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House of Lords Hansard
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European Union (Withdrawal Agreement) Bill
16 January 2020
Volume 801

Committee (3rd Day) (Continued)

Amendment 38

Moved by

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38: After Clause 37, insert the following new Clause—

“Implementation period negotiating objectives: Erasmus+

(1) It is an objective of Her Majesty’s Government to secure an agreement within the framework of the future relationship of the United Kingdom and the EU before the end of the implementation period that enables the United Kingdom to participate in all elements of the Erasmus+ programme on existing terms after the implementation period ends.(2) A Minister must lay before each House of Parliament a progress report on the objective in subsection (1) within six months of this Act being passed.”Member’s explanatory statement

This new Clause would require the Government to seek to negotiate continuing full membership of the EU's Erasmus+ education and youth programmes.

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My Lords, the referendum on Brexit shows that young people in particular want to remain in Europe. Now that we are leaving, it is important that young people’s opportunities to learn, study and exchange in Europe are an opportunity to bring young people back together again. Nobody can doubt the value and importance of Erasmus+. Every year, through the Erasmus programme, 17,000 UK university students, plus hundreds more college students and apprentices, study or work abroad. The opportunities that Erasmus offers to UK students, particularly young people, to study, work, volunteer, teach and train abroad are irreplaceable.

For school pupils, the scheme offers the youth exchange programme and volunteering opportunities, and volunteering is something that the Government have always been very keen on. Erasmus+ has paid out tens of millions of pounds in grants to UK schools for exchanges, collaborative programmes and professional development. If we want to be an outward-looking country that realises the importance of friendship, sharing ideas, culture, language, education and opportunities, and brings people together, this is not a programme that you would consider watering down or dispensing with.

As my colleague Layla Moran has said about her amendment,

“what people remember most about studying abroad normally isn’t that they increased their employment prospects”—

which of course they do—

“They recall learning a new language, falling in love with the culture and building new friendships.”

I am somewhat confused about the Government’s stance or policy on Erasmus+. Is it that of the Secretary of State for Education, Gavin Williamson, who said:

“We do truly understand the value that such exchange programmes bring all students right across the United Kingdom, but to ensure that we are able to continue to offer that we will also develop our own alternative arrangements should they be needed”?—[Official Report, Commons, 14/01/20; col. 912.]

Or is it that of our Prime Minister, who said:

“There is no threat to the Erasmus scheme, and we will continue to participate in it. UK students will continue to be able to enjoy the benefits of exchanges with our European friends and partners, just as they will be able to continue to come to this country”?—[Official Report, Commons, 15/01/20; col. 1021.]

Perhaps the Minister would be good enough to tell me which version it is. The amendment that we are moving certainly supports the Prime Minister’s view that the Erasmus scheme is under no threat.

Currently the in-phrase in government is “levelling up”. We want to ensure with this amendment that there is no levelling down for students and young people across the UK, whether they be from the south or the north. By staying in the Erasmus+ scheme, we can keep that level playing field. UK universities are clear that Erasmus is not broken and so does not need fixing, and they warn that a UK replacement would find it impossible to match the reputation, brand awareness and sheer scale of Erasmus+. I beg to move.

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My Lords, I have added my name to this important amendment. I will be brief.

The Government should have a fairly good idea by now of the views of academics, universities and other institutions. Hopefully, they will have taken note of the strong views of students and former participants in the Erasmus programme that have been expressed in the press and on social media in the last week or so, and their huge concern about the potential loss of this programme.

In terms of projects, Erasmus is now about more than learning and higher education. As the noble Lord, Lord Storey, has pointed out, there are schemes for apprentices, adult learners, schools, youth programmes and entrepreneurs. On that point, what is less heard and discussed is the implications of Erasmus for business. The Russell Group has spoken of the considerable opportunities in industry that Erasmus opens up for students on their return to the UK. If we are also to maintain our business links with Europe, it will become more important, not less, that young people learn and use languages such as French and German, an issue that the noble Baroness, Lady Coussins, will no doubt expand on.

I hope the Government will look at this objectively and understand that the loss of Erasmus would represent a significant overall loss in terms of the choices that students will have to study abroad. In those circumstances, where the choice remains it will be at a considerably greater cost, to the extent that for students from poorer backgrounds, that choice would disappear. That is an important point. Erasmus favours those from less privileged backgrounds, a point that has been well made by former participants.

One of the arguments that is put is that we can replace Erasmus with a global arrangement. We have such arrangements already, which Erasmus does not preclude. The loss of Erasmus would be a net loss for students, and a reduction of opportunities to study abroad and to broaden horizons. I agree with the noble Lord, Lord Storey, that the loss of Erasmus would, in the Government’s own terminology, be a levelling down, not a levelling up. I earnestly hope that the Government will do everything to maintain our meaningful membership—that is, programme membership —of Erasmus. Surely this being an intention endorsed by Parliament will only strengthen our hand in negotiations with the EU. I fully support the amendment.

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My Lords, I too have added my name to Amendment 38. Last week, after the vote in the House of Commons to reject a similar amendment, I was semi-encouraged by the statement issued by the Department for Education:

“The Government is committed to continuing the academic relationship between the UK and the EU, including through the next Erasmus+ programme if it is in our interests to do so.”

I hope I can offer some information and arguments today that will convince the Minister to go back and persuade the Government that it is indeed very much in our interests, and that they should think again and put their commitment to Erasmus+ in the Bill. As we have heard, the Prime Minister said only yesterday that there was no threat to Erasmus. If that is a genuine commitment, fantastic—there can be no reason why that cannot be irrefutably placed in the Bill. Otherwise, all that we actually know we can be sure of is that Erasmus is secure only until the end of 2020.

I have spoken several times before in your Lordships’ House on the importance of Erasmus in the context of the teaching and learning of modern foreign languages, but that is neither the whole picture nor the whole reason for needing to stick with the programme. It is also in the far broader interests of the UK, its economic resilience, its competitiveness and the employability of young people—and I do not just mean relatively privileged students. I understand from a press report in last Saturday’s Times that one of the Government’s reservations is that Erasmus is viewed as mainly benefiting middle-class students and that the money might be much better directed towards the schools budget. If accurate, this view shows a misunderstanding of the breadth, purpose and benefits of the Erasmus programme. I hope I can now shed some light on this, to assist the Government in looking again and changing their mind out of sheer self-interest.

Let me recap very quickly on the value of Erasmus as far as language skills are concerned, then put that into a broader context. Despite some recent improvement in GCSE take-up, the UK currently faces a serious crisis of lack of language skills, which costs our economy an estimated 3.5% of GDP every year. Employers are not happy with the foreign language skills of school leavers and graduates and have been relying increasingly on overseas recruitment to meet their needs. Yet 100,000 fewer GCSE language exams were taken in 2015 compared to a decade earlier and, since 2000, more than 50 of our universities have scrapped some or all of their modern language degree courses. Erasmus+ plays a crucial role in the supply chain of MFL teachers in our schools, where we are already looking at a critical shortage unless levels of recruitment from the EU can be sustained after we leave.

All this is happening against a background in which the UK will be seeking to redefine its place in the world, establish leadership in international relations, security and soft power, and negotiate many new free trade agreements. It is a world, contrary to the popular but completely mistaken myth, in which 75% of the global population does not speak English, and young people need languages more than ever to compete in a culturally agile, mobile and interconnected jobs market. The Government are rightly committed to retaining a close relationship on all fronts with our European neighbours after we leave the EU, and so should be aware that English will almost certainly have a declining influence as an EU language, as native English speakers shrink from 13% of member state population to a mere 1%.

Another very telling statistic is that young people who have spent a year abroad with the Erasmus programme are 23% less likely to be unemployed than those who have not. This goes for students of all disciplines, not just linguists. Employers have repeatedly said how much they value candidates who have taken a year abroad to not just acquire language skills but develop an international and cross-cultural mindset. One study reported that employers rated these skills even more highly than expertise in STEM subjects.

It is also important to correct the misunderstanding that the scope of Erasmus+ is restricted to university students: as the noble Lord, Lord Storey, mentioned, it also covers schools, including primary schools, adult education, the youth sector and vocational training for apprentices and associated staff. Since 2014, the vocational provision has funded around 24,000 UK apprentices, other young learners and staff to participate in accredited mobility placements.

Erasmus+ gives opportunities to young people to work together and make a difference on issues that matter in their daily lives. Activities include running a project in their own community, meetings with decision-makers and volunteering abroad. Benefits include improved access to employment, as well as new experience and skills as active citizens. Youth workers benefit from job attachments, training and other professional development. Erasmus+ has an important role in supporting diversity and inclusion and is especially relevant to the most disadvantaged and vulnerable young people, including those in care, those with disabilities, refugees and migrants.

I respectfully ask Her Majesty’s Government to consider very carefully the timing of decisions on Erasmus+. To come out of the programme now, or even just cast doubt over our future participation by default, would be unnecessarily damaging to our national interests, for two key reasons: first, because the current uncertainty is one of the reasons given for the further drop we have seen in the past year of applications to study languages at university. The year abroad, supported by Erasmus, is the jewel in the crown of an MFL degree, and without it more universities will be under pressure to cut courses, which will further threaten the supply chain of language teachers. If we do not guarantee our full commitment to Erasmus now, this uncertainty will be compounded and very hard to turn around and recover from.

Secondly, the European Commission is about to double the budget for Erasmus+ to €30 billion for the next funding period from 2021-27, with €25.9 billion for education and training, €3.1 billion for youth provision and €550 million for sport. This will support three times as many people as the current budget. Why would we want to turn our back on our share of all that? What bad timing indeed if we were to cease being full, continuous members of the programme right now, just as we could have access to this expansion, which could help Her Majesty’s Government fulfil some of their core objectives on social mobility, social justice, regional inequalities and global competitiveness.

Therefore, I implore the Minister and through him the Government to please think again about cutting our ties with Erasmus+, especially right now when so much else is still up for negotiation over the next year. Let us at least hold on to what we know we already have access to, which provides excellent value for money and sends an important message to our young people that we have their future opportunities front of mind. Other non-EU countries which subscribe as full participants in Erasmus+ are Iceland, Liechtenstein, North Macedonia, Norway, Serbia and Turkey. I hope the UK will also be one of these after the end of 2020. I honestly believe that this would be the most straightforward, non-controversial, popular tweak to this Bill that the Government could adopt, whether in its current wording or perhaps in the Government’s own name on Report. As long as such an amendment provided for a solid commitment to continued membership of Erasmus+ and eliminated uncertainty, with absolute clarity on the future, I am sure it would be welcomed and appreciated across all sections of society.

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My Lords, I apologise to the noble Lord, Lord Storey, for missing the first half minute of his speech in rushing into the Chamber for this debate. I am delighted to support the amendment, which is one of the most important that we have before us. I welcome the speech of the noble Baroness, which brought in the whole dimension of multilingualism and our responsibilities towards the wider world, to show that our minds are open in that way.

A good friend of many of ours in Brussels, Hywel Ceri Jones, was one of the instigators of the original Erasmus programme, which, as has been mentioned, has been developed so that it now reaches and is relevant to far more people. It can therefore exert its influence in a much more beneficial way.

Over the period since the referendum, the Government have stressed that we are—sadly—leaving the European Union but not Europe. Having the Erasmus+ programme available sends a signal that we still want our young people to engage with Europe. That is a two-way process: equally, we want to see the Erasmus+ programme enabling young people from European countries to come to the countries of the United Kingdom. This is a very modest amendment, but it sends a very strong signal and I urge the Government to accept it or at least to come back with some statement or amendment of their own that shows that Erasmus+ will certainly be part of our future.

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My Lords, I was going to make exactly the same point as the noble Lord, Lord Wigley: we are indeed leaving the EU—much to my regret—but not leaving Europe. As a former teacher of modern foreign languages, I am very well aware of the great benefit that students derive from speaking the target language in situ in the country, rather than in the classroom or—heaven forfend—a language laboratory. Speaking a language in the country where it is spoken necessarily involves all those aspects of culture that are so much more difficult to bring into the classroom, where they will sometimes appear slightly artificial. Even though all the points have already been made eloquently by the noble Baroness, Lady Coussins, I wish to associate myself, as a former teacher, with all those remarks.

As I said in my maiden speech, I work extensively with teacher organisations across Europe, not in just the 27 countries that will remain in the EU but also in the other countries mentioned that subscribe to Erasmus+. My colleagues across Europe wonder what is going on in Britain and why we are leaving, but they are also at great pains to say that they are very keen to continue to work with British teachers, and to ensure, in so far as they can—although it is not in their purview—that we remain closely engaged with the Erasmus+ programme.

The budget is, as the noble Baroness, Lady Coussins, said, an enormous amount of money and a huge increase. It would simply be folly for the Government not to remain in this programme to access all those opportunities—at school level, at university level, with apprentices and, indeed, to assist the recruitment of teachers of modern foreign languages, as the noble Baroness said. I know more teachers of modern foreign languages who are no longer in the classroom than I do who are actually teaching. It is a very big problem and I hope the Government will listen to all the wonderful speeches that have been made today, make the very slight amendment to the Bill and determine that we will remain full participants in the Erasmus+ programme.

