. The Foreign Secretary welcomed the peaceful conduct of local elections, and we continue to urge all sides to take the opportunity to find a way through with meaningful political dialogue. It is essential that protests are conducted peacefully and lawfully, and that the authorities respond proportionately. We expect arrests and judicial processes to be both fair and transparent, and we have consistently called for a robust, credible and, indeed, independent investigation.
My Lords, in welcoming that reply from the Minister, perhaps I might ask how the Government will respond to the evidence given to Parliament by Dr Darren Mann about the police arrest and zip-wiring of medics, which he said amounted to
“grave breaches of international norms and human rights law.”
He described disproportionate brutality, including the shooting of rubber bullets at close range and the use of tear gas in confined areas. Does the Minister agree that this is in contravention of the United Nations guidelines on the use of less-lethal weapons and breaks international law? Does not the arrest of a young woman outside our own consulate at the weekend mean that it is time for us to demand an independent inquiry, as the Minister said, and for us to take the lead in establishing it and explore the use of Magnitsky-type powers to bring the perpetrators to justice?
My Lords, on the noble Lord’s final point, as he will be aware, bringing forward Magnitsky-style powers through a sanctions policy is something we are looking at proactively at the Foreign Office, and we will be coming forward with recommendations in the near future. He raises important issues, and we pay tribute to his work in Hong Kong and in consistently raising this issue. We take the allegations set out by Dr Mann’s description of the arrest of medical personnel at the Hong Kong Polytechnic University very seriously. As we have said time and again, we also expect the Hong Kong authorities to abide by their own laws and international obligations.
As I said in my original Answer, we believe that an independent inquiry into events in Hong Kong is a critical step, and the UK has repeatedly called for such an independent inquiry to take place. The noble Lord mentioned a recent arrest outside the British consulate-general. I assure the noble Lord that the UK fully supports the right to peaceful and lawful protest. Indeed, as he will know, a static protest has been in place outside the British consulate-general in Hong Kong for a number of months now.
Is my noble friend aware of the reports of police secreting themselves in ambulances, thereby putting at risk the neutrality of the medical services?
My Lords, there are many reports around the recent situation and unrest in Hong Kong. My noble friend raises one particular issue. Suffice it to say that we take note of any such news stories and ensure that there is an evidence base in support of them. There will be protests and injuries. I assure my noble friend that we continue to implore the Hong Kong authorities to act to support those attending to those injured through such protests to give the right medical attention as soon as possible.
My Lords, having just returned from the gas attacks in Hong Kong as a visitor and guest of the Chinese University of Hong Kong, I feel that it is really important that the Government understand and represent fairly the issues for the academic community. I talked extensively to the vice-chancellor of the university, who is massively torn between his need to protect his students and obeying what is required by law. Any noise and representation that the Government can make is therefore of immense importance, given the loneliness and difficulties they face at present.
I assure the noble Lord that we take very seriously our responsibilities in raising the issues around the protests and the response to those protests. We raise issues consistently both with the Hong Kong authorities and indeed with Chinese counterparts. The noble Lord said he has just returned from a visit. It is important to get a real insight into issues on the ground and, if the noble Lord is willing, I will seek to sit down with him to discuss his views and insights in more detail.
My Lords, having heard what the doctor said about how medical personnel in Hong Kong deal with the injured—be they protesters, policemen, journalists or bystanders—it is surely intolerable that their work should be interfered with in any way. Given that the Sino-British agreement is registered internationally, should we not be much more assertive in protecting humanitarian law?
I agree with the noble Lord, and think that it is right, whether we are talking about Hong Kong or anywhere else in the world, that medical professionals, when they are seeking to assist those injured, whatever the reason for the injury, are given unfettered access. As I have said on a number of occasions from the Dispatch Box, we are absolutely committed to the agreement. Indeed, as the noble Lord may be aware, my right honourable friend the Foreign Secretary released a statement on the 35th anniversary of the joint declaration in which he said:
“This agreement between the UK and China made clear that Hong Kong’s high degree of autonomy, rights and freedoms would remain unchanged for 50 years. The undertakings made by China, including the right to freedom of expression, an independent judiciary and the rule of law, are essential to Hong Kong’s prosperity and way of life.”
We stand by that.
Is there anything further that Her Majesty’s Government can do in this very difficult situation—perhaps in diplomatic terms, at the UN or wherever—to hold the behaviour of the Chinese up to the scrutiny of the whole world? It is not only the awful thing in Hong Kong, which the noble Lord, Lord Steel, has just spoken of, but also the Uighurs in the province of Xinjiang. It is shocking and should be exposed to the whole world.
My noble friend raises some very important points. I assure him that that we take seriously our responsibilities to raise the issues both of Hong Kong and of the Uighurs in Xinjiang. As the UK’s Human Rights Minister I have taken this forward and, during our formal statements at the Human Rights Council, I have directly raised the issue of the Uighur community, as well other persecuted minorities in China.
Climate Change: COP 26 and Civil Society
To ask Her Majesty’s Government what plans they have to engage civil society in climate change issues ahead of COP26, to be held in Glasgow in November 2020.
My Lords, we engage regularly with civil society, and will continue to do so en route to COP 26 and beyond. As a delegate at COP 25 in Madrid, and while an MEP in Lima, Paris and Marrakesh, I saw at first hand the important role that civil society plays in such gatherings, and anticipate that such groups will be vital to the success of COP 26.
I thank the Minister for his Answer, but people now accept that civil society has a very important role to play. The location of Madrid was agreed at the last minute, but the fact that there was so little civil society engagement led to its failure. Therefore, I do not feel very reassured by the Answer that the Government are really on the case with this. When we signed up and bid to host COP 26, did we agree to anything—in the way that a country hosting the Olympics agrees to enhance sport in schools—such as making the understanding of climate change more available to everyone?
The noble Baroness is right to state that COP 25 in Madrid did not have the full participation of civil society. One of the simple reasons was that COP 25 was due to be in Santiago. I suspect that a number of people had booked tickets there and discovered that they could not get a refund. However, I suspect that in Glasgow there will be full participation in those proceedings, because right now there is a great appetite to explore and express those views. In response to the second part of the question, I can say that Glasgow was chosen because it is seventh-highest in the world in the global destination sustainability index. We also have a direct train line into the venue, which will ensure a lower carbon footprint. I believe that there will be a legacy left in Glasgow, and that the Governments of Scotland and the UK will continue to build on it.
My Lords, I congratulate the Government on getting COP 26 in Glasgow. It is a great thing for the country. It is also important because of the climate emergency which the other place has declared. I was pleased to hear the Prime Minister say in October that there would be a cabinet committee for climate change, to ensure that it was across Government. How many times has it met under the chairmanship of the Prime Minister?
The noble Lord will be aware that very soon after that was announced, there was an election, and shortly after the election there was Christmas. Unfortunately, the cabinet committee has not yet met, but it will meet this month, very shortly. I will report back to this House on what has been discussed at that meeting.
I congratulate my noble friend on the United Kingdom lowering its CO2 emissions from 2% to 1% of the world’s output, but meanwhile, worldwide net emissions of CO2 have gone up. Are we not in great danger of meeting 2050 with no net CO2 emissions only for worldwide CO2 emissions to have gone up, because the Chinese and Indians will have continued to build coal-burning power stations?
My noble friend is right to express that simple point: carbon emissions have gone up year on year since the beginning of the COP process, and some significant emitters are doing too little to address this. The United Kingdom has been powerful in its advocacy of decarbonising, while still growing the economy. If we can continue to grow the economy and secure jobs while decarbonising, that is a model that the world should follow.
My Lords, rather in contradiction to what was said in an earlier question, the Government are woefully slow, as the House debated last June, in coming forward with policies and measures to meet new emissions targets—starting with the fourth and fifth carbon budgets, which are not being met, and including bringing international aviation and shipping emissions within the scope of the Paris Agreement. The Government’s White Paper is already at least nine months beyond its promised date. Would not the best way to encourage debate on these issues be to get on with these essential tasks and provide real leadership?
I am sure that the noble Lord will not be surprised to hear that I do not agree. In the Government’s declaring net zero by 2050, the UK became the first major economy to do so. We will publish our energy White Paper imminently. The EU itself has struggled with aviation. We must ensure that aviation and international shipping are part of the decarbonisation process. Not to do so would be to ignore one of the most important elements of the carbon in our atmosphere.
My Lords, what has the response of the Scottish Government been to this initiative?
My Lords, the Scottish Government have supported the Government’s approach and have welcomed the arrival of the COP process in Glasgow. We are working in close collaboration with Glasgow City Council and the Scottish Government to ensure that the COP is a success. We are on the same page, we recognise the same challenges and we are pulling on the same rope in the same direction.
My Lords, may I, as someone from Edinburgh, welcome the fact that the conference is to be held in Glasgow? Will the Minister encourage his colleagues to ensure that as many as possible of the international conferences to be held in the United Kingdom are held outside London—in Birmingham, Manchester and Liverpool, as well as in Edinburgh and Glasgow? Will he also do everything he can to ensure that both Edinburgh and Glasgow remain part of the United Kingdom? I am sure he will.
That was an extraordinary link, but I fully endorse the noble Lord’s belief that Scotland, including Glasgow and Edinburgh, must remain part of the United Kingdom. We are stronger and better together: I am happy to confirm that. We should have more international conferences outside London, and Scotland is a perfect place for that; so are the north of England, Wales and the West Country. We have an extraordinary country with extraordinary offerings. Let us do more outside London.
My Lords, I declare my interests as set out in the register. COP 26 gives this country the opportunity both to show leadership and to showcase achievement. However, welcome though the commitment to net zero in 2050 is, does the Minister agree that by the time of the Glasgow meeting we need a sector-by-sector detailed road map of how we will actually achieve that target?
The noble Baroness is absolutely right. The White Paper will be a part of that, and will set out exactly how we will both achieve our own domestic targets and show the leadership required to bring about the necessary negotiations to deliver a good outcome in Glasgow.
Extinction Rebellion: Prevent Programme
To ask Her Majesty’s Government what assessment they have made of the decision by Counter Terrorism Policing South East to include Extinction Rebellion on a list of extremist ideologies to be referred to the Prevent programme.
My Lords, CT Policing South East is quoted categorically as saying that it does not classify Extinction Rebellion as an extremist organisation, and its inclusion in the document was an error of judgment. Extinction Rebellion is not considered an extremist group under the 2015 definition of extremism; the Home Secretary has been clear on this point.
I am grateful to the noble Baroness for that clarification, but of course the damage has been done. How can anyone, even if they make a mistake, consider a peaceful demonstration by thousands of people, mostly children—including some of my family—worried about the future of the planet as extremist ideology? I suggest that the Minister instead adds to a final list the climate change deniers and the oil companies funding them.
My Lords, they too have their right to free speech in this country—a point that goes to the heart of the noble Lord’s original Question. CT Police South East was quick to say that it had made an error of judgment. People do make mistakes.
Does the Minister accept that lawful demonstrations are an essential part of our democracy? Extinction Rebellion is a non-violent campaign and to equate it with proscribed organisations is unacceptable. Prevent has already received critical reviews from our Muslim community and this incident has not helped. Will the Minister publish the full criteria taken into account when considering proscription of this nature so that these could receive the full scrutiny of Parliament?
The noble Lord will appreciate that we do not discuss how the Home Secretary comes to decisions on proscription, but she does so on the vigorous legal advice provided to her at the time. Extinction Rebellion was on a list of those with an extremist ideology, as opposed to a terrorist ideology. However, CT Police South East has accepted that this was wrong.
My Lords, does my noble friend accept that, while it is right that the police have acknowledged their error of judgment, demonstrators made an error of judgment when they glued themselves to trains, stopped people going about their normal business and interfered with people going to visit the sick in hospital? There are errors of judgment on both sides and we should emphasise that.
My noble friend makes a good point. Many errors of judgment were made in some of the protests. He is right that not only were people prevented from seeing sick relatives in hospital, some of their relatives died before they could visit them. CT Police South East has done the right thing and my noble friend is right to point out some of the issues that the public faced during those protests.
My Lords, at what level in the police was this counterterrorism document, for which an apology has now been given, cleared as being appropriate? Was the Home Office in possession of a copy of that document, or aware of its content, prior to it being exposed in the Guardian? If the answer is that it was cleared at a police regional or area level and the Home Office knew nothing about it, surely it is wrong that a document of that kind—containing the guidance it did about a campaign, not about a terrorist organisation—does not require clearance at a senior level, at least in the police, to ensure both appropriateness and consistency of approach across the country?
My Lords, the assessment was made under the local area CT plan, which is independent of the Home Office. Obviously it came to the attention of the police and, as I said, they have accepted their error of judgment.
My Lords, notwithstanding what has been said today, is my noble friend aware of a Policy Exchange report prepared by two people—one the former head of the Metropolitan Police Counter Terrorism Command—called Extremism Rebellion? It argued:
“The police response to law-breaking by demonstrators must be far more proactive in enforcing the laws that relate to public protest, preventing Extinction Rebellion and other political activists from embarking on illegal tactics that cause mass disruption and significant economic damage.”
My noble friend is right. The public order issues around these protests were significant, particularly to the people of London, Bristol and elsewhere. As he said, they caused great disruption to people’s lives.
The right to protest is inherent in our British constitution, such as it is, and this sort of error by the police—it is great that they have acknowledged it—should not happen. Does the Minister think that younger people who have put themselves out on the streets to protest may have less trust in the police than ever now?
I do not think so, but the noble Baroness is right that the right to protest is enshrined in our values in this country. Nobody, I think, is disputing people’s right to protest, but a line is crossed in terms of protests and public order offences when that right to protest infringes on people’s everyday lives.
My Lords, on the occasions when mistakes were made when I was in the Home Office, it was often at a very junior level. I will never forget a youngster in tears when a report was published that had not been cleared. I had to assure her that it was the person who had failed to supervise her, not her, who should be on the line. I commend the Minister for her openness and her willingness to put this matter straight. There is a very big difference between labelling people as extreme because they happen to be on the streets promoting a just cause and measures taken by a very few that lead to anarcho-syndicalism. If we can distinguish between the two and use the legitimate law to deal with the latter, it would be a fine thing.
As always, the noble Lord makes a very sensible point, and I thank him for it. We have to make those distinctions.
My Lords, does my noble friend recall that it is a fundamental part of our democracy that Members of both Houses are able to come here to vote and enjoy free passage? Does she recall that last year these people were responsible for preventing disabled people getting to and from this House? That is unacceptable and why we used to pass sessional orders instructing the Metropolitan Police to ensure that that happened.
My noble friend is right. People were prevented from coming here to vote and had to use trains where they usually would have made their journey to work using buses. It made life more expensive for them. My noble friend is right to point out that demonstrations cannot disrupt people’s everyday lives in the way that they did.
Criminal Records Notifications Disclosure
Private Notice Question
To ask Her Majesty’s Government what action they are taking following reports that criminal record notifications were not disclosed to EU Member States of 75,000 convictions.
My Lords, Britain is one of the leading contributors to the European Criminal Records Information System. We are currently working hard to upgrade our legacy systems. The central authority for the exchange of criminal records is working at pace to implement the technical fixes which will ensure that all the correct data is shared with EU members.
My Lords, this revelation is both shocking and worrying. Does the Minister accept that this is a huge failure on the part of the Government and that it is possible that dangerous offenders have returned to their home country without the UK making proper notification to the authorities? When the error was discovered, it was not corrected—shamefully—because of the risk of reputational damage to the UK. Can the Minister give the House a timescale for clearing the backlog of these notifications? What is his department doing to review procedures to eliminate the scandalous situation which was discussed at meetings but not acted upon?
The noble Lord is entirely correct: this is a very serious matter and the Government take it very seriously. We cannot duck the importance of getting this right. I shall say a few words to explain the context for this incredibly complex and technical matter.
Britain remains one of the leading contributors of data to ECRIS. Interestingly, the UK sent 30,000 conviction notifications through ECRIS to EU member states in the past year and received 16,000, which gives an idea of the balance of contributions. In the UK, we are dealing with legacy systems that are profoundly out of date, and with many EU agencies and 27 EU nations, so the complexity of this task is enormous.
I reassure the House that throughout this period ECRIS’s dynamic system was working as well as expected and delivered a fine service to our EU partners. The problems involved were connected only with dual-national citizens—those with British and EU passports—and those who did not have fingerprints in their files and therefore were probably connected with minor crimes. Following this revelation, we are working our hardest to get to the bottom of the problem. It is not possible to provide a concrete timescale at the moment, but I reassure the House that a considerable investment is being made through the national law enforcement database that will considerably enhance our ability to deliver good data to our partners.
My Lords, is it the case that this goes back as far as 2015? However far it goes back, when was it actually discovered? The underlying question is: how can we expect co-operation from other states, which is necessary for the security of the UK, if we are not open with them when things go wrong?
The original database was put together in 2012, and records suggest that the problem was first identified in 2015. When I asked about these dates, I shared some of the surprise in the House at these extremely long time periods, but I reassure noble Lords that our partners are understanding of the problems we face, because every country has legacy police database issues of its own. All countries are trying to meet the needs of the 21st century, particularly by turning archive and legacy data into something that is usable today. It is noticeable that when the alert was shared at the Council of Europe working group which discusses mutual collaboration on policing issues, there was positive and understanding feedback from our EU partners.
My Lords, can my noble friend tell me the Government’s position on future collaboration with other EU police forces after we leave the EU, because this is an important issue?
My noble friend is right, and police collaboration after Brexit is one of the big priorities of this Government. That is why in the implementation period, we will be discussing this with the EU and our partners. The political declaration envisages a relationship spanning operational and judicial co-operation, data-driven law enforcement and multilateral co-operation through EU agencies. Those three important silos will be the basis of our ongoing negotiations.