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My Lords, I too would like to support this amendment. Erasmus has been a most successful EU scheme and benefited 800,000 people in 2017, which seems to be the last year for which statistics are available. It has existed for three decades, benefiting 9 million people in that time. In 2015, the UK received funds of €113 million to implement the scheme.

As we know, it funds students and staff on vocational courses, voluntary work and sports programmes throughout the 28 EU countries. I should declare an interest: one my daughters attended the University of Naples for a year on the scheme and she has gone on to live and work there. In general, the scheme is hugely influential in broadening the education and cultural values of our young, including introducing them to foreign languages, which is not a natural skill for us Britons, as we have heard. When they return home, this knowledge helps them obtain more challenging jobs that benefit our own UK economy. Vice versa, EU students who study here learn to appreciate the British way of life and its values, which they spread back home in a positive manner.

It is hard to overestimate the often life-changing benefits Erasmus has bestowed on those who have participated—from all walks of life, as we have heard. We all gain from this programme and to refuse to commit to trying to continue our participation after IP seems unworthy of this Government and a kick in the teeth for so many aspiring young people.

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My Lords, I started my career living in France in my early 20s, and for the last 10 years I have earned my living in Europe in several different countries. Living and working in Europe has been a very educative experience.

The Erasmus programme is amazing. I have met several young people who have had the opportunity to learn about other countries, and to spread their knowledge of English while acquiring other languages. At a time when we are, through this unfortunate Bill, restricting the abilities of young people to experience living and working abroad, blocking this amendment would be very petty on the part of the Government. They have such a large majority and can do whatever they like, but to penalise young people in this way and to restrict their ability to experience Europe in all its glory is a great pity.

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My Lords, I am grateful to the noble Lord, Lord Storey, for tabling Amendment 38 and affording me the opportunity to probe the Government’s intentions with regard to excellent Erasmus+ scheme.

As we have heard, the current Erasmus+ scheme has benefited thousands of our young people and given tens of thousands of EU young people the opportunity to spend time in the United Kingdom. Despite previous statements that the UK will consider options for continued participation, the Government may be tempted to make a clean break. That would be a mistake. If we were to leave Erasmus+, current participants would be able to wind up their placements but other young people would be denied the opportunity to study, to work and to volunteer, which has become so commonplace. We on these Benches very much hope that this will not be the case. It would be a huge mistake to walk away from a scheme that has led not just to better employment outcomes but to an increase in the participants’ confidence, independent thinking and cultural awareness.

The Prime Minister has indicated that the UK will seek to continue participating in Erasmus+. As the noble Lord, Lord Storey, and others who have participated in this debate have said, we support the Prime Minister in that position. I hope the Minister can confirm that this is definitely the Government’s intention, as well as outlining what discussions—if any—have already taken place with the EU 27.

If I may abuse my position for just a second, could the Minister also confirm whether any progress has been made on our continued participation in the Horizon research programme, which is similar in many respects?

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My Lords, I am pleased to respond to this amendment moved by the noble Lord, Lord Storey, and I will try to respond the comments made by the noble Earl, Lord Clancarty, the noble Lords, Lord Wigley and Lord McNicol, the noble Duke, the Duke of Somerset, and the noble Baronesses, Lady Coussins and Lady Blower.

I appreciate that in recent days there has been a great deal of interest in, and confusion about, the UK’s participation in the next Erasmus+ programme. International exchanges are strongly valued by students and staff across the education sector. That is why we published our international education strategy in March 2019, setting out our ambition to increase the value of education exports to £35 billion a year, and to increase the total number of international students hosted by UK universities to 600,000 by 2030. The numbers of international students and EU applications are at record levels. The total number of international students, EU and non-EU combined, studying in the UK increased from 442,000 in 2016-17 to 458,000, and the most recent figure is 486,000 for 2018-19.

The most recent mobility analysis shows that Erasmus accounted for less than half of all mobility activities. I agree with the noble Baroness, Lady Coussins, and the noble Lord, Lord McNicol: there is evidence that students who have spent time abroad as part of their degree are more likely to achieve better degree outcomes, improved employment prospects, enhanced language skills and improvements in their confidence and well-being. I must gently point out to the noble Baroness, Lady Blower, however, that it was a Labour Government who removed the requirement that modern foreign languages be a compulsory subject. As soon as that happened, participation collapsed and we have fought hard over the last nine years to increase it.

I would like to clarify the Government’s position and explain why the proposed new clause is unnecessary. As several noble Lords have said, the Prime Minister made it clear at Prime Minister’s Questions yesterday that we will continue to participate in the existing programme. Our future participation will be subject to our negotiations on the future UK-EU relationship, but we have in our elected Prime Minister, almost uniquely, a person steeped in European culture. He was educated in Brussels for part of his childhood, at the European School, and is bilingual in French. This is not a person who is going to turn his back on European education and its institutions.

We believe that the UK and European countries should continue to give young people and students opportunities to benefit from each other’s best universities. Our exit from the EU does not change this. As several noble Lords have said, we are not leaving Europe. The withdrawal agreement ensures that UK organisations, students, young people and learners will be able to continue to participate fully in the remainder of the current programme.

On the question of future participation in the next Erasmus programme, which runs from 2021 to 2027, we have been clear that we are open to continued co-operation on education and training with the European Union. We remain open to participation in the programme, but the amendment is not necessary. The next generation of EU programmes, including the proposed regulation for Erasmus 2021-2027, is still being discussed in the EU and has yet to be finalised. How can we comment on something that does not yet exist? The existing scheme is nearly seven years old and as the noble Baronesses, Lady Blower and Lady Coussins, said, the new programme will be different. It will be bigger and, until we see the substance of those proposals, we simply cannot be sure what the next stage of the Erasmus programme will look like. On this basis, it is not realistic for the Government to commit ahead to participation in a programme yet to be defined.

As set out in the political declaration, we have said that if it is in the UK’s interests we will seek to participate in some specific EU programmes as a third country. This includes Erasmus+ but this will of course be a matter for upcoming negotiations arising from our future relationship with the EU. We are considering a range of options with regard to the future of international exchange and collaboration on education training, including potential domestic alternatives. This is a significant moment in our history. In two weeks’ time, we will begin to pivot to become a more outward-facing country. We do not need just an EU university scheme but a much wider one.

I hope that we will have a global programme, encompassing all continents. We have many small schemes. Time is too short here to list them all but I will ask officials to attach an addendum to Hansard. I shall mention one: the Chevening scholarships scheme, which offers some 1,600 postgraduate scholarships and fellowships for potential future leaders. Last year, we doubled the number of scholars coming from Argentina. To celebrate this, I held a dinner for them in Lancaster House and was joined by the Argentinian ambassador—and before noble Lords worry about a taxpayer-funded junket, I can reassure them that I paid for this myself. I did this because I want Britain to have a wider window on the world.

This Government will look carefully at all available opportunities to fund international co-operation on education matters, including with the EU. I hope this explanation demonstrates why the proposed amendment is not necessary and I ask that the noble Lord, Lord Storey, withdraws it.

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The Minister put a lot of emphasis on the Government’s wish to see the offer to students be much broader than just European and to encourage students to go worldwide as well. Does he not acknowledge that the whole point of Erasmus+, as opposed to the original form of Erasmus—without the plus—now means that the programme includes the opportunity for UK students to take up their placements in their year off in countries that are outside the EU, as well as inside it? This is precisely because it is acknowledged that some students may well benefit from a placement in China, Brazil, Turkey or wherever. That is exactly what has been happening with Erasmus+.

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I entirely accept what the noble Baroness says but the key principle here is that we cannot offer a blank cheque in the withdrawal Bill to say that we will automatically join a new programme where the details have still not been agreed. However, none of the mood music coming out, including what the Prime Minister said only 24 hours ago, suggests that we are going to turn our backs on the educational institutions of Europe. We want to be part of it. We are in a rapidly globalising world but the point that I want to make to everyone is that we cannot continue to slavishly focus on the EU. This is why we had the referendum and why, at the 2017 election, the manifestos of 85% of MPs supported leaving. We then had three years of chaos in Parliament and now we finally have a decent mandate to do it. That does not mean that we flounce out of Europe, or that we leave the culture and institutions of Europe. I am sure that we will work proactively to maintain close links.

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Does the Minister accept that the Chevening scholarship scheme has absolutely nothing to do with Erasmus? As a former Minister responsible for all post-school education, I am familiar with these schemes. The Chevening scheme is for master’s degree-level programmes and for students coming to the UK; it is not for British students going out to other countries, whether in Europe or elsewhere. Why the Minister’s officials have put this in his speech, and why he does not realise that it has absolutely nothing to do with Erasmus, I simply cannot imagine.

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I can answer that. The point is that nearly every Peer who joined the debate on this amendment was mourning the leaving of Europe. Many of them just said, “We are very sad to be leaving the EU”, but we have got to get beyond that. In two weeks’ time, we are going to be an outward-facing country looking to the rest of the world. The reason that I mentioned Chevening—I put it into the speech, not officials—is because I had direct experience of it recently. I was sent to the OECD conference on education in Argentina about 18 months’ ago. I met the Education Minister, and it is those sorts of contacts which will help the future of this country. I accept that Chevening is a master’s degree programme and that it is for high-potential future leaders, but it is about the connection between institutions in our country and other countries.

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The point I made in my speech was that Erasmus does not preclude these arrangements. My nephew was at Swansea University, which had an exchange with Arizona that had nothing to do with Erasmus. Losing Erasmus means that students would lose choices overall; that is the point.

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The reassurance that I can give the noble Earl is that we support the value of Erasmus. We are not signalling that we are going to come out of the next version of it, but we cannot offer a blank cheque on a scheme that has yet to be agreed. It will be part of the far wider withdrawal agreements that we foster with the EU over the next 12 months.

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I am grateful for the Minister’s comments. I am sure that he will want to reflect on the comments made by Members in this debate, particularly on the importance of Erasmus to languages and inclusion. I am pleased that he has told us that we are committed to staying in the current Erasmus scheme, as that is important. I would also point out that regarding our ability to engage with—in the phrase the Minister uses—the wider world, these things are not mutually exclusive. There is already a whole host of schemes where young people can go to non-European countries to study; those exist currently. I hope that we can build on those as a nation over future years as well.

The key issue is that while, to some extent, the Minister is right that we do not yet quite know what the new Erasmus programme will look like, if we can give a commitment to be part of it we can be part of forming that new programme, which will, I hope, do some of the things that he has been espousing. I will reflect on what he said and I hope that he will consider what Members have said. For the moment, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendment 39

Moved by

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39: After Clause 37, insert the following new Clause—

“Future relationship: EEA alignment

It shall be an objective of the Government to secure an agreement with the EU that aligns as closely as possible with EEA member status, having regard to Article 184 of the withdrawal agreement (concerning ongoing commitment to the political declaration).”

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My Lords, the President of the European Commission indicated last week that there was no way that the Government’s open-ended agenda—I stand to be corrected about the detail of the shopping list for the rest of this year—could be dealt with by the end of this year. Indeed, it is seen in Brussels as simple wishful thinking; Boris Johnson will think of another wheeze in time to keep the show on the road.

Instead of “Get Brexit done”, the real question is “Let’s get Brexit real”. At the moment, we assume that the starting point was something like the withdrawal agreement and political declaration of October 2019, but we would like to see a credible programme of what the Government will try to negotiate by the summer or autumn in order to meet the commitment made by the Prime Minister. It is in that connection that we could have something like EEA/EFTA as a point of reference—a tick-box, if you like—for many of the questions that will arise. We have just heard an interesting debate about Erasmus, but there are 20 or 30 such subjects, all of which will need decisions, including in many cases on their compatibility with free trade for the rest of the world—all that work has been done over many years since the Stockholm Convention of the late 1950s and Britain’s participation in EFTA and, eventually, the EEC in 1973-74. We have now therefore to set out where we want to be on the whole range of things where we have alignment at the moment.

The Government often say “We have alignment at the moment”, so why not say the next thing? If we are taking some comfort in the fact that we have alignment at the moment, is not the question surely why we want to move away from it? Do Her Majesty’s Government have some ideological reason for moving away from alignment? At the end of January, we will be putting out the flags to say Brexit is all done—it has hardly started, as we know.

The EFTA and EEA agreements have other consequences as well. I am not suggesting that we would enter into them, given the short title of this Bill, but they include the very important questions of jurisdiction of settlements of disputes, the arbitration panel and so on, all of which are important if we want to continue to attract foreign direct investment into Britain. As the Financial Times charts, this is going down very rapidly, partly because these rather straightforward decisions have yet to be made. If they are not made very soon, there will be an assumption that the Government have not thought through how these Brexit-related issues will be resolved.