My Lords, we all appreciate that the Home Office must be a difficult government department for Ministers to supervise and control. I can think of a former Home Secretary who felt obliged to offer his resignation over these sorts of matters, and my noble friend Lady Hughes resigned because of failures within the department. The former Home Secretary, Amber Rudd, also had to resign because she had inadvertently misled the House of Commons as a result of poor information. Can the Minister tell us—in answer to the question of the noble Baroness, Lady Hamwee, which was not answered—precisely when Ministers were notified that this failure had occurred, and who took the decision that it should not be made public on the basis of reputational damage? Are any Ministers contemplating their positions?
The paper trail is extremely complex, and I am not in a position to give the kind of blow-by-blow account that the House would like. I sympathise with the question, and I would like to be able to give the noble Lord more detail. I am afraid that these issues are a necessary part of upgrading our technical and data arrangements. This is a complex and ongoing project, and while this mistake is extremely regrettable, at no point has there been any suggestion that those involved have not behaved with best intentions.
My Lords, unfortunately this issue appears to go not only to competence—it paints a rather sorry picture of a Home Office-related database—but to trust. The question of when the police and Ministers knew about this problem, which was asked about previously, harms our reputation. Unfortunately, it comes swiftly on the heels of another revelation that is being pursued in the European Parliament, which is that the UK is being charged with the illegal copying of data from the Schengen Information System on to a national database and then sharing it with private companies. An internal report from the European Commission makes very interesting reading, but I do not know whether the Commission is pursuing infringement proceedings. However, none of that will help with the subject that we will be discussing later today —the question of seeking a data adequacy assessment from the European Commission. We are not exactly scoring 10 out of 10 on either competence or trust in our handling of European data shared under data-sharing arrangements.
The data arrangements that Britain is committed to are handled with great delicacy by this country. Ministers are thoroughly committed to trying to make them work, and Britain has a very good record on both technical delivery and trust. I go back to the statistic that I shared earlier: 30,000 conviction notices were sent through ECRIS to our European partners, whereas 16,000 were received. That is an indication of what a strong and energetic partner we are in these matters, and I reassure the House that that remains the commitment of the Government.
The Minister should be aware of the reports by the Brexit committees that I and other Members of the House have been on concerning the importance of the security issue, particularly after we leave the EU at the end of this year. It is profoundly important and has been discussed time and again. What we need to hear now from the Minister is not just the important answer to my colleague’s Question but whether the Government will make a full Statement to this House as soon as they have all the facts—he says that he does not have them all available at the moment. We need to know those facts. They are profoundly important for our negotiations with the European Union on the whole issue of security and the European arrest warrant and all that goes with it.
The noble Lord is quite right to emphasise the importance of this matter, but the correct channel for communication with our EU partners is through dialogue with COPEN, the European Council working group. My understanding is that it is the intention of the ACRO Criminal Records Office, which is the liaising agency with COPEN, to maintain a dialogue, to keep COPEN up to date and to respond to any concerns from our EU partners. Those concerns have not come through in a meaningful way. Although I am keen to be here and to keep the House up to date, it is really through that channel that we should keep our EU partners up to date.
Petroleum (Amendment) Bill [HL]
A Bill to prohibit licensing to search and bore for petroleum and onshore hydraulic fracturing activities; to amend the principal objective for the Oil and Gas Authority to be to meet the carbon reduction target for 2050 under the Climate Change Act 2008; and to provide for the Oil and Gas Authority to produce strategies which include the phasing out of the extraction and use of petroleum and transitional planning towards renewable energies.
The Bill was introduced by Baroness Sheehan, read a first time and ordered to be printed.
Public Advocate Bill [HL]
A Bill to establish a public Advocate to provide advice to, and act as data controller for, representatives of the deceased after major incidents.
The Bill was introduced by Lord Wills, read a first time and ordered to be printed.
House of Lords (Elections and Reform) Bill [HL]
A Bill to make provision about elections to, and membership of, the House of Lords; and for connected purposes.
The Bill was introduced by Baroness Bennett of Manor Castle, read a first time and ordered to be printed.
Property Boundaries (Resolution of Disputes) Bill [HL]
A Bill to make provision for the resolution of disputes concerning the location or placement of boundaries and private rights of way relating to the title of an estate in land; and for connected purposes.
The Bill was introduced by the Earl of Lytton, read a first time and ordered to be printed.
Abortion Bill [HL]
A Bill to decriminalise the consensual termination of a pregnancy which has not exceeded its twenty-fourth week and in other prescribed circumstances; and to create a criminal offence for non-consensual termination of pregnancy.
The Bill was introduced by Baroness Barker, read a first time and ordered to be printed.
European Union (Withdrawal Agreement) Bill
Committee (2nd Day) (Continued)
Relevant documents: 1st Report from the Delegated Powers Committee, 1st Report from the Constitution Committee
Clause 27: Dealing with deficiencies in retained EU law
24: Clause 27, page 32, line 35, leave out paragraph (c)
Member’s explanatory statement
This amendment, coupled with another, prevents a widening of the definition of “deficiency” in relation to retained EU law which would allow the Government to make additional changes by delegated legislation.
My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26.
When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with
“any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law”
arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like “deficiency” made the reach of the provision potentially open-ended.
In the Explanatory Notes, the Government had said that
“a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.”
That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018.
Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that
“clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required.”
It reminds us that
“Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill”,
as I earlier cited. It concludes:
“Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.”
That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies.
The delegated powers memorandum says about the justification for taking the power:
“These amendments are necessary to allow the power to function in the revised context of the implementation period.”
We were always going to have an implementation period. I simply do not understand this next sentence:
“It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement.”
We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all.
I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase
“not clear in its effect as a result of the operation”
gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.
My Lords, Clauses 27(2)(c) and 27(6) of the Bill amend Section 8 of the European Union (Withdrawal) Act 2018 to expand the definition of deficiencies in retained EU law and to include deficiencies arising from the end of the implementation period. In its interim report on the first version of the WAB, your Lordships’ House’s Constitution Committee expressed concern that the power to expand the definition of deficiency was “vague” and could insert “potentially important new categories” without any real justification.
During the passage of the 2018 Act, we were repeatedly assured that there was nothing to worry about in relation to these powers, as they would cease to operate on exit day. However, we are now told that the power needs to be extended to address deficiencies arising from the implementation period. Given that we had an estimate of the total number of SIs to be made under the 2018 Act, can the Minister provide an estimate of how many would arise as a result of extending this power?
The Hansard Society and others very helpfully tracked the Government’s use of Section 8 powers during the withdrawal negotiations and the results were not promising, with many SIs tabled late in the process and some even having to be withdrawn and retabled as they contained their very own deficiencies. In the light of the Government’s record, is the proposed extension of the Section 8 powers simply a case of Ministers trying to buy more time for work that should have been done already? What guarantee is there that extending the Section 8 powers will not occur every other year?
My Lords, I thank the noble Baronesses, Lady Ludford and Lady Hayter, for their amendments and the noble Lord for his contribution to the debate. I also express my thanks to the Constitution Committee for providing what was an extremely thorough analysis of this Bill. I hope my response will provide reassurance to noble Lords about the purpose of these clauses; if the House will forgive me, I will go into quite a bit of detail on this.
As noble Lords will know, the European Union (Withdrawal) Act 2018 was drafted without prejudice to the outcome of our negotiations with the EU. However, now that we have agreed a withdrawal agreement together with the implementation period, as the noble Baroness, Lady Ludford, observed, it is necessary to update that Act to ensure that it can still fulfil its intended purpose in light of the new circumstances.
The subsections to which the noble Baronesses have tabled their amendments are there to ensure that the power can continue to meet the broader goal, which was much discussed during our debates on the 2018 Act, if noble Lords remember, and on which there is a widespread measure of agreement across the House. It is simply to ensure that the law continues to operate correctly, as it was passed at the time. To provide the noble Baroness, Lady Ludford, with a specific example of the kind of thing to which we are referring, we will need to replace the previous deficiencies in the statutory instrument on telecoms, which will no longer work because EU-derived domestic legislation will have been amended during the implementation period to implement the new EU regulatory framework for electronic communications. That will be changed during the implementation period and we may well have to go back to the previous fix in order to update it and provide a functioning statute book at the end of the implementation period. That is why we need to extend that power.
Moving on to the specifics of Amendment 24, EU law will of course generally continue to apply in the UK during the implementation period. This Bill takes the approach of providing what are known as glosses for EU-derived domestic legislation, to clarify the way in which EU-related terms should be read so that our laws will continue to work during this period. Obviously, as a non-lawyer, the only “gloss” that I am familiar with is gloss paint, but for the benefit of the House, glossing is a technical device used to direct readers of the law to interpret specific phrases without textually amending the original provisions. Apparently, it is a fairly standard legal clause. When retained EU law is created at the end of the implementation period, the EU-derived domestic legislation will be the glossed version of that law. Subsection 2(c) ensures that the powers in Section 8 of the European Union (Withdrawal) Act 2018 can be used to fix ambiguities which may arise as a result of the approach that we have taken to the saving and exceptions of retained EU law, such as the application of the glosses set out in Clause 2 of the Bill. In our view, it is right and appropriate that the Section 8 power is made available for this particular purpose.
Turning to Amendment 25, Parliament has already given its approval to the power in Section 8. A large number of SIs have been laid under this power, as the House will be aware, to make minor or technical amendments to ensure continuity and to minimise disruption. Clause 27(5) extends that sunset on the deficiency power in Section 8 of the European Union (Withdrawal) Act 2018 so that it now hinges on IP completion day instead of exit day—31 December rather than 31 January. This ensures that this power can be used, as intended, for up to two years following the creation of retained EU law in the new scenario, bearing in mind that we will still have ongoing cases of EU retained law occurring during the implementation period. Without this fix, the Government may have insufficient time, following IP completion day, to identify and correct deficiencies with this power. For example, it is possible that some deficiencies will become apparent only after the conversion of EU law has taken place and time will then be needed to make the necessary legislation to fix them. In these cases, without extending the sunset on this power, we may need to bring forward additional primary legislation to make what will be minor technical changes to correct issues that have arisen within the statute book.
On Amendment 26, it is necessary that Clause 27(6) remains in the Bill. Without the amendment made by subsection (6), we may not be able to use the deficiencies power to correct deficiencies arising as part of the whole process of withdrawal, including as a result of the implementation period or the wider withdrawal agreement. For example, it is possible that previous deficiency SIs will need amending or revoking as they may no longer work at the end of the IP due, as I said earlier, to any new EU laws that are introduced during the implementation period.
Removing this subsection would jeopardise the certainty provided by this approach for businesses and individuals at the point at which EU law ceases to apply in the UK. I would like to reassure both noble Baronesses that the restrictions on this power, established by the European Union (Withdrawal) Act 2018, remain the same to a great extent. Moreover, the procedure for negative SIs will also continue to be subject to sifting, as was originally provided for by Part 1 of Schedule 7(3) to that Act.
Finally, subsections 2(c), 5 and 6 of Clause 27 are essential to update the Section 8 power in the European Union (Withdrawal) Act 2018 for it to fulfil the purpose of ensuring that the UK has a functioning statute book, in light of the withdrawal agreement. It is appropriate for a responsible Government to have the means to correct any deficiencies in the statute book, in light of these new circumstances.
I apologise to the House for the essentially technical nature of the explanations, but I hope my reassurances and explanations will enable the noble Baroness, Lady Ludford, to withdraw the amendment.
Could the Minister answer my question and assure us that there will be no further extension of the powers in Section 8?
We certainly have no current plans to extend it any further.
The Minister gave an example of telecoms legislation, which will change. Why can such deficiencies not be dealt with under the existing text of Section 8—namely
“any failure of retained EU law to operate effectively … or any other deficiency in retained EU law.”?
Why, in the example he gave, is Section 8, as it exists now in the 2018 Act, not adequate?
Of course it may be possible to continue to use that power but until we see how the legislation works out—how it is introduced during the implementation period—we will not know that exactly. We therefore think it appropriate to extend the sunset period, et cetera, to give us the new powers to correct upcoming or future legislation that may be introduced during the implementation period.
I was not talking about the length of the time of the powers but about extending the scope. Amendments 24 and 26 are relevant to the provisions that would insert new subsections (2)(ea) and (9), which widen the criteria for finding a deficiency. If there were a change in telecoms legislation, the existing Section 8 in the 2018 Act seems perfectly adequate because the Government could say that there is a failure of retained EU law to operate effectively, because telecoms legislation has changed. That is enough. We do not need the new, widened scope to find a deficiency.
It is certainly the view of our legal advisers that we would potentially need the new, widened powers to be able to do that, but I can write to the noble Baroness with further details of why it is necessary.
I have probably made it fairly clear that I do not find the Minister’s assurances terribly convincing, and I look forward to his letter. Perhaps the legal advisers can explain to him why it would be necessary in my example. Our Constitution Committee has consistently warned us against wide powers in this area—things where there could be mission creep outside technical corrections to policy changes. I think its alarm bells are flashing on this, which is pretty convincing to me. The Government giving themselves a power to correct deficiencies because something
“is not clear in its effect”
and has something to do with
“any aspect of that withdrawal”
is pretty wide in scope.
I have to confess that I have not been reassured or convinced by this short exchange, but that is probably all I will get until we see further information. I beg leave to withdraw Amendment 24.
Amendment 24 withdrawn.
Amendments 25 and 26 not moved.
Clause 27 agreed.
Clauses 28 to 30 agreed.
27: After Clause 30, insert the following new Clause—
“Oversight of negotiations for future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Negotiations for future relationship(1) A Minister of the Crown must, before the end of the period of 30 Commons sitting days beginning with the day on which exit day falls, make a statement on objectives for the future relationship with the EU.(2) A Minister of the Crown may, at any time after the initial statement is made, make a revised statement on objectives for the future relationship with the EU.(3) A statement on objectives for the future relationship with the EU must be consistent with the political declaration of 17 October 2019 referred to in Article 184 of the withdrawal agreement (negotiations on the future relationship).(4) A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless—(a) a statement on objectives for the future relationship with the EU has been approved by the House of Commons on a motion moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of that statement has been moved in that House by a Minister of the Crown.(5) In conducting negotiations on the future relationship with the EU, a Minister of the Crown must seek to achieve the objectives set out in the most recent statement on objectives for the future relationship with the EU to have been—(a) approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) the subject of a motion of the kind mentioned in subsection (4)(b).(6) After the end of each reporting period, a Minister of the Crown must—(a) lay before each House of Parliament a report on the progress made, by the end of the period, in negotiations on the future relationship with the EU, including—(i) the Minister’s assessment of the extent to which the outcome of those negotiations is likely to reflect the most recent statement on objectives for the future relationship with the EU to have been approved by the House of Commons, and the subject of a motion in the House of Lords, as mentioned in subsection (4), and(ii) if the Minister’s assessment is that the future relationship with the EU is, in any respect, not likely to reflect that statement, an explanation of why that is so, and(b) provide a copy of the report to the Presiding Officer of each of the devolved legislatures and to—(i) the Scottish Ministers,(ii) the Welsh Ministers, and(iii) the First Minister and deputy First Minister in Northern Ireland or the Executive Office in Northern Ireland.(7) Subsections (8) and (9) apply if, in the opinion of a Minister of the Crown, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU.(8) A Minister of the Crown must lay before each House of Parliament—(a) a statement that political agreement has been reached, and(b) a copy of the negotiated future relationship treaty.(9) A treaty in the same form, or to substantially the same effect, as the negotiated future relationship treaty may be ratified only if the negotiated future relationship treaty has been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown and—(a) the House of Lords has not resolved, within the period of 14 Lords sitting days beginning with the day on which the negotiated future relationship treaty is laid before that House, that any treaty resulting from it should not be ratified, or(b) if the House of Lords has so resolved within that period, a Minister of the Crown has laid before each House of Parliament a statement indicating that the Minister is of the opinion that the treaty should nevertheless be ratified and explaining why.(10) Section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) does not apply in relation to a treaty if subsection (9) applies in relation to the ratification of that treaty.(11) In this section—“devolved legislature” means—(a) the Scottish Parliament,(b) the National Assembly for Wales, or(c) the Northern Ireland Assembly;“future relationship with the EU” means the main arrangements which are designed to govern the security and economic aspects of the long-term relationship between the United Kingdom and the EU after IP completion day and to replace or modify the arrangements which apply during the implementation period, but does not include the withdrawal agreement;“negotiated future relationship treaty” means a draft of a treaty identified in a statement that political agreement has been reached;“negotiations” means negotiations the opening of which, on behalf of the EU, has been authorised under Article 218 of the Treaty on the Functioning of the European Union;“reporting period” means— (a) the period of three months beginning with the first day on which a statement on objectives for the future relationship with the EU is approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown, and(b) each subsequent period of three months;“statement on objectives for the future relationship with the EU” means a statement—(a) made in writing by a Minister of the Crown setting out proposed objectives of Her Majesty’s Government in negotiations on the future relationship with the EU, and(b) published in such manner as the Minister making it considers appropriate;“statement that political agreement has been reached” means a statement made in writing by a Minister of the Crown which—(a) states that, in the Minister’s opinion, an agreement in principle has been reached with the EU on a treaty the principal purpose of which is to deal with all or part of the future relationship with the EU, and(b) identifies a draft of that treaty which, in the Minister’s opinion, reflects the agreement in principle;“treaty” has the same meaning as in Part 2 of the Constitutional Reform and Governance Act 2010 (see section 25(1) and (2) of that Act).””Member’s explanatory statement
This amendment reinstates the oversight Clause from the original version of the Bill, providing an ongoing role for both Houses of Parliament during the future relationship negotiations.
My Lords, Amendment 27 stands in my name and that of the noble Lords, Lord Wallace, Lord Hannay and Lord Bowness. I will also speak to Amendment 28, which is in almost the same names, and Amendment 40, which was tabled by the noble Lord, Lord Wigley. These amendments would essentially reinstate what had been promised in the earlier Bill: proper parliamentary oversight of the Government’s negotiating mandate and the negotiations themselves. They would also ensure proper reporting back including, crucially, on whether a satisfactory deal looks probable before the cut-off date for any extension. This is especially relevant, perhaps, if the FT is correct that the Prime Minister himself is finally beginning to doubt that all can be done and dusted by the due date.