To remind ourselves, the EEA agreement provides for a free trade area covering all the EEA states. It does not extend the customs union to the EEA/EFTA states. The free trade area also abolishes tariffs on trade between the parties, but there are still border procedures. This is a model that I hope the Government will not run away from simply because it was not their idea in the first place. To get Brexit real, these become very serious options for consideration, and I hope that the Minister will agree that we should look at all these questions on their merits and at having a framework for the compatibility of them all. Looking at each question one by one is not necessarily the most helpful way to see how a framework can be agreed. Surely, by the end of this year, the notion is not just that we will have a number of separate agreements on everything under the sun but that we will have some sort of framework, because there are consequences between the different silos in any framework. I hope the Minister appreciates that—I say it in a constructive spirit—because it is, unfortunately, against the background that we will have left the European Union, possibly to rejoin the EEA at a later point. That is another question, but it is not something that the Minister should balk at simply because it sounds like a stalking horse for rejoining the EU. It is a perfectly good shopping list for the Government. I would like to know when the Government’s framework concept for the negotiations in the next few months will be published, or will the Government just keep all their cards up their sleeve and not publish such a thing?

Take the question of jurisdiction: it is very odd indeed that we should now want to attach more importance to jurisdictions where we have no judge, as we do in the European Court of Justice at present. During the transition and under the future envisaged in the political declaration, does the Minister agree that we will have to accept that it will be for the ECJ, without a UK judge, to present the authoritative view in any imaginable case between the EU and the UK before the new arbitral tribunal?

We know that there are issues that do not necessarily fit within the framework that I have just described, such as the free movement of persons and mutual recognition of diplomacies. There are limits to how far one wants to go in putting everything in what we might call a framework agreement but, again, a lot of work was done in the EEA negotiations. If we are going to shadow anything to see what works and what does not, that would be an excellent place to start. It would be far more effective than a one-off set of negotiations on a whole range of things one at a time. I hope that, in that spirit, the Minister will agree that there could be value to the Government in looking at such a framework.

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My Lords, I have not spoken on this Bill so far, because I was not able to attend the closing speeches at Second Reading, though I have followed most of the Bill proceedings. I added my name to the amendment moved by my noble friend Lord Lea because I felt that it was a way of raising the issue of how close we manage to stay to the European market after Brexit. The amendment of course raises the importance of alignment. We have already heard several times from Ministers today that we are not leaving Europe even though we are leaving the EU, yet in so many ways we are putting obstacles in the way of our ongoing relationship with Europe. In terms of alignment, there is much emphasis on having freedom to make our own standards, but this seems quite an illusory freedom in many ways, which is probably not in our interests. Obviously, there may be some rules within the EU that we do not particularly like, but most of the rules we have agreed over the years are as part of the single market, which the United Kingdom very much pushed for in its early stages. Most of those standards and rules concern such things as consumer safety, environmental standards and sensible trading arrangements: we must not forget that as we move forward. In many ways, we actually made those rules: we were the prime mover in making those rules in the European market.

One of the arguments against being too close to EFTA was that that would make us rule-takers rather than rule-makers. Of course, that argument already concedes the fact that we have been rule-makers in the past. Within the EFTA arrangements, there are certainly ways in which we can influence the rules, which will not be the case if we do not follow any kind of close alignment after Brexit.

I have been struck in the course of our debates by how the issues I have been raising have been translated into vivid examples in different parts of the UK. I was very struck by the remarkable debate that took place quite late on Monday night about Northern Ireland, about the importance of the single market to Northern Ireland’s relationship with the Republic and how vital unfettered access to the UK market is to Northern Ireland. In particular, my noble friend Lord Hain made that point very powerfully, and there does not seem to be any easy answer. I cannot understand, and nobody has been able to explain it to me so far, why the arrangement consists of trying to assess whether goods that go into Northern Ireland from the UK may, or may be likely to, end up in the Republic of Ireland. I have no idea how that system of assessment is going to work. It seems unworkable and the debate in your Lordships’ House on Monday night underlined that point very strongly.

We also know that Scotland is very keen to keep as close to the European market as possible and is concerned about the Government’s trading stance. In my own part of the country, the north-east of England—the Minister will not be surprised that I mention it, because I always do—a higher proportion of our trade goes to the European market than any other region of the UK. When the Prime Minister visited the north-east recently, before election day, I was very much hoping that someone would ask him whether he accepts the figures of his own Government that the north-east is going to lose out in so many specific ways. He was never asked that but I would have liked to ask him whether he accepted those figures or, if he did not, what his own figures were. Perhaps the Minister will give us some clarification of that now. Certainly, our future trade arrangements will be vital to the future of the north-east economy.

There is a political point that needs to be made. We know that the referendum result in 2016 was narrow and that, despite the Government’s handsome majority of seats in the House of Commons now, none the less those people who voted for parties who either wanted a second vote or were in favour of remain comprised 53% as opposed to 47%. That is a contrary picture to that in 2016 and for that reason, while the Government have a mandate in terms of seats to go ahead with Brexit, they also have a responsibility to work towards a solution that will at least not seem totally antagonistic to what the other part of our population actually thinks. For that reason, a compromise would be to stay as close to the European market in as many constructive ways as we can.

We have just had a fascinating debate about Erasmus: that is a very good example of the kind of thing I am talking about. I urge the Government to look at this whole issue of alignment and staying close to the European market in a much more positive and constructive way than they have up to now.

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My Lords, the EEA relationship has been, and, indeed still is, one that suits its member states exceedingly well. It enables certain non-EU member states to take full advantage of their geographical proximity and their historical trading and cultural relations with the EU to the benefits of both sides of the various borders. It is a model, as we have heard, that our negotiators would do well to follow, not necessarily on the exact detail, which is, after all, tailor-made for the various parties, but in its aim: to retain the alignments that foster trade, and to build on our different natural resources, strengths, patterns of exchange, labour needs, service expertise and investment potential. The negotiations should build on those strengths, just as the EEA has managed to achieve. That, we think, would be to the benefit of the EU as well as ourselves.

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My Lords, I thank all noble Lords who took part in the debate, but we have been very clear in the political declaration, and indeed in our election manifesto, on our vision for the UK’s future relationship with the EU, which is based on an ambitious free trade agreement.

As I always do, I enjoyed the contribution of the noble Baroness, Lady Quin. We share an interest in the north-east of England. She is an experienced former Minister, doing some aspects of the job that I do now, and I always listen very carefully to what she has to say because she speaks a great deal of sense. She asked about the impact on the north-east of England, something I am of course very interested in. The answer will depend on the future trading arrangements that we negotiate, so I say: come back and ask me again at the end of this year. We have been very clear that we want an ambitious free trade agreement. We want trade to be as free as possible and we will be negotiating hard to bring that happy state of affairs about.

The election has clearly shown, in my view, that the public support the vision that we put forward. It was extensively debated in the election campaign and we won our majority on that basis. To answer the question of the noble Lord, Lord Lea, directly, I say that it is only by leaving the single market that the UK will be able to obtain an ambitious free trade agreement and to strike new trade deals with new and existing global partners. Attempts to remain in the EEA agreement beyond exit is by no means a simple as many noble Lords would have us believe. The EEA is an arrangement that exists at the moment between the EU and a number of EFTA countries—

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I emphasise for the third time that this amendment is not about rejoining or staying in: it is, as my noble friend Lady Quin said, about alignment. Indeed, it is, if I may use the phrase, shadowing some of the rules that we have at the moment. Will the Minister comment on the fact that he has said many times that we are beginning from alignment? Why leave alignment, as a theological requirement?

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I do not think that I said that. However, the noble Lord is right—although I did not say it on this occasion—that of course we are starting from a position of alignment. I do not have his amendment in front of me, but I think it refers to the EEA: it is the purpose of the amendment he has tabled, which is why I was exploring the issue.

The point I was going to go on to make is that the EEA is an agreement between the European Union member states and a number of EFTA states, and it is not open to the UK just to be able to join that agreement. We will leave it when we leave the EU part of that agreement, but the EU would almost certainly want to renegotiate it, because it was never designed for a country the size of the UK. That is if we did want to join it, but as I will shortly set out, I do not think it is desirable that we should. It is not a simple case, even if we wanted to, of happily trotting off and joining the EEA agreement: there are a number of other countries which are in at the moment that would no doubt have some observations on that.

My point is that attempts to remain in the EEA agreement beyond exit would not deliver control of our borders or our laws—two of the main three pillars of our argument for why we need to leave the EU. On borders, it would mean having to continue to accept all four freedoms of the single market—I take the point made by the noble Lord, Lord Lea, that we could perhaps pick and choose which ones we wanted to abide by or align with, but I suspect that the EU might have something to say about that. However, we would of course have to accept free movement of people. On laws, it would mean that we would have to implement all new EU legislation—as the noble Baroness, Lady Quin, said, we would be rule-takers. The noble Baroness was not in her place last night, but I quoted Mark Carney, the Governor of the Bank of England, who said how dangerous it would be, as we seek to manage one of the largest and most complex financial markets in the world, to turn ourselves into rule-takers, whereby the rules were set by another jurisdiction. Despite Mark Carney’s views on EU exit, which are well known, he made it clear that he thinks that it would be an unacceptable state of affairs for us to proceed with. It would mean that the UK would have to implement all new EU legislation for the whole of the economy, including services, digital and financial services.

We do not believe that that would deliver on the British people’s desire as expressed in the referendum to have more direct control over decisions that affect their daily lives. Rules would be set in the EU that we would then have to abide by. The public want the Government to get on with negotiating this future relationship, which was set out in the political declaration, without any further unnecessary hurdles, and that is what the Government will do.

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I am listening carefully to what the Minister says, but he is responding to something that the amendment does not say. It does not say “rejoin” or “join” EFTA or the EEA but simply that we should have a look at what is happening in that process and look at areas where we would want to align with it.

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The amendment refers to the EEA, and the noble Lord, Lord Lea, indicated earlier that he would be in favour of joining it, so I was making the arguments against that. However, we have also explored the arguments on alignment at different times in the past, and it may well be as a result of the negotiations that there are some areas of EU legislation that we may wish to align with or put in place an equivalence procedure. That is all for the future negotiations.

As we have said on many other amendments, we do not believe that it is a sensible tactic to set out our negotiating objectives in statute, or that setting a negotiating objective along the lines of that advocated in the amendment would be what the public voted for in the general election or in the original EU referendum. Our manifesto at the election was explicit about the Government’s intention and determination to keep the UK out of the single market. On that basis, although I suspect that I have probably not satisfied the noble Lord, I hope that he will feel able to withdraw his amendment.

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I thank the Minister for that reply, although I think that whoever wrote his speech had not read the terms of the amendment. Over the course of the next four years, even if the Government do not want to set out a blueprint—

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I have a copy of the amendment and it says:

“aligns as closely as possible with EEA member status”.

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To align is something that we can do unilaterally or with agreement, but the amendment does not say “join”. I am sorry—I am not trying to be pedantic; we both know where we are, but that is what the amendment says.

To conclude, I hope that the Minister and the Government will generally reflect on the fact that, if they want to get Brexit real rather than just saying “Get Brexit done” as a slogan, they will have to see how a framework can be approached which will have certain common principles that will then be understood by the President of the European Commission. At the moment, she is baffled about whether the Government know what they are doing when they say that we can get all these things done one by one—scores of them all done and dusted by the end of this year. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Amendment 40 not moved.

Amendment 41

Moved by

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41: After Clause 37, insert the following new Clause—

“Economic impact assessment

(1) A Minister of the Crown must—(a) lay before each House of Parliament, and(b) submit to the Presiding Officer of each devolved legislature,a comprehensive economic impact assessment of potential outcomes arising from the conclusion of negotiations on the future relationship with the EU.(2) An assessment under subsection (1) must include—(a) an analysis by NUTS1 and NUTS2 regions of the United Kingdom including (but not limited to)—(i) impact on employment as both an actual figure and a percentage, and(ii) impact on Gross Value Added; (b) a sectoral analysis including but not limited to agriculture, health and social care, manufacturing, the aerospace industry and financial services.”Member’s explanatory statement

This new Clause would require the Government to produce an economic impact assessment on the future relationship with the European Union.

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My Lords, the objective of Amendment 41 is to require the Minister to present, both to Parliament and to the devolved legislatures, an economic impact assessment of the potential outcomes of negotiations so that we may know where we are heading.

First, over the past three years, numerous prophecies have been made as to the economic implications of Brexit, most of which were based on guess-work at the time as to what would be the outcome. All those guesstimates are now largely irrelevant. We now know three basic dimensions of our way forward. We know that we shall be leaving at the end of this month and that the implementation period will last until next December.

Secondly, the Government, presumably, know exactly what they want in any agreement reached with the European Union. They therefore will have made their own assessment of the economic impact if they get their way. The House and the devolved Governments have a right to know the detail of any such assessment, as well as a right to know the implications for each of our four nations and for the standard regions—in the amendment this is covered by virtue of a reference to the NUTS areas.

Thirdly, the Government have made it clear that, if they fail to reach and to achieve their negotiating objectives, they will choose to leave without a deal. Again, they have presumably estimated the effect of any such course of action. The implication could be disastrous for manufacturing, exporters, hill farmers and many others. However, surely the Government have, at the very least, a duty to make known the detail of any such estimates. Anyone in the world of trade, agriculture, manufacturing, industry or finance will clearly want to know, at the earliest time possible, what are the official forecasts for these implications, for the basic reason that they are quite fundamental to making any future investment decisions.

If the Government have their own estimates, they are surely duty-bound to share them, and if they do not, they should step back from negotiating a trade deal until they have the basic tools needed to make such a major and far-reaching decision, and to have those tools and the information on a logical and quantified basis. I beg to move.

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My Lords, perhaps it is a symptom of the way that Brexit has been handled that the noble Lord, Lord Wigley, even needs to table this amendment; we would have hoped that all this work had been done, published and debated well before any decisions were made. Indeed, I think reference was made yesterday to the Room 101 experience we had when we were called to be shown in secret the so-called sector-by-sector analyses of the impact of the withdrawal. They were of course no such thing—they were A-level descriptions which could have been got from published documents. Now we find that the Government want to head into negotiations on the future of the UK and its constituent parts with no prior appraisal of the impact of a range of outcomes, either on sectors or on geographical areas, and importantly, with no debate with either the industries concerned or with elected representatives of the geographical areas. Yet as we heard in the debate yesterday, important trade-offs and difficult judgments are going to have to be made as we struggle to find a workable trade relationship with the EU.

This should not be done in the dark. We should have full knowledge of the likely impact of each possible approach. The Government should have done this work, but I have little confidence that they have, which is why the amendment tabled by the noble Lord, Lord Wigley, is so relevant.

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My Lords, I am grateful to the noble Lord, Lord Wigley, for introducing his amendment which, as he made clear, relates to the future economic relationship between the UK and the EU. Our agreement with the EU in the political declaration was expressed in the following words:

“to develop an ambitious, wide-ranging and balanced economic partnership. This partnership will be comprehensive, encompassing a Free Trade Agreement, as well as wider sectoral cooperation where it is in the mutual interest of both Parties.”

We look forward to working with our partners in the EU to negotiate this free trade agreement in the year to come. But on that, there is a basic point to be made. It would be neither possible nor appropriate to publish a detailed analysis of the specifics of an agreement that is yet to be negotiated. Indeed, publishing such a detailed report, as the noble Lord’s amendment would require, would completely undermine the UK’s negotiating position heading into the next stage.

There is a way to address the noble Lord’s concern that does not land us in that kind of trap. In November 2018, the Government published a detailed analysis that covered a broad range of possible EU exit scenarios. This report ran to over 80 pages and was designed to provide an understanding of how changes to our relationship with the EU might affect the United Kingdom’s economy in the long run. This is available for all to see.

In exactly the same vein, let me reassure the noble Lord that the Government remain committed to informing Parliament with the best analysis to support parliamentary scrutiny. We will do so at an appropriate time that does not impede our ability to strike the best deal for the UK. As I emphasised in our debates yesterday, we have also been clear that we will engage with the devolved Administrations and draw on their knowledge and expertise to secure an agreement that works for the whole of the UK.

I hope therefore that the noble Lord, Lord Wigley, will feel able to withdraw his amendment. I can assure him that the Government will continue to update the House with analysis at appropriate points.

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Could the noble Earl clarify why, if it was possible to publish in 2018 the figures to which he has referred, it is not possible to do so now?

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My Lords, the intention behind those scenarios was to cover a broad spectrum of circumstances which we could find ourselves in. They were not designed to posit our desired end-point; they were designed as a guide to the citizen to illustrate what could happen, given certain variables. I do not think that it is possible or advisable for us to go beyond that at this stage.

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I am sorry to labour the point, but could he therefore say whether the figures of 2018 are still valid?

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They are still valid as hypothetical figures and as illustrative of certain scenarios if certain arrangements were agreed. I think that Ministers would stand by the figures in so far as they are designed to illustrate those scenarios.

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My Lords, I do not think I will succeed in taking this matter very much further this afternoon, but the House will have seen the position that we are in: some figures were available in 2018 that may or may not be relevant now, and we do not know the direction we are going in to know whether they are relevant. It seems a very strange way of entering negotiations—I only hope that the outcome will be better than the prophecy on that basis. I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Amendment 42

Moved by

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42: After Clause 37, insert the following new Clause—

“Transport between the United Kingdom and the EU

(1) During the implementation period a Minister of the Crown must as necessary make regulations and seek agreements with the EU or with an individual member State of the EU to ensure that transport of freight and of passengers by road, rail, air and sea continues to operate smoothly between the United Kingdom and member States of the EU during the implementation period.(2) No later than 31 July 2020 a Minister of the Crown must set out in a report to both Houses of Parliament the basis for movement of freight and of passengers by road, rail, air and sea between the United Kingdom and member States of the EU after the implementation period.(3) A Minister of the Crown must, within the period of 14 sitting days beginning with the day on which the report is published, make arrangements for an amendable motion on the report to be debated and voted on in each House of Parliament.”Member’s explanatory statement

This amendment is to alleviate concerns that permits will become less available and more complicated for lorries and drivers on cross-Channel journeys by ensuring that contingency arrangements can be made during the implementation period.

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My Lords, I said earlier this afternoon that my amendments were somewhat technocratic today, but this one actually, in a sense, deals with the most fundamental issue of all. As we split from the European Union, what actually happens when we move from one economic and political entity to another and how does it differ from the free movement we have had over the past few years? In other words, what will be different for the citizen or the trader once Brexit is “done”? Of course, as we said earlier, it is being done in stages: some things will happen from 1 February, some presumably from 1 January, and there might well be further stages in any ultimate agreement.

What matters to citizens and business is: if you drive your lorry off the ferry at Ostend, what has changed? If you land at Schiphol Airport, now in a different economic area, as a British citizen what has changed? Despite the fact that we have had major debates on Northern Ireland, it is not at all clear what will happen in relation to Northern Ireland, even internally within the United Kingdom. What actually happens if you are a trader moving produce from Stranraer to Larne or vice versa? I am not clear and nor are many businesses in Northern Ireland. Indeed, what changes if you just drive produce down the road from Strabane to Letterkenny? We need to know that; businesses, citizens and communities need to make arrangements that anticipate the new relationship with our European colleagues.

In May last year, the sub-committee of the EU Select Committee that I then chaired produced a major report on transport. That report is yet to be debated in the House. I was told that we would be debating it next week, in which case I probably would not have moved this amendment, but that seems to have disappeared, in which case we are not likely to debate transport in any other context before Brexit on 31 January.

We are told that things will not change during the implementation period, but some things will change. We will no longer be party to any decisions on transport or any other area during that period. I have therefore tabled an amendment that tries to deal with these stage changes to enable Ministers to make regulations to deal with those changes even during the implementation/transition period, because some will be needed. More importantly, after the end of that period, we will have a whole new relationship for every mode of transport—air, sea, road and rail. The implications will be different for passengers and for freight.

Take the road haulage industry: we have already had two different attempts to get it to prepare by developing its certificates and its ability to trade post Brexit, originally in preparation for 29 March. Those arrangements have, of course, now fallen. Even now, the road haulage industry is not yet clear whether we will be dealing with ECMT permits, which are limited in number, whether the whole range of road haulage will be required to have a new certification process, or whether drivers’ qualifications will remain recognised by the European Union, and therefore whether we can continue to trade in anything like the way we currently do without going through a whole new process.

When 29 March was in prospect, the European Union unilaterally, but subject obviously to reciprocal action, proposed that there would be a period of between nine and 12 months when the current arrangements for aviation and road transport would remain, so there was to be a buffer contingency provision. Those have sort of been rolled forward, but it is still not yet clear how long they will last and whether they will actually maintain continuity, or whether they will require new bureaucratic limitations on the ability to maintain the current level of aviation service, the current number of slots available to British-based companies, or, in the road haulage industry, the current level of permits.

The EU Select Committee has reviewed the withdrawal treaty and the political declaration. There are, of course, very high-level commitments in the political declaration to try to maintain some degree of movement. The committee concludes—as, more or less, does my committee—that it is not yet clear, and is unlikely to be clear until we get a free trade agreement of some sort, what the arrangements will be post-December this year. The committee concludes that we need much firmer commitments from the Government on their objectives in these areas, and much clearer commitment from the EU during the coming months.

The second part of my amendment therefore requires that, halfway through the year—by the end of July; let us give them a few months to get it sorted—the Government offer some clarity to industry and citizens. This involves us even as individual motorists. Will we need an international driving certificate by the end of this year to get off the ferry at Calais or Boulogne? It matters that we know the Government’s intention in these areas. As yet, we do not know the intention or—if it is to maintain free movement of goods and passengers on the present basis as far as possible—the credibility of that intention.

Of course, we then run up against a basic objection: free movement is dependent on alignment and common regulations, or what one of Mrs May’s propositions referred to as a common rule book. Without that, even if we have no tariffs, there are administrative problems, including costs and potential delays. That could snarl up Dover and make traffic at Holyhead almost impossible to check. It could mean snarling up trade with Ireland, as well as our relationship with the Irish Republic, which uses the UK as a transit area to get into the rest of the EU.

If the Government genuinely want what the Prime Minister on occasion says they want—the maximum freedom to diverge from European Union regulations—and they apply this to transport, the system will snarl up. There will not be frictionless trade, which has been said by successive Prime Ministers to be the objective. Frictionless trade does not exist without pretty close alignment of regulations, which the European Union has. As my noble friend Lord Lea said earlier, even between the EU and EEA/EFTA countries, there are some administrative problems at the borders, despite the agreement between the EU and those countries.

In every transport sector, whether you are a big road haulage company, a major world airline, a small trader with a van or an individual motorist, you do not yet know how the world is going to change and we have had no real indication from the Government of how they will deal with this. Can they give us some indication? As I have said, I would have preferred a report on transport in a different context—and I hope we will still have that even if it has to be after Brexit day—but this is a major subject which affects almost every sector of our country. I will come on to another amendment that deals with the agencies. The European agencies are very important to effective transport safety, be it road haulage, the railways or, more importantly, aviation and maritime activities.

I hope that we can get a coherent response—a report—from the Government on this issue. I have given them time before we exit. Between now and July, they should tell us where they are going and how we are to travel and trade beyond next year. I beg to move.

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My Lords, I was a member of the committee to which the noble Lord, Lord Whitty, referred when he mentioned the evidence on this issue. Week after week we heard witnesses from the transport industries giving evidence, and they presented a pretty united picture. Not one of them bounced in and said, “No, it’s all right, we’ll cope; we aren’t worried.” They were all worried and they were all frustrated. Of course, they will do their best to cope, but many of them genuinely fear that their businesses will go to the wall in the process.

Transport of one sort or another has been the subject of a lot of discussion and controversy throughout the Brexit debate. This is a comprehensive amendment which includes references to passengers, freight, roads, rail, air and sea. All of these are currently governed by a mass of different rules and agreements. Some of the agreements are with the EU and some are international treaties, but we are a member of those treaties solely as a member of the EU. Therefore, our position has to be renegotiated as we leave. All of this has to be unravelled and reconstructed if our transport system is to flow smoothly. It will never flow as easily after we leave the EU, because the Government have set their face against the close trading relationship needed for it to do so. However, they can still do things to paper over the cracks.

It is important to recognise the size of the problem. The prosperity of our economy rests on the shoulders of our transport system. Much of that involves foreign trade and the movement of people between countries, but even parts of the economy that are purely internal are to a varying extent affected by problems in the international movement of goods and people. To give one example, any delay to the ports in Kent has a huge knock-on effect not just on the motorways but on the towns and villages of Kent as a whole, and has an impact directly on its internal economy.

Now we have the added factor of the border down the Irish Sea. I have spoken repeatedly in this Chamber about the impact that this would have on Wales—for example on the port of Holyhead, which is badly unprepared to deal with long queues of traffic simply because of where it is situated—and on the farming industry in Wales as a whole. Transport-related problems are not confined to the impact of increased bureaucracy, to which the noble Lord, Lord Whitty, referred, nor to more complex border arrangements and the delays they might produce. They are also caused by the steady departure of EU nationals. This industry has a very high percentage of such employees, and their departure will also cause recruitment issues.

I draw the attention of the Minister to the fact that many of the early arrangements we made as a country with the EU in preparation for this are now badly out of date. Indeed, I remember sitting opposite the noble Baroness, Lady Sugg, when she was the Minister, discussing whether the dates matched for the interim arrangements that had been reached. So all these now need to be updated. They took us a long time in the first place—many hours of work went into them—but they must be looked at again, and it would be very useful for this House to know how well the Government are getting on with that.

The Government have been relatively keen to maintain our membership of aviation-related treaties but have been much more limited in how they have approached, for instance, links with our current EU partners on the railways. They have wanted agreement only with our immediate neighbours. Is that still their position?

The Government have gradually woken up to the general issues and concerns, especially in relation to freight and ports. A great deal of money has been spent on an emergency infrastructure in Kent. Of course, a lot of that money was wasted because it led to previous dates for departure from the EU that did not come to anything. Then there is of course the famous ferry company with no ferries.