As the Bill stands, the European Parliament will have a much greater say over the stance of the EU negotiators than we will over ours. The Minister shakes his head. His knowledge of the European Parliament is certainly longer than mine, but I think he will find that it will have a rather greater grip than we will over what happens.
Our EU Committee expressed its concern about the omission of the old Clause 31 of the October Bill, without which Parliament will have no statutory role in respect of the future trade deal, save a very limited final nod under the CRaG—and even that can be disapplied by a Minister. We have agreed before in this House that Parliament should be involved throughout the process to ensure that, apart from anything else, the talks are not heading to the rocks of no deal. But that is presumably exactly why the Government do not want us to have a role.
Despite the commitments made at the Dispatch Box by the Government before the election, they have stripped those statutory rights from this Bill—all because they have a majority of 80. The Commons was told not to worry and that Parliament would of course have a meaningful role throughout the future relationship negotiations but, as that role has been deliberately dropped from the draft legislation, I am afraid that that assurance is simply not good enough. The removal of the original Clause 31 shows how the Prime Minister can change his mind; we are simply asking for the first version of his mind to be in the Bill. Amendment 27 reinstates the Government’s own words.
Amendment 28 is slightly different; it asks the Government to update MPs and us on progress in negotiations half way through the implementation period and requires a Minister—who of course cannot mislead the House—to give an assessment of whether a deal is likely before 31 December and, if it does not look likely, to outline the Government’s approach.
Amendment 40, tabled by the noble Lord, Lord Wigley, seeks the approval of both MPs and the devolved legislatures for the Government’s negotiating objectives—a goal that we clearly share.
The noble Lord, Lord Boswell, who is not in his place, said at Second Reading that
“scrutiny is not an optional extra.”—[Official Report, 13/1/20; col. 483.]
Amen to that. If the Government will not accept these amendments, they need to explain what exactly they are afraid of and why a Government, answerable to Parliament, are deliberately cutting elected MPs, as well as your Lordships’ House, out of any meaningful role. I beg to move.
My Lords, I spoke at Second Reading about the dropping of Clause 31, which was in the October 2019 version of the Bill and is in Amendment 27, as the noble Baroness, Lady Hayter, has just said. I thought it would be helpful to have better detail about the position for MEPs, among other things. The position is set out in Article 218 of the Treaty on the Functioning of the European Union, which says:
“agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.”
It runs through that procedure and says, in paragraph 10:
“The European Parliament shall be immediately and fully informed at all stages of the procedure.”
That is further backed up by the interinstitutional agreement between the European Parliament and the European Commission, which says in part III:
“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements”.
That is at paragraph 23. It goes on:
“The information referred to in point 23 shall be provided to Parliament in sufficient time for it to be able to express its point of view if appropriate, and for the Commission to be able to take Parliament’s views as far as possible into account.”
As a European Union Committee member, I find that the extraordinary thing that one has been able to see with MEPs over the last four years is the way in which they have started using those powers to get a good grip on the scrutiny of the process that is Brexit. The Brexit Steering Group, energetically chaired by Guy Verhofstadt—a regular on all our TV screens—is regarded as a deeply successful model. I have been told that by more than one Commissioner, by many officials within the Commission, by Guy Verhofstadt naturally, and by Michel Barnier. I have checked with various other members of the European Union Committee and they believe that to be the case. I have not checked with my noble friend Lord Kerr of Kinlochard; perhaps he will confirm his agreement. It really has been deeply successful, and the Commission members have found it good and have enjoyed the process.
There was evidence of that on Monday, when 45 pages of slides, entitled Internal EU27 preparatory discussions on the future relationship: “Free trade agreement” were published. They give a very detailed and interesting background about how the European Union is getting ready for the free trade agreement negotiations—and, boy, do I wish that we had access to a similar document, which I am sure exists, in preparation for our own negotiations.
I come back to what, in the summer of 2016, the then Secretary of State for Exiting the EU, David Davis, said to us in commenting on whether the UK Parliament would enjoy parity—that was the word we put to him—with the European Parliament during the withdrawal negotiations. He said:
“We will certainly match and, hopefully, improve on what the European Parliament sees.”
We took him at his word, and Amendment 27—which was in the previous Bill and was, after all, a government amendment—was a step in that direction. I am sure there would have been amendments to Clause 31 in that Bill as well. It seemed to me to respect an undertaking given to us by the then Secretary of State. I ask the Minister whether the Government are still behind those words said by David Davis to the European Union Committee and, if so, how they will ensure that they live up to those words.
My Lords, my name is also on Amendments 27 and 28, and I wish to add my support for them. The Constitution Committee’s report, published two days ago, says in paragraph 3:
“This Bill is of the highest constitutional significance.”
One of the many aspects of that constitutional significance is as it affects the relationship between Parliament and government. As I understand it, the role of Parliament and the role of the second Chamber of Parliament—the House of Lords—in legislation is that we should present reasoned arguments and criticisms of what the Government have put forward. In response, the Government’s duty is to listen to those arguments. Where they are persuaded that those arguments are reasoned, or where they are unable to provide reasonable answers to them, they should adjust the legislation to meet those arguments.
The other dimension is that, as policy proceeds, the Government should be held to account by Parliament; there should be ongoing accountability as policy proceeds. Amendment 27 does not say that we want to know the details of everything; it talks about objectives. The Government are asked to tell us regularly what their objectives are. That seems entirely reasonable, particularly as the Government’s objectives remain so unclear and, in some ways, contradictory. On regulatory divergence, for example, I have listened to the noble Lord several times explaining the rationale for the regulatory divergence the Government are committed to and each time he explains it I become less and less convinced that the Government know what they want. I think that is partly because different elements of the Government and of the Conservative Party want entirely contradictory outcomes.
The question of the future security relationship also contains a number of unresolved internal differences. On future trade relations, we heard on the radio this morning someone with very close links to the Trump Administration saying that if we want good trade concessions in our future relations with the United States, we had better give something in return on Iran and our policy on the Middle East. There are many questions there that it is reasonable for Parliament to hold the Government to account over, and to ask Ministers to continue to justify.
The noble Baroness, Lady Noakes, in what I thought was rather an odd speech, said that we should not bother Ministers when they are in the middle of negotiations, because they will be tired and busy and we would get in the way. That seems to me, if I may say so in her absence, absurd. Parliaments are there to hold Governments to account and if the Government think they can get away without being held to account, except every five years in elections, we have moved away from constitutional and parliamentary democracy.
We heard a number of empty threats on Monday about the future of the Lords if we were to pass any amendments. There were suggestions that we were standing in the way of the people’s will and that various Members of this House perhaps represent the people against Parliament—although some of the Members of this House who put themselves forward as representing the people seem rather less popular in their backgrounds than one might otherwise expect. All I say to that is that if one faces up to the question of Lords reform—I say this as a former Minister responsible for trying to take through Lords reform—it is very difficult.
Some of us were at a meeting this morning where it was said that Lords reform and electoral reform were the two most difficult constitutional changes that anyone would wish to take through. It was implied that neither would happen in our lifetimes. That may be a bit of an exaggeration, but there is an idea that somehow, with the Express and the Mail behind the Government, threats can be made that the Lords will be abolished—and with Rebecca Long Bailey behind the Express and the Mail in threatening it. The idea that that will happen and we will all then turn quiet is out of the question. We have to do our job. We are here as a revising Chamber and it is our duty to ask the Government to revise when we are not convinced.
There is a question that all Conservatives here should ask themselves carefully as they consider how the House considers the Bill: if a non-Conservative Government were attempting to push through a Bill of this sort, which diminishes the role of Parliament in holding the Government to account, what would the Conservative response be? I think I know. I therefore strongly support this amendment and I hope the Government will recognise that, in rejecting it, they are trying to push the relationship between Parliament and Government towards the Executive and away from proper constitutional democracy.
My Lords, to respond to the noble Lord, Lord Wallace of Saltaire, on Lords reform, I remind him that your Lordships’ House was not saved by anybody in this House. It was actually saved by Jesse Norman—who paid a serious price from David Cameron, who subsequently refused to put him into his Government—and a number of right-wingers in the Tory party. We do not have that support in the Commons any longer, so I would not be quite so laid back and complacent about the future of your Lordships’ House. It has been seriously threatened and bruises have been left.
As to the amendment, I think we have all very much welcomed the election of Sir Lindsay Hoyle as Speaker of the House of Commons. I think he will be an umpire rather than a protagonist in the Brexit debate; he certainly has not indicated which way he voted in the referendum. However, the suggestion that he will not allow any Statements or Urgent Questions on the Brexit negotiations in the year that extends before us is for the birds. The idea that the Government will have no accountability to the House of Commons—or to your Lordships’ House—on how the negotiations are progressing is just ridiculous. For that reason, it is completely unnecessary to have this stuff in the Bill; I think there will be a lot of accountability, which will be ensured by the new Speaker. There is no point whatever in putting it in the Bill.
My Lords, I assure the noble Lord that I am strongly in favour of reforming the House of Lords. I hoped when I was appointed to this House that I would in due course become an elected member for the Yorkshire region. I have now been in this House for 23 years and that has not happened. I am very conscious of the difficulties of reform.
Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.
My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.
This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.
Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.
Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.
I went to a briefing meeting held by the noble Lord, Lord Callanan. I am most grateful to him for it; he has been extremely assiduous in briefing us on the Bill. In reply to a question on this issue, he said, “That doesn’t matter much because we’re just going back to what existed before.” I am not sure that “back to the future” is this Government’s motto, but it is nevertheless worth remembering that when he says that we will go back to what was there before, he means what was there 50 years ago. Neither this Government nor any British Government have conducted a trade negotiation for 50 years. To suggest that the world has not moved on in the oversight and mandating of trade negotiations is simply to close your eyes to reality. So I really think that there is a case for this amendment.
Finally, I can at least take comfort from the fact that the Minister will not be able to rise to his feet and tell us how badly drafted the proposal is because he drafted it himself.
My Lords, I support the amendment moved by my noble friend Lady Hayter. I particularly support the speech of the noble Earl, Lord Kinnoull. He is already establishing himself in this House as an excellent chair of the EU Select Committee, succeeding a previous excellent chair. My only regret is that I am no longer on that committee to serve under his chairmanship.
In my experience from my four years on the committee, the attitude of successive Secretaries of State towards the committee was always one of good will but they made promises they never kept. At one stage, we were told, “Oh yes, every month you’ll see me and I’ll come to answer your questions.” My recollection is that we saw David Davis at intervals of perhaps five months during his time as Secretary of State. I think that we saw Mr Raab once; I might be wrong about that. Mr Barclay was the most attentive towards the committee. He seemed keen to improve in the next phase of the EU negotiations on his own degree of accountability. He saw maximum transparency in the conduct of the negotiations as being in the Government’s interests. I am sorry that No. 10 has decided to go for breach of promise on all this. That is a great shame.
Whenever the issue of the European Parliament’s rights to scrutiny is raised, you get a vigorous shaking of the head from the Minister, the noble Lord, Lord Callanan. I would love to hear his explanation of why those rights are not what we all know them to be. He seems to reject the notion that the European Parliament has many more rights than the British Parliament to access information and question officials to find out what is happening, but that is the case. The role of the European Parliament was greatly strengthened by the Lisbon treaty, and again by the ECJ judgment to make it easier for the Commission to negotiate on the EU’s behalf on services as well as on goods. It has also been strengthened by the brouhaha over the Canada agreement; a stronger role for Parliament clearly would have prevented the difficulties that the agreement then ran into in its ratification in member states. I think it is in the Government’s interests to be more transparent.
Yes, Brexit is happening—as I said in my Second Reading speech, I fully accept that—but the Government do not yet realise what trade negotiations are really like, because they have not done them for half a century. Having served for three years in DG Trade, or at least in the cabinet of the Commissioner, I can tell you that they are brutal. The people in charge of the EU side in these negotiations stand up for EU interests with tremendous firmness. I suspect that this is what we will encounter once we have allowed ourselves to become a third country, which in a few weeks we will be. They will treat us like any other third country.
One has to be transparent about the trade-offs. I will cite just one example. How do we rate the relative importance of the fishing and car industries? The fishing industry has tremendous political profile and thinks that as a result of Brexit it will get much more fishing in British waters and that we can keep continental boats out—but it represents 0.5% of GDP. How much are we prepared to sacrifice in our negotiating position for the fishing industry? The car industry employs up to 1 million people in this country, when you look at the supply chain. If we do not achieve the kind of customs partnership that Mrs May said she was in favour of, there is a real risk that inward investment by the overseas companies that rebuilt the car industry in Britain will go elsewhere over time. There has already been a lot of talk of that on their part. This would be a devastating blow to one of Margaret Thatcher’s main achievements in the 1980s and 1990s in being able, as a result of creating the single market, to attract to Britain huge amounts of foreign investment, which has greatly benefited our people. I repeat: 1 million jobs.
If there is not transparency, how do the Government explain to people that they are not guaranteeing the future of 1 million jobs but have put all their negotiating eggs in the basket of trying to give a few more opportunities—not actually saving any jobs—to our fishing? We need openness if we are to have a proper debate in this country about where our interests lie. That is what we need in the coming 12 months if we are to have any hope of a harmonious outcome to these rushed negotiations.
My Lords, I will comment on the views of the noble Lord, Lord Liddle, about the European Parliament and the relative degrees of parliamentary scrutiny. He has much more experience of Brussels; I have worked there, but not for nearly as long as he did. It is not correct to say that the European Parliament’s rights in this matter are greater than the United Kingdom Parliament’s. Article 218 of the Treaty on the Functioning of the European Union states that the European Parliament must be kept
“immediately and fully informed at all stages of the procedure”,
but does not give it a role in deciding the substance of the negotiations. However, it must pass the final agreement by a simple majority vote. So it has to agree at the end, but it appears not to have the right, stage by stage, to dictate to the Government what they are to do as they negotiate.
I never claimed that. I claimed that the Parliament was so fully informed that it had a grasp of the trade-offs that it would have to make in deciding whether to vote for this deal at the end of the day.
As far as I understood, the noble Lord said that the European Parliament had much more say in dictating the mandate, but perhaps I misunderstood him. In any case, it appears that during the last three years the UK Parliament has been exercising power to control the Executive, and the Executive have not been seen by their interlocuters on the European side as having the right to negotiate, because all the time noble Lords opposite, and others, were saying to individuals in Brussels, “Don’t worry, Parliament isn’t going to allow the negotiating team to do this. We will reverse it.” Now the people have spoken and the House of Commons has a strong majority of 80 Conservative MPs, all committed to a real Brexit. That is known. This amendment is designed to obstruct because the House of Commons will not accept it, and noble Lords know this well.
My Lords, I very much agree with the points made a moment ago by the noble Lord, Lord Liddle. In Wales during the 1970s, 1980s and 1990s, we were fortunate enough to attract more than 200 American companies and more than 50 Japanese companies to invest in Wales, largely through the work of the Welsh Development Agency. They came to Wales in order to sell to the European market: there is no question about that, and therefore these questions are of mainstream importance to the National Assembly for Wales. That is why Amendment 40, standing in my name, covers the matters involved in Amendment 27 and brings into the loop a role for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly. I concur very much with the points made by the noble Baroness, Lady Hayter, in opening this debate.
Amendment 27 provides, in subsection (4) of the proposed section entitled, “Negotiations for future relationship,” that:
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU unless … a statement on objectives for the future relationship with the EU has been approved by the House of Commons.”
My Amendment 40 extends the same principle to the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly.
The lead Amendment 27 does indeed bring in the three devolved legislatures, to the extent that it provides that copies of the proposed progress reports should be provided for each devolved legislature, and to the relevant Ministers of those three nations. The general arguments in favour of my amendment are similar to those for Amendment 27, so I will not repeat them. I support everything stated by the noble Baroness, Lady Hayter. However, I will again press that the devolved legislatures should be fully in the loop and that their approval should be obtained. They have as valid a right to be in the picture as Members of the European Parliament; it impacts directly on their work.
I realise that the Government may withstand the whole concept of getting prior parliamentary approval for their negotiating position with regard, say, to trade in sheepmeat, but they contend that the Government can negotiate exactly what they like, and they have it in their power to do so. In reaching their negotiating position and their proposals, they will no doubt have discussed their strategic objectives with their ministerial colleagues in charge of sheepmeat issues in England. It would be amazing if they were not to do so; indeed, it would be a chronic dereliction of duty. But, unless a provision along the lines of Amendment 40 is brought into play, the government team in charge of negotiating with the EU on the future sheepmeat trade will be totally ignorant of the views of Wales, Scotland and Northern Ireland. These need to be systematically built in.
Agriculture is a devolved subject. The Government have repeatedly stressed that they are not in for a power grab and are not going to reverse the devolution of power. If that is so, the UK negotiating team must surely be duty bound to take into account the views of the National Assembly and the relevant Welsh Minister on a subject of such overwhelming significance to Wales as the future trade in sheepmeat.
This issue brings into sharp focus the question of co-operation and mutual respect between the UK Government and the devolved legislatures. A failure to take this on board and to make the necessary provision to answer it will only reinforce the growing feeling in Wales, as in Scotland, that the UK Government are basically the Government of England, and that it will be the needs of England that dominate the negotiations with the EU on our future trade relationship with Europe.
My Lords, I support the amendment. I would adopt many of the arguments put forward by my co-sponsors, and I shall not repeat them. I put my name to it because I believe, perhaps naively, that it ought to be self-evident that Parliament should have a particular and special role in holding the Government to account during the vital negotiations that will determine the United Kingdom’s future relationship with the European Union. The pledge to establish a free trade agreement tells us little or nothing about this. I raised a number of questions at Second Reading, which I will not repeat because I got no answers to them then, and I would not anticipate an answer this afternoon.
I emphasise that the amendment does not attempt to delay or stop Brexit; it would not even delay the passing of the Bill in time for 31 January. As for my noble friend’s reliance on Select Committees, Questions and debates, I submit that those are no substitute for a formal recognition of the special circumstances of the negotiations we are about to enter.