I see that the Government are now trying to reclaim some of the £10 million that they gave to this industry and others to prepare for a no-deal Brexit. That displays the Government’s confusion on all this, because the Prime Minister continues to threaten that if there is no trade deal this year there will still be a no-deal Brexit. Everyone I talk to or listen to who has any knowledge of the complexity of a trade deal says of course that it is a highly likely event, because it is virtually impossible to get an agreement by the end of the year.

The transport industry remains seriously concerned. It grapples with uncertainty and complexity. I argue that this issue is so fundamental that it deserves the spotlight and the report that the amendment suggests. It is about a great deal more than whether we will all need two different sorts of international driving permit. It is that kind of thing that will have a huge impact on the general public, but it is the complexity of all the other issues that will have a major impact on how our goods are carried to and fro, and with what efficiency.

The amendment is designed to impose on the Government an obligation to work for the smoothest possible trade arrangements going forward. I hope that the Government have no problem in accepting that principle; but I also hope that they accept that Parliament should have the opportunity to assess progress. I believe, and I have always believed, that it is not until we get the impact on our transport arrangements across the board that people in Britain will realise the size of the change coming to us.

I hope that the Government can accept the amendment. If they cannot, I hope that they will work toward agreeing something along similar lines that will impose similar obligations on them to give updates on progress as they move forward with agreements on transport.

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My Lords, like the noble Baroness, Lady Randerson, I served on the EU sub-committee, led very ably by the noble Lord, Lord Whitty, and took part in the preparation of the report to which the noble Lord referred.

It was very clear from the evidence we received in that committee that some serious issues remain to be resolved. In particular, I single out road haulage, with the issue of permitting. Not all the other sectors present the same degree of difficulty. However, in that committee we took evidence from the Minister in the Department for Transport. While there were no definitive answers, because at that time last year there was a range of possible Brexit outcomes, it is fair to say that the Minister demonstrated a full grasp of the issues involved. I have confidence that the Government are aware of the issues and know what needs to be addressed in order for there to be a successful outcome for all aspects of transport post Brexit: that is, post the implementation period, in effect, so this is not a burning-platform issue.

I cannot support the amendment in the name of the noble Lord, Lord Whitty, because I do not think that reports to Parliament are a particularly useful mechanism, especially in the context of what I believe was relatively clear evidence at the time that the Government were aware of the issues and determined to address them. I look forward to hearing my noble friend the Minister’s response and hope that she will be able to demonstrate to the House that the Government are indeed aware of the issues and committed to finding practical solutions to them.

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I do not normally have sympathy for the Government Front Bench, but I, like the noble Baroness, Lady Sugg, took part in many hours of, broadly speaking, good-natured debates preparing for a no-deal exit. That very action revealed to us the sheer complexity required to make international transport systems work effectively. We were dependent on what we could do for ourselves, because we were in no way able to demand reciprocal action from the EU. Indeed, the EU saw the sheer risks of a no-deal exit and in fact came some way towards providing interim arrangements. Those interim arrangements do not now exist. It is possible that they will emerge between now and the end of December, but given the sheer effort required to do these complex deals, where somehow it is subtly acceptable with our European friends but is not actually like Europe—roughly speaking, that is what the Government are saying—I fear it is impossible.

I do not want to leave the European Union. Most of the House before the election did not want to leave the European Union and probably does not now, but with the odd exception there is virtually acceptance in this House that we have to get Brexit done. We may not like it, but we accept it. However, the sheer practical difficulties the Government face are terrifying.

It also happens that they have picked the worst date of the year. I had a crisis when a permit to operate ran out on 31 December; the alternative was to stop London on 1 January. It was pretty terrifying, because Christmas happens all over the place. Frankly, the end of December is the 22nd if you are lucky. The problem is that everybody else thinks the end of December is the 31st. It turns out that it is not. People are not there—senior people to make decisions and last-minute scrambles, which are what deadlines produce. It becomes utterly chaotic. Anyway, we survived and London did not stop, but it got incredibly close.

During consideration of the Haulage Permits and Trailer Registration Act, we debated the concerns of the freight industry at length. That industry is key to our trading with the EU 27, with millions of road goods vehicles travelling from Britain to the European mainland each year.

Since the passage of the Act, as part of its preparations for a no-deal exit, the Department for Transport began allocating permits via a lottery system, a system that was to be a fallback. Inevitably, because it is so overwhelmed, that became the main allocator. Figures show that less than 1,000 of more than 11,000 HGV operators' applications for annual permits were successful. With a deal now in place and a time-limited transition period running to the end of December, hauliers, drivers and users of other transport modes will be able to continue largely as normal.

However, as with other topics debated in recent days, there is no certainty about the post-December 2020 picture. Indeed, with the Government imposing hard deadlines for a new trade deal, transport operators face a renewed threat of suboptimal contingency measures. I lived in the transport industry. The lead time simply to have the right people in the right places to load the trains, drive the trains, fly the aeroplanes takes weeks and months. If you do not know what you are going to do in an industry that is so integrated, chaos reigns.

I welcome my noble friend Lord Whitty’s amendment and look forward to the Minister providing more up-to-date information. We have had precious little detail from the Government on their plans for future UK-EU transport arrangements, and while we accept that this will be subject to negotiation, I hope the Minister can indicate the type of arrangements that we will be seeking, and that the Government are successful.

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My Lords, I thank the noble Lord, Lord Whitty, and members of his committee, including the noble Baronesses, Lady Randerson and Lady Noakes, for their very thorough report in May 2019, Brexit: Road, Rail and Maritime Transport. I also thank the noble Lord, Lord Tunnicliffe, for his contribution today. While I appreciate the intended effect of the amendment proposed by the noble Lord, Lord Whitty, it is at best unnecessary and at worst unwise, as I hope to explain.

The first part of the noble Lord’s amendment relates to transport during the implementation period. It is worth reiterating that, once the withdrawal agreement is ratified by the EU and the United Kingdom, EU law will continue to apply in the UK during the implementation period, and the Government will make regulations as appropriate. This will guarantee that the transport of freight and passengers will continue to operate smoothly, just as it does now. So in the implantation period, nothing changes. I hope this reassures the noble Lord that this part of the amendment is therefore unnecessary.

Regarding arrangements for the moving of freight and passengers by road, rail, air and sea between the UK and the EU after 2020, these considerations will form a very important part of the negotiations with the EU and should be allowed to proceed without undue impediment. While it is beyond the scope of today’s debate to go into great detail, I will take this opportunity to reassure noble Lords that the Government are fully prepared across all four modes: roads, aviation, rail and maritime. The landscape is complex, but the challenges are not insurmountable, and the work done in your Lordships’ House and beyond has been critical in crystallising our understanding.

On roads and road haulage, while international haulage accounts for only a small proportion of haulage activity in the UK, it is essential for our imports and exports. The political declaration therefore identifies road transport as an area for negotiation. We hope to agree arrangements that will allow the haulage industry to continue to act as the vital enabler of wider economic activity, while respecting our right to decide for ourselves how we regulate this sector in the future. We are developing a programme of discussions with the haulage sector on the future relationship, and this will include regular industry round-table meetings.

The noble Lord, Lord Tunnicliffe, mentioned permits and the time taken already by your Lordships’ House on a permitting system. This has helped our understanding of the challenges that the haulage industry will face. The Government are aware that the ECMT permitting system can be limited, and therefore if we do not have an agreement, we will look at bilateral arrangements with individual countries. Many of those historic bilateral road agreements can be restarted, and we have them with all EU member states, excluding Malta for reasons of geography. These would be the foundation for maintaining connectivity. However, our immediate focus is on getting an arrangement, particularly for road haulage. There is huge interest on both sides to make sure the arrangements work and that we are able to serve the supply chains across all nations.

Private motorists are also mentioned in the political declaration. Noble Lords will recall that by ratifying the 1968 Vienna Convention on Road Traffic we have already ensured that UK driving licences should be recognised in EU member states which also ratified the convention. Ireland, Spain, Cyprus and Malta have not ratified this convention, but we have ensured that UK driving licences should be recognised in those countries through their ratification of the 1949 convention. We are prepared to consider complementary arrangements where those would make sense.

Another example is on type approval for vehicles. The Government are working on implementing a UK type approval system to regulate which vehicles may be sold on the UK market, so that we remain confident that vehicles registered in the UK are safe, secure and clean. The UK is a respected member of the UNECE World Forum for Harmonization of Vehicle Regulations. We expect to maintain our high level of influence over the development of international vehicle technical standards.

On aviation, the political declaration foresees a comprehensive air transport agreement that will provide market access for UK and EU airlines, and provisions to facilitate co-operation on aviation safety and security, and air traffic management. The UK has long-standing expertise in negotiating aviation agreements and is fully prepared to reach a beneficial deal.

The noble Baroness, Lady Randerson, mentioned the safety agencies. Within the field of aviation that is the EASA, a significant player with whom the UK works closely. It is paramount that the safety and security of all passengers travelling in the UK and EU is not compromised under any circumstances. We want our consumers and EU consumers to continue to experience the best safety practices, when flying both to and from the UK. The Government understand the industry position on the UK’s continued participation in EASA and we will continue to work closely with industry throughout the negotiations.

On rail, arrangements are already in place for services through the Channel Tunnel and on the island of Ireland to ensure that these cross-border services continue in all circumstances. These arrangements will be supplemented by bilateral arrangements with France to support the continuation of these mutually beneficial services over the longer term, and we will continue to support the Northern Ireland Civil Service in future discussions with Ireland. The Government want to secure a close relationship with the EU transport safety agencies, including those for rail, as part of our future relationship.

Finally, maritime is a global sector and largely liberalised in practice. The UK’s departure from the EU will not create obstacles for UK ships in accessing EU ports. However, free trade arrangements can provide the legal certainty to underpin the market access that exists in practice.

The amendment of the noble Lord, Lord Whitty, also proposes a reporting requirement, a debate in both Houses and a vote thereon. On reporting, there is no need to set out—indeed, there may be a significant detriment in setting out—bespoke statutory reporting requirements on a specified date. I hope noble Lords agree that imposing a statutory duty on a Minister to provide public commentary at a fixed point in time on the likely outcome of confidential negotiations risks seriously disadvantaging negotiators acting for the UK. However, I highlight the comments on scrutiny made by my noble friend Lord Callanan in your Lordships’ House yesterday. It will remain the case that both Houses will have all the usual and long-standing arrangements for scrutinising the actions of the Government.

Let me summarise the Government’s response to the two key elements of this amendment. First, the smooth running of transport during the implementation period is already guaranteed. Secondly, the proposed report being published during the course of the negotiations is unlikely to be helpful and may significantly undermine the UK’s negotiating position. Given these considerations, I hope that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.

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I thank the Minister for that very full reply, and I thank colleagues, particularly committee members, who contributed to this debate. I accept some of what the Minister said, in the sense that, theoretically, during the implementation period nothing is supposed to change—but some of the mechanisms for ensuring that things do not change have disappeared. That is probably an issue for my next amendment because, if we are not involved in discussions in the various agencies and issues arise, there will be a problem in the implementation period.

I agree that the real problem is from the new date of 31 December—or, in deference to my noble friend on the Front Bench, 22 December or thereabouts. The whole point of me asking for a report in July is to ensure that, in good time for the December date, all the various sectors, plus individual motorists, brokers and insurance companies and so forth, understand the position. It may be over-glossing it to require a vote of both Houses, but I think the industry and the nation require a comprehensive report, in some form, to the House and the country, to explain what will happen in all these modes of transport beyond December.

I will not press this amendment or the July date. This was always a probing amendment, and I have got a number of commitments from the Government, for which I am grateful. I am sure the Government are well aware of all these issues. I am not sure I entirely agree with my former colleague on the committee, the noble Baroness, Lady Noakes, about the degree of preparedness of Ministers before us; that was probably true of the last Minister we saw, but it may not have been true of earlier Ministers. I shall draw a curtain over that.

I accept the Government’s good intention in this respect, but, in the coming months, they will be under pressure from these various sectors to have greater clarification. It would be quite a good idea if we debated that again in the House, in whatever form the Government think is appropriate. Otherwise, we could still be in a situation where there is chaos in at least one of these sectors on 1 January next year. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43

Moved by

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43: After Clause 37, insert the following new Clause—

“Agencies of the EU and Euratom

(1) During the implementation period, the Secretary of State must continue to cooperate with the agencies listed in Schedule (Agencies of the EU and Euratom) and, if the Secretary of State considers it necessary, make regulations to enable cooperation.(2) Subsection (3) applies whether or not during the implementation period the United Kingdom is a member, associate member or observer at an agency, or has no formal association with it.(3) No later than a month before the end of the implementation period, the Secretary of State must lay a report before both Houses of Parliament setting out the United Kingdom's intended future relationship with each agency listed in Schedule (Agencies of the EU and Euratom) after the implementation period.”Member’s explanatory statement

The EU executive agencies have impacts on different sectors of UK business and society. This amendment would compel the Government to set out how they intend to fulfill their obligations in respect of the agencies during the implementation period, and how they intend future relations with those agencies will be conducted afterwards.

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My Lords, I shall speak also to Amendment 62. Veterans of these withdrawal Bill debates—I cannot remember how many we have had now—will know that I have become somewhat obsessive about the agencies. The original EU withdrawal Bill transposed into UK law in a very sensible way—albeit a complicated way, and one that has taken a lot of work by our sub-committees to put into effect—most directives and regulations from the EU. In addition to those directives, however, day to day, it is often the agencies of the EU that are actually smoothing the way so that we have a co-ordinated market in the areas that they cover. Other areas—for example, security; I heard the noble Lord, Lord Paddick, talking about police co-operation the other day—are facilitated via these agencies in interpretation, enforcement, gathering information and monitoring the activities that they oversee.

At 4.15 pm on a Thursday, I shall not go through each of these 40-odd agencies and explain their importance or why we need greater clarity, but one problem of our imminently being in the implementation and transition period is that, while all the rules remain the same, we are no longer at the table. Whether they cover transport, as we have debated, or sectors such as chemicals or medicines—we used to have the European Medicines Agency here in London but it has more or less gone already—or any other area of activity, we do not know yet what long-term arrangements we will make with these agencies. Some have countries not within the EU at present as observers or associate members, but there has been no clarification from the Government of how this will work.

Let us take one industry that I spoke about in the House during the passage of one of the previous Bills: the chemicals industry and the REACH provisions. The Government have made it clear that we have transposed all the rules. They have designated the Health and Safety Executive as the body that will take over from the European body and establish a duplicate system for, effectively, registering and testing new chemicals. That is quite an expensive process, and it has proved quite a difficult legal one in terms of UK companies and traders having access to the legal rights that arose from the patenting and testing procedures under the European Chemicals Agency. A number of noble Lords may well have received approaches from the Royal Society of Chemistry, explaining why it is necessary for us to participate in the European agency rather than try to duplicate it totally through the Health and Safety Executive.

That is just one, rather major, industry that will face difficulties unless we continue to have a positive, engaged arrangement with the European agency. Even in that field, there are parallel situations for chemicals such as pesticides, cosmetics and, as I have mentioned, the whole area of pharmaceuticals and medicines. We need continued absolute co-operation for those areas to work, otherwise there will be serious safety, environmental and medical consequences.

I appreciate that some of this will have to be legislated for by the Brexit-related Bills that we are promised. I understand that a new version of the agriculture Bill has been printed in the Commons today, and the environment Bill will deal with some of these issues. However, my general point is that, unless we take seriously the role that these agencies have hitherto played and either have a replacement based in the UK that does the same job and/or continue some sort of positive relationship with these agencies, many activities in the economic area and in the areas of law enforcement, science and technology, data-sharing and all the others covered by the agencies listed in Amendment 62 will become more complicated for individuals and companies attempting to meet all the requirements and regulations, particularly smaller companies. If they have to do that twice—if they import from or export to the EU—there will be an additional cost and potential delay in using the latest technology, the latest information or the latest criminal information.

My amendment might not be exactly the best way of achieving what I am seeking, but I would like an indication from the Government that they are working on this and are positively considering whether we should seek associate membership of each of these agencies or an equivalent arrangement post 31 December. I hope that the Minister can at least give me some clarity and reassurance on these issues. I beg to move.

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My Lords, I thank the noble Lord, Lord Whitty, for his dogged persistence in pursuing this matter. There is no doubt that, as we move beyond the end of this year, we will start to lose out on all the joint research on the issues around novel foods, scientific research into diseases and threats, pollution, climate change and so on—all the things that scientists are working on—unless we move ahead in the way that the noble Lord has described. It would be criminal if at a time when we are all facing so many common threats, particularly from climate change, we started reinventing the wheel. We do not have the scientific capacity to reproduce the sort of work that goes on at the Joint Research Centre in Ispra in Italy, for example, which is the combined research of the cutting-edge scientists of so many countries.

I doubt that it will be in the lifetime of this Government that we will be able to measure their failure to do the sort of work that the noble Lord is suggesting but, unless a solution is reached along the lines that his amendment suggests, we will certainly suffer in five, seven or 10 years’ time.

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My Lords, this is not the first time we have debated the options for future UK participation in EU agencies and I doubt it will be the last. However, it remains a vital issue, and one where the Government and the Opposition remain at odds.

We have always been clear that, while it would require ongoing payments to the EU, it is in the national interest for the UK to continue working within or alongside EU agencies. These are the bodies that were established with the UK’s blessing, and indeed often at its insistence, to share best practice and promote efficiency by avoiding unnecessary duplication. Participation often comes with access to shared databases or alert systems. These are particularly important for food safety, product recalls and so on.

Under Mrs May, the Government shifted from point-blank refusal to even debate the issue to half-hearted commitments to exploring their options. Later they edged towards continued participation in some agencies if the price and terms were right. All the while we edge towards our exit without any kind of clarity. Your Lordships’ House and its committees have previously explored the options and precedents at some length. I hope the Government will have undertaken their own assessments. The Minister will know that it is not only possible for the UK to continue as part of many agencies but that that would be actively welcomed by our friends and colleagues across the EU 27.

As with the last group of amendments, I know the Minister will fall back on the fact that these are matters for the next phase of the negotiations. I also know that the Government will resist this amendment, as they have done with every other amendment that we have debated in recent days. I strongly disagree with that approach but it is the Minister’s prerogative. However, the suggestion from my noble friend Lord Whitty is a sensible one. All he seeks is an assurance that Parliament will be provided with information on the Government’s plans for future participation in each EU agency and will have the chance to debate those decisions. I have no doubt that your Lordships’ House’s committees will continue to carry out inquiries in these specific subject areas, and those reports will continue to be useful and give us the chance to talk about specifics, but I would like a commitment from the Government that they will be proactive in their approach, providing a speedy response and ensuring that sufficient time is allocated for discussion.

In my career I have been a much-regulated person, and the value of effective regulation when it comes to safety, trading, smoothness and so on is overwhelming. Every now and then we get a sad reminder of that when it breaks down, and unfortunately we have had this recently in the aviation industry. To take on the sheer complexity of certificating aeroplanes, for instance—in this case the Boeing 737 Max—you need an enormous level of competence and real political clout. The FAA failed to supervise Boeing successfully despite being a body in a big country which had all the resources to do it. The European aviation safety organisation did have that size. We have to recognise that to discharge these responsibilities without being part of a larger agency will be an enormous challenge, requiring enormous resources.

I really hope that the Government will take the general thrust of my noble friend Lord Whitty’s amendment and recognise just how valuable it is to retain membership of the European agencies in one form or another. The chances of generating our own capability to have the same impact on safety in particular, but also reliability, co-operation and so on, are, in my view, close to negligible.

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My Lords, this has been a short but worthwhile debate. I thank the noble Lord, Lord Whitty, for tabling amendments which have allowed us to discuss the matter. Amendment 62 lists the large number of agencies of which we are full members; I will not read them out either, but I recognise their value and worth over the years.

It is important to stress certain points at the outset. Of course, during the implementation period, we will remain full members of and have full participation in these bodies. We have also made declarations about which bodies we have a particular ambition to remain active in after that implementation period, covering things such as aviation safety, the chemicals agency and the medicines agency. We can all see the value in those. However, I must stress again that these elements will be subject to an ongoing negotiation. They cannot be secured by unilateral demand. There will be a discussion to take that matter forward.

It is important to stress that in each of these areas and with each of these agencies, it is not the Government’s intent to make any of the adjustments in secret. It will be necessary for all those regulated or affected by those agencies to understand how the Government-EU negotiations will impact the industries, sectors and the individuals themselves. The obligation to provide a report is all but superseded by the Government’s necessary commitment to do this, to ensure the safe continuation of each of the elements for which those agencies are responsible.

The Prime Minister himself has said that he will keep Parliament fully abreast of these developments, and rightly so. Even more importantly, the committees of this House and the other place will be in full scrutinising mode to ensure that the way these evolutions unfold is fit for purpose, works for those affected and ultimately delivers against the Government’s objectives of allowing growth in these areas. A number of noble Lords have hinted that some of these areas are more challenging to deal with and that is why we need to find ways of working through, to make sure that we are not dimming our ambitions or collaborations in any way. I hope that through those negotiations we will be able to move these matters forward in constructive ways.

The noble Baroness, Lady Miller, asked about the research challenges. I accept that the Joint Research Centre and some of the institutions to which we belong will need to be considered in a new light. I also recognise that we are a participant not just because of our membership but because of respect for the science for which we are responsible and the work we are able to bring. That is a testament to our universities and our wider academic sectors. We should not lose sight of the fact that we are not just active but valued participants in a number of these areas. That relationship must continue because, in many respects, the research that is being considered is more important than the politics which underpins some of today’s debate.

I cannot accept the amendment, but I accept why the noble Lord, Lord Whitty, tabled it. I accept that he has done so to try to secure from the Government an understanding and an appreciation of how we will go forward. The important thing is that we will be transparent. The negotiations will consider our relationship with each of these agencies and, as that consideration evolves, we shall ensure that both Houses of Parliament are fully abreast of what this will mean. We will do so in a manner that allows the necessary scrutiny that noble Lords would expect from the committees we have here today. The settled will of developing these ideas will be done in collaboration with the EU. Those negotiations are important but, on a number of issues, I am afraid we cannot give the commitments that even I would like to give just now because they rely upon that negotiated approach. On that basis, I ask the noble Lord, Lord Whitty, to withdraw his amendment, in the knowledge that his ambition is, I believe, also shared by the Government.

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My Lords, I am very grateful for that full reply from the Minister on the intent of Government in these areas. I would, however, ask him to comment on one or possibly two areas.

First, the three agencies that he picked out were the ones that the previous Prime Minister picked out, in one of her major speeches in this saga, as being particularly important for continuing participation. Perhaps I should solidly approve the consistency of policy within the Government over the change in regime, but if that is still the priority, it is a rather limited number of these agencies.

Secondly, the noble Lord said that things will continue as normal during the implementation transition period. My understanding—as of a few months ago, anyway—was that, while the rules would remain the same, our participation in any of the executive bodies of these agencies has been denied by the European Union. If there is a change in that situation, I would strongly support it, but my understanding is that only a few weeks ago the EU’s view was that we would no longer participate, even though we were bound by the rules. Could the Minister comment on that?

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Yes, of course. The noble Lord is correct. I did not mean to imply that there is no change whatever. I meant that what those agencies do, and our commitment to those agencies, continues unchanged during the implementation period, until such time as the negotiations reveal the structure or the future arrangement. I picked out the three particular agencies because there has been continuity on those between the two Administrations post the election or post change of regime, and those are clearly ones in which we would wish to see an active participation. We would prioritise these in developing a relationship with the EU, but not exclusively so—I would not wish it to be thought that, of the agencies that have been listed, only those three are for active consideration. Those are ones that, in light of our conversations and debates so far, probably stand at the top of the list. For each of the others, an accommodation and a relationship will be required. What it will be and how it will be determined will ultimately evolve through those negotiations. I hope this House and the other place will be kept fully informed of those.

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My Lords, I thank the Minister very much for that clarification, and I beg leave to withdraw the Amendment.

Amendment 43 withdrawn.

Amendment 44 not moved.

Clause 38: Parliamentary sovereignty

Amendment 45 not moved.

Debate on whether Clause 38 should stand part of the Bill.

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My Lords, Clause 38 is purely declaratory: it has no effect whatsoever, except to appease the appetite of the hard ideologues on the Conservative right. The Select Committee on the Constitution notes explicitly that

“this Clause has no legal effect”.

Its opening phrase,

“It is recognised that the Parliament of the United Kingdom is sovereign”,

is poorly drafted. It does not say who recognises it, or what effect that might conceivably have. It ought, at least, be an active declaration of the principle of parliamentary sovereignty.

The model for such a declaration was, of course, the ultimate Henry VIII clause in the Statute in Restraint of Appeals 1532, which asserts that,

“this realm of England is an empire”.

It did not surprise me when I checked the date of that statute on Wikipedia to find an accompanying side reference to Sir John Redwood calling for the full restoration of our imperial sovereignty by excluding any appeals to any continental court. This clause is about the myths of English identity and history far more than about current practice.

The foreign appeals which the 1532 Act were restraining were to the Pope in Rome, rather than to any political institution. It has often struck me as odd and eccentric that several of the most ardent English nationalists and Brexiteers are right-wing Catholics, some of them converts, who regard the current Pope critically as tending towards a dangerous liberalism rather than the dogmatic orthodoxy that they prefer. They have nevertheless embraced an English doctrine which is rooted in our Protestant Reformation and its rejection of the universalism of the Catholic Church.