The parliaments of Denmark and Sweden, to name but two—
Surely all that can possibly happen in the House of Commons is that the Government make Statements on their position in the negotiations with the EU. That will happen anyway, if the Speaker allows it. How would putting it into the Bill make the slightest difference?
It would impose an obligation. I bow to my noble friend’s knowledge of the workings of the House of Commons, but it seems to me that there is probably a very compliant majority at present, so we need safeguards in the legislation.
The majority in the House of Commons only counts if there is a vote. There are no votes on Statements.
That still does not seem to me to obviate the need for full information to be given to both Houses of Parliament. I suspect that my noble friend is implicitly accusing me of trying to delay the Bill or to stop Brexit, rather than being concerned about the future of our relationship. I refute that allegation, but I entirely accept that I remain very concerned about our future position.
I apologise for hesitating slightly here, but my noble friend has rather thrown me—which was, no doubt, his intention. I appeal to my noble friends on the Front Bench to recognise that we all accept that we are leaving, but that some of us want to ensure that we retain as many as possible of the benefits of 40 years, and that they are not all lost just to satisfy the ideology of a clean and absolute Brexit. Those of us who think that way may be in a minority, but we are a substantial minority.
I apologise to my co-signatories to this amendment for my following comments. They are not intended to undermine the amendment or the arguments that they have put forward but I accept that the amendment was drafted at a different time, in different circumstances, and is very long. Arguing from my position, I ask the Government—it may be a vain hope—to give serious consideration to discussing whether there may be a simplified formula in the Bill which people such as I—and they—might find it possible to accept. It would be a gesture of good will to those of us who are not ideological Brexiteers. At the moment that good will is in pretty short supply and I hope that we might see it. I certainly hope that it will break out during the negotiation period.
It may be a vain hope but it is a serious suggestion that we endeavour to find a clause which would be acceptable to those of us with differing points of view across this House.
My Lords, I say to the noble Lord, Lord Bowness, that I have nothing but good will towards him despite our profound disagreements on Brexit.
It has been a pleasure for me in our Committee proceedings up until now to be able to support my noble friend Lady Hayter but, sadly, at this point I have to part company with her. I cannot agree with her or my very good friend the noble Lord, Lord Wigley, that their new clauses are appropriate. They are in effect seeking to substitute the House of Commons for the Government. Under their proposals, the House of Commons would give the Government their marching orders as they move into these negotiations and the Government would be expected to act as an agent of the House of Commons. That is constitutionally inappropriate and will not work well in practice. We saw in the last Parliament the damage done to our national endeavour by the insistence of the House of Commons that it must take charge of the process of negotiation. It was a disaster for us.
When it comes to setting objectives, there is no alternative but to trust the Government. The Government will have to make judgments as they negotiate and the objectives they set for themselves at the beginning may well have to be modified in the light of their assessment of what may be achievable.
I do not think that the analogy the noble Earl, Lord Kinnoull, suggested between the procedures and powers of the European Parliament and the way for us to proceed in our system of parliamentary government is appropriate either.
Openness—the transparency that my noble friend Lord Liddle was calling for—may be difficult, if not inappropriate, in the circumstances of a complex, lengthy and difficult negotiation in which it may not be prudent for the Government to make public what they are thinking of doing and the ways in which they intend to set about it. As the noble Lord, Lord Hamilton of Epsom, reminded us, the House of Commons and your Lordships’ House will have ample opportunities to express their views and to hold the Government to account, not least through the work of the Select Committees of your Lordships’ House.
I support the intention of the noble Lord, Lord Wigley, that the Government should be expected to maintain a full and constructive dialogue and full consultation with the devolved Administrations. We debated that principle yesterday and again in our first debate this morning.
It is very important not only for the benefit of our union—fragile as it is at the moment—but for reasons of practicality and of ensuring that outcome of negotiations makes realistic sense in terms of the situation in Wales, Scotland and Northern Ireland. I would not go as far as the noble Lord, Lord Wigley, or be as prescriptive as him, although I note there is a certain vagueness in the way he has formulated his paragraphs on the requirement for consultation. I think he takes it a bit too far, for the reasons I have given.
There may well be moments in the process of negotiation when the Government consider that it would be helpful and in our interests that they should lay out their position very fully to the House of Commons and seek its endorsement, but that needs to be a tactical judgment in the light of the way events develop. I do not think it is wise for us to seek to tie the Government’s hand and inhibit their freedom in conducting these negotiations as best they can in the interests of our country.
The noble Lord, Lord Howarth, finds the amendment positively undesirable. I think it is quite difficult for the Government to argue their case, since the amendment merely reinstates what was in their October version of the Bill, so in October the Government must have thought this perfectly workable and not subject to the objections raised by the noble Lord, Lord Howarth, who obviously thinks that the Government were a bit soft then.
It was desperate expedient. The Government had no option, given the parliamentary arithmetic.
That is the point I wanted to touch on. I thank the noble Lord. I have gone through the Conservative manifesto very carefully and I cannot find any commitment not to keep Parliament fully consulted on the process of the negotiation. It seems to me that we are not in serious Salisbury convention territory here.
The substantive arguments against this amendment, rather than the politically cynical argument against it advanced by the noble Lord, Lord Howarth, is that it weakens the Government’s hand in negotiation. I know from my past career that that is completely untrue. It is the reverse of the truth. I spent quite a long time unsuccessfully trying to negotiate air services liberalisation with the United States. The arguments for it were easy. Even I could win the argument, but I could get nowhere because of the power of parliament used as a negotiating weapon by American negotiators: the power of the Senate to refuse. When you win the argument with the American, he says, “You make a very good point, but we’d never get it through on the Hill.” I do not believe that Parliament as the Wizard of Oz would be a terrible threat to the Government, provided they had explained what they were trying to do. I know that being obliged to keep Parliament informed is an extremely good weapon in the negotiator’s hand.
I come back to a more general point, which has been made many times in these debates by the noble Lord, Lord Bridges, and which was made by the noble Lord, Lord Barwell, in his remarkable maiden speech which we all greatly admired. Honesty—not pretending that you can have it all and admitting that there are trade-offs to be had—goes with transparency, and it seems to me that this perfectly reasonable means of ensuring a degree of transparency to Parliament, which was perfectly reasonable and acceptable to the Government in October, would be consistent with trying to bring public opinion to understand some of the difficulties and trade-offs that lie ahead in the negotiation.
Can I put it to the noble Lord that he was not actually arguing to what this amendment provides? He was arguing for transparency and for negotiators to be able to use in their negotiation the tactic of saying, “We’ll never get it through Parliament”, or, “We’ll never get it through Congress”, but that is different from what this amendment prescribes, which is that the objectives which the Government would have in their negotiation must have been approved by the House of Commons at the outset. That is a different proposition.
Given the majority in the House of Commons, it is not a terribly high hurdle. In a way, this is an obscure debate as we know what the answer is going to be—the Government can get their way in the House of Commons. It is odd for the Government not to want to strengthen their negotiating hand by having a procedure of this kind—or a simplified version, as the noble Lord, Lord Bowness, hinted at. To have something like that would strengthen their hand and provide them the means of ensuring that the country is brought along to understand the trade-offs that will have to follow.
My Lords, I am pleased to follow my noble friend Lord Kerr.
This is all about power. The Government are in powerful position at the moment. I say “at the moment”, because it will not last. We know that the pendulum swings, and that power is fluid and leaks away. The arguments for the amendment are good, but I am more concerned about good government. My experience is that Governments, when they are at their most powerful, are in a kind of vacuum, and this is a time when mistakes are made. This is the year when the Government will plant the seeds of their own failure, and I am in awe of their task over the next year.
I date back from the time when we did trade negotiations ourselves. I was a gofer in the Board of Trade on the Kennedy Round. I was in charge of knitting needles, aspirin and canned fruit at various times. I was also Private Secretary to the then Minister for Trade, the late Lord Brown of Machrihanish. I am familiar with trade negotiations from that earlier period, and I can confirm that the noble Lord, Lord Liddle, is right: trade negotiations do not bring out the nice side of other people; they bring out the tough, rigorous side.
Although the Government are powerful in this House, and in politics, they are not necessarily going to be strong in the negotiating room. They need the support of Parliament, and they need friends. They will have more friends if they consult and if they are open, because the analysis needed for trade negotiations —on services and the other areas that are so important to this country—will involve groups of people, Scotland and Wales, and sectors. The Government need to be open and use their power with maturity. They need experience, they need to be open, they need to recruit friends and heal. The trouble is that the bruises are too recent, which colours some of these exchanges.
The Government must work with Parliament, with noble Lords, and be open to understanding the hugely different currents and flows that will underlie these negotiations. If they think they know all the answers and can ignore the sovereignty of the Queen in Parliament, and just be the Crown, they will make some awful mistakes and the country will suffer for them. I urge the Minister to take these amendments, and the arguments that lie behind them, seriously.
Is the noble Lord arguing that there will be no reporting by the Government to Parliament on the negotiations if this is not in the Bill?