Since the 16th century, the doctrine of sovereignty has evolved a great deal and been the subject of a great deal of scholarship, some of which I had to teach when a university teacher. As Dutch, Danish, English and other lawyers have argued, national sovereignty is embedded in a framework of international law, which is necessary to enable trade and peaceful interchange among nation states. Under our system of parliamentary sovereignty, trade agreements and treaties have to be transposed into domestic law, but Parliament accepts that it cannot renegotiate what the Government have agreed and that international treaties therefore limit absolute parliamentary sovereignty. That is why it is inconsistent with any coherent doctrine of parliamentary sovereignty for a Government to neglect to carry Parliament with them as they negotiate major treaties which have significant implications for domestic law and domestic economic life.

International law and domestic law—as the Minister who is to answer knows extremely well—are closely intertwined. This Conservative Government, like their predecessors, stress the depth of their commitment to the legal, institutionalised international order. As the ideologues on the Conservative Benches rejected the constraints of European Union law, they will still be hemmed in by wider international commitments on human rights, standards, aviation safety, environmental law, shipping, data exchange and a great deal more.

Purists within the United States have gone further than English nationalists and argued that the perfection of the American constitution and the democracy it encapsulates must override the constraints of international law and treaties. Justice Antonin Scalia, appointed by President Reagan to the US Supreme Court, explicitly argued this exceptionalist view that international law could in no way override American law but, so far as I know, no right-wing English lawyer has gone quite so far yet.

The cry of the Vote Leave campaign was to re-establish parliamentary sovereignty by leaving the EU. Now that we are leaving, we hear a different tune, calling on Parliament to accept that it should not examine the process of government too closely. I listened this morning to the noble Lord, Lord Bethell, no doubt reading from his brief when he said that it is vital that we restore the traditional relationship between government and Parliament. I understand that to mean: that Parliament should accept that majority government has now returned; that it should accept what the Government propose without significant amendment, particularly in the second Chamber; and that the key principle of Britain’s unwritten constitution is that the Queen’s government must be carried on without let or hindrance. That is not easily compatible with parliamentary sovereignty.

This clause therefore declares a half-truth. The relationship between Parliament and government in reality remains contested. The noble and learned Lord, Lord Woolf, spoke yesterday of the importance of maintaining the separation of powers between Executive, Parliament and judiciary, but there is nothing here to suggest that the judiciary can in any way be a counterbalance to government. If I correctly understood what the Prime Minister implied in Prime Minister’s Questions yesterday, he thinks it improper for judges to play such a role.

Twice in the last week, we have probed the promise in the Government’s manifesto and the Queen’s Speech to establish within the next 12 months, as the manifesto said, a commission on the constitution, justice and democracy. We have gathered the impression from the incoherence of ministerial answers that the Government are unsure how far they wish to open up such underlying questions of our constitutional and democratic order. It may even be that some within the Government now regret that the commitment has been made, but the commitment to a constitutional commission has been made and these questions will have to be addressed.

This clause, however, with its very poor drafting and its failure to refer in way to the unavoidable influence of European law on the UK as we negotiate a close future relationship, as the political declaration makes clear, does not offer any useful contribution to that task or to providing clarity for our political, legal and constitutional debate.

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My Lords, as we have been told, Clause 38 is essentially meaningless. It is declaratory, I think it was said; a sop to the ERG. Indeed, the Explanatory Memorandum makes clear that the clause makes no material difference to the scope of Parliament’s powers.

However, it is not just neutral. The problem, as we discussed on Tuesday, is that, by having this clause but failing to refer alongside it to the Sewel convention that the UK Parliament will not normally use its powers to legislate in devolved matters without the agreement of the National Assembly—or indeed the Scottish Parliament—it appears to our colleagues there to undermine the devolution settlements.

It is for that reason, as we discussed in relation to Amendment 45 on Tuesday that the Welsh Government wish the Sewel convention to be restated alongside what is in this clause, if it really must remain in the Bill, although it is in fact otiose and it would probably be best for it to go altogether. I see the Chief Whip in his place; he always likes to know what we will return to. That is one point to which we shall return next week.

For the Opposition, however, there is a different problem with the clause, which is that the rest of the Bill does the exact opposite to what it says in it. Virtually all the rest of the Bill dilutes parliamentary sovereignty vis-à-vis the Executive: it takes powers from us, not to give them to Wales or Scotland but to give them to the Government.

Future historians will puzzle over why this clause is here. We are particularly grateful to the noble Lords for giving notice of their intention to oppose that Clause 38 stand part, because it gives us the opportunity to write that into Hansard, so that when future historians—I am a historian—look at why on earth this clause was there, they can say it was there to keep the ERG of the Tory party happy. That does not seem to us to be a very good reason to have it, but if it really must remain, without the reference to the devolution settlements it is in fact unhelpful, rather than neutral.

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My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

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My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

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My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

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I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

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It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

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Does the noble and learned Lord therefore accept that if there was an addition to restate the convention, that would not detract in any way from what is in the clauses at the moment?

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It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

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My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

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I think we are aware that it did not join the League of Nations.

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Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.

Clause 38 agreed.

Clauses 39 and 40 agreed.

Amendment 46

Moved by

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46: After Clause 40, insert the following new Clause—

“Regulations: extension of EUWA 2018 sifting provisions

(1) Schedule 7 to the European Union (Withdrawal) Act 2018 is amended as follows.(2) In paragraph 1(3), after “8(1)” insert “, 8A(1), 8B(1) or 8C(1)”.”Member’s explanatory statement

This amendment ensures the sifting provisions in the European Union (Withdrawal) Act 2018 apply to regulations made under inserted sections 8A to 8C.

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In moving Amendment 46 I will speak to the other amendments in the group, which essentially have the same effect. Under the Bill there will be no extra sifting procedure of the sort that we established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments that were laid using the negative procedure. Quite a large number of instruments were recommended for upgrade to the affirmative procedure, and the process helped to identify a variety of drafting errors that could otherwise have left the statute book inoperable in the event of a no-deal Brexit.

Our thoughtful and highly experienced Delegated Powers and Regulatory Reform Committee has recommended a sifting mechanism for this Bill along the lines of the 2018 Act. It would be able to recommend an upgrade from the negative to the affirmative procedure where the regulations were seen to be significant. That recommendation has been endorsed by our Constitution Committee, given the importance and potential breadth of powers in the Bill. It has also recommended that the sifting mechanism should be added as part of parliamentary scrutiny. In particular, the committee concurs with the recommendation of the DPRRC that the powers in Part 1, which are not accompanied by a sunset provision and are thus particularly important, should be subject to a sifting mechanism, as well as those in Part 3 and for the Clause 18 powers.

Rather than duplicate unnecessarily the provisions laid out in the 2018 Act, the amendments tabled in my name seek to make clear that the relevant delegated powers would be subject to these provisions. Given that we are in Committee, I hope that the Minister will understand that any issues in the drafting are the result of not having gone through all detail before, and that he will focus instead on the principle that the wide-ranging powers allowed for under the current Bill should be subject to a greater level of scrutiny. That, as I say, is not only for the sake of Parliament but to protect the Government from any errors.

I know that there may be some noble Lords who will probably disagree, having spent many a long afternoon in the Moses Room, but actually the sifting mechanism in the 2018 Act did work really well, and I think that that was the view of Ministers as well as those doing the scrutiny. Given that, it is slightly hard to see why the Government have not thought to repeat that process in this Bill, particularly given that it has been recommended by the DPRRC and the Constitution Committee. I beg to move.

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My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.

I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.

I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—

“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”—

was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.

I turn specifically to Amendment 66A in my name. It might seem a comparatively minor change, but it is indicative of the Government’s whole attitude to Parliament in the Bill, hence the significance of what I have just been saying. The proposal at page 68, line 9, is really quite extraordinary:

“A statutory instrument containing regulations under section 41(1) is subject to annulment in pursuance of a resolution of either House of Parliament.”

That sounds innocuous, but it actually means that the Government think that this is so unimportant that it can be pushed through at top speed. It is, if you like, the shortcut of all shortcuts.

That is why it has been picked out by the Delegated Powers Committee as a classic example of a Henry VIII power. I remind your Lordships that that committee is not in any sense a party committee; it is a cross-party committee led by a very distinguished former Conservative Minister. It speaks to us all about our role in this House. The committee says that

“clause 41 (consequential and transitional provision etc.) contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.

In seeking to justify this departure from the norm, the Government mention that primary legislation passed or made after December 2020 is not amendable under this provision. This offers limited comfort, given that every Act of Parliament passed before the end of December 2020 is amendable by Ministerial regulations made under the negative procedure. The Government also seek to justify the negative procedure on the ground that consequential powers are construed strictly by the courts. This is not relevant to the question whether Parliament should be able to scrutinize the legislation under the affirmative procedure.

Where regulations under clause 41(1) modify primary legislation or retained direct principal EU legislation, the affirmative procedure should apply in accordance with established practice and be consistent with the general approach in the Bill.”

That is why this relates back to our previous debate. Incidentally, the Constitution Committee made a very strong recommendation to agree with that recommendation.

It is quite possible that the Bill will be amended by this House next week. I know not on what issue, but it is quite likely that it will go back to the other place for Members of Parliament to look at again. I wonder whether the proposal tucked away at page 68 is actually a simple mistake, because it is so silly. What is the point of doing it? All it does is undermine the proper way the Bill should be considered and the proper way your Lordships’ House should take on its responsibilities in scrutinising the Government’s proposals. If it is a simple mistake, let the Minister simply say to us, “Look, come on. Let’s get this right.” Let us, for once, make some reasonably sensible change to the Bill. If it goes back to the other place, we will simply make sure that this matter is very firmly taken under the affirmative procedure, so that Members in both Houses can look at the issue in precisely the terms that they are advised to do by our delegated powers and constitution committees.

I hope the Minister will say, “Actually, we could look at this again.” We have not heard that phrase often in the last few days, but I plead with the Government. This is such a silly thing to do and flies in the face of all protestations of the importance of the role of Parliament in this regard.

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I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Tyler, for their opening statements on the amendments in this group. Of course, I well remember the many debates that we had during the passage of the 2018 Act on the extremely important subject of delegated powers. It is of great interest to us. I do not think the other place took as much interest in it, but it is nevertheless an important subject and I am grateful to both the noble Baroness and the noble Lord for raising it.

I will say at the start that the Government have read with care the reports of the Delegated Powers and Regulatory Reform Committee and, of course, the Constitution Committee, which were referred to. I am also grateful, as I said in my opening at Second Reading, for their contribution to the exit process to date.

I will speak first to the amendments of the noble Baroness, Lady Hayter. I note that they are co-signed by the noble Lord, Lord Blencathra, who is not in his place. He is a signatory to these amendments and an extremely distinguished chair of the committee. A number of Members here are, of course, veterans of the debate that we had during the passage of the EU withdrawal Act about the introduction of a sifting mechanism into the Act. I agree that the sifting mechanism introduced then was a contribution to the unique set of circumstances in which we found ourselves as a consequence of that Act. I will argue today that the circumstances in which we find ourselves now are very different from those of the 2018 Act.

The first point, of course, is that the volume of statutory instruments that we will make under this Bill will be significantly less than those made under the 2018 Act. I suspect that this comes as a significant relief to many noble Lords. Secondly, the powers themselves are much narrower and more specific in nature. The DPRRC report itself acknowledged that:

“The scope of each power is … naturally constrained by the scope of the … matter contained in the Agreements that it is intended to address.”

Even more importantly, we have set out the procedure to be used when exercising the powers in this Bill. Ministers do not have the discretion that was afforded to them in the 2018 Act regarding the procedure attached to the use of the powers in this Bill. The argument then was that we needed a sifting mechanism because of the wide discretion given to Ministers to select the appropriate procedure. We do not have that procedure in the way this is drafted. As Members have observed, the general approach that we have taken is that the affirmative procedure will apply when the powers in the Bill are exercised so as to modify primary legislation—the so-called Henry VIII power—or retained direct principal EU legislation; the affirmative procedure will always apply in those circumstances.

Where the negative procedure applies, Members of the House may scrutinise the regulations and may, of course, pray against them should they wish to do so, as is usual for regulations of this kind. The sifting mechanism that was inserted in the 2018 Act worked very well. It was a unique response to a unique Bill. There were always going to be a huge amount of SIs introduced. There was much less certainty at the time about how they would be used, and a considerable amount of ministerial discretion on the procedure to be used. I submit to the House that none of those conditions applies to this withdrawal agreement Bill. I hope I have explained why the procedures for the powers in this Bill are of a different nature to those in the withdrawal Act and why the Government therefore cannot accept these amendments.

I turn to Amendment 66A, tabled in the name of the noble Lord, Lord Tope. As noble Lords are aware, consequential powers are standard provisions in legislation—even legislation of great constitutional importance, such as the Constitutional Reform Act or the devolution statutes. The Bill already includes many consequential amendments at Schedule 5, but we also need to take a power to make further consequential provisions to the statute book. Again, this power is limited to making amendments consequential to the contents of the Act itself and. like consequential powers in other primary legislation, this power will be construed strictly by the courts. It is in everyone’s interest that the statute book functions effectively.

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Is the Minister really saying that Clause 41(1) is so limited in that way? Perhaps I may read it to him again:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”

That is very widely drawn. If, as he said just now, there are fewer orders in prospect, that makes it all the more important that, with something as important as this, the recommendations of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee be taken into account. I cannot see that his argument stands up.

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The clause that the noble Lord quoted comes under the consequential provisions. As I just said, the consequential power is construed strictly by the courts. I am advised by departmental lawyers that there is an extremely narrow focus; they are amendments that can be made only as a direct consequence of the Bill when it is enacted. I do not think that it in any way provides leeway for a Minister to make things up on the spur of the moment and amend primary legislation. The powers are very strictly constrained to consequential amendments, and this is not an unusual provision. It exists in many other Acts, including those I quoted earlier. We believe that moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make consequential changes before exit day.

As I said also on the other amendments, I am sure that the noble Lord will agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members will still have the opportunity to pray against regulations should they consider it appropriate—and, as I said, there are the restrictions on the use of that power that I mentioned earlier.

I hope that, with the reassurances I have given noble Lords and a fuller explanation of the powers we propose to take, the noble Baroness will feel able to withdraw her amendment.

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Let it never be said that we think the Minister would make up something on the spur of the moment.

I have only two things to say. First, I am sure that both our Delegated Powers and Regulatory Reform Committee and our Constitution Committee considered the points that the Minister has just made and nevertheless recommended a sifting procedure, but be that as it may. Secondly—this does not actually affect these particular amendments, because we are talking about the negative procedure here—the Minister said that there would be fewer SIs under this Bill. He also said that it has “narrower powers.” I do not think our noble and learned Members who spoke the other day would see the power it gave, albeit of the affirmative, to Ministers to alter the way ECJ rulings are heard as a “narrow power.” But that, as I say, is not covered by this, although some of the powers in the Bill are rather large.

However, the point the Minister makes about the ability to pray against negative draft orders is significant. I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Clauses 41 and 42 agreed.

Schedule 1 agreed.

Schedule 2: Independent Monitoring Authority for the Citizens’ Rights Agreements

Amendment 47 not moved.

Amendment 48

Moved by

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48: Schedule 2, page 47, line 12, at end insert—

“(d) a member who knows about conditions in England relating to the relevant matters.”Member’s explanatory statement

This amendment adds England alongside the other constituent parts of the United Kingdom.

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My Lords, I find myself having to move the last amendment slightly by accident. I will also speak to the other three amendments in the group. I apologise to the Committee: I had intended to group them with a much earlier group that was debated yesterday morning. Unfortunately, the way in which the Bill has been concertinaed caught me napping and I have ended up having to do this at the last gasp.

Since it is the last gasp, I want to say one thing. I am a little concerned. I have listened to a lot of the debate both in the Chamber and outside it, and I am reading the rest of it. I feel that this has not been a normal Committee in the House of Lords. That is not just because it has been concertinaed into three days; we understand why that is so. It is the first time, I think, that I have not heard or read debate on a single amendment when the Government Front Bench have said, “Yes, there are interesting points to consider here. We’ll take them away and consider them and perhaps have some meetings outside the Chamber before Report.” Again, the concertinaed timetable makes that difficult but that is the way the House of Lords normally works. This is a special and unusual Bill and we are in unusual times, but it is an indication of the way Brexit has divided not only the country—almost down the middle—but this House and every institution in the country. I believe that there is a fundamental lack of trust here.

Perhaps I am being presumptuous, but I will have been here for 20 years come May, so I have a right to be slightly so. I say this to the Government Front Bench: at times, I have seen the House of Lords descend into a certain amount of chaos, but most of the time it does a very good job of scrutinising and revising Bills. We now have a majority Government in the Commons. I have been here when there have been big majority Governments. There have been periods of Labour government during which we in the Liberal Democrats worked closely with the Conservatives, as the two opposition parties, and sent things back to the Commons time and again.

We have also negotiated with the Government; indeed, there were Lords Ministers in a majority Government during the 2000s who took it upon themselves to go back to the Commons and the Government to try to get a deal. The noble Lord, Lord Whitty, who was here earlier, was excellent at that. On a number of occasions, he got deals on agriculture Bills and then came back here and satisfied—or at least half-satisfied—the Liberal and Conservative groups. I hope we will move back to that sort of thing once we get over the traumas of Brexit.

I sense a feeling on the Government’s side that everybody who is against Brexit—who voted to remain and tried to stop Brexit—is trying to stop the exit day on 31 January and to put off the final reckoning at the end of the year until some time in the far future. I can speak only for myself—I cannot speak for my group, and my Chief Whip is here so I had better be careful what I say—but I believe that there certainly is consensus in our group. We accept that the UK will leave the EU on 31 January. That decision has been made. That is why we are more than happy to co-operate in getting this Bill through in time.

I believe that, now the decision has been made, to quote whoever it was:

“If it were done when ‘tis done, then ‘twere well

It were done quickly”.

The quicker it can now happen—and everything can be sorted out in the meantime—the better. Then there is certainty and we can all move forward into the future. If some of us want to start long-terms campaigns to go back in, we can do that; but let us have the certainty of the end of this year, if at all possible. Many of us are very doubtful that the Government can do all the necessary negotiating by this summer but, if they can, good luck. They will need the help and assistance of opposition parties in Parliament—including in the Commons, where there is a huge majority—to achieve that. I believe that is what should happen. I do not know if that is the view of my group generally, but it is what I believe.

I have four little amendments, on which I will try to be quick because everybody who is still here wants to go for the trains. Amendment 48 comes back to the relationship with the devolved authorities and other “relevant” authorities, as it says here. We are back to the composition of the independent monitoring authority. Three of the members—or perhaps four, if Gibraltar is included—will have to know about “conditions” in Scotland, Wales, Northern Ireland and perhaps Gibraltar. It is a strange phrase, “knows about conditions in”. That leaves the rest of the UK appointees, who are supposed to know about conditions everywhere.

The appointments of the specific people who will, in a sense, have a duty to represent what is going on in Scotland, Wales and Northern Ireland—and perhaps Gibraltar—are subject to consultation with the relevant authorities in those areas. But if the authorities say they do not like the person put forward, the Government can go ahead anyway and appoint the person; all they have to do is write a few words as to why they have done it. That is a tiny thing, in a sense, but it seems to strike at the heart of the relationship between Whitehall and Westminster and the devolved authorities. I think it is wrong, and this amendment and another say that they have to come to agreement, in effect. It is not difficult to negotiate and come to an agreement in those circumstances.

The other amendments, which are slightly wild, add England to this. The present devolutionary settlement in this country—I am talking particularly about England and Scotland here—is not stable and, I believe, not sustainable for the future. This is just one little example of that. People will be there as UK persons but also representing England. It is not clear whether the people with special knowledge of Scotland and so on will have anything to do with England, but it is an asymmetrical relationship and is falling apart in all sorts of ways. Every time there is a little example of something falling apart, it just stokes up the pressure for Scottish independence.

In my view, Scottish independence as such, just brought about by a referendum, would be pretty disastrous for this island. We must sort out the relationship between Scotland and England. I say “we”, because at the moment it is assumed that the future of Scotland is all to do with people in Scotland. I do not think it is; it is to do with people in Scotland and England, because it is a question of the relationship between us.

Finally, if Scotland and Wales have representatives or people who know about the conditions there, why does not the north of England? These issues of devolution within England are going to come to the fore. I know this is far and away beyond the purview of this Bill and these amendments, but such issues will underline a huge amount that happens in this Parliament and a huge amount of the politics out there during this Parliament. If this constitutional convention can start to get to grips with those things—starting from scratch; not from “Will Scotland be independent or not?” but from “What relationship do we really want in future between Scotland and England?”—then Wales and Northern Ireland can follow along. Having said that—I am totally out of order talking about this under this group of amendments—I beg to move Amendment 48.

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My Lords, I responded to an amendment in the name of the noble Lord, Lord Greaves, on day 1 of Committee, so it seems we have come full circle. I offer a brief response to these further amendments regarding the independent monitoring authority. I understand that these are probing amendments, and I am keen to hear the Minister’s response, so I will not detain the Committee after three consecutive days of debate on this Bill, which I hope will not be a trend in future when debating Bills off the back of Brexit.

I am particularly interested in Amendments 49 and 50, which would prevent the Secretary of State from appointing a person to the IMA against the wishes of the relevant body. This suggestion strikes me as entirely sensible. Given previous ministerial assurances on the issues of devolution, I would be very interested to hear from the Minister in what circumstances the Government would seek to force through an appointment that had been opposed by a devolved Minister. If that were to happen, the current sub-paragraph (7) requires the Secretary of State to make a statement outlining the reasons for proceeding with that appointment. Can the Minister confirm what form this statement would take, and what opportunities, if any, the relevant devolved legislatures would have to hold the Secretary of State to account?

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I am obliged to the noble Lords, Lord Greaves and Lord McNicol of West Kilbride, for their contributions.

As was the case during Tuesday’s debate on Clause 15, we have noticed the importance of the IMA’s role and functions interacting properly with the devolved settlements. I seek to reassure the noble Lord, Lord Greaves, and the House, that the IMA has been designed in a way that takes into account the individual interests and circumstances of Scotland, Wales, Northern Ireland, England and indeed Gibraltar.

In addressing the amendments, I begin by showing the Committee that the Government’s approach to establishing the IMA, as set out in Clause 15 and Schedule 2, was reached following detailed and extensive engagement with the devolved Administrations. As a result of this consultation, we have ensured on the face of the Bill that the IMA’s board will contain members with knowledge of relevant matters in relation to citizens right across the United Kingdom. Those relevant matters include not only matters reserved for the United Kingdom Government, but also matters that are devolved to the Scottish, Welsh and Northern Irish Administrations. Therefore, we have provided a full and robust role for Ministers of the devolved Administrations in the appointment of candidates to board positions. Of course, parts of the citizens’ rights agreements that the IMA will monitor, such as provisions covering healthcare, welfare and education, are already devolved to Scotland, Wales and Northern Ireland, which has been taken into account. That is why there is a requirement for expertise in these areas.

However, I reassure the noble Lord, Lord Greaves, that the IMA will also possess the same expertise specifically in relation to England. He refers to Amendment 48 as seeking to achieve expertise in that area, but I draw his attention to paragraph 4(1) of Schedule 2, which states that

“the Secretary of State and the non-executive members must have regard to the desirability of the IMA’s”

board possessing relevant expertise in relation to citizens’ rights across the United Kingdom. It should embrace both reserved areas which are pan-UK and those devolved areas specific to the particular devolved Administrations. We can ensure by default that regard is had to the desirability of the IMA possessing expertise in relation to England. It is for that reason that Amendments 48 and 51 are unnecessary and I shall in due course invite the noble Lord not to press them.

I turn now to the role that we have provided for Ministers of the devolved Administrations, a point raised by the noble Lord, Lord McNicol, in appointing these members following consultation. As I say, there will be a full and robust role for the devolved Administrations. They will be consulted on the skills and expertise required of candidates and the names of shortlisted candidates will be shared with them for comment. In the Bill we have also required the Government to seek the agreement of the devolved Administration before appointing these candidates and the IMA must contain the correct expertise.

We have included the contingency, which ensures that we can make crucial IMA board positions if and when there is ever a situation in which no agreement is forthcoming from the devolved Administration. If we were not able to do that—it is a matter of constitutional propriety—we would potentially be placing the UK Government in breach of their international law obligations under the withdrawal agreement, in terms of which a suitable IMA must be in place to safeguard the rights and interests of the relevant citizens covered by it. It is not only appropriate but necessary that we have such a default mechanism. However, it is not anticipated that we will ever be required to do that but the Bill provides that in such an eventuality the Secretary of State will have to make a published statement in the public domain so that people may comment on it. The Minister may be held to account for the terms of that statement if required.

We are confident that the appointments model will work for the devolved Administrations and that a collaborative approach will result in our being able to maintain a suitably qualified body to discharge the obligations that we are undertaking under the withdrawal agreement. It is for that reason that I invite the noble Lord not to move his Amendments 49 and 50, recognising, as he himself candidly observed, that they are essentially probing amendments.

That is the position that we find ourselves in. I hope noble Lords are reassured that these provisions in the clause are required so that we can have a properly constituted IMA that covers the entirety of the United Kingdom and Gibraltar and that we can, in extremis, ensure that we meet our obligations under international law. I invite the noble Lord to withdraw the amendment.

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I am grateful. I thank the Minister for his reply and his usual diligence. My mischievous gene says that I should now call a Division but I do not think that would make me popular with anyone and it is not necessary. I beg leave to withdraw Amendment 48 and, in so doing, wish everyone a relaxing weekend before we start again on Monday.

Amendment 48 withdrawn.

Amendments 49 to 57 not moved.

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If Amendment 58 is agreed, I cannot call Amendments 59 and 60 by reason of pre-emption.

Amendment 58 to 61 not moved.

Schedule 2 agreed.

Schedule 3 agreed.

Amendment 62 not moved.

Schedule 4: Regulations under this Act

Amendments 63 to 68 not moved.

Schedule 4 agreed.

Schedule 5 agreed.

House resumed.

Bill reported without amendment.

House adjourned at 5.35 pm.