I am not arguing that. I am worried that the Government’s powerful position, and their glee and joy, which is understandable, will lead them to a certain arrogance and to ignore the role which Parliament can properly play. These amendments are a good reminder of the role that Parliament must play. I urge the Government to work with Parliament, with noble Lords and with influences that can be brought to bear behind the scenes, to listen and not to think that they know all the answers and can just go in and negotiate, because they cannot.
My Lords, I should like to briefly follow that very powerful speech by my noble friend Lord Wilson of Dinton. The spirit of the amendment tabled by the noble Lord, Lord Wigley, is about consultation. It is about making sure that people behind the scenes know what is happening and can understand if they have to give something up rather than it being delivered on them.
The Senedd, the National Assembly of Wales, has responsibility for a set of devolved competences. When negotiations become difficult and tough, it is almost inevitable that at times people will have to give things up. If people in Wales, behind the scenes, know what is happening and understand why, they can support it. If something is just delivered on them as a fait accompli afterwards, trust is lost. There is a Chinese saying that I think we should remember: trust arrives on foot and leaves on horseback—and it is trustworthiness in behaviour that wins trust.
The Joint Ministerial Committee on EU Negotiations was set up with promises by the Government to seek consensus over approaches behind the scenes—yet, sadly, I understand that sometimes the committee had no more information than could be found in the previous day’s newspapers. Sometimes those attending were told that they could not be told more because it was not in the public domain. If there is a small group of people whom you are taking into your confidence and you trust them to observe that confidence, it is not helpful for them to be told, “You can’t be told what’s going on because it isn’t in the public domain”—because the role of that group is to share that confidential information and thinking before the next round of negotiations.
The spirit of the amendment tabled by the noble Lord, Lord Wigley, completely encapsulates a need: where devolved competences are at stake and will be deeply constitutionally affected, it is only right that the devolved Administrations are involved and that their thinking is sought early on, so that they can explain it both to their own legislatures and to the people who voted them into office.
My Lords, I support Amendments 27 and 28, and I would have put my name to Amendment 40 had I seen it before the deadline. This is a sad day for me, not just because these amendments are necessary but because today I have disagreed very strongly with the noble Lord, Lord Howarth. We have sat together companionably for six years. He is like a human form of Wikipedia. He knows everything that there is to know about all noble Lords and this saves me from having to use my phone.
Returning to the amendments, I hope that Hansard has a copy and paste function, because, quite honestly, we have been over this time and again. Noble Lords have said the same things to the Government again and again, and at one point it seemed to have sunk in, because the European Union (Withdrawal Agreement) Bill last year contained a whole load of provision for parliamentary scrutiny. I know that the Minister will reply to us with his tried and tested lines that we have heard before—but, quite honestly, that is not enough. The election has changed things and now the Government have gutted the agreement Bill of all scrutiny. I say to the Minister that, just because his Government now have a majority in the other place, that does not make them right or mean that this is the right thing to do. It does not make them immune from parliamentary scrutiny. Our job is to hold the Government to account, and if they scrap us—well, actually, I have been trying to abolish the House of Lords for six years and it has not worked so far.
Is it not obvious that a lack of parliamentary engagement—a failure to bring the majority on board—is what led to the parliamentary deadlock when the final deal was secured? Instead of working with Parliament, the Government told us that there would be no running commentary and that the sharing of details would undermine the negotiations and so on. Scrutiny was deferred until the very last stages of the negotiations when, instead of it being a mere inconvenience, it culminated in a crescendo of chaos. Had the Government engaged constructively with Parliament, things could have turned out very differently. However, despite all those lessons, the Government are, once again, trying to sideline Parliament.
Over the coming weeks and months, much will be made of the Salisbury convention and the extent to which this House should exercise its powers and functions to scrutinise, correct and improve. My stomach slightly turned over when the noble Lord, Lord Howarth, said that we had to trust the Government. Well, actually, no, we do not. It is our job to trust when it is appropriate to trust and to distrust when we can see that they are going wrong. When the Government try to shut down scrutiny in the way they have with this amended Bill, it leaves this House with no choice but to exercise its constitutional might as far as that extends. The last stage of the negotiations was the easy bit. It is the next stage that is going to set out all our future concerns. That negotiation must be got right, and this sovereign Parliament absolutely must play its role in securing that for the national interest.
My Lords, I think that the context has changed. When the Benn amendment went through, it was suspected of having the intention to thwart or delay Brexit. We are not in that position now: Brexit is going to go ahead. Surely, then, it is the job of the whole of Parliament to defend and promote its own interests and those of the Government in the negotiations going forward. So, in a perverse way, this amendment strengthens the hand of the Government by bringing in Parliament to back it and provide support as they embark on their negotiations; it does not diminish it.
My Lords, I wish to support Amendment 27, and at this stage in proceedings I will be brief. I found it endearing when the noble Lord, Lord Howarth, said that we must place our trust in the Government. I tend more to side with the noble Lord, Lord Wilson of Dinton, on this. The Government have made it very clear that their version of taking back control is to do their best to shut out Parliament as far as possible. We need only to look at the illegal attempt to prorogue Parliament to see that in action. Why, if they were very keen for us to be involved in the trade negotiations, would they go to the trouble of taking out of the Bill the clause that would have given us that involvement? It might be right—as the noble Lord, Lord Hamilton, said—that we should put our faith in the Speaker of the Commons. But, again, why should we do that when we could have the safety of having our own involvement on the face of the Bill?
My second point is quite straightforward. I find it embarrassing when this House is threatened that trying to do its job will result in a potential threat to its survival. We have a very simple role: it is scrutiny—not to thwart the will of the Commons but to ensure that we improve legislation. We can improve this piece of legislation. We should do that, and if we do not have the courage to do that because we are worried about our own survival, we do not deserve to survive.
My Lords, I am going to make a rather cynical contribution to the debate. The debate has brought out very clearly the difference between accountability and a mandate. I am not in favour of the Government’s hands being tied by Parliament in these negotiations. I agree with the noble Lord, Lord Howarth, that it is for the Government to conduct these negotiations, not for Parliament. We will have the opportunity to comment and to give our views, and we should. We certainly should not be cowed from doing that.
However, I will quote a recent example that I really think establishes this point. The Government unexpectedly, before the election, got an agreement with the European Union that the European Union always said that it would not make. How did they get it? They did it by making a concession on the Irish Sea that they would never have got through Parliament. They made a concession which they had said they would not make—but they found it necessary to do it, and when they had done it, Parliament and the electorate came to the conclusion that it was the right thing to have done. If Parliament had been able to control what the Government were able to do, the Government would not have been able to make that concession.
We might be cynical about that concession—we might think it was the wrong thing to do—but it was the thing that got the agreement and that was necessary to get the agreement. Certainly, the Government will need friends in these negotiations, but they will also need flexibility, and Parliament should not seek to take away that flexibility.
I would like to point out two matters. First, in new Clause 13D(2)(b) and (c) in Amendment 28, there is the requirement that a Minister must provide
“a declaration of whether, in the Minister’s opinion, agreements can be concluded and ratified before IP completion day”,
which seems to be in the nature of a prophecy required from the Minister as a matter of compulsion, and
“the policy of Her Majesty’s Government if agreements are not concluded and ratified before IP completion day.”
Once again, that is nothing to do with saying what is happening; it is giving an opinion as to what is to happen next, which as far as I am concerned is the difference between the two.
Secondly, in Amendment 40 tabled by the noble Lord, Lord Wigley, which is commended to be in very good form by my noble colleague, one of the requirements is that
“A Minister of the Crown may not engage in negotiations on the future relationship with the EU”
unless a statement of objectives has been made and the Motion relating to that statement has been approved by resolutions of the various devolved Parliaments, including the Scottish Parliament. I just wonder whether that is wise.
Amendments 27 and 28 in the name of the noble Baroness, Lady Hayter, and Amendment 40 in the name of the noble Lord, Lord Wigley, would all introduce new clauses with a similar purpose. They seek to create statutory roles for Parliament, the devolved Administrations and the devolved legislature in overseeing the future relationship negotiations. It is the view of the Government that the general election has shown that the public support the vision of the political declaration for a comprehensive and ambitious free trade agreement with the EU, and indeed this gives us the mandate to begin negotiations.
As this House will be aware, under the Royal Prerogative the negotiation and making of international trade agreements is a function of the Executive, as indeed in the EU it is a function of the European Commission, a point well emphasised by the noble Lord, Lord Howarth. This enables the UK to speak with a single voice in negotiations and ensures—
Just in the interests of clarity, is it not true that the European Commission acts on a mandate from the Council—that is, the elected heads of government?
Yes, it is. I am not quite sure what point the noble Lord is making. It usually acts on a mandate although it is not clear to what extent or what detail will be provided in that mandate.
If I can help the Minister, the point that my friend the noble Lord, Lord Bowness, was making is that the Minister said it was in the hands of the Commission. He has now said that it is in the hands of the Council, which is correct.
As the noble Lord is well aware, it is the role of the Commission to do the negotiating. It will report back to the Council and the Council will provide steers on how it will do that, but the detailed negotiation is a matter for the European Commission.
There is a meeting every fortnight of officials from member states that monitors what the European Commission is doing